ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 597
(Senator Plymale, original sponsor)
____________
[Passed March 11, 1999; in effect ninety days from passage.]
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AN ACT to amend and reenact sections two and twenty-six, article
two, chapter forty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact sections four, four-a and thirty-two, article three-a
of said chapter, all relating to decedents' estates; revising
the time in which creditors may file a claim against an
estate; removing a reference to inheritance tax; and requiring
that a release of an estate tax lien be recorded before an
estate can be closed under a short-term settlement.
Be it enacted by the Legislature of West Virginia:
That sections two and twenty-six, article two, chapter forty- four of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that sections
four, four-a and thirty-two, article three-a of said chapter be amended and reenacted to read as follows:
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF
DECEDENTS.
§44-2-2. Fiduciary commissioner to publish notice of time for receiving claims against decedents estates.
(a) Each month the fiduciary commissioner shall publish a
notice designating the date by which claims against the estate or
estates referred to him during the previous calendar month may be
presented. No claims against the estate shall be accepted by the
fiduciary commissioner after the date set forth herein. The date
so designated by the fiduciary commissioner shall be ninety days
from the date of the first publication of the notice hereinafter
set forth. The notice shall be to the following effect:
To the Creditors and Beneficiaries of the Estate(s) of
.............................................................
.................................................................
(Naming the decedent or decedents, as the case may be)
All persons having claims against the estate(s) of the said
..........................................................., (Naming the decedent or decedents, as the case may be)
deceased, whether due or not, are notified to exhibit same their
claims, with the voucher thereof, legally verified, to the
undersigned, at (designating the place) on or before the
............. day of ................, otherwise they may by law be
excluded from all benefit of said estate(s). All beneficiaries of
said estate(s) may appear on or before said day to examine said
claims and otherwise protect their interests.
Given under my hand this ......... day of ..................
...................................
Fiduciary Commissioner,
County of
.................................
(b) Such notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
publication shall be the county. The publication of such notice
shall be equivalent to personal service on the creditors,
distributees and legatees, or any of them.
§44-2-26. When claims not presented and proved barred of recovery
from personal representative.
Every person including the state tax commissioner, having a
claim against a deceased person, whether due or not, who has not,
after notice to creditors has been published as prescribed in this
article, presented his claim on or before the time fixed in such
notice, or before that time has not instituted a civil action or
suit thereon, shall, notwithstanding the same be not barred by some
other statute of limitations that is applicable thereto, be barred
from recovering such claim of or from the personal representative,
or from thereafter setting off the same against the personal
representative in any action or suit whatever; except that if a
surplus remain after providing for all claims presented in due
time, or on which action or suit shall have been commenced in due
time, and such surplus shall not have been distributed by the
personal representative to the beneficiaries of the estate, and the
claimant prove that he had no actual notice of the publication to
creditors nor knowledge of any proceedings before the fiduciary
commissioner, such creditor may prove his claim either before the
fiduciary commissioner or by action or suit
and have the same allowed out of such surplus; and, in order that
such late claims if proved may be provided for, the fiduciary
commissioner shall reopen his report if the same has not been
returned to the county commission, or if returned, shall make and return a supplemental report: Provided, That, as to real estate,
the provisions of subsection (b), section one of this article shall
apply.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-4. Notice of claim; settlement in certain cases.
(a) The fiduciary supervisor shall at least once a month as
a Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, cause to be
published in a newspaper of general circulation within the county
wherein letters of administration have been granted, a notice
substantially as follows:
NOTICE OF FILING OF ESTATE ACCOUNTS
To the Creditors and Beneficiaries of the within named
deceased persons:
I have before me the estates of the following deceased persons
and the accounts of the fiduciaries of their respective estates:
Name of Decedent:.........................................
Name of Fiduciary:........................................
Address:..................................................
Name of Decedent:.........................................
Name of Fiduciary:........................................
Address: .................................................
Name of Decedent:.........................................
Name of Fiduciary:........................................
Address: .................................................
All persons having claims against the estate(s) of any of the
above-named deceased persons whether due or not, are notified to
exhibit the same their claims with vouchers thereof, legally verified, to
the fiduciary of such deceased person as shown herein within
seventy-five days of the first publication hereof or not later than
the ......... day of ................., 19.......; or, if not so
exhibited to such fiduciary by that date, to exhibit the same at
the office of the undersigned fiduciary supervisor at the address
shown below within one hundred twenty days ninety days of the first publication of this
notice or not later than the ............... day of
..............., 19......; otherwise any or all such claims may by law be excluded
from all benefits of said estate(s). No claims against the estate
shall be accepted by the fiduciary supervisor after the last date
shown above. All beneficiaries of said estate(s) may appear either
before the above-named fiduciary by the date first above shown above, or
thereafter before the undersigned fiduciary supervisor by the date
last above shown above to examine said claims and otherwise protect their
respective interests.
