WVC 44 -
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
WVC 44 - 8 -
ARTICLE 8. REAL ESTATE OF DECEDENTS.
§44-8-1. Sale, conveyance and management of decedent’s real estate; powers of executor and administrator with will annexed.
Real estate devised to be sold shall, if no person other than the executor be appointed for the purpose, be sold and conveyed by the executor and the proceeds of sale, or the rents and profits of any real estate which the executor is authorized by the will to receive, shall be received by the executor who qualifies, or by his or her successor. If none qualify, or the one qualifying shall die, resign or be removed before the trust is executed or completed, the administrator with the will annexed shall sell or convey the lands so devised to be sold, and receive the proceeds of sale, or the rents and profits aforesaid, as an executor might have done: Provided, That title to real estate which is devised to be sold shall pass to the individuals entitled to receive the proceeds thereof in such proportions as they are entitled to receive said proceeds absent any contrary testamentary intent upon the closing of the testator’s estate or, if the estate is not closed, five years after the death of the testator.
When any will heretofore or hereafter executed gives to the executor named therein the power to sell the testator’s real estate, which has not been theretofore specifically devised therein, the executor may sell any such real estate unless otherwise provided in said will. If such will directs the sale of testator’s real estate but names no executor, or names an executor and the executor dies, resigns or becomes incapable of acting, and an administrator with the will annexed is appointed, the administrator with the will annexed may sell such real estate as aforesaid.
Nothing in this section shall be deemed or construed so as to invalidate any conveyance made prior to the effective date of the amendments thereto adopted by the Legislature at its regular session held in the year 1987.
WVC 44 - 8 - 2
§44-8-2. Rents, profits or proceeds of sale to be paid to persons
It shall be one of the duties of an executor or
administrator, by virtue of his office, and as such embraced by
his official bond, faithfully to pay the rents and profits, or
proceeds of sale, of real estate which may lawfully come to his
hands or to the hands of any person for him, to such persons as
are entitled thereto.
WVC 44 - 8 - 3
§44-8-3. Real estate to be assets for payment of debts.
All real estate of any person who may hereafter die, as to
which he may die intestate, or which, though he die testate,
shall not by his will be charged with or devised subject to the
payment of his debts, or which may remain after satisfying the
debts with which it may be so charged, or subject to which it may
be so devised, shall be assets for the payment of the decedent's
debts and all lawful demands against his estate, in the order in
which the personal estate of a decedent is directed to be
WVC 44 - 8 - 4
§44-8-4. By what court assets administered.
Such assets, so far as they may be in the hands of the
personal representative of the decedent, may be administered by
the court in whose clerk's office there is or may be filed a
report of the accounts of such representative, and of the debts
and demands against the decedent's estate, or they may, in any
case, be administered by a court of equity.
WVC 44 - 8 - 5
§44-8-5. Liability of heir or devisee for real estate conveyed;
when such real estate not liable.
Any heir or devisee who shall sell and convey any real
estate, which by this article is made assets, shall be liable to
those entitled to be paid out of such assets, for the value
thereof, with interest; in such case the estate conveyed shall
not be liable, if at the time of the conveyance the purchaser
shall have no notice of any fraudulent intent on the part of the
grantor, and no suit shall have been commenced for the
administration of such assets, nor any report have been filed, as
aforesaid, of the debts, and demands of those entitled. But no
alienation of such estate, made by an heir or devisee, within one
year after the death of the testator or intestate, shall be valid
against creditors of such testator or intestate, although no such
suit shall have been commenced or report of debts and demands
filed within such year.
WVC 44 - 8 - 6
§44-8-6. Heir or devisee liable in equity; judgment against
personal representative prima facie evidence.
An heir or devisee may be sued in equity by any creditor to
whom a debt is due, for which the estate descended or devised is
liable, or for which such heir or devisee is liable in respect to
such estate; and he shall not be liable to an action at law for
any matter for which there may be any redress by such suit in
equity. And any judgment or decree, except one taken by default,
for such debt hereafter rendered against the personal
representative of the decedent, shall be prima facie evidence of
such debt against the heir or devisee in such suit in equity.
