H. B. 2656
(By Delegate Shook)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §44-1-14 of the Code of West Virginia,
1931, as amended, relating to appraisement of estates of
deceased persons; providing that personal representatives of
estates in wrongful death actions need not file appraisements;
and that such settlements or jury awards are nonprobate assets
of an estate.
Be it enacted by the Legislature of West Virginia:
That §44-1-14 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-14. Appraisement of real estate and probate personal
property of decedents; disposition; and hiring of
experts.
(a) The personal representative of an estate of a deceased
person shall appraise the deceased's real estate and personal probate property, or any real estate or personal probate property
in which the deceased person had an interest at the time of his or
her death, as provided in this section.
(b) After having taken the appropriate oath, the personal
representative shall, on the appraisement form prescribed by the
Tax Commissioner, list the following items owned by the decedent or
in which the decedent had an interest and the fair market value of
the items at the date of the decedent's death:
(1) All probate and nonprobate real estate including, but not
limited to, real estate owned by the decedent, as a joint tenant
with right of survivorship with one or more parties, as a life
estate, subject to a power of appointment of the decedent, or in
which any beneficial interest passes by trust or otherwise to
another person by reason of the death of the decedent; and
(2) All probate personal property, whether tangible or
intangible, including, but not limited to, stocks and bonds, bank
accounts, mortgages, notes, cash, life insurance payable to the
executor or administrator of the decedent's estate and all other
items of probate personal property.
(c) Any real estate or interest in real estate so appraised
must be identified with particularity and description. The
personal representative shall identify the source of title in the
decedent and the location of the realty for purposes of real
property ad valorem taxation.
(d) For purposes of this section, the term "probate personal
property" means all property which passes by or under the
decedent's will or by the laws of intestate descent and
distribution or is otherwise subject to administration in a
decedent's estate under common law.
(e) The personal representative shall complete, under oath, a
questionnaire included in the appraisement form designed by the Tax
Commissioner for the purpose of reporting to the Tax Commissioner
whether the estate of the decedent is subject to estate tax as
provided in article eleven, chapter eleven of this code and whether
the decedent owned or had an interest in any nonprobate personal
property:
Provided, That the Tax Commissioner shall design a
questionnaire that is as much as possible phrased in understandable
English.
(f) The appraisement form must be executed and signed by the
personal representative. The original appraisement form and two
copies thereof, together with the completed and notarized
nonprobate inventory form required by section seven, article
eleven, chapter eleven of this code, shall be returned to the clerk
of the county commission by whom the personal representative was
appointed or to the fiduciary supervisor within ninety days of the
date of qualification of the personal representative. The clerk or
supervisor shall inspect the appraisement form to determine whether
it is in proper form. If the appraisement form is returned to a fiduciary supervisor, within ten days after being received and
approved, the supervisor shall deliver the documents to the clerk
of the county commission. Upon receipt of the appraisement form,
the clerk of the county commission shall record it with the
certificate of approval of the supervisor and mail a certified copy
of the appraisement form, together with the unrecorded nonprobate
inventory form, to the Tax Commissioner. The date of return of an
appraisement form must be entered by the clerk of the county
commission in his or her record of fiduciaries. The nonprobate
inventory form shall be considered confidential tax return
information subject to the provisions of section five-d, article
ten, chapter eleven of this code and may not be disclosed by the
clerk of the county commission and his or her officers and
employees or former officers and employees, except to the Tax
Commissioner as provided in this section. Nothing in this section
shall be construed to hinder, abrogate, or prevent disclosure of
information as authorized in section thirty-five, article eleven of
said chapter.
(g) An executed and signed appraisement form is prima facie
evidence:
(1) Of the value of the property listed;
(2) That the property is subject to administration; and
(3) That the property was received by the personal
representative.
(h) Any personal representative who refuses or declines,
without reasonable cause, to comply with the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $25 nor more than $500.
(i) Every personal representative has authority to retain the
services of an expert as may be appropriate to assist and advise
him or her concerning his or her duties in appraising any asset or
property pursuant to the provisions of this section. An expert so
retained shall be compensated a reasonable sum by the personal
representative from the assets of the estate. The compensation and
its reasonableness is subject to review and approval by the county
commission, upon recommendation of the fiduciary supervisor.
(j) Except as specifically provided in subdivision (1),
subsection (b) of this section and in section seven, article
eleven, chapter eleven of this code, the personal representative is
not required to list and appraise nonprobate real estate or
nonprobate personal property of the decedent on the forms required
in this section or section seven of said article.
(k) Notwithstanding any provision of this section and article
to the contrary, a personal representative who has qualified as
such for the purpose of pursuing a wrongful death action pursuant
to the provisions of article seven, chapter fifty-five of this
code, is not required to file the appraisement forms required in
this section or any other section of this article, if the personal representative files an affidavit at the time of that person's
qualification of appointment in this state that the appointment is
for the purpose of pursuing an action of wrongful death pursuant to
the provisions of article seven, chapter fifty-five of this code
and that, until there is a settlement of the claim or collection of
a favorable jury verdict, the value of the estate of the deceased
is undetermined. A settlement or collected jury award in a
wrongful death claim is a nonprobate asset for the purposes of this
article.
NOTE: The purpose of this bill is to provide that personal
representatives of estates in wrongful death actions need not file
appraisements, as the value of the claim is undetermined at the
time of appointment; and to provide that such settlements or jury
awards are nonprobate assets of an estate.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.