(b) Prior to the adoption of the optional procedure provided for under this article, the county commission shall fix a time for public hearing on the issue of adoption of the fiduciary supervisor system as described in this article and cause to be published as a Class II-0 legal advertisement, as provided in section two, article three, chapter fifty-nine of the code, setting forth the reasons for the hearing, its date, place and time. Whenever ten percent or more of the voters of the county participating in the next preceding general election shall so petition the county commission in writing, the commission shall within sixty days of the filing of such petition conduct the public hearing provided by this subsection. The provisions hereof relating to the publication of notice of such hearing shall apply to the hearing held pursuant to such petition. The notice in either case shall also recite that within fifteen days after the public hearing the commission, after consideration of the following factors, will make a final determination whether to proceed under this article:
(1) The relatively expeditious and efficient administration and settlement of estates;
(2) The relative cost and convenience to the public and to the estates;
(3) Whether the fees provided under this article would be insufficient to fund the salary and expenses of a fiduciary supervisor as described in this article;
(4) Whether the county commission and the public interest is served by the availability of the unsupervised administration of estates having sole beneficiaries based upon the local needs of the county;
(5) The availability of physical facilities necessary for the administration of this article.
(c) At the hearing the county commission shall receive both written and oral comment from any citizen upon the desirability of proceeding under the provisions of this article. It may limit the time for oral presentations and permit additional written presentations to be filed up to three day after the hearing.
(d) Within sixty days of the public hearing, the commission shall enter an order either adopting or rejecting the provisions of this article.
(e) The county commission shall make such orders for the closing of estates opened prior to the effective date of the order adopting the provisions of this article as it may deem expedient which are not inconsistent with the express provisions of this chapter.
(b) The fiduciary supervisor shall have general supervision of all fiduciary matters and of the fiduciaries or personal representatives thereof and of all fiduciary commissioners and of all matters referred to such commissioners and shall make all ex parte settlements of the accounts of such fiduciaries except as to those matters referred to fiduciary commissioners for settlement.
(c) The county commission shall determine that the person to be appointed as fiduciary supervisor is fully qualified by education or experience, or both, to perform the duties assigned to such office by this chapter or other provisions of this code. Such person shall have the requisite knowledge of the legal issues raised and problems presented by any of the proceedings had and documents filed pursuant to the chapter, the procedures required with respect thereto, the rights of all parties and interested persons with respect to such procedures and the duties to be performed in examining and approving the several and various papers and documents presented to the fiduciary supervisor. The state tax commissioner shall design and supervise a test to be given to all persons selected or appointed as fiduciary supervisor who are not licensed to practice law in this state, which test shall include such matters as the tax commissioner deems appropriate to determine the proficiency, experience, knowledge and skill to perform all of the duties imposed upon or to be imposed upon fiduciary supervisors generally. Such test shall be administered under the authority of the state tax commissioner by such person or persons as he may designate either at the county wherein the fiduciary supervisor is to serve or at such other place as the tax commissioner may designate. The results of the test given to any person or persons shall be kept confidential except as to those persons who have completed the same to the satisfaction of the tax commissioner and except as to those persons who may desire their individual test results to be made public. Each county commission shall be notified as to the names of those persons who have satisfactorily completed such test. The tax commissioner shall provide for the uniformity of the test to be given and for grading and evaluating the results thereof.
The tax commissioner shall at least annually conduct a training program for fiduciary supervisors who are not licensed to practice law in this state. The training program shall be conducted at such times and places and consist of such subjects as the tax commissioner may determine. All fiduciary supervisors who are not licensed to practice law shall be required to attend such training programs and those supervisors as are so licensed may attend.
(d) The fiduciary supervisor shall give bond with good security to be approved by the county commission in an amount equal to the amount posted by the clerk of the county commission in the county wherein such fiduciary supervisor is to serve.
