H. B. 2242
(By Delegates Doyle, Fleischauer, Jenkins and Walters)
[Introduced January 14, 1998
referred to the Committee on the Judiciary.]
A BILL to amend and reenact section three, article two, chapter
thirty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
article eight, chapter thirty-six of said code, all relating
to adopting the uniform unclaimed property act.
Be it enacted by the Legislature of West Virginia:
That section three, article two, chapter thirty-four, of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that article eight,
chapter thirty-six of said code be amended and reenacted, all to
read as follows:
CHAPTER 34. ESTRAYS, DRIFT AND DERELICT PROPERTY.
ARTICLE 2. DERELICT PROPERTY.
§34-2-3. Decree of title to state.
If, in such a suit as is mentioned in section one of this
article, no person appears to show title in himself, the court
shall decree the residuum or other property to the state, and enforce the collection thereof, or of the proceeds of the sale of
such property. Any real property so decreed to the state shall
be remitted to the state auditor and any personal property shall
be remitted to the state treasurer, in accordance with the
provisions of article eight, chapter thirty-six of this code.
The proceeds of the sale of any such real or personal property
shall be deposited to the credit of "the general school fund."
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE EIGHT. UNIFORM UNCLAIMED PROPERTY ACT.
As used in this article:
(1) "Administrator" means the state treasurer.
(2) "Apparent owner" means a person whose name appears on
the records of a holder as the person entitled to property held,
issued, or owing by the holder.
(3) "Business association" means a corporation, joint stock
company, investment company, partnership, unincorporated
association, joint venture, limited liability company, business
trust, trust company, safe deposit company, financial
organization, insurance company, mutual fund, utility, or other
business entity consisting of one or more persons, whether or not
(4) "Domicile" means the state of incorporation of a
corporation and the state of the principal place of business of
a holder other than a corporation.
(5) "Financial organization" means a savings and loan
association, bank, banking organization, or credit union.
(6) "Holder" means a person obligated to hold for the
account of, or deliver or pay to, the owner property that is
subject to this article.
(7) "Insurance company" means an association, corporation,
or fraternal or mutual benefit organization, whether or not for
profit, engaged in the business of providing life endowments,
annuities, or insurance, including accident, burial, casualty,
credit life, contract performance, dental, disability, fidelity,
fire, health, hospitalization, illness, life, malpractice,
marine, mortgage, surety, wage protection, and workers'
(8) "Mineral" means gas; oil; coal; other gaseous, liquid,
and solid hydrocarbons; oil shale; cement material; sand and
gravel; road material; building stone; chemical raw material;
gemstone; fissionable and nonfissionable ores; colloidal and
other clay; steam and other geothermal resource; or any other
substance defined as a mineral by the law of this state.
(9) "Mineral proceeds" means amounts payable for the
extraction, production, or sale of minerals, or, upon the
abandonment of those payments, all payments that become payable
thereafter. The term includes amounts payable:
(i) For the acquisition and retention of a mineral lease,
including bonuses, royalties, compensatory royalties, shut-in
royalties, minimum royalties, and delay rentals;
(ii) For the extraction, production, or sale of minerals,
including net revenue interests, royalties, overriding royalties,
extraction payments, and production payments; and
(iii) Under an agreement or option, including a joint operating agreement, unit agreement, pooling agreement, and farm- out agreement.
(10) "Money order" includes an express money order and a
personal money order, on which the remitter is the purchaser.
The term does not include a bank money order or any other
instrument sold by a financial organization if the seller has
obtained the name and address of the payee.
(11) "Owner" means a person who has a legal or equitable
interest in property subject to this chapter or the person's
legal representative. The term includes a depositor in the case
of a deposit, a beneficiary in the case of a trust other than a
deposit in trust, and a creditor, claimant, or payee in the case
of other property.
(12) "Person" means an individual, business association,
financial organization, estate, trust, government, governmental
subdivision, agency, or instrumentality, or any other legal or
(13) "Property" means tangible property described in section
three or a fixed and certain interest in intangible property that
is held, issued, or owed in the course of a holder's business, or
by a government, governmental subdivision, agency, or
instrumentality, and all income or increments therefrom. The
term includes property that is referred to as or evidenced by:
(i) Money, a check, draft, deposit, interest, or dividend;
(ii) Credit balance, customer's overpayment, gift
certificate, security deposit, refund, credit memorandum, unpaid
wage, unused ticket, mineral proceeds, or unidentified
(iii) Stock or other evidence of ownership of an interest in
a business association or financial organization;
(iv) A bond, debenture, note, or other evidence of
(v) Money deposited to redeem stocks, bonds, coupons, or
other securities or to make distributions;
(vi) An amount due and payable under the terms of an annuity
or insurance policy, including policies providing life insurance,
property and casualty insurance, workers' compensation insurance,
or health and disability insurance; and
(vii) An amount distributable from a trust or custodial fund
established under a plan to provide health, welfare, pension,
vacation, severance, retirement, death, stock purchase, profit
sharing, employee savings, supplemental unemployment insurance,
or similar benefits.
