ENROLLED
Senate Bill No. 427
(By Senators Wooton, Minear, Sharpe, Ross and Kessler)
____________
[Passed March 13, 1999; in effect ninety days from passage.]
____________
AN ACT to amend and reenact sections eight, eleven and fourteen,
article one, chapter forty-four of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
to amend and reenact section one, article two of said
chapter; and to amend article four of said chapter by adding
thereto a new section, designated section fourteen-a, all
relating to the administration of estates and trusts;
providing that an executor may be relieved of posting bond
where the will so directs; providing for a commission for
sheriffs administering estates; providing for criminal
penalties to be assessed where a personal administrator
fails to appraise an estate; eliminating language that
requires appraisements to be done in triplicate; reducing
the time for creditors to file a proof of claim for estates that will not be referenced to a fiduciary commissioner;
establishing a time period for a fiduciary to make a final
settlement of a decedent's estate; providing that a
fiduciary may obtain an extension of time under certain
circumstances; requiring a fiduciary to report to the county
commission when an estate is not settled within the
prescribed time period; permitting the county commission to
discharge a fiduciary of his or her duties under certain
circumstances; and establishing criminal penalties for a
fiduciary's failure to appraise an estate and failure to
report to the county commission.
Be it enacted by the Legislature of West Virginia:
That sections eight, eleven and fourteen, of article one,
chapter forty-four of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted;
that section one, article two of said chapter be amended and
reenacted; and that article four of said chapter be amended by
adding thereto a new section, designated section fourteen-a, all
to read as follows:
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-8. When executor not to give bond.
Subject to the provisions of section three, article five of
this chapter governing the appointment of a nonresident of this
state as an executor, where the will directs that an executor
shall not give security bond, it shall not be required of him or her,
unless at the time the will is admitted to probate or at any time
subsequently, on the application of any person interested, or
from the knowledge of the court or clerk admitting the will to
probate, it is deemed proper that security bond ought to be given.
§44-1-11. When sheriff to administer estate.
If at any time two months elapse without there being an
executor or administrator of the estate of a decedent (except
during a contest about the decedent's will, or during the infancy
or absence of the executor), the court or clerk before whom the
will was admitted to probate, or having jurisdiction to grant
administration, shall on motion of any person order the sheriff
of the county to take into his or her possession the estate of
such decedent and administer the same; whereupon such sheriff,
without taking any other oath of office, or giving any other bond
or security than he or she may have before taken or given, shall be the administrator or administrator de bonis non of the
decedent, with his or her will annexed if there be a will, and
shall be thenceforward entitled to all the rights and bound to perform all the
duties of such the administrator. For his or her services as
administrator of an estate, the sheriff shall receive from the
estate a fee of five percent of the estate subject to
administration, which fee shall be deposited to the treasury of
the county. Every such sheriff shall, in the month of January in each
year, make a written report to the county court commission of his or
her county, and if the court is not in session, then he or she
shall file such the report with the clerk of such the court, of the
receipts and disbursements of each estate so committed to him or
her, and at the end of his or her term of office make a complete
report and settlement of each estate so committed to him or her,
and shall turn over to his or her successor in office all moneys
or property in his or her hands remaining unadministered. Such The
court or clerk may, however, at any time afterward revoke such
order and allow any other person to qualify as such the executor or
administrator; and the court, or the clerk thereof, shall, at the
expiration of the term of office of any such sheriff, commit to his or her successor in office any and all estates which may appear, by
the final report above required to be made by the sheriff at the
end of his or her term, not to have been fully administered.
Every sheriff to whom any estate shall have been committed, as
aforesaid, who shall fail to render any report as required
herein, or who shall fail to make such settlement within two
months after the end of his or her term of office shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than fifty nor more than five hundred dollars.
§44-1-14. Appraisal of estates in triplicate; disposition;
authority of appraisers to act throughout the state; hiring
of experts.