(e) Neither the fiduciary supervisor nor any person to whom the duties of fiduciary supervisor have been delegated, in whole or in part (excluding fiduciary commissioners) shall engage in the practice of law, for compensation or otherwise, with respect to the administration of any estate or trust wherein the fiduciary thereof has qualified in his county or with respect toany proceedings before him or which are or may be referred to a fiduciary commissioner in his county. Nor shall a fiduciary commissioner or special fiduciary commissioner engage in the practice of law with respect to matters referred to him as such commissioner. Any fiduciary supervisor or person to whom any of the functions or duties of the fiduciary supervisor have been delegated or fiduciary commissioner or special fiduciary commissioner who so engages in the practice of law contrary to the limited prohibitions of this section, shall be removed from his office or employment and, in addition thereto, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined one thousand dollars.
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:...............................................
Name of Decedent:................................................
Name of Fiduciary:...............................................
Name of Decedent:................................................
Name of Fiduciary:...............................................
All persons having claims against the estate(s) of any of the above-named deceased persons whether due or not, are notified to exhibit 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, 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 ninety days of the first publication of this notice; 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 shown above, or thereafter before the undersigned fiduciary supervisor by the date last shown above to examine said claims and otherwise protect their respective interests.
Given under my hand this .......... day of ............, 19......
.................... 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 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 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.
(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: Provided, That a beneficiary receiving a bequest of tangible personal property or a bequest of cash may not be required to sign the waiver.
(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 and 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.
The county commission shall not remove the estate from supervision by the fiduciary supervisor and no reference to a fiduciary commissioner shall be made if the appraisement, properly completed, shows the total value of all assets included in the estate which are subject to administration (exclusive of real property, unless the will, if any, requires administration thereof) to be one hundred thousand dollars or less: Provided, That if a dispute arises as to a matter of law or fact, then the matter may be referred to a fiduciary commissioner for the sole purpose of taking evidence as to making a recommendation as to the disputed facts and applicable law in such dispute.
The county commission shall not refer any estate to a fiduciary commissioner:
(a) If the personal representative is also the sole beneficiary of the estate; nor
(b) If the surviving spouse is the sole beneficiary of the estate unless the spouse requests such reference; nor
(c) (1) If all the beneficiaries of the estate advise the fiduciary supervisor by verified writing that no dispute is likely to arise with respect to the administration of the estate; and (2) it appears to the county commission or to the fiduciary supervisor thereof that there are ample assets in the estate to satisfy all claims of creditors and others against the estate and that proper distribution thereof will be made, including the payment of all taxes due thereon; and (3) if the personal representative agrees thereto; nor
(d) If the county commission or fiduciary supervisor, subject to the approval of the county commission, finds that there are ample assets in the estate to satisfy all claims of creditors and others against the estate and that proper distribution thereof will be made including, but not limited to, the payment of all taxes due thereon and that no disputed question of law or fact has arisen or is likely to arise.
The commission shall, before making any reference to a fiduciary commissioner, find by its order that none of the prohibitions contained in this section obtains: Provided, That in any case in which a reference would otherwise be prohibited, the commission may refer a matter for the sole purpose of resolving a disputed question of law or fact or may, if the matter can be resolved expeditiously, permit the fiduciary supervisor to conduct the necessary proceedings and to prepare a recommendation on such disputed question.
In the event reference is made because of the failure to meet any of the conditions in the preceding paragraph which preclude reference to a fiduciary commissioner, such reference may be made generally or for the sole purpose of determining those matters in dispute. In any event, such reference shall be withdrawn at any time upon the settlement or determination or resolution of the reason or reasons giving rise to such reference or at any other time deemed appropriate by the county commission or by the fiduciary supervisor, subject to the approval of the county commission. If no such reference is made and it is later found that a dispute or other condition has arisen which makes reference to a fiduciary commissioner necessary, then reference to a fiduciary commissioner may be made, either generally or for the settlement, determination or resolution of the dispute or condition and shall, in any event, be later withdrawn at any time required by this section or deemed appropriate by the fiduciary supervisor with the approval of the county commission.
In counties where there are two or more such fiduciary commissioners, the estates of decedents shall be referred to suchcommissioners in rotation in order that, so far as possible, there may be an equal division of the work.
