SB674 INTR

Senate Bill No. 674
(By Senators Kessler, Edgell, Bowman and McKenzie)
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[Introduced February 18, 2002; referred to the Committee
on the Judiciary

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A BILL to amend and reenact sections eight and twenty-eight, 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 three of said chapter; to amend and reenact section three, article five of said chapter; and to amend article thirteen of said chapter by adding thereto a new section, designated section two-a, all relating generally to the administration of estates and trusts; altering language treating testator direction that nonresident executor is not required to post a bond will mean a surety bond is not required; allowing any debtor of a decedent whose estate is not being administered to pay due sums of money or deliver possession of tangible or intangible personal property of value to the surviving spouse or to his or her distributees; raising the cap on nonadministered funds to three thousand dollars; authorizing the clerk of the county commission to appoint fiduciary commissioners; permitting the appointment of a nonresident as the legal guardian of a nonresident minor who holds assets in this state; and authorizing incapacitated county clerks to appoint a fiduciary commissioner to act in his or her behalf.

Be it enacted by the Legislature of West Virginia:

That sections eight and twenty-eight, 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 three of said chapter be amended and reenacted; that section three, article five of said chapter be amended and reenacted; and that article thirteen of said chapter be amended by adding thereto a new section, designated section two-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 or not make a surety 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 a surety bond ought to be given.
§44-1-28. Payment of small sums due employees to distributees of decedents upon whose estates there have been no qualifications.

When there is due from the state of West Virginia, any of its political subdivisions, the United States, or any employer, as pension or money allowed for burial expenses, or money, wages or salary due from any employer to a deceased employee, or any bank or banking institution, any corporation, any person or other entity of any tangible or intangible personal property due and owing to a decedent, upon whose estate there has been no qualification, a sum of money or a value in personal property not exceeding ~~one~~ three thousand dollars, it shall be lawful for the state of West Virginia, any of its political subdivisions, the United States, or such employer, or any bank or banking institution, any corporation, any person or other entity of any tangible or intangible personal property due and owing to a decedent, after one hundred and twenty days from the death of ~~said~~ that person to whom ~~such~~ the money or property is due, to pay ~~said sum~~ the money or deliver the property to his or her surviving consort, if any; if none ~~such~~ exists, then to the distributees of the ~~said~~ decedent under the laws of the state of West Virginia, whose receipt therefor shall be a full discharge and acquittance to all persons whomsoever on account of ~~such~~ the sum of money or item of property.

ARTICLE 3. FIDUCIARY COMMISSIONERS; POWERS AND DUTIES.

§44-3-1. Fiduciary commissioners.

The office previously known as commissioner of accounts is hereby abolished. The office of fiduciary commissioner is hereby created and any reference in this code to a commissioner of accounts shall, after the effective date of this section, mean fiduciary commissioner. Fiduciary commissioners shall be attorneys admitted to the practice of law in this state, or shall meet the qualifications of fiduciary supervisors as set forth in article three-a of this chapter: Provided, That persons who are serving as commissioners of accounts upon the effective date of this article shall be continued in office as fiduciary commissioners for not more than one year from the effective date of this article for the purpose of settling estates not settled on the effective date of this article.

The ~~county commission~~ clerk of the county commission of each county shall appoint not more than four fiduciary commissioners. ~~In counties in which there exists a separate tribunal for police and fiscal purposes, that tribunal shall appoint the fiduciary commissioners. In either case, not~~ Not more than two of the fiduciary commissioners may be from the same political party.

ARTICLE 5. GENERAL PROVISIONS AS TO FIDUCIARIES.

§44-5-3. Appointment of nonresident; bond; service of notice and process; fees; penalty.

(a) Notwithstanding any other provision of law, no individual who is a nonresident of this state, nor any banking institution which does not maintain a main office or branch office within this state nor any corporation having its principal office or place of business outside this state, may be appointed or act as executor, administrator, curator, testamentary guardian, guardian or conservator in this state, except that:

(1) An individual who is a nonresident of this state may be appointed ancillary administrator of a nonresident decedent's assets situate in this state if such nonresident individual is lawfully acting as executor in said decedent's state of domicile and submits letters of probate authenticated by the probate authorities of the decedent's state of domicile to the clerk of the county commission of any county of this state wherein ancillary administration is sought;

(2) An individual who is a nonresident of this state may be appointed ancillary administrator of a nonresident decedent's assets situate in this state if such nonresident individual is acting as administrator in said decedent's state of domicile and submits letters of administration authenticated by the probate authorities of the decedent's state of domicile to the clerk of the county commission of any county of this state wherein ancillary administration is sought;

(3) An individual who is a nonresident of this state may be appointed and act as a legal or testamentary guardian of a nonresident infant and thereby exercise dominion and control over such nonresident infant's assets situate in this state upon submission of authenticated documentation that such nonresident legal or testamentary guardian was so appointed at the place of domicile of the nonresident infant. Such authenticated documentation shall be submitted to the clerk of the county commission of any county of this state wherein assets belonging to such nonresident infant are situate;

(4) An individual who is a nonresident of this state and who is named executor by a resident decedent may qualify and act as executor in this state;

(5) An individual who is a nonresident of this state may be appointed and act as administrator of a resident decedent's assets in this state if appointed in accordance with the provisions of section four, article one of this chapter;

(6) An individual who is a nonresident of this state may be appointed as the legal or testamentary guardian of a resident infant, except in the case of a testamentary appointment by a parent ~~if appointed~~ in accordance with the provisions of section one, article ten of this chapter; and

(7) An individual who is a nonresident of this state may be appointed as guardian or conservator of a resident incompetent: Provided, That such appointment is made in accordance with the provisions of article two, chapter forty-four-a of this code and if such nonresident individual may otherwise qualify as guardian or conservator.

