COMMITTEE SUBSTITUTE

FOR

H. B. 4482

(By Delegates Amores and Staton)


(Originating in the Committee on the Judiciary)
[February 9, 2006]


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §39-1-2c; and to amend and reenact §44-1-13 of said code, all relating to affidavits of descent; filing affidavit of heirship with deed records; requiring that the estate be administered before the heirs can deed the property to another; penalties; authorizing the recording of affidavits stating facts that affect the title to real property; penalties.


Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §39-1-2c; and that §44- 1-13 of said code be amended and reenacted, all to read as follows:
CHAPTER 39. RECORDS AND PAPERS.

ARTICLE 1. AUTHENTICATION AND RECORD OF WRITINGS.
§39-1-2c. Recordation of affidavits of facts relating to title.
(a) An affidavit stating facts relating to matters that may affect the title to real estate in this State, including the matters set forth in subsection (b) of this section, made by any person having personal knowledge of the facts or competent to testify concerning them in open court, may be recorded in the office of the clerk of the county commission of the county in which the real property is situate. When so recorded, such affidavit, or certified copy thereof, shall be evidence of the facts stated therein insofar as such facts affect the title to real estate.
(b) The affidavits permitted pursuant to subsection (a) of this section may relate to the following:
(1) The age, sex, birth, death, capacity, relationship, family history, heirship, names, identity or marital status of parties, or their residence or service in the armed forces;
(2) The identity of the heirs at law, distributees, devisees or legatees of a decedent and their relationship to the decedent;
(3) Possession of the real property;
(4) The adverse or permissive nature of a party's use or occupancy of real property;
(5) The happening of any condition or event that may create or terminate an interest or estate in real property;
(6) The existence and location of monuments and physical boundaries, such as fences, streams, roads and rights of way; and
(7) If the affidavit is made by a registered surveyor, facts reconciling conflicts and ambiguities in descriptions of land in recorded instruments.
(c) The clerk of the county commission of the county in which such affidavit is offered for recording shall receive and cause the affidavit to be recorded in the deed records and shall collect the same recording fee as is provided for the recording of a deed.
(d) Each affidavit made and provided for under this section shall include a description of the real property the title to which may be affected by the facts stated in such affidavit or a reference to an instrument of record in said county clerk's office containing such description, and shall state the name of the record owner of such land at the time of recording of the affidavit. The county clerk shall index the affidavit in the grantor index in the names of each of the record owner or owners and each of the affiant or affiants of the affidavit.
(e) It shall be unlawful for any person to knowingly and willfully make a false statement in an affidavit made and recorded pursuant to this section. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in jail not more than one year, or both fined and confined.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.

ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-13. Affidavit showing heirs, distributees, devisees and legatees of decedent.
(a) At the time of the qualification of an executor or administrator, the court or clerk before whom he qualifies shall require such executor or administrator to file his own affidavit, or the affidavit of some credible person, showing the names and, as far as possible, the addresses of the persons who would take any part of the estate of the decedent as heirs or distributees in cases of the intestacy of the decedent and of the persons who are devisees and legatees under the will, if any, of the decedent, and their relationship to decedent, and the clerk of the court county commission shall record such affidavit in the fiduciary record, which affidavit and the record thereof shall be prima facie evidence of what is contained therein. The personal representative shall not receive any compensation for his or her services until such names and addresses be furnished by affidavit as aforesaid, unless he or she shows by affidavit that such heirs, distributees, devisees and legatees and their addresses are unknown to him or her and that after diligent inquiry he or she has been unable to ascertain their names and addresses.
(b) If the estate involves an interest in real property which passes to the decedent's heirs at law under the laws of descent and distribution, whether by the intestate death of the decedent, by the terms of a will, by failure of provisions of the will, by operation of law, or otherwise, then a copy of the affidavit set forth in subsection (a), shall be recorded by the clerk of the county commission in the deed records and indexed in the general index of deeds in the name of such decedent as grantor and in the name of each of such heirs at law as grantees. For indexing and recording such affidavit of descent the clerk of the county commission shall receive the same recording fees as are allowed for recording of deeds. No excise tax under article eleven, chapter twenty-two of this code shall be payable on account of the recording of such affidavit of descent.
(c) No clerk of the county commission of any county shall admit to record in the office of such clerk any deed to real property, the title to which has passed to the grantor under the laws of descent and distribution, until an affidavit of descent, as provided in subsection (b), has been recorded: Provided, That the recording or filing of a deed in violation of the provisions of this section shall not invalidate or cloud the title passing by or under such deed or affect the validity of such deed in any respect whatever, and such recorded or filed deed shall constitute notice with like effect as if such grantor had fully complied with this section. This subsection does not apply to any deed executed prior to the effective date hereof; to any decree, order, judgment or writ of any court, to any will, or to any real property that is devised or bequeathed by will, unless the effect of such will, devise or bequest (or the failure of a devise or bequest) is that the real property passed to the grantor of a deed under the laws of descent and distribution.
(d) It shall be unlawful for any person to knowingly and willfully make a false statement in an affidavit filed pursuant to subsection (a) of this section.
(e) Any person violating the provisions of subsection (d) is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in jail not more than one year, or both fined and confined.