(b) Whenever it appears upon any settlement of accounts or in any other appropriate action or proceeding, that an executor, administrator, curator, trustee or other person acting in a fiduciary capacity, has paid an estate tax levied or assessed under the provisions of any estate tax law of the United States or this state heretofore or hereafter enacted, upon or with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid shall be prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such apportionment shall be made in the proportion that the value of the property, interest or benefit of each such person bears to the total value of the property, interests and benefits received by all such persons interested in the estate, except that in making such proration each such person shall have the benefit of any exemptions, deductions and exclusions allowed by such law in respect of such person or the property passing to him; and except that notwithstanding the preceding provisions of this sentence in cases where a trust is created, or other provision made whereby any person is given an interest in income, or an estate for years, or for life, or other temporary interest in any property or fund, the tax on both such temporary interest and on the remainder thereafter shall be charged against and paid out of the corpus of such property or fund without apportionment between remainders and temporary estates.
(c) In all cases in which any property required to be included in the gross estate does not come into the possession of the executor, administrator or other fiduciary as such, he shall be entitled, and it shall be his duty, to recover from whomever is in possession, or from the persons interested in the estate, the proportionate amount of such tax payable by the persons interested in the estate with which such persons interested in the estate are chargeable under the provisions of this section.
(d) No executor, administrator or other person acting in a fiduciary capacity shall be required to transfer, pay over or distribute any fund or property with respect to which a federal or West Virginia estate tax is imposed until the amount of such tax or taxes, due from the devisee, legatee, distributee or other person to whom such property is transferred, is paid to such fiduciary, or, if the apportionment of tax has not been determined, adequate security is furnished by the transferee for such payment.
(e) But it is expressly provided that the foregoing provisions of this section are subject to the following qualification, that none of such provisions shall in any way impair the right or power of any person by will or by written instrument executed inter vivos to make direction for the payment of such estate taxes, and to designate the fund or funds or property out of which such payment shall be made, and in every such case the provisions of the will or of such written instrument executed inter vivos shall be given effect to the same extent as if this section had not been enacted.
(f) The provisions of this section shall be applicable to estates of decedents dying after the enactment of this section.
The fiduciary supervisor shall require that the personal representative, or the personal representative may on his own motion, timely file a proposed settlement which shall include:
(1) Proof of payment of all claims filed against the estate or proof of such payment has been provided for;
(2) Verification under oath that the personal representative, after exercise of due diligence, knows of no other claims against the estate;
(3) Verification and accounting of any income received by the personal representative from the benefit of the estate;
(4) Provisions for the payment of all taxes due from the estate or proof that all such taxes have been paid;
(5) A proposed plan of distribution; and
(6) Any and all other information deemed appropriate by the fiduciary supervisor.
(b) The provisions of this section to the contrary notwithstanding, any claim paid by the personal representative to any creditor or beneficiary within such one hundred twenty days, shall not abrogate in any way, the liability of the personal representative under the provisions of sections twenty-six, twenty-seven or twenty-eight of this article.
(c) At the time such proposed settlement is filed, or prior thereto, the personal representative shall prepare and furnish to the fiduciary supervisor, and such supervisor shall review, a return of all inheritance taxes due the state, pursuant to article eleven, chapter eleven of this code, by reason of the death of the decedent, who shall approve any proper return filed with him.
Such supervisor shall compare the proposed settlement with any proper inheritance tax return and with the appraisement and any and all other documents deemed appropriate by the supervisor in order to investigate the propriety of such proposed settlement.
(d) The supervisor may, if he deems it appropriate, reject such settlement and give notice in writing to the personal representative of the matters disapproved and the reasons therefor and fix a time, no later than forty-five days after the date of such notice, for the personal representative to amend the proposed settlement. The personal representative may, within the time specified by the supervisor, amend the settlement, otherwise satisfy the supervisor of the propriety of all or part of such proposed settlement, or insist on the propriety thereof, with or without amendment thereof.