(14) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(15) "State" means a state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or any
territory or insular possession subject to the jurisdiction of
the United States.
(16) "Utility" means a person who owns or operates for
public use any plant, equipment, real property, franchise, or
license for the transmission of communications or the production,
storage, transmission, sale, delivery, or furnishing of
electricity, water, steam, or gas as defined in section two,
article one, chapter twenty-four of this code.
§36-8-2. Presumptions of abandonment.
(a) Property is presumed abandoned if it is unclaimed by the
apparent owner during the time set forth below for the particular
(1) Traveler's check, fifteen years after issuance;
(2) Money order, seven years after issuance;
(3) Stock or other equity interest in a business association
or financial organization, including a security entitlement under
article eight of the uniform commercial code, five years after
the earlier of (i) The date of the most recent dividend, stock
split, or other distribution unclaimed by the apparent owner, or
(ii) the date of the second mailing of a statement of account or
other notification or communication that was returned as
undeliverable or after the holder discontinued mailings,
notifications, or communications to the apparent owner;
(4) Debt of a business association or financial
organization, other than a bearer bond or an original issue
discount bond, five years after the date of the most recent
interest payment unclaimed by the apparent owner;
(5) A demand, savings, or time deposit, including a deposit
that is automatically renewable, five years after the earlier of
maturity or the date of the last indication by the owner of
interest in the property; but a deposit that is automatically
renewable is deemed matured for purposes of this section upon its
initial date of maturity, unless the owner has consented to a
renewal at or about the time of the renewal and the consent is in
writing or is evidenced by a memorandum or other record on file
with the holder;
(6) Money or credits owed to a customer as a result of a
retail business transaction, three years after the obligation
(7) Gift certificate, three years after the thirty-first day
of December of the year in which the certificate was sold, but if
redeemable in merchandise only, the amount abandoned is deemed to
be sixty percent of the certificate's face value;
(8) Amount owed by an insurer on a life or endowment
insurance policy or an annuity that has matured or terminated,
three years after the obligation to pay arose or, in the case of
a policy or annuity payable upon proof of death, three years
after the insured has attained, or would have attained if living,
the limiting age under the mortality table on which the reserve
(9) Property distributable by a business association or
financial organization in a course of dissolution, one year after
the property becomes distributable;
(10) Property received by a court as proceeds of a class
action, and not distributed pursuant to the judgment, one year
after the distribution date;
(11) Property held by a court, government, governmental
subdivision, agency, or instrumentality, one year after the
property becomes distributable;
(12) Wages or other compensation for personal services, one
year after the compensation becomes payable;
(13) Deposit or refund owed to a subscriber by a utility,
one year after the deposit or refund becomes payable;
(14) Property in an individual retirement account, defined benefit plan, or other account or plan that is qualified for tax
deferral under the income tax laws of the United States, three
years after the earliest of the date of the distribution or
attempted distribution of the property, the date of the required
distribution as stated in the plan or trust agreement governing
the plan, or the date, if determinable by the holder, specified
in the income tax laws of the United States by which distribution
of the property must begin in order to avoid a tax penalty;
(15) All warrants issued by the state which have not been
presented for payment within six months of the date of issuance
shall be considered stale-dated and subject to the custody of
this state as abandoned property. All records and information
regarding stale-dated warrants, in the custody, control or
possession of the administrator shall be subject to the
confidentiality provisions of subsection (d), section twenty of
this article. All records and information regarding stale-dated
warrants are exempt from the provisions of chapter twenty-nine-b
of this code; and
(16) All other property, five years after the owner's right
to demand the property or after the obligation to pay or
distribute the property arises, whichever first occurs.
(b) At the time that an interest is presumed abandoned under
subsection (a), any other property right accrued or accruing to
the owner as a result of the interest, and not previously
presumed abandoned, is also presumed abandoned.
(c) Property is unclaimed if, for the applicable period set
forth in subsection (a), the apparent owner has not communicated
in writing or by other means reflected in a contemporaneous record prepared by or on behalf of the holder, with the holder
concerning the property or the account in which the property is
held, and has not otherwise indicated an interest in the
property. A communication with an owner by a person other than
the holder or its representative who has not in writing
identified the property to the owner is not an indication of
interest in the property by the owner.