The real and personal estate of every deceased person, or in
which such deceased person had an interest at the time of his or
her death, shall be appraised by the personal representative of
such deceased person. Such personal representative, after first
taking an oath for the purpose, shall list and appraise at its
real and actual value all the real estate and all the tangible
property of every description owned by the deceased at the time
of his or her death, including, but not limited to, all real
estate and tangible property in which the decedent had an interest as joint tenant or otherwise or in which any beneficial
interest passes to another person by reason of the death of such
decedent whose estate is being so appraised and irrespective of
whether such real estate or tangible property is subject to
administration and located in each county or the counties, as the
case may be. The personal representative shall also list and
appraise at its real and actual value all of the decedent's
intangible property of every description, including moneys,
credits, investments, annuities, life insurance policies,
(irrespective of whether such policies are payable to named
beneficiaries or in trust or otherwise), judgments and decrees
for moneys, notes, bonds, accounts and all other evidences of
debt, whether owing to him or her by persons or corporations in
or out of the state, and the number and value, including both the
par value, if any, and the actual value, of any shares of capital
stock owned by the decedent in any corporation, and every other
item of intangible property of whatsoever nature or kind,
including all intangible property in which the decedent had an
interest as joint tenant or otherwise or in which any beneficial
interest passes to another by reason of the death of such decedent, and irrespective of whether such intangible property is
subject to administration and whether located in this state or
elsewhere. Any real estate or interest therein so appraised
shall be identified with particularity and description, shall
identify the source of title in the decedent and the location of
such realty for purposes of real property ad valorem taxation.
In addition to all other information required by law, the
appraisement shall contain and include a questionnaire designed
and formulated by the tax commissioner which is designed for the
purpose of examining the personal representative to determine
that he or she has made a thorough and proper search and
investigation as to the existence and value of each and every
kind and species of property required to be included within, and
subject to appraisement by, the provisions of this or any other
section of this code, which said questionnaire shall be completed
and answered upon the oath or adjuration of the personal
representative or fiduciary.
The appraisement, list and questionnaire aforesaid shall be
executed in triplicate and shall be signed by the personal representative. and The original
appraisement, list and questionnaire and two copies thereof must be returned to the clerk of the county commission by whom such
personal representative was appointed or to the fiduciary
supervisor within ninety days of the date of qualification of the
personal representative. Such clerk or supervisor shall inspect
such appraisement, list and questionnaire, see that the same are
in proper form, and that all property, if any, suggested by the
questionnaire is included within the appraisement. If such
appraisement, list and questionnaire are returned to a fiduciary
supervisor within ten days after they are received and approved
by him or her, such supervisor shall deliver two copies of the same to the
clerk of the county commission. Upon receipt of the
appraisement, list and questionnaire, the clerk of the county
commission shall record the same, with the certificate of
approval of the supervisor, and mail one a certified copy of the same
to the tax commissioner of West Virginia. The date of return of
an appraisement shall be entered by the clerk of the county
commission in his or her record of fiduciaries. Every such The appraisement
and list shall be prima facie evidence of the value of the
property embraced therein, and that the personal estate embraced
therein which is subject to administration came to the hands of the personal representative. No person shall be permitted by any
means whatsoever to avoid the appraisement and listing of his or
her estate and of all property, real, tangible and intangible, of
whatsoever nature and kind, in which a beneficial interest passes
to another by reason of the death of the decedent and
irrespective of whether such property is subject to
administration as herein provided, nor shall his or her personal
representative be permitted to do so. Any personal
representative who fails, refuses or declines, without reasonable cause,
to comply with the provisions of this section shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
less than twenty-five dollars nor more than five hundred.
Every personal representative shall have authority to retain
or hire the services of such expert or experts as may be deemed
appropriate to assist and advise him or her in and about his or
her duties in appropriately and accurately appraising all or any
part of the assets or property to be appraised according to the
provisions of this section. Such expert or experts so retained
or hired shall be compensated a reasonable sum by the personal
representative from the assets coming into his or her hands or of which he or she is embraced, which compensation and the
reasonableness thereof shall be subject to review and approval by
the county commission, upon recommendation of the fiduciary
supervisor.