(e) The supervisor shall, after he is satisfied as to the propriety of the settlement or, after the period set by him for amendment thereof has expired, prepare a report of his recommendations to the county commission with respect thereto and his findings and determinations, which shall include his findings with respect to:
(1) A proper appraisement has been filed which conforms to the requirements of section fourteen, article one of this chapter;
(2) The claims of creditors have been paid or have been properly provided for in proper order of preference and proportions;
(3) A proper inheritance tax return has been made and the taxes due thereon paid or that payment has been provided for;
(4) Any real property in this state owned by the decedent at the time of his death has been properly transferred upon the books of the assessor or that the assessor has been notified of the facts and circumstances sufficient to cause the transfer tobe noted upon the books of the assessor;
(5) A proper distribution to the parties entitled thereto has been proposed by the personal representative of the estate;
(6) Minors and other persons under disability who own or are entitled to an interest in the estate are or have been protected; and
(7) Any other matter or matters deemed pertinent by the fiduciary supervisor.
(f) The fiduciary supervisor shall give notice of such proposed settlement and findings to the state tax commissioner, all creditors whose claims have not been fully paid or otherwise satisfied and all beneficiaries which notice shall include a copy of the proposed settlement and shall advise that the subject estate shall be settled according thereto thirty days following the date of such notice. In addition, on the first Monday of the next month, the supervisor shall publish as a Class I-0 legal advertisement, a notice that the accounts of the personal representative are before him for approval.
Such notice shall be divided into two sections: Settlements approved and settlements not approved and notice of the date and time that the names shall be presented to the county commission, which date shall not be more than fifteen days after such publication. Such advertisement shall be sufficient if substantially as follows:
NOTICE OF PROPOSED SETTLEMENT OF ESTATES
To the Creditors and Beneficiaries of the within named deceased persons:
I have before me the proposed final settlements of the estates of the following deceased persons, which shall be presented to the county commission of ..................... County, at the Courthouse thereof, in the City of ................, on the ......... day of ................., 19..., at ..... o'clock, ....M., which settlements have been presented to me by the fiduciary of such estates and which proposed settlements I have either approved or have not approved as indicated below:
Name(s) of Decedent:
Name(s) of Decedent:
Any person having any interest in the estate of any such deceased person, may appear before the county commission at the time and place hereinabove specified and thereupon protect his interests as they may appear or else may be forever thereafter barred from asserting such interests.
Given under my hand this ...... day of ............., 19...,
County, W. Va.
(g) Any person may examine such proposed settlement in the office of the fiduciary supervisor and file objection thereto at or prior to the time set by such notice for presentation thereof to the county commission. The commission shall proceed to hear the presentation of such proposed settlement and findings and hear interested parties, if any appear, and approve, modify and approve, or refuse to approve such proposed settlement and the findings of the fiduciary supervisor. Alternatively, the commission may refer the cause to a fiduciary commissioner generally for supervision or for the purpose of the resolution of any disputed matter.
(h) If no dispute or objection to the proposed settlement has arisen, the fiduciary supervisor shall direct the personal representative to conclude the affairs of the estate as outlined in the proposed settlement or amended proposed settlement. Upon receipt by such supervisor of evidence to his satisfaction thatall claims including claims of beneficiaries have been satisfied and that all taxes have been paid, he shall submit his report of the proposed or amended proposed settlement to the county commission for ratification, confirmation and approval as otherwise provided by law.
If an exception be taken to a report of a fiduciary commissioner wherein no evidence had been previously taken, the matter shall be re-referred to such commissioner who shall proceed thereon as provided for in section twenty-two of this article. It shall be the duty of the fiduciary supervisor to compel timely compliance with the provision of this chapter, including any continuances granted with respect to any matter. Any such continuance which would extend any time limitation imposed by law beyond its lawful limit shall not be granted. The fiduciary supervisor or fiduciary commissioner may petition the circuit court to compel compliance with any of the provisions of this chapter.