(d) An indication of an owner's interest in property
(i) The presentment of a check or other instrument of
payment of a dividend or other distribution made with respect to
an account or underlying stock or other interest in a business
association or financial organization or, in the case of a
distribution made by electronic or similar means, evidence that
the distribution has been received;
(ii) Owner-directed activity in the account in which the
property is held, including a direction by the owner to increase,
decrease, or change the amount or type of property held in the
(iii) The making of a deposit to or withdrawal from a bank
(iv) The payment of a premium with respect to a property
interest in an insurance policy; but the application of an
automatic premium loan provision or other nonforfeiture provision
contained in an insurance policy does not prevent a policy from
maturing or terminating if the insured has died or the insured or
the beneficiary of the policy has otherwise become entitled to
the proceeds before the depletion of the cash surrender value of a policy by the application of those provisions.
(e) Property is payable or distributable for purposes of
this chapter notwithstanding the owner's failure to make demand
or present an instrument or document otherwise required to obtain
§36-8-3. Contents of safe deposit box or other safekeeping
Personal property held in a safe deposit box or other
safekeeping depository in this state in the ordinary course of
the holder's business and proceeds resulting from the sale of the
property permitted by other law, are presumed abandoned if the
property remains unclaimed by the owner for more than five years
after expiration of the lease or rental period on the box or
§36-8-4. Rules for taking custody.
(a) Except as otherwise provided in this chapter or by other
statute of this state, property that is presumed abandoned,
whether located in this or another state, is subject to the
custody of this state if:
(1) The last known address of the apparent owner, as shown
on the records of the holder, is in this state;
(2) The records of the holder do not reflect the identity of
the person entitled to the property and it is established that
the last known address of the person entitled to the property is
in this state;
(3) The records of the holder do not reflect the last known
address of the apparent owner and it is established that:
(i) The last known address of the person entitled to the
property is in this state; or
(ii) The holder is domiciled in this state or is a
government or governmental subdivision, agency, or
instrumentality of this state and has not previously paid or
delivered the property to the state of the last known address of
the apparent owner or other person entitled to the property;
(4) The last known address of the apparent owner, as shown
on the records of the holder, is in a state that does not provide
for the escheat or custodial taking of the property and the
holder is domiciled in this state or is a government or
governmental subdivision, agency, or instrumentality of this
(5) The last known address of the apparent owner, as shown
on the records of the holder, is in a foreign country and the
holder is domiciled in this state or is a government or
governmental subdivision, agency, or instrumentality of this
(6) The transaction out of which the property arose occurred
in this state, the holder is domiciled in a state that does not
provide for the escheat or custodial taking of the property, and
the last known address of the apparent owner or other person
entitled to the property is unknown or is in a state that does
not provide for the escheat or custodial taking of the property;
(7) The property is a traveler's check or money order
purchased in this state, or the issuer of the traveler's check or
money order has its principal place of business in this state and the issuer's records show that the instrument was purchased in a
state that does not provide for the escheat or custodial taking
of the property, or do not show the state in which the instrument
(b) Notwithstanding any provision of this code to the
contrary, whenever a state, county or local law enforcement
agency has in its possession unclaimed stolen property, such
agency may dispose of this property by public auction or by
donation to a nonprofit organization. Any such auction shall be
conducted by a licensed auctioneer, or such agency may donate the
property to any nonprofit organization or agency which provides
services to children if the chief law-enforcement officer of the
agency determines that the property has no evidentiary value and
that there is no reasonable likelihood that the property can be
returned to its rightful owner. Prior to any disposal of the
unclaimed stolen property, a detailed list of such property shall
be sent to the administrator for review. If the administrator
determines that the unclaimed stolen property is of such value
that it should be processed by the administrator's office, the
administrator shall have the authority to require that the
property be remitted to the administrator's office. The
administrator shall, within thirty days of receipt of the report
of unclaimed stolen property, either require the remittance of
the property, authorize its sale at public auction, or donate
such property to any nonprofit organization or agency: Provided,
That in no event may firearms be disposed of at a public auction
or donated to any nonprofit organization. The chief law- enforcement officer may use such firearms to trade-in on new weapons for their agency. If it is determined that such firearms
are not of a sufficient quality to be used for such purposes, the
local law enforcement agency shall remit the firearms to the
administrator's office for destruction. A detailed report of
the trade-in of firearms must be filed with the tax department
and the administrator's office.
§36-8-5. Dormancy charge.
A holder may deduct from property presumed abandoned a
charge imposed by reason of the owner's failure to claim the
property within a specified time only if there is a valid and
enforceable written contract between the holder and the owner
under which the holder may impose the charge and the holder
regularly imposes the charge, which is not regularly reversed or
otherwise canceled. The amount of the deduction is limited to an
amount that is not unconscionable.
§36-8-6. Burden of proof as to property evidenced by record of
check or draft.
