Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 3221 History

   |  Email


hb3221 intr
H.B.3221

(By Delegate Staton)

[Introduced March 24, 2005; referred to the

Committee on the Judiciary]






A BILL to repeal §44-2-2 of the code of West Virginia, 1931, as amended; to am end said code by adding thereto a new section, designated §41-5-1a; to amend and reenact §44-1-1, §44-1-6 and §44-1-14a of said code; to amend said code by adding thereto a new section, designated §44-1-4a; and to amend and reenact §44-2-1 of said code, all relating to decedents and their estates generally; providing record notice of death; permitting personal representatives to qualify without appearing personally; eliminating administration of small uncontested estates of one hundred thousand dollars or less in assets exclusive of real estate assets; modifying the time of publication of notice of the filing of an appraisement; modifying the contents of notice of probate of estates; allowing estates having a value of one hundred thousand dollars to be probated without reference to a fiduciary commissioner; permitting county commissions to promulgate fees for fiduciary commissioners; and standardizing certain provisions governing probate which relate to fiduciary supervisors and county clerks.

Be it enacted by the Legislature of West Virginia:
That §44-2-2 of the code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new section, designated §41-5-1a; that §44-1-1, §44-1-6 and §44-1-14a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §44-1-4a; and that §44-2-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 41. WILLS.

ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.

§41-5-1a. Record notice of a person's death by filing a death certificate and will, if any.

Notwithstanding any provision of this code to the contrary, a death certificate and a will, if any, of a person who was a resident of the county or who owned property in the county at the time of death may be filed with the clerk of the county commission for the purposes of providing record notice of the person's death. The filing of a death certificate and a will, if any, does not commence probate of the person's estate.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.

ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-1. Executor has no powers before qualifying.

(a) A person appointed by a will as executor thereof shall or executrix of the will does not have the powers of executor or executrix until he qualify as such by taking an oath before or she qualifies by:
(1) (A) Filing with the clerk of the county commission or fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this state; and
(ii) Containing the names and last known addresses, if known, of any persons who would take any part of the estate as required in section thirteen of this article;
(B) The statement shall be sworn to by oath or affirmation before a notary public or other person authorized to administer oaths in this state;
and
(2)
Giving bond the county court in which for his or her service in this state unless the will or an authenticated copy thereof of the will is admitted to record or before the clerk thereof in vacation, except that which specifically states that the representative shall serve without bond, and the will: Provided, That he or she may provide for the burial of the testator funeral arrangements of the testator, pay reasonable funeral expenses and preserve the estate from waste.
(b) The clerk may require a person appointed by the will to appear personally to give the oath, for good cause found and specifically stated in a letter or notice mailed to the person.
§44-1-4a. No probate of small estates.

In any estate where the probate assets of the estate, excluding real estate, have a value of one hundred thousand dollars or less, the personal representative in addition to qualifying under section one-a or three of this article may file a sworn affidavit stating that the value of the estate, exclusive of real estate, has a value of one hundred thousand dollars or less exclusive of real estate and all known or discovered debts are or will be satisfied in the next immediately succeeding one hundred eighty days. If no protests or claims are filed within ninety days after notice is published pursuant to section fourteen-a of this article, the estate shall be closed by the clerk without further action or administration. If a protest or claim is received within ninety days, or if the personal representative reports to the clerk that a debt of the estate was not satisfied, or will not be satisfied, within the one hundred eighty-day period specified in the affidavit, the personal representative shall begin probate of the estate pursuant to the provisions of this chapter.
§44-1-6. Bond and oath; termination of grant in certain cases.
(a) At the time of the grant of administration upon the estate of any intestate, the person to whom it is granted shall: in the court or before the clerk granting it, give
(1)(A) File with the clerk of the county commission or fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this state;
(ii) Averring that the deceased left no will so far as he or she knows;
(iii) Containing the names and addresses, if known, of any persons who would take any part of the estate as required in section thirteen of this article; and
(iv) That he or she will faithfully perform the duties of the office to the best of his or her judgment;
(B) The statement shall be sworn to by oath or affirmation before a notary public or other person authorized to administer oaths in this state; and
(2) Give
bond and take an oath that the deceased has left no will so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment for his or her service in this state.
(b) The clerk may require a person seeking to be appointed under this section to appear personally to give the oath, for good cause found and specifically stated in a letter or notice mailed to the person.
(c)
If a will of the deceased be is afterwards admitted to record or if, after administration is granted to a creditor or other person other than a distributee, any distributee who shall not have has not before been refused shall may apply for administration and there may shall be a grant of probate or administration, after reasonable notice to such creditor or other the person theretofore appointed, in like manner as if the former grant had not been made, and such the former grant shall thereupon cease upon paying over of the estate which came into the former's hand to the subsequent representative.
§44-1-14a. Notice of administration of estate; time limits for filing of objections; liability of personal representative.

