Senate Bill No. 536
(By Senator Minard)
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[Introduced February 14, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact section one, article two, chapter
forty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the fee charged by
fiduciary commissioners in settling an estate.
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter forty-four of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 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, by order of the county commission, must 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 for the settlement of the estate:
Provided, That in counties where there are two or more
commissioners, the estates of decedents must be referred to the
commissioners in rotation, so 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
the settlement substantiate the allowance of a greater fee that the
fee is based upon the actual time spent and actual services
rendered pursuant to a schedule of fees or rate of compensation for
fiduciary commissioners promulgated by the commission in accordance
with the provisions of chapter fifty-nine, article one, section
nine of this code.
(b) If the personal representative delivers to the clerk an
appraisement of the assets of the estate showing their value to be
one hundred 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. 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: (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. Upon receipt of the waiver of final settlement
or report, the clerk shall record the waiver or report and mail
copies to each beneficiary and creditor by first-class mail,
postage prepaid. The clerk shall retain the report for ten days to
allow any beneficiary or creditor to appear before the county
commission to request reference to a fiduciary commissioner. The
clerk shall collect a fee of ten dollars for recording and mailing
the waiver of final settlement or report.
If no request or objection is made to the clerk or to the
county commission, the county commission may confirm the report of
the personal representative, the personal representative and his or her surety shall be discharged; but if an objection or request is
made, the county commission may confirm and record the accounting
or may refer the estate to its fiduciary commissioners: Provided,
That 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 and if all claims are approved as filed, then no
reference may be made.
(c) For purposes of this section, the term beneficiary means
a person designated in a will to receive real or personal property.
NOTE: The purpose of this bill is to provide that the fee
charged by fiduciary commissioners in settling an estate be based
on actual time spent and actual services rendered pursuant to a
schedule promulgated by the county commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.