A record of the issuance of a check, draft, or similar
instrument is prima facie evidence of an obligation. In claiming
property from a holder who is also the issuer, the
administrator's burden of proof as to the existence and amount of
the property and its abandonment is satisfied by showing issuance
of the instrument and passage of the requisite period of
abandonment. Defenses of payment, satisfaction, discharge, and
want of consideration are affirmative defenses that must be
established by the holder.
§36-8-7. Report of abandoned property.
(a) A holder of property presumed abandoned shall make a
report to the administrator concerning the property.
(b) The report must be verified and must contain:
(1) A description of the property;
(2) Except with respect to a traveler's check or money
order, the name, if known, and last known address, if any, and
the social security number or taxpayer identification number, if
readily ascertainable, of the apparent owner of property of the
value of fifty dollars or more;
(3) An aggregated amount of items valued under fifty dollars
(4) In the case of an amount of fifty dollars or more held
or owing under an annuity or a life or endowment insurance
policy, the full name and last known address of the annuitant or
insured and of the beneficiary;
(5) In the case of property held in a safe deposit box or
other safekeeping depository, an indication of the place where it
is held and where it may be inspected by the administrator, and
any amounts owing to the holder;
(6) The date, if any, on which the property became payable,
demandable, or returnable, and the date of the last transaction
with the apparent owner with respect to the property; and
(7) Other information that the administrator by rule
prescribes as necessary for the administration of this chapter.
(c) If a holder of property presumed abandoned is a
successor to another person who previously held the property for
the apparent owner or the holder has changed its name while
holding the property, the holder shall file with the report its former names, if any, and the known names and addresses of all
previous holders of the property.
(d) The report must be filed before first day of November
of each year and cover the twelve months next preceding the first
day of July of that year, but a report with respect to a life
insurance company must be filed before the first day of May of
each year for the calendar year next preceding.
(e) The holder of property presumed abandoned shall send
written notice to the apparent owner, not more than one hundred
twenty days or less than sixty days before filing the report,
stating that the holder is in possession of property subject to
this chapter, if:
(1) The holder has in its records an address for the
apparent owner which the holder's records do not disclose to be
(2) The claim of the apparent owner is not barred by a
statute of limitations; and
(3) The value of the property is fifty dollars or more.
(f) Before the date for filing the report, the holder of
property presumed abandoned may request the administrator to
extend the time for filing the report. The administrator may
grant the extension for good cause. The holder, upon receipt of
the extension, may make an interim payment on the amount the
holder estimates will ultimately be due, which terminates the
accrual of additional interest on the amount paid.
(g) The holder of property presumed abandoned shall file
with the report an affidavit stating that the holder has complied
with subsection (e).
§36-8-8. Payment or delivery of abandoned property.
(a) Except for property held in a safe deposit box or other
safekeeping depository, upon filing the report required by
section seven, the holder of property presumed abandoned shall
pay, deliver, or cause to be paid or delivered to the
administrator the property described in the report as unclaimed,
but if the property is an automatically renewable deposit, and a
penalty or forfeiture in the payment of interest would result,
the time for compliance is extended until a penalty or forfeiture
would no longer result. Personal property held in a safe deposit
box or other safekeeping depository may not be delivered to the
administrator until one hundred twenty days after filing the
report required by section seven.
(b) If the property reported to the administrator is a
security or security entitlement under article eight of the
uniform commercial code, the administrator is an appropriate
person to make an indorsement, instruction, or entitlement order
on behalf of the apparent owner to invoke the duty of the issuer
or its transfer agent or the securities intermediary to transfer
or dispose of the security or the security entitlement in
accordance with article eight of the uniform commercial code.
(c) If the holder of property reported to the administrator
is the issuer of a certificated security, the administrator has
the right to obtain a replacement certificate pursuant to article
eight, section four hundred eight of the uniform commercial code,
but an indemnity bond is not required.
(d) An issuer, the holder, and any transfer agent or other
person acting pursuant to the instructions of and on behalf of the issuer or holder in accordance with this section is not
liable to the apparent owner and must be indemnified against
claims of any person in accordance with section ten.
§36-8-9. Notice and publication of lists of abandoned property.
(a) The administrator shall publish a notice not later than
the thirtieth day of November of the year next following the year
in which abandoned property has been paid or delivered to the
administrator. The notice must be published in a newspaper of
general circulation in the county of this state in which is
located the last known address of any person named in the notice.