(b) Nonresident individuals enumerated in subsection (a) of this section shall give bond with corporate surety thereon, qualified to do business in this state, and the amount of such bond shall not be less than double the value of the personal assets and double the value of any real property authorized to be sold or double the value of any rents and profits from any real property which the nonresident individual is authorized to receive, except that:

(1) Any nonresident individual enumerated in subsection (a) of this section who is the spouse, parent, sibling, lineal descendent or sole beneficiary of a resident or nonresident decedent shall give bond with corporate surety thereon qualified to do business in this state, with such penalty as may be fixed pursuant to the provisions of section seven, article one of this chapter, as approved by the clerk of the county commission;

(2) Where the terms of a decedent's will directs that a nonresident individual enumerated in subdivisions (1), (3), (4) and (6), subsection (a) of this section named in a decedent's will shall not give bond or give bond at a specified amount, it shall not be required or shall be required only to the extent required under the terms of the will, unless at the time the will is admitted to record or at any time subsequently, on the application of any person interested, or from the knowledge of the commission or clerk admitting the will to record, it is deemed proper that greater bond be given.

(c) When a nonresident individual is appointed as executor, administrator, testamentary guardian, guardian or conservator pursuant to the provisions of subsection (a) of this section, said individual thereby constitutes the clerk of the county commission wherein such appointment was made as his or her true and lawful attorney-in-fact upon whom may be served all notices and process in any action or proceeding against him or her as executor, administrator, testamentary guardian, guardian or conservator or with respect to such estate, and such qualification shall be a manifestation of said nonresident individual's agreement that any notice or process, which is served in the manner hereinafter provided in this subsection, shall be of the same legal force and validity as though such nonresident was personally served with notice and process within this state. Service shall be made by leaving the original and two copies of any notice or process together with a fee of five dollars with the clerk of such county commission. The fee of five dollars shall be deposited with the county treasurer. Such clerk shall thereupon endorse upon one copy thereof the day and hour of service and shall file such copy in his or her office and such service shall constitute personal service upon such nonresident: Provided, That the other copy of such notice or process shall be forthwith sent by registered or certified mail, return receipt requested, deliver to addressee only, by said clerk or to such nonresident at the address last furnished by him or her to said clerk and either: (1) Such nonresident's return receipt signed by him; or (2) the registered or certified mail bearing thereon the stamp of the post office department showing that delivery therefore was refused by such nonresident is appended to the original notice or process filed therewith in the office of the clerk of the county commission from which such notice or process was issued. No notice or process may be served on such clerk of the county commission or accepted by him less than thirty days before the return date thereof. The clerk of such county commission shall keep a record in his office of all such notices and processes and the day and hour of service thereof. The provision for service of notice or process herein provided is cumulative and nothing herein contained shall be construed as bar to service by publication where proper or the service of notice or process in any other lawful mode or manner.

(d) The personal estate of a resident decedent, infant or incompetent may not be removed from this state until the inventory or appraisement of that resident decedent's, infant's, or incompetent's assets have been filed and any new or additional bond required to satisfy the penalty specified in subsection (b) of this section has been furnished. The liability of a nonresident executor, administrator, testamentary guardian, guardian or conservator and of any such surety shall be joint and several and a civil action on any such bond may be instituted and maintained against the surety, notwithstanding any other provision of this code to the contrary, even though no civil action has been instituted against such nonresident.

(e) Any such nonresident who removes from this state assets administered in and situate in this state without complying with the provisions of this section, the provisions of article eleven of this chapter or any other requirement pertaining to fiduciaries generally, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for not more than one year or, in the discretion of the court, by both such fine and imprisonment.

(f) If a nonresident appointed pursuant to subsection (a) of this section fails or refuses to file an accounting required by this chapter, and the failure continues for two months after the due date, he or she may, upon notice and hearing, be removed or subjected to any other appropriate order by the county commission, and if his or her failure or refusal to account continues for six months, he or her shall be removed by the county commission.
ARTICLE 13. POWERS AND DUTIES OF CLERKS OF COURTS IN COUNTIES HAVING SEPARATE TRIBUNAL FOR POLICE AND FISCAL PURPOSES.

§44-13-2a. Who shall act when clerk incapacitated.

In any matter wherein the clerk of the county commission has power to act and is unable to act for reason of illness, injury or other reason, he or she may appoint a fiduciary commissioner of the county to act in the clerk's name, place and stead by written order describing the official act or duty which the fiduciary commissioner is to carry out and discharge. In the event the clerk is unable to make or execute the order of appointment, any judge of the circuit court of the county may make the appointment in the same manner and with the same effect as if the clerk had performed it.

NOTE: The purpose of this bill is to create means by which the clerk of the county commission can better manage the administration of estates in empowering the clerk, if incapacitated, to appoint a fiduciary commissioner to assume his duties; to increase the cap on unadministered estates from $1,000 to 3,000; and to permit nonresidents to be appointed guardians of nonresident minors in order to manage the minor's assets in this state.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.