H. B. 2816
(By Delegate Faircloth, Kominar and Staton)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section five, article five, chapter
forty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the mandatory
revocation of fiduciary's authority by the county
commission; and grounds for same.
Be it enacted by the Legislature of West Virginia:
That section five, article five, 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 5. GENERAL PROVISIONS AS TO FIDUCIARIES.
§44-5-5. When additional or new bond may be required of a
fiduciary, or his or her authority be revoked.
(a) The county commission under whose order, or under the
order of whose clerk, any such fiduciary derives his or her authority, when it appears proper on any report of the clerk or
a fiduciary commissioner or a commissioner in chancery, or on
evidence adduced before it by any party interested, may, at any
time, whether such fiduciary shall or shall not have before given
any bond, or whether he or she shall have given one with or
without sureties, order him or her to give before the commission
an additional bond within a prescribed reasonable time, in such
penalty, and with or without sureties, as may appear proper; or
when any surety on the bond of a fiduciary, or the personal
representative of any surety, shall apply therefor, the
commission shall order the fiduciary to give before it a new bond
within a prescribed reasonable time, in such penalty, and with
such sureties, as may appear proper, it may, in either case, if
the order be not complied with, or whenever from any cause it
appears proper, revoke and annul the powers of such fiduciary.
No such order shall may be made unless reasonable notice is given
to the fiduciary by the clerk or the fiduciary commissioner who
made the report, or by the surety or the personal representative
of the surety making the application aforesaid, or by the service
of a rule or otherwise. No such order of revocation shall may
invalidate any previous acts of the fiduciary.
(b) The county commission under whose order, or under the
order of whose clerk, any such fiduciary derives his or her authority, shall revoke and annul the powers of any fiduciary
where:
(1) A question exists as to whether the named fiduciary is
an heir, devisee, legatee or beneficiary of the estate that he or
she administers;
(2) A question exists as to the amount or extent of the
fiduciary's interest if he or she is known to be an heir,
devisee, legatee or beneficiary of the estate that he or she
administers;
(3) The fiduciary fails to designate any asset as included
within the estate that he or she administers;
(4) The fiduciary fails to file any financial report
required by law to be filed, fails to file such a report in a
timely manner, or files inconsistent financial reports, all to
the detriment of the estate;
(5) The fiduciary is diagnosed with any serious physical or
mental illness which could reasonably prevent the performance of
his or her duties;
(6) The fiduciary is convicted of any crime, felony or
misdemeanor, which involves moral turpitude; and
(7) The fiduciary is charged with or indicted for any crime
that constitutes a felony under the laws of this or any other
state or the United States.
NOTE: The purpose of this bill is to specify circumstances
under which the county commission must revoke the authority of an
appointed fiduciary.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.