If a holder does not report an address for the apparent owner, or
the address is outside this state, the notice must be published
in the county in which the holder has its principal place of
business within this state or another county that the
administrator reasonably selects. The advertisement must be in
a form that, in the judgment of the administrator, is likely to
attract the attention of the apparent owner of the unclaimed
property. The form must contain:
(1) The name of each person appearing to be the owner of the
property, as set forth in the report filed by the holder;
(2) The last known address or location of each person
appearing to be the owner of the property, if an address or
location is set forth in the report filed by the holder;
(3) A statement explaining that property of the owner is
presumed to be abandoned and has been taken into the protective
custody of the administrator; and
(4) A statement that information about the property and its
return to the owner is available to a person having a legal or beneficial interest in the property, upon request to the
(b) The administrator is not required to advertise the name
and address or location of an owner of property having a total
value less than fifty dollars or information concerning a
traveler's check, money order, or similar instrument.
§36-8-10. Custody by state; recovery by holder; defense of
(a) In this section, payment or delivery is made in "good
(1) Payment or delivery was made in a reasonable attempt to
comply with this chapter;
(2) The holder was not then in breach of a fiduciary
obligation with respect to the property and had a reasonable
basis for believing, based on the facts then known, that the
property was presumed abandoned; and
(3) There is no showing that the records under which the
payment or delivery was made did not meet reasonable commercial
standards of practice.
(b) Upon payment or delivery of property to the
administrator, the state assumes custody and responsibility for
the safekeeping of the property. A holder who pays or delivers
property to the administrator in good faith is relieved of all
liability arising thereafter with respect to the property.
(c) A holder who has paid money to the administrator
pursuant to this chapter may subsequently make payment to a
person reasonably appearing to the holder to be entitled to
payment. Upon a filing by the holder of proof of payment and proof that the payee was entitled to the payment, the
administrator shall promptly reimburse the holder for the payment
without imposing a fee or other charge. If reimbursement is
sought for a payment made on a negotiable instrument, including
a traveler's check or money order, the holder must be reimbursed
upon filing proof that the instrument was duly presented and that
payment was made to a person who reasonably appeared to be
entitled to payment. The holder must be reimbursed for payment
made even if the payment was made to a person whose claim was
barred under section nineteen-a.
(d) A holder who has delivered property other than money to
the administrator pursuant to this chapter may reclaim the
property if it is still in the possession of the administrator,
without paying any fee or other charge, upon filing proof that
the apparent owner has claimed the property from the holder.
(e) The administrator may accept a holder's affidavit as
sufficient proof of the holder's right to recover money and
property under this section.
(f) If a holder pays or delivers property to the
administrator in good faith and thereafter another person claims
the property from the holder or another state claims the money or
property under its laws relating to escheat or abandoned or
unclaimed property, the administrator, upon written notice of the
claim, shall defend the holder against the claim and indemnify
the holder against any liability on the claim resulting from
payment or delivery of the property to the administrator.
(g) Property removed from a safe deposit box or other
safekeeping depository is received by the administrator subject to the holder's right to be reimbursed for the cost of the
opening and to any valid lien or contract providing for the
holder to be reimbursed for unpaid rent or storage charges. The
administrator shall reimburse the holder out of the proceeds
remaining after deducting the expense incurred by the
administrator in selling the property.
§36-8-11. Owner not entitled to certain dividends, interest, or
If property other than money is delivered to the
administrator under this chapter, the owner is not entitled to
receive from the administrator any income or gain realized or
accruing on the property at or before liquidation or conversion
of the property into money.
§36-8-12. Public sale of abandoned property.
(a) Except as otherwise provided in this section, the
administrator, within three years after the receipt of abandoned
property, shall sell it to the highest bidder at public sale at
a location in the state which in the judgment of the
administrator affords the most favorable market for the property.
The administrator may decline the highest bid and reoffer the
property for sale if the administrator considers the bid to be
insufficient. The administrator need not offer the property for
sale if the administrator considers that the probable cost of
sale will exceed the proceeds of the sale. A sale held under
this section must be preceded by a single publication of notice,
at least three weeks before sale, in a newspaper of general
circulation in the county in which the property is to be sold.
(b) Securities listed on an established stock exchange must
be sold at prices prevailing on the exchange at the time of sale.
Other securities may be sold over the counter at prices
prevailing at the time of sale or by any reasonable method
selected by the administrator. If securities are sold by the
administrator before the expiration of three years after their
delivery to the administrator, a person making a claim under this
chapter before the end of the three-year period is entitled to
the proceeds of the sale of the securities less any deduction for
expenses of sale. A person making a claim under this chapter
after the expiration of the three-year period is entitled to
receive the securities delivered to the administrator by the
holder, if they still remain in the custody of the administrator,
or the net proceeds received from sale, and is not entitled to
receive any appreciation in the value of the property occurring
after delivery to the administrator, except in a case of
intentional misconduct or malfeasance by the administrator.