On the fifth day of January and July of each year the fiduciary supervisor shall file with the county commission a like list of estates referred to him since the effective date of this section in which the filing of any paper is delinquent, and embrace therein the lists required to be filed with him on the first day of such month by the various commissioners. In the report filed the fifth day of July of each year the fiduciary supervisor shall further include in the report a list of all estates referred to him since the effective date of this section which have not been duly closed and in which no progress, or in his opinion, unsatisfactory progress, has been made toward settlement, for any cause, within the preceding twelve months.
The county commission, after consultation with the fiduciary supervisor shall take care to require prompt disposition of all matters and causes reported to it by the semiannual reports required herein.
In addition, the fiduciary supervisor and the fiduciary commissioners, shall be empowered, and where appropriate, shall on their own motion, petition the circuit court to compel compliance with the provisions of this chapter, in the same manner and to the same extent heretofore provided in the case of commissioners of accounts, or by any other proper proceeding.
(1) Costs and expenses of administration;
(2) Reasonable funeral expenses;
(3) Debts and taxes with preference under federal law;
(4) Unpaid child support which is due and owing at the time of the decedent's death;
(5) Debts and taxes with preference under other laws of the state of West Virginia;
(6) Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation for persons attending the decedent during his or her last illness; and
(7) All other claims.
(b) If the applicable assets of the estate are insufficient to pay all claims within a class, those claims within that class shall be paid on a pro-rata basis. No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
(c) Notwithstanding the provisions of subsection (a) of this section, if the payment of all funeral expenses of the decedent isprovided for by an irrevocable pre-need funeral contract or trust, neither the decedent's estate nor the decedent's surviving spouse shall have any obligation for the payment of such funeral expenses.
Any other provisions of this chapter to the contrary notwithstanding, including the provisions of this section, neither a personal representative nor his surety shall be liable for the amount of any claim or distributive share made within the period of a year from the time of qualification if the estate has been finally settled pursuant to the provisions of section nineteen of this article and, notwithstanding any other provision of this chapter, every estate may be settled prior to the expiration of one year if such settlement complies in all respects with the provisions of said section nineteen of this article.
Any person entitled to any funds paid to a general receiver of a circuit court pursuant to the provisions of this section may petition the circuit court in a summary proceeding for an order directing the distribution of such funds. Any person believed to have any claim to or interest in said funds shall be made a party defendant to such petition and shall be given such notice of any hearing thereon as the circuit court may direct. The circuit court shall enter an order directing the distribution of said funds to the person or persons entitled thereto. The costs of said proceedings shall be paid from the funds.
The fiduciary commissioner shall report to and settle accounts with the county clerk. On or before the last day of March, June, September and December, the fiduciary commissioner shall file with the county clerk a report on the status and disposition of every active case referred to the fiduciary commissioner. In the next succeeding term of the county commission, the county clerk shall provide a copy of the report to the county commission, and shall inform the county commission of any cases referred to a fiduciary commissioner in which the fiduciary commissioner has not fulfil1ed duties relating to the case in accordance with deadlines established by law. The county commission shal1 take appropriate action to ensure that all deadlines established by law will be observed, including, if necessary, the removal of fiduciary commissioners who consistently fail to meet such deadlines.
(b) Any matters or estates heretofore referred to a commissioner of accounts or special commissioner of accounts shall not be recalled solely by reason of the amendment and reenactment of this chapter. Commissioners of accounts or special commissioners of accounts shall be continued in office as special fiduciary commissioners until all such matters heretofore referred to them shall, in the ordinary course of events, be concluded or until otherwise recalled for cause.
(c) All special fiduciary commissioners, whether appointed pursuant to subsection (a) of this section or continued in office pursuant to subsection (b) hereof, shall be subject in all respects to the provisions of this chapter, including, but without limiting the generality hereof, the provisions of section forty-two of this article with respect to fees to be charged.
With respect to estates or matters which have not been referred generally to a fiduciary commissioner, the fiduciary supervisor shall perform all duties required by this section to be performed by the fiduciary commissioner.