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 shall, by order of the county commission to be then
made, 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 and
proper for the settlement of the estate: Provided, That in
counties where there are two or more such 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. Notwithstanding any other provision
of this code to the contrary,
a fiduciary commissioner may not charge to the estate a fee greater than three 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 such settlement
substantiate the
allowance of a greater fee.
(b) If the personal representative delivers to the clerk an
appraisement of the assets of the estate showing their value to
be fifty 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 and publish a notice once a week
for two successive weeks in a newspaper of general circulation
within the county of administration of the estate, substantially
as follows:
NOTICE OF PENDING OR UNADMINISTERED ESTATE
"Notice is hereby given that settlement of the estate of the
following named decedents will proceed without reference to a
fiduciary commissioner unless within forty-five days from the first publication of this notice such 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.
Dated this _____ day of ____________________________, _____.
___________________________________
Clerk of the County Commission of
___________ County, West Virginia."
The clerk shall charge to the personal representative, and
receive, the reasonable cost of publication of the notice. 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 in such case:
(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. The clerk shall
collect a fee of ten dollars for recording such report and
affidavit and for publication of the notice hereafter provided,
the fee to be in lieu of any other fee provided by law for
recording a report of settlement of the accounts of a decedent's
personal representative. At least once a month the clerk shall
cause to be published once a week for two successive weeks in a
newspaper of general circulation within the county of the
administration of the estate, with regard to reports received in
the prior month, a notice substantially as follows:
NOTICE OF FILING OF ESTATE ACCOUNTS
OR WAIVERS OF FINAL SETTLEMENT
"I have before me the account or waiver of final settlement
of the executor(s) or administrator(s) of the estates of the
following deceased persons:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Any person having a claim against the estate of any such
deceased person, or who has any beneficial interest therein, may
appear before me or the county commission at any time within
thirty days after first publication of this notice, and request
reference of said estate to a commissioner or object to
confirmation of the accounting. In the absence of such request
or objection, the accounting may be approved by the county
commission.
________________________________
Clerk of the County Commission of
______________ County, W. Va."
If no such request or objection is made to the clerk or to
the county commission, the county commission may confirm the
report of the personal representative and thereupon the personal
representative and his or her surety shall be discharged; but if
such objection or request is made, the county commission may
confirm the accounting and record the same or may refer the
estate to one of its fiduciary commissioners: Provided, That the
personal representative has twenty days after the date of the
filing of a claim or claims 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.
ARTICLE 4. ACCOUNTING BY FIDUCIARIES.
§44-4-14a. Final settlement by fiduciaries for decedent's
estates; penalty.
(a) The provisions of this chapter notwithstanding, every
fiduciary for the estate of a resident decedent shall, within
five years of appointment as fiduciary make a full and final
settlement, report and accounting for the decedent's estate in
the manner provided for in this code for accountings by
fiduciaries, and further shall, at the time of making the final
settlement, notify in writing the clerk of the county commission
of the county where the fiduciary was appointed that the final
settlement has been made.
(b) If the fiduciary is unable to make a full and final
settlement, report and accounting of the decedent's estate within
the above time period because there have been unusual or
extraordinary circumstances, demands or conditions imposed upon
the fiduciary which have caused a delay in the final settlement,
he or she may request an extension of time in which to make the settlement. Such request must be in writing to the county
commission and include a date by which the fiduciary reasonably
expects to make the full and final settlement.
(c) Any fiduciary failing to comply with this section, in
whole or in part, is personally liable to the beneficiaries or
creditors of the decedent's estate for any loss or waste cause by
the failure to make the final settlement. The fiduciary shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars for failure to comply with this section, except
for good and sufficient cause shown.
(d) In the event the fiduciary has not made the final
settlement of the estate within five years of appointment, the
fiduciary shall notify the county commission that the final
settlement has not been made. If the fiduciary does not
establish good cause for not making the final settlement within
the five-year period, as determined by the county commission, the
fiduciary is discharged of his or her duties as fiduciary. The
sheriff of the county shall then take charge of the estate and
proceed to make a final settlement of the estate in an expeditious manner.
(e) A fiduciary who fails to notify the county commission in
accordance with subsection (d) of this section shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
less than fifty dollars nor more than five hundred dollars.