Given under may hand this .......... day of ............,
19......
Fiduciary Supervisor
County, W.Va.
(b) All such claims are to be filed with the appropriate
fiduciary at the address shown in such notice within seventy-five
days of the date of the first publication of such notice or with
the fiduciary supervisor within one hundred twenty ninety days of such date. No claims
against the estate shall be accepted by the fiduciary supervisor
after the last date shown above.
(c) Subject to the provisions of this section, at the end of
the one hundred twenty-day ninety-day period set forth in such notice, the fiduciary
supervisor may proceed with supervision of all estates referred to
him 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 and all other
matter or matters necessary and proper for the settlement of the
estate, including, but not limited to, his recommendations
concerning the approval of the fees of any fiduciary commissioner
to whom the estate may have been referred, determination that inheritance taxes, if any, occasioned by the death of the decedent
or returnable by reason thereof have been returned upon such estate
and such taxes have been paid or such payment provided for and
whether a release therefor has been issued by the proper authority,
all matters required by section nineteen of this article and all
other matters deemed proper by him.
§44-3A-4a. Short form settlement.
(a) In all estates of decedents administered under the
provisions of this article where an inheritance tax release has been filed with the clerk and more than one hundred twenty ninety days has elapsed
since the filing of any notice required by section four, an estate
may be closed by a short form settlement filed in compliance with
this section: Provided, That any lien for payment of estate taxes
under article eleven, chapter eleven of this code is released and
that the release is filed with the clerk.
(b) The fiduciary may file with the fiduciary supervisor a
proposed short form settlement which shall contain an affidavit
made by the fiduciary that the time for filing claims has expired,
that no known and unpaid claims exist against the estate and
showing the allocation to which each distributee and beneficiary is
entitled in the distribution of the estate and contain a
representation that the property to which each distributee or beneficiary is entitled has been or upon approval of the settlement
will be delivered thereto, or that each distributee and beneficiary
has agreed to a different allocation. The application shall
contain a waiver signed by each distributee and beneficiary.
(c) Such waiver may be signed in the case of a distributee or
beneficiary under a disability by the duly qualified personal
representative of such distributee or beneficiary. A personal
representative signing such waiver shall be responsible to his or
her cestui que trust for any loss resulting from such waiver.
(d) The fiduciary supervisor shall examine the affidavit and
waiver and determine that the allocation to the distributees and
beneficiaries set forth in the affidavit is correct and all proper
parties signed the waiver, both shall be recorded as in the case of
an in lieu of settlement. If the fiduciary supervisor identifies
any error the fiduciary supervisor shall within five days of the
filing of such settlement give the fiduciary notice as in the case
of any other incorrect settlement.
(e) If the short form settlement is proper the fiduciary
supervisor shall proceed as in the case of any other settlement.
§44-3A-32. When claims not presented and proved barred of recovery
from personal representative.
Every person having a claim against a deceased person, whether
due or not, who shall not, when notice to creditors has been
published as prescribed in this article, have presented his claim
on or before the one hundred twenty-day ninety-day time period fixed in such notice, or
before that time have instituted an action thereon, shall,
notwithstanding the same be not barred by some other statute of
limitations that is applicable thereto, be barred from recovering
such claim of or from the personal representative, or from
thereafter setting off the same by way of counterclaim or otherwise
against the personal representative in any action whatever; except
that if a surplus remain after providing for all claims presented
in due time, or on which action shall have been commenced in due
time, and such surplus shall not have been distributed by the
personal representative to the beneficiaries of the estate, and the
claimant prove that he had no actual notice of the publication to
creditors nor knowledge of the proceedings before the fiduciary
supervisor or fiduciary commissioner, such creditor may prove his
claim either before such supervisor or commissioner or by action or suit and have the same allowed out of such
surplus; and, in order that such late claims if proved may be
provided for, the fiduciary supervisor or fiduciary commissioner
shall reopen his report if the same has not been returned to the county commission, or if returned shall make and return a
supplemental report.