(c) A purchaser of property at a sale conducted by the
administrator pursuant to this chapter takes the property free of
all claims of the owner or previous holder and of all persons
claiming through or under them. The administrator shall execute
all documents necessary to complete the transfer of ownership.
§36-8-13. Deposit of funds.
(a) Except as otherwise provided by this section, the
administrator shall promptly deposit in the general revenue fund
of this state all funds received under this chapter, including
the proceeds from the sale of abandoned property under section
twelve. The administrator shall retain in a separate trust fund at least one hundred thousand dollars from which the
administrator shall pay claims duly allowed. The administrator
shall record the name and last known address of each person
appearing from the holders' reports to be entitled to the
property and the name and last known address of each insured
person or annuitant and beneficiary and with respect to each
policy or annuity listed in the report of an insurance company,
its number, the name of the company, and the amount due.
(b) Before making a deposit to the credit of the general
revenue fund, the administrator may deduct:
(1) Expenses of sale of abandoned property;
(2) Costs of mailing and publication in connection with
(3) Reasonable service charges; and
(4) Expenses incurred in examining records of holders of
property and in collecting the property from those holders.
§36-8-14. Claim of another state to recover property.
(a) After property has been paid or delivered to the
administrator under this chapter, another state may recover the
(1) The property was paid or delivered to the custody of
this state because the records of the holder did not reflect a
last known location of the apparent owner within the borders of
the other state and the other state establishes that the apparent
owner or other person entitled to the property was last known to
be located within the borders of that state and under the laws of
that state the property has escheated or become subject to a
claim of abandonment by that state;
(2) The property was paid or delivered to the custody of
this state because the laws of the other state did not provide
for the escheat or custodial taking of the property, and under
the laws of that state subsequently enacted the property has
escheated or become subject to a claim of abandonment by that
(3) The records of the holder were erroneous in that they
did not accurately identify the owner of the property and the
last known location of the owner within the borders of another
state and under the laws of that state the property has escheated
or become subject to a claim of abandonment by that state;
(4) The property was subjected to custody by this state
under section four (6) and under the laws of the state of
domicile of the holder the property has escheated or become
subject to a claim of abandonment by that state; or
(5) The property is a sum payable on a traveler's check,
money order, or similar instrument that was purchased in the
other state and delivered into the custody of this state under
subdivision (6), subsection (a), section four of this article,
and under the laws of the other state the property has escheated
or become subject to a claim of abandonment by that state.
(b) A claim of another state to recover escheated or
abandoned property must be presented in a form prescribed by the
administrator, who shall decide the claim within ninety days
after it is presented. The administrator shall allow the claim
upon determining that the other state is entitled to the
abandoned property under subsection (a).
(c) The administrator shall require another state, before recovering property under this section, to agree to indemnify
this state and its officers and employees against any liability
on a claim to the property.
§36-8-15. Filing claim with administrator; handling of claims
(a) A person, excluding another state, claiming property
paid or delivered to the administrator may file a claim on a form
prescribed by the administrator and verified by the claimant.
(b) Within ninety days after a claim is filed, the
administrator shall allow or deny the claim and give written
notice of the decision to the claimant. If the claim is denied,
the administrator shall inform the claimant of the reasons for
the denial and specify what additional evidence is required
before the claim will be allowed. The claimant may then file a
new claim with the administrator or maintain an action under
section sixteen of this article.
(c) Within thirty days after a claim is allowed, the
property or the net proceeds of a sale of the property must be
delivered or paid by the administrator to the claimant.
§36-8-16. Action to establish claim.
A person aggrieved by a decision of the administrator or
whose claim has not been acted upon within ninety days after its
filing may maintain an original action to establish the claim in
the circuit court of Kanawha County, naming the administrator as
a defendant. If the aggrieved person establishes the claim in an
action against the administrator, the court may award the
claimant reasonable attorney's fees.
§36-8-17. Election to take payment or delivery.
(a) The administrator may decline to receive property
reported under this chapter which the administrator considers to
have a value less than the expenses of notice and sale.
(b) A holder, with the written consent of the administrator
and upon conditions and terms prescribed by the administrator,
may report and deliver property before the property is presumed
abandoned. Property so delivered must be held by the
administrator and is not presumed abandoned until it otherwise
would be presumed abandoned under this chapter.
§36-8-18. Destruction or disposition of property having no
substantial commercial value; immunity from liability.
If the administrator determines after investigation that
property delivered under this chapter has no substantial
commercial value, the administrator may destroy or otherwise
dispose of the property at any time. An action or proceeding may
not be maintained against the state or any officer or against the
holder for or on account of an act of the administrator under
this section, except for intentional misconduct or malfeasance.
§36-8-19. Periods of limitation.