(a) When necessary solely for the purpose of financing the cost of settling estates, the county commission may authorize the fiduciary supervisor to charge and collect at the time of qualification of the fiduciary of a decedent's estate a fee not to exceed: (1) Twenty-five dollars for all estates in which the gross assets do not exceed ten thousand dollars; (2) one hundred dollars for all estates in which the gross assets are more than ten thousand dollars and do not exceed fifty thousand dollars; and (3) one hundred seventy-five dollars for all estates in which the gross assets exceed fifty thousand dollars. Of the sums collected by the fiduciary supervisor, five dollars shall be forwarded to the state tax commissioner. The moneys so forwarded to the state tax commissioner shall be deposited in the office of the treasurer of the state in the special fund, designated "The Inheritance Tax Administration Fund", to be used to defray, in whole or in part, the costs of administration of taxes imposed by article eleven, chapter eleven of this code in order to facilitate the prompt administration of the provisions imposed by said article. The remaining amounts shall be deposited in the county fiduciary fund as provided in section forty-three of this article. Such fee shall be paid to include all services of the fiduciary supervisor for the settlement of every such decedent's estate which is settled pursuant to the provisions of section nineteen of this article. All such fees shall also include the cost of publication of the notice required by section four of this article, and the notice required by section nineteen of this article, but shall not include the cost of any mailings or of the cost of recording any documents required to be recorded in the office of the clerk of the county commission by the provisions of this chapter.
In the event the fiduciary supervisor is required to examine and prepare a statement of deficiencies, including reasons for disapproving any of the documents required to be filed by the personal representative of any decedent's estate, he shall charge and collect from such personal representative a fee of ten dollars.
(b) In addition to the fees set forth in subsection (a) of this section, the fiduciary supervisor shall charge a fee to be fixed by the county commission in the manner provided in subsection (c) of this section for conducting hearings, granting continuances of hearings, considering evidence, for drafting recommendations with respect to such hearings and for appearing before the county commission with respect thereto and any other matters of an extraordinary nature not normally included within a summary settlement as contemplated by section nineteen of this article. Such fee shall be used to defray the costs imposed by or incidental to any extraordinary demands by or conditions imposed by a fiduciary or imposed by the circumstances of the estate.
(c) The fiduciary supervisor or fiduciary commissioner shall prepare a voucher for the county commission, which voucher shall be itemized and shall set forth in detail all of the services performed and the amount charged for such service or services. Such voucher shall also indicate in each instance if the service was actually performed by the fiduciary supervisor or fiduciary commissioner or whether such service was performed by an employee or deputy of such supervisor or commissioner. All vouchers shall reflect the services rendered pursuant to the initial fee charged and collected as provided in subsection (a) of this section and, in addition thereto, shall indicate those services for which charges are to be made over and above that amount. In the case of any service for which a fee is not fixed by this section, or the fee fixed is based on time expended, the voucher shall show the actual time personally expended by the supervisor or commissioner, to the nearest tenth of an hour. All such vouchers shall be verified prior to submission to the county commission for approval. Upon approval of any such voucher, the same shall be charged against the estate to which the same applies. In reviewing any fee charged by either the fiduciary supervisor or a fiduciary commissioner, the county commission shall consider the following:
(1) The time and effort expended;
(2) The difficulty of the questions raised;
(3) The skill required to perform properly the services rendered;
(4) The reasonableness of the fee;
(5) Any time limitations imposed by the personal representative, any beneficiary or claimant, or by the attendant circumstances; and
(6) Any unusual or extraordinary circumstances or demands or conditions imposed by the personal representative, any beneficiary or claimant or by the attendant circumstances. The county commission may approve any such voucher or may reduce the same, as it deems proper, after considering those matters set forth in this subsection. Any such approval shall be by order of the commission and be entered of record by the clerk of the county commission in the fiduciary record book and the general order books of the commission. In no event shall any fee for any service, whether performed by the fiduciary supervisor or the fiduciary commissioner, be fixed, charged or approved which is based upon or with reference to the monetary value of the estate or of the amount in controversy upon any disputed issue or fact of law.
(d) For every estate other than a decedent's estate, there shall be charged by the fiduciary supervisor at the time of qualification a fee of twenty-five dollars, which fee shall include all services performed by the fiduciary supervisor with respect to such estate from the time of qualification of the personal representative thereof until and including the filing of the first annual settlement. For each additional or subsequent annual or triennial settlement, the fiduciary supervisor shall charge and collect a fee of ten dollars.
