WEST virginia Legislature
2016 regular session
Introduced
House Bill 4235
By Delegate Shott
[Introduced January 22,
2016; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §44-3A-4, §44-3A-4a and §44-3A-32 of the Code of West Virginia, 1931, as amended, relating to notice requirements for claims against an estate; time limits on short form settlements of estates; and barring recovery for claims against an estate not presented within specified time period.
Be it enacted by the Legislature of West Virginia:
That §44-3A-4, §44-3A-4a and §44-3A-32 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-4. Notice of claim; settlement in certain cases.
(a) The fiduciary supervisor shall at least once a month as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, cause to be published in a newspaper of general circulation within the county wherein letters of administration have been granted, a notice substantially as follows:
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:................................................................................................................
Address:.................................................................................................................................
Name of Decedent:................................................................................................................
Name of Fiduciary:................................................................................................................
Address: ................................................................................................................................
Name of Decedent: ...............................................................................................................
Name of Fiduciary: ...............................................................................................................
Address: ................................................................................................................................
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
sixty 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
sixty 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
20......
...................................................
Fiduciary Supervisor
............................. 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 sixty days of the date of the first
publication of such notice or with the fiduciary supervisor within ninety
sixty 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 sixty-day
period set forth in such notice, the fiduciary supervisor may proceed with
supervision of all estates referred to him or her 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 or her
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 or her.
§44-3A-4a. Short form settlement.
(a) In all estates of
decedents administered under the provisions of this article where more than ninety
sixty days has elapsed since the filing of any notice required by
section four, an estate may be closed by a short form settlement filed in
compliance with this section: Provided, That any lien for payment of
estate taxes under article eleven, chapter eleven of this code is released and
that the release is filed with the clerk.
(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.
§44-3A-32. When claims not presented and proved barred of recovery from personal representative.
Every person having a claim
against a deceased person, whether due or not, who shall not, when notice to
creditors has been published as prescribed in this article, have presented his or
her claim on or before the ninety-day sixty-day time period
fixed in such notice, or before that time have instituted an action thereon,
shall, notwithstanding the same be not barred by some other statute of
limitations that is applicable thereto, be barred from recovering such claim of
or from the personal representative, or from thereafter setting off the same by
way of counterclaim or otherwise against the personal representative in any
action whatever; except that if a surplus remain after providing for all claims
presented in due time, or on which action shall have been commenced in due
time, and such surplus shall not have been distributed by the personal
representative to the beneficiaries of the estate, and the claimant prove that
he or she had no actual notice of the publication to creditors nor
knowledge of the proceedings before the fiduciary supervisor or fiduciary
commissioner, such creditor may prove his or her claim by action or suit
and have the same allowed out of such surplus; and, in order that such late
claims if proved may be provided for, the fiduciary supervisor or fiduciary
commissioner shall reopen his or her report if the same has not been
returned to the county commission, or if returned shall make and return a
supplemental report.
NOTE: The purpose of this bill is to make the time period for claims against the estate uniform in all counties. During the 2015 legislative session, House Bill 2266 changed the claims period from ninety to sixty days in all counties that use a fiduciary commissioner system. This bill will make identical change in the counties that have elected to use the fiduciary supervisor system.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.