(a) Within thirty days of the filing of the appraisement of any estate as required in section fourteen of this article, On or before the fifteenth day of each month, the clerk of the county commission shall publish, once a week for two successive weeks, in a newspaper of general circulation within the county of the administration of the estate, a notice of the filing of the appraisement of any estate as required in section fourteen of this article which is to include:
(1) The name of the decedent;
(2) The name and address of the county commission before whom the proceedings are pending;
(3) The name and address of the personal representative;
(4) The name and address of any attorney representing the personal representative;
(5) The name and address of the fiduciary commissioner, if any;
(6) The date of first publication;
(7) A statement that claims against the estate must be filed in accordance with the provisions of article two or article three-a of this chapter;
(8) A statement published pursuant to article four-a of this chapter shall state that if no protest or claim on estate assets is made within ninety days, the estate will be closed without administration and no further protests or claims will be accepted, except as may otherwise be permitted by law;
(8) (9) A statement that any person seeking to impeach or establish a will must make a complaint in accordance with the provisions of section eleven, twelve or thirteen, article five, chapter forty-one of this code;
(9) (10) A statement that an interested person objecting to the qualifications of the personal representative or the venue or jurisdiction of the court must be filed with the county commission within three months after the date of first publication or thirty days of service of the notice, whichever is later; and
(10) (11) If the appraisement of the assets of the estate shows the value to be one hundred thousand dollars or less, exclusive of real estate specifically devised and nonprobate assets or, if it appears to the clerk that there is only one beneficiary of the probate estate and that the beneficiary is competent at law, a statement substantially as follows: "Settlement of the estate of the following named decedents will proceed without reference to a fiduciary commissioner unless within ninety days from the first publication of this notice a reference is requested by a party in interest or an unpaid creditor files a claim and good cause is shown to support reference to a fiduciary commissioner".
(b) At any time an estate is to be referred to a fiduciary commissioner, as part of the next publication as required in subsection (a) of this section, notice that the estate has been referred and the date by which claims against the estate must be filed. The publication of notice shall include the information required in subdivisions (1), (2), (3), (4), (5) and (6), subsection (a) of this section. This publication of notice is equivalent to personal service on the estate's creditors, distributees or legatees.
(b) (c) If no appraisement is filed within the time period established pursuant to section fourteen of this article, unless the estate is closed by the clerk pursuant to section four-a of this article, the county clerk shall send a notice to the personal representative by first-class mail, postage prepaid, indicating that the appraisement has not been filed. Notwithstanding any other provision of this code to the contrary, the county clerk shall publish the notice required in subsection (a) of this section within six months of the qualification of the personal representative.
(c) (d) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable.
(d) (e) The personal representative shall, within ninety days after the date of first publication, serve a copy of the notice, published pursuant to subsection (a) of this section, by first- class mail, postage prepaid, or by personal service on the following persons:
(1) If the personal representative is not the decedent's surviving spouse and not the sole beneficiary or sole heir, the decedent's surviving spouse, if any;
(2) If there is a will and the personal representative is not the sole beneficiary, any beneficiaries;
(3) If there is not a will and the personal representative is not the sole heir, any heirs;
(4) The trustee of any trust in which the decedent was a grantor, if any; and
(5) All creditors identified under subsection (c) (d) of this section, other than a creditor who filed a claim as provided in article two of this chapter or a creditor whose claim has been paid in full.
(e) (f) Any person interested in the estate who objects to the qualifications of the personal representative or the venue or jurisdiction of the court shall file notice of an objection with the county commission within ninety days after the date of the first publication as required in subsection (a) of this section or within thirty days after service of the notice as required by subsection (d) (e) of this section, whichever is later. If an objection is not timely filed, the objection is forever barred.
(f) (g) A personal representative acting in good faith is not personally liable for serving notice under this section, notwithstanding a determination that notice was not required by this section. A personal representative acting in good faith who fails to serve the notice required by this section is not personally liable. The service of the notice in accordance with this subsection may not be construed to admit the validity or enforceability of a claim.
(g) (h) The clerk of the county commission shall collect a fee of twenty dollars for the publication of the notice required in this section.
(h) (i) For purposes of this section, the term beneficiary means a person designated in a will to receive real or personal property.
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF DECEDENTS.