(e) The county commission or other tribunal in lieu thereof shall, by order, establish or fix a schedule of suggested fees or rates of compensation for the guidance of the fiduciary supervisor and any fiduciary commissioner in preparing their respective vouchers for fees other than those fees fixed by any provision of this section or of this chapter. A copy of these fees or rates shall be posted in a conspicuous place in the county courthouse.
(b) Whenever the fiduciary supervisor finds that the funds appropriated and personnel, facilities or equipment allotted to his or her office ar insufficient to permit the full and timely performance of the duties of the office, the supervisor shall make application to the commission for additional appropriation from the fund: Provided, That if any such application has been made within the prior six months then the fiduciary supervisor need not make such additional application until at least six months shall have elapsed. The commission may, and if no such application has been previously made for a least six months shall carefully review such application and subject to all other provisions of law for revisions of appropriations during a fiscal year, and may make available such additional funds, personnel, facilities and equipment as it deems appropriate for all or any of the purposes claimed to be needed by the fiduciary supervisor upon such application. If it refuses to appropriate additional and unexpended funds in the fiduciary fund for use in the full and timely compliance by the fiduciary supervisor with the provisions of this article, then it shall by order state its reasons for refusing so to do. The fiduciary supervisor may apply to the circuit court of the county by application for writ of mandamus for a review of the order of the commission and the circuit court shall have jurisdiction to order the commission to appropriate such unexpended funds as may be suitable to assist the fiduciary supervisor in achieving full and timely compliance with the provisions of this article.
(c) Every county commission or tribunal in lieu thereof, which shall adopt and use the procedure set forth in this article, shall report to the Legislature on or before the first day of the regular session thereof held in the following year, and on the first day of every regular session held in the next succeeding three years thereafter, as to the moneys received into or spent from the county fiduciary fund of the county to the date of such report, and of all moneys transferred into said fund and spent from it or by such county commission for probate matters or other matters relating to the administration of estates and any applications made to it for additional funds pursuant to subsection (b) of this section. The tax commissioner shall prescribe by procedural rule the form and content of such report which shall be in sufficient detail so as to permit the identification of the activity or activities generating the income of such fund and to identify by function and purpose all expenditures with sufficient detail to enable the Legislature to determine the extent to which the probate system and other estate matters are functioning in an efficient and economical manner and the fiscal implications thereof. Such reports shall be filed by each such county commission or tribunal in lieu thereof with the tax commissioner no later than ten days prior to the first day of each said session of the Legislature and the tax commissioner shall thereafter properly collate and file such reports with the clerk of each house of the Legislature on or before the first day of each such regular session.
Whenever by any provision of this article any paper, document or record is required or permitted to be recorded, the fiduciary supervisor shall tender the same to the clerk of the county commission and such clerk of the county commission shall admit the same to record and shall record the same at the expense of the personal representative and the fiduciary supervisor shall collect such fees as are required by law for the recordation of such documents and all such fees so collected and paid to the clerk of the county commission shall be disposed of and accounted for in the same manner as if such fees had been collected as for the recordation of deeds.
(b) Any reference of this code to commissioner of accounts or to fiduciary commissioner or to any power, authority or duty conferred upon a commissioner of accounts is hereby intended to mean and in all respects is conferred upon the fiduciary commissioner created by section thirty- five of this article, and, as to matters permitted by law to be done by the fiduciary supervisor, upon such fiduciary supervisor.
(c) Any provision of this article or of article one of this chapter to the contrary notwithstanding, in each county in which there exists a separate tribunal for police and fiscal purposes created under section thirty-four, article VIII of the constitution of one thousand eight hundred seventy-two, the clerk of the county commission shall have the power and discharge the duties which are by any provision of this chapter conferred upon the fiduciary supervisor or the clerk of the county commission.
Note: WV Code updated with legislation passed through the 2012 1st Special Session