WVC 44 - 8 - 7
§44-8-7. Suit to subject real estate to payment of debts;
When the personal estate of a decedent is insufficient for
the payment of his debts, his executor or administrator may
commence and prosecute a suit in equity to subject his real
estate to the payment thereof as provided in this article. The
surviving wife or husband, heirs and devisees, if any, and all
the known creditors of the decedent, shall be made defendants in
such suit. If such suit be not brought within six months after
the qualification of such executor or administrator, any creditor
of such decedent, whether he has obtained a judgment at law for
his claims or not, may institute and prosecute such suit on
behalf of himself and the other creditors of such decedent, in
which the personal representative, surviving wife or husband,
heirs and devisees, if any, of the decedent shall be made
defendants. If any creditors' suit shall have been brought
against the decedent in his lifetime, and be undisposed of at the
time of the death of the decedent, a separate suit shall not be
instituted by any other creditor, nor by the executor or
administrator, but the plaintiff shall, or, if he fails to do so
within six months after the qualification of the executor or
administrator, such executor or administrator or any general
creditor, by intervening, may, in the suit already pending, by
amended and supplemental bill, cause all proper and necessary
parties to be brought into such suit; and thenceforth the same
shall proceed as a suit instituted under this section. In every
suit under this section anyone claiming to be a creditor of the decedent, whether he may have been made a party thereto or not,
or whether he may have been served with process therein or not,
may present his claim, and, upon such presentation, shall be
deemed to have been made a party to the suit and to have been
served with process therein. And evidence respecting such claim
may be taken, and the same may be allowed and paid, in whole or
in part, or rejected in the same manner and with the same effect,
as if such claimant had been originally made a party and served
WVC 44 - 8 - 7 A
§44-8-7a. Jurisdiction of court in suits to subject real estate of
decedents to payment of their debts.
In every suit under the preceding section, whether brought by
the personal representative or by any creditor, or whether a
general creditors' suit is pending at the time of the death of the
decedent, the court shall have general jurisdiction with all the
powers of a court of equity, and shall have authority to construe
any deed, will or other writing, or dispose of any other matter
pertaining to the real estate, or any part thereof, of the said
decedent, the same as though a separate suit had been brought for
WVC 44 - 8 - 8
§44-8-8. Reference to special commissioner and publication of
notice to creditors in such suit.
No decree for the distribution of the proceeds of the real
estate of such deceased person among his creditors shall be made
until a reference is made to a commissioner in chancery to
ascertain and report all the liens on the real estate or any part
thereof, the holders of such liens, the amount due to each, and
the priorities thereof, and report made of all general claims and
the priorities of the same, and until a notice to all creditors
to present and prove their claims is published as hereafter
provided. The notice shall be in the following form or to the
To all creditors of A ............... B .............,
deceased, including those holding liens by judgment or otherwise
on his real estate, or any part thereof.
In pursuance of a decree of the .......... court, of the
county of ................, made in a cause therein pending, to
subject the real estate of the said A .................. B
.................. to the payment of his debts, including those
which are liens on such real estate, or any part of it, you are
hereby required to present your claims to the undersigned for
adjudication, at (designating place) on or before the ..........
day of ..........; otherwise you may by law be excluded from all
benefit of such real estate.
Given under my hand this .......... day of ............,
Commissioner in Chancery.
Such notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county in which the action is
pending. The court shall designate the newspaper in which such
notice shall be published. The court may direct such other
notice to be given as it may deem proper. Such publication of
such notice shall be equivalent to personal service thereof on
all creditors, including those holding liens on such real estate,
unless the court shall in the order directing publication
otherwise order. Any creditor who may have filed his claim
before a fiduciary commissioner may withdraw the same and the
proof thereof made before such commissioner, and may file such
claim and proof before the commissioner in chancery, and the
commissioner in chancery shall, unless there be objection by any
party to the suit, accept such proof for what the same may
legally show. No other publication to creditors than the one
provided by this section shall be necessary, and when any notice
of the reference is required by law or by the court to be
published, the notice of the reference shall be included in the
above notice, so that there may be but one publication.
WVC 44 - 8 - 9
§44-8-9. Decree of distribution; claims barred when.
When such suit shall be fully matured for hearing and the
report of any such commissioner shall have been confirmed, and
the provisions of the preceding section shall have been fully
complied with, the court may decree a distribution of the
proceeds of such real estate among such of the creditors of the
deceased as shall have shown themselves entitled thereto
according to their several priorities, if any; which decree, so
made, shall be a bar to the claim of any creditor of the
deceased, or lienholder on real estate of the deceased, who has
failed to present his claim to the commissioner as required by
such notice, except that if a surplus remain after such
distribution, the creditor or lienholder so failing may share in
the same upon proving his claim at any time before a final decree
is made in such suit. But if he fail to present his claim for
adjudication before such final decree, he shall be forever barred
of all right to participate in the proceeds of such real estate,
so far as the other creditors of the said deceased, who have not
so failed, are concerned.
WVC 44 - 8 - 10
§44-8-10. No costs recoverable in, and injunction against, second
After the commencement of any such suit as aforesaid, if any
creditor of the deceased commence another suit, action or
proceeding, upon a claim against him or his estate, no costs
shall be recovered in such last-mentioned suit, action, or
proceeding; and the court, or judge thereof in vacation, may
enjoin the plaintiff therein from the prosecution of any such
suit, action or proceeding, and require him to assert his claim
or lien in the suit provided for by this article, or make any
other order or decree that may seem right and proper to protect
the interests of all parties having claims or liens.