(a) The expiration, before or after the effective date of
this chapter, of a period of limitation on the owner's right to
receive or recover property, whether specified by contract,
statute, or court order, does not preclude the property from
being presumed abandoned or affect a duty to file a report or to
pay or deliver or transfer property to the administrator as
required by this chapter.
(b) An action or proceeding may not be maintained by the
administrator to enforce this chapter in regard to the reporting,
delivery, or payment of property more than ten years after the
holder specifically identified the property in a report filed
with the administrator or gave express notice to the
administrator of a dispute regarding the property. In the
absence of such a report or other express notice, the period of
limitation is tolled. The period of limitation is also tolled by
the filing of a report that is fraudulent.
§36-8-20. Requests for reports and examination of records.
(a) The administrator, or the administrator's designated
agent, may require a person who has not filed a report, or a
person who the administrator believes has filed an inaccurate,
incomplete, or false report, to file a verified report in a form
specified by the administrator. The report must state whether
the person is holding property reportable under this chapter,
describe property not previously reported or as to which the
administrator has made inquiry, and specifically identify and
state the amounts of property that may be in issue.
(b) The administrator, or the administrator's designated
agent, at reasonable times and upon reasonable notice, may
examine the records of any person to determine whether the person
has complied with this chapter. The administrator may conduct
the examination even if the person believes it is not in
possession of any property that must be reported, paid, or
delivered under this chapter. The administrator may contract
with any other person to conduct the examination on behalf of the
(c) The administrator at reasonable times may examine the
records of an agent, including a dividend disbursing agent or
transfer agent, of a business association or financial
association that is the holder of property presumed abandoned if
the administrator has given the notice required by subsection (b)
to both the association or organization and the agent at least
ninety days before the examination.
(d) Documents and working papers obtained or compiled by the
administrator, or the administrator's agents, employees, or
designated representatives, in the course of conducting an
examination are confidential and are not public records, but the
documents and papers may be:
(1) Used by the administrator in the course of an action to
collect unclaimed property or otherwise enforce this chapter;
(2) Used in joint examinations conducted with or pursuant to
an agreement with another state, the federal government, or any
other governmental subdivision, agency, or instrumentality;
(3) Produced pursuant to subpoena or court order; or
(4) Disclosed to the abandoned property office of another
state for that state's use in circumstances equivalent to those
described in this subdivision, if the other state is bound to
keep the documents and papers confidential.
(e) If an examination of the records of a person results in
the disclosure of property reportable under this chapter, the
administrator may assess the cost of the examination against the
holder at the rate of two hundred dollars a day for each
examiner, or a greater amount that is reasonable and was
incurred, but the assessment may not exceed the value of the property found to be reportable. The cost of an examination made
pursuant to subsection (c) may be assessed only against the
business association or financial organization.
(f) If, after the effective date of this chapter, a holder
does not maintain the records required by section twenty-one of
this article and the records of the holder available for the
periods subject to this chapter are insufficient to permit the
preparation of a report, the administrator may require the holder
to report and pay to the administrator the amount the
administrator reasonably estimates, on the basis of any available
records of the holder or by any other reasonable method of
estimation, should have been but was not reported.
§36-8-21. Retention of records.
(a) Except as otherwise provided in subsection (b), a holder
required to file a report under section seven of this article
shall maintain the records containing the information required to
be included in the report for ten years after the holder files
the report, unless a shorter period is provided by rule of the
(b) A business association or financial organization that
sells, issues, or provides to others for sale or issue in this
state, traveler's checks, money orders, or similar instruments
other than third-party bank checks, on which the business
association or financial organization is directly liable, shall
maintain a record of the instruments while they remain
outstanding, indicating the state and date of issue, for three
years after the holder files the report.
The administrator may maintain an action in this or another
state to enforce this chapter. The court may award reasonable
attorney's fees to the prevailing party.
§36-8-23. Interstate agreements and cooperation; joint and
reciprocal actions with other states.
(a) The administrator may enter into an agreement with
another state to exchange information relating to abandoned
property or its possible existence. The agreement may permit the
other state, or another person acting on behalf of a state, to
examine records as authorized in section twenty of this article.
The administrator by rule may require the reporting of
information needed to enable compliance with an agreement made
under this section and prescribe the form.
(b) The administrator may join with another state to seek
enforcement of this chapter against any person who is or may be
holding property reportable under this chapter.