§44-2-1. Reference of decedents' estates; proceedings thereon.

(a) Upon the return of the appraisement by the personal representative to the county clerk, the estate of his or her decedent, by order of the county commission, must shall be referred to a fiduciary commissioner for proof and determination of debts and claims, establishment of their priority, determination of the amount of the respective shares of the legatees and distributees and any other matter necessary for the settlement of the estate: Provided, That in counties where there are two or more commissioners, the estates of decedents must be referred to the commissioners in rotation so there may be an equal division of the work. Notwithstanding any other provision of this code to the contrary, a fiduciary commissioner may not charge to the estate a fee greater than three five hundred dollars and expenses for the settlement of an estate, except upon: (i) Approval of the personal representative; or (ii) a determination by the county commission after a hearing that complicating issues or problems attendant to the settlement substantiate the allowance of a greater fee upon documentation that the fee is reasonable based upon the actual time spent and actual services rendered pursuant to a schedule of fees or rate of compensation for fiduciary commissioners promulgated by the county commission in accordance with the provisions of section nine, article one, chapter fifty-nine of this code. Any objections to the fee shall be reviewed by the county commission.
(b) If the personal representative delivers to the clerk an appraisement of the assets of the estate showing their value to be one hundred thousand dollars or less, exclusive of real estate specifically devised and nonprobate assets or, if it appears to the clerk that there is only one beneficiary of the probate estate and that the beneficiary is competent at law, the clerk shall record the appraisement. If an unpaid creditor files a claim against the estate, the personal representative has twenty days after the date of the filing of a claim against the estate of the decedent to approve or reject the claim before the estate is referred to a fiduciary commissioner. If the personal representative approves all claims as filed, then no reference may be made.
The personal representative shall, within a reasonable time after the date of recordation of the appraisement: (i) File a waiver of final settlement in accordance with the provisions of section twenty-nine of this article; or (ii) make a report to the clerk of his or her receipts, disbursements and distribution and submit an affidavit stating that all claims against the estate for expenses of administration, taxes and debts of the decedent have been paid in full. Upon receipt of the waiver of final settlement or report, the clerk shall record the waiver or report and mail copies to each beneficiary and creditor by first-class mail, postage prepaid. The clerk shall retain the report for ten days to allow any beneficiary or creditor to appear before the county commission to request reference to a fiduciary commissioner. The clerk shall collect a fee of ten dollars for recording and mailing the waiver of final settlement or report.
If no request or objection is made to the clerk or to the county commission, the county commission may confirm the report of the personal representative, the personal representative and his or her surety shall be discharged; but if an objection or request is made, the county commission may confirm and record the accounting or may refer the estate to its fiduciary commissioners: Provided, That the personal representative has twenty days after the date of the filing of a claim against the estate of the decedent to approve or reject the claim before the estate is referred to a fiduciary commissioner and if all claims are approved as filed, then no reference may be made.
(c) For purposes of this section, the term beneficiary means a person designated in a will to receive real or personal property.
NOTE: The purpose of this bill is to eliminate probate of uncontested small estates. It also simplifies certain procedures related to the administration of estates.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§41-5-1a and §44-1-4a are new; therefore, strike-throughs and underscoring have been omitted.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****