Senate Bill No. 6
(By Senator Wooton)
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[Introduced January 12, 1994; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section five, article three-a,
chapter forty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
referring estates to a fiduciary commissioner; providing
that the clerk of the county commission in counties without
a fiduciary supervisor is responsible for determining
whether an uncontested estate has sufficient assets to
satisfy any potential claims and is to be notified if no
dispute is likely to arise with respect to the
administration of the estate.
Be it enacted by the Legislature of West Virginia:
That section five, article three-a, chapter forty-four of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-5. Reference to fiduciary commissioner; exceptions and
limitations.
When the personal representative shall deliver to the
fiduciary supervisor the appraisement required by section
fourteen, article one of this chapter, and is notified as to the
completeness thereof, the fiduciary supervisor shall, unless
otherwise ordered by the county commission, proceed to receive
claims and proceed to supervise settlement of the estate.
The county commission shall not remove the estate from
supervision by the fiduciary supervisor and no reference to a
fiduciary commissioner shall be made if the appraisement,
properly completed, shows the total value of all assets included
in the estate which are subject to administration (exclusive of
real property, unless the will, if any, requires administration
thereof) to be one hundred thousand dollars or less: Provided,
That if a dispute arises as to a matter of law or fact, then the
matter may be referred to a fiduciary commissioner for the sole
purpose of taking evidence as to making a recommendation as to
the disputed facts and applicable law in such dispute.
The county commission shall not refer any estate to a
fiduciary commissioner:
(a) If the personal representative is also the sole
beneficiary of the estate; nor
(b) If the surviving spouse is the sole beneficiary of the
estate unless the spouse requests such reference; nor
(c) (1) If all the beneficiaries of the estate advise the
fiduciary supervisor or the clerk of the county commission incounties without a fiduciary supervisor by verified writing that
no dispute is likely to arise with respect to the administration
of the estate; and (2) it appears to the clerk of the county
commission or to the fiduciary supervisor thereof that there are
ample assets in the estate to satisfy all claims of creditors and
others against the estate and that proper distribution thereof
will be made, including the payment of all taxes due thereon; and
(3) if the personal representative agrees thereto; nor
(d) If the clerk of the county commission or fiduciary
supervisor, subject to the approval of the county commission,
finds that there are ample assets in the estate to satisfy all
claims of creditors and others against the estate and that proper
distribution thereof will be made including, but not limited to,
the payment of all taxes due thereon and that no disputed
question of law or fact has arisen or is likely to arise.
The commission shall, before making any reference to a
fiduciary commissioner, find by its order that none of the
prohibitions contained in this section obtains: Provided, That
in any case in which a reference would otherwise be prohibited,
the commission may refer a matter for the sole purpose of
resolving a disputed question of law or fact or may, if the
matter can be resolved expeditiously, permit the fiduciary
supervisor to conduct the necessary proceedings and to prepare a
recommendation on such disputed question.
In the event reference is made because of the failure to
meet any of the conditions in the preceding paragraph whichpreclude reference to a fiduciary commissioner, such reference
may be made generally or for the sole purpose of determining
those matters in dispute. In any event, such reference shall be
withdrawn at any time upon the settlement or determination or
resolution of the reason or reasons giving rise to such reference
or at any other time deemed appropriate by the county commission
or by the fiduciary supervisor, subject to the approval of the
county commission. If no such reference is made and it is later
found that a dispute or other condition has arisen which makes
reference to a fiduciary commissioner necessary, then reference
to a fiduciary commissioner may be made, either generally or for
the settlement, determination or resolution of the dispute or
condition and shall, in any event, be later withdrawn at any time
required by this section or deemed appropriate by the fiduciary
supervisor with the approval of the county commission.
In counties where there are two or more such fiduciary
commissioners, the estates of decedents shall be referred to such
commissioners in rotation in order that, so far as possible,
there may be an equal division of the work.
NOTE: The purpose of this bill is to provide that the clerk
of the county commission in counties without a fiduciary
supervisor is responsible for determining whether an uncontested
estate has sufficient assets to satisfy any potential claims and,
subject to the approval of the county commission, to determine
whether the estate is to be referred to a fiduciary commissioner.
The clerk is also to be notified if no dispute is likely to arise
with respect to the administration of the estate.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new languagethat would be added.