Senate Bill No. 574

(By Senator Rowe)

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[Introduced February 17, 2003; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to repeal section two, article two, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section fourteen-a, article one of said chapter; and to amend and reenact section one, article two of said chapter, all relating to publication of notice of administration of estate by the county clerk; and requiring publication of notice upon referral of the estate to a fiduciary commissioner.

Be it enacted by the Legislature of West Virginia:
That section two, article two, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section fourteen-a, article one of said chapter be amended and reenacted; and that section one, article two of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-14a. Notice of administration of estate; time limits for filing of objections; liability of personal representative.

(a) Within thirty days of the filing of the appraisement of any estate as required in section fourteen of this article, the clerk of the county commission shall publish, once a week for two successive weeks, in a newspaper of general circulation within the county of the administration of the estate, a notice, which is to include:
(1) The name of the decedent;
(2) The name and address of the county commission before whom the proceedings are pending;
(3) The name and address of the personal representative;
(4) The name and address of any attorney representing the personal representative;
(5) The name and address of the fiduciary commissioner, if any;
(6) The date of first publication;
(7) A statement that claims against the estate must be filed in accordance with the provisions of article two or article three-a of this chapter;
(8) A statement that any person seeking to impeach or establish a will must make a complaint in accordance with the provisions of section eleven, twelve or thirteen, article five, chapter forty-one of this code;
(9) A statement that an interested person objecting to the qualifications of the personal representative or the venue or jurisdiction of the court must be filed with the county commission within three months after the date of first publication or thirty days of service of the notice, whichever is later; and
(10) If the appraisement of the assets of the estate shows the 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, a statement substantially as follows: "Settlement of the estate of the following named decedents will proceed without reference to a fiduciary commissioner unless within ninety days from the first publication of this notice a 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".
(b) If an estate is referred to a fiduciary commissioner after publishing of the initial notice required by subsection (a) of this section, the clerk shall publish, in the manner provided in subsection (a), notice that the estate has been referred and the date by which claims against the estate must be filed. The publication of notice shall include the information required in subdivisions (1), (2), (3), (4), (5) and (6) of subsection (a). This publication of notice is equivalent to personal service on the estate's creditors, distributees or legatees.
(b) (c) If no appraisement is filed within the time period established pursuant to section fourteen of this article, the county clerk shall send a notice to the personal representative by first class mail, postage prepaid, indicating that the appraisement has not been filed. Notwithstanding any other provision of this code to the contrary, the county clerk shall publish the notice required in subsection (a) of this section within six months of the qualification of the personal representative.
(c) (d) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable.
(d) (e) The personal representative shall, within ninety days after the date of first publication, serve a copy of the notice, published pursuant to subsection (a) of this section, by first class mail, postage prepaid, or by personal service on the following persons:
(1) If the personal representative is not the decedent's surviving spouse and not the sole beneficiary or sole heir, the decedent's surviving spouse, if any;
(2) If there is a will and the personal representative is not the sole beneficiary, any beneficiaries;
(3) If there is not a will and the personal representative is not the sole heir, any heirs;
(4) The trustee of any trust in which the decedent was a grantor, if any; and
(5) All creditors identified under subsection (c) (d) of this section, other than a creditor who filed a claim as provided in article two of this chapter or a creditor whose claim has been paid in full.
(e) (f) Any person interested in the estate who objects to the qualifications of the personal representative or the venue or jurisdiction of the court, shall file notice of an objection with the county commission within ninety days after the date of the first publication as required in subsection (a) of this section or within thirty days after service of the notice as required by subsection (d) (e) of this section, whichever is later. If an objection is not timely filed, the objection is forever barred.
(f) (g) A personal representative acting in good faith is not personally liable for serving notice under this section, notwithstanding a determination that notice was not required by this section. A personal representative acting in good faith who fails to serve the notice required by this section is not personally liable. The service of the notice in accordance with this subsection may not be construed to admit the validity or enforceability of a claim.
(g) (h) The clerk of the county commission shall collect a fee of twenty dollars for the publication of the notice required in this section.
(h) (i) For purposes of this section, the term beneficiary means a person designated in a will to receive real or personal property.
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 In a county which has not adopted the optional procedure for proof and allowance of claims against estates of decedents under article three-a of this chapter, a fiduciary commissioner may not charge to the estate a fee greater than three hundred dollars and expenses a fee set by the county commission 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.
(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 where an estate is referred to a fiduciary commissioner after initial publishing of notice of administration of estate by the county clerk, the clerk must publish notice that the estate has been referred and the date by which claims against the estate must be filed.

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

§44-2-2 is repealed.