(c) At the request of another state, the administrator's
attorney may maintain an action on behalf of the other state to
enforce, in this state, the unclaimed property laws of the other
state against a holder of property subject to escheat or a claim
of abandonment by the other state, if the other state has agreed
to pay expenses incurred by the attorney general in maintaining
(d) The administrator may request that the attorney general
of another state or another attorney commence an action in the
other state on behalf of the administrator. The administrator
may retain any other attorney to commence an action in this state
on behalf of the administrator. This state shall pay all expenses, including attorney's fees, in maintaining an action
under this subsection. With the administrator's approval, the
expenses and attorney's fees may be paid from money received
under this chapter. The administrator may agree to pay expenses
and attorney's fees based in whole or in part on a percentage of
the value of any property recovered in the action. Any expenses
or attorney's fees paid under this subsection may not be deducted
from the amount that is subject to the claim by the owner under
§36-8-24. Interest and penalties.
(a) A holder who fails to report, pay, or deliver property
within the time prescribed by this chapter shall pay to the
administrator interest at the annual rate of twelve percent on
the property or value thereof from the date the property should
have been reported, paid or delivered.
(b) Except as otherwise provided in subsection (c), a holder
who fails to report, pay, or deliver property within the time
prescribed by this chapter, or fails to perform other duties
imposed by this chapter, shall pay to the administrator, in
addition to interest as provided in subsection (a), a civil
penalty of two hundred dollars for each day the report, payment,
or delivery is withheld, or the duty is not performed, up to a
maximum of five thousand dollars.
(c) A holder who willfully fails to report, pay, or deliver
property within the time prescribed by this chapter, or willfully
fails to perform other duties imposed by this chapter, shall pay
to the administrator, in addition to interest as provided in
subsection (a), a civil penalty of one thousand dollars for each day the report, payment, or delivery is withheld, or the duty is
not performed, up to a maximum of twenty-five thousand dollars,
plus twenty-five percent of the value of any property that should
have been but was not reported.
(d) A holder who makes a fraudulent report shall pay to the
administrator, in addition to interest as provided in subsection
(a), a civil penalty of one thousand dollars for each day from
the date a report under this chapter was due, up to a maximum of
twenty-five thousand dollars, plus twenty-five percent of the
value of any property that should have been but was not reported.
(e) The administrator for good cause may waive, in whole or
in part, interest under subsection (a) and penalties under
subsections (b) and (c), and shall waive penalties if the holder
acted in good faith and without negligence.
§36-8-25. Records of abandoned property.
Records of abandoned property kept by the administrator are
available for inspection and copying only by an owner of such
property as to the particular property he owns, or by his
personal representative, next of kin, attorney at law, or such
person entitled to inherit from the owner conducting a legal
audit thereof. These records are exempt from the provisions of
chapter twenty-nine-b of this code.
§36-8-26. Foreign transactions.
This chapter does not apply to property held, due, and owing
in a foreign country and arising out of a foreign transaction.
§36-8-27. Transitional provisions.
(a) An initial report filed under this chapter for property that was not required to be reported before the effective date of
this chapter but which is subject to this chapter must include
all items of property that would have been presumed abandoned
during the ten-year period next preceding the effective date of
this chapter as if this chapter had been in effect during that
(b) This chapter does not relieve a holder of a duty that
arose before the effective date of this chapter to report, pay,
or deliver property. Except as otherwise provided in subsection
(b), section nineteen, a holder who did not comply with the law
in effect before the effective date of this chapter is subject to
the applicable provisions for enforcement and penalties which
then existed, which are continued in effect for the purpose of
On or before the first day of July, one thousand nine
hundred ninety-seven, the agency shall promulgate emergency
legislative rules in accordance with the provisions of section
fifteen, article three, chapter twenty-nine-a of this code. The
administration shall propose legislative rules for promulgation
in accordance with the requirements of the secretary of state and
the provisions of chapter twenty-nine-a to otherwise effectuate
the purposes of this chapter.
§36-8-29. Uniformity of application and construction.
This chapter shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this chapter among states enacting it.
§36-8-30. Short title.
This chapter may be cited as the Uniform Unclaimed Property
§36-8-31. Severability clause.
If any provision of this chapter or the application thereof
to any person or circumstance is held invalid, the invalidity
does not affect other provisions or applications of this chapter
which can be given effect without the invalid provision or
application, and to this end the provisions of this chapter are
§36-8-32. Effective date.
This chapter shall takes effect on the first day of July,
one thousand nine hundred ninety-seven .
NOTE: This bill would revise the entire article of law
known as the "Uniform Disposition of Unclaimed Property Act" by
adopting the "Uniform Unclaimed Property Act", as drafted by the
National Conference of commissioners on Uniform State Laws in
l995. Unclaimed property, under both the present and proposed
law is property such as bank accounts which after a certain
period of time of inactivity (e.g. following a death where no
subsequent ownership claim is made) becomes available to the
state, rather than the institution holding the same. If the
rightful owner does come forward, at any time, the state must
transfer the property to him or her. The proposal completely
revises and reorganizes the present law.