H.B.3221
(By Delegate Staton)
[Introduced March 24, 2005; referred to the
Committee on the Judiciary]
A BILL to repeal §44-2-2 of the code of West Virginia, 1931, as
amended; to am
end said code by adding thereto a new section,
designated §41-5-1a; to amend and reenact §44-1-1, §44-1-6 and
§44-1-14a of said code; to amend said code by adding thereto
a new section, designated §44-1-4a; and to amend and reenact
§44-2-1 of said code, all relating to decedents and their
estates generally; providing record notice of death;
permitting personal representatives to qualify without
appearing personally; eliminating administration of small
uncontested estates of one hundred thousand dollars or less in
assets exclusive of real estate assets; modifying the time of
publication of notice of the filing of an appraisement;
modifying the contents of notice of probate of estates;
allowing estates having a value of one hundred thousand
dollars to be probated without reference to a fiduciary
commissioner; permitting county commissions to promulgate fees
for fiduciary commissioners; and standardizing certain provisions governing probate which relate to fiduciary
supervisors and county clerks.
Be it enacted by the Legislature of West Virginia:
That §44-2-2 of the code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto a new
section, designated §41-5-1a; that §44-1-1, §44-1-6 and §44-1-14a
of said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §44-1-4a; and that §44-2-1
of said code be amended and reenacted, all to read as follows:
CHAPTER 41. WILLS.
ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.
§41-5-1a. Record notice of a person's death by filing a death
certificate and will, if any.
Notwithstanding any provision of this code to the contrary, a
death certificate and a will, if any, of a person who was a
resident of the county or who owned property in the county at the
time of death may be filed with the clerk of the county commission
for the purposes of providing record notice of the person's death.
The filing of a death certificate and a will, if any, does not
commence probate of the person's estate.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-1. Executor has no powers before qualifying.
(a) A person appointed by a will
as executor
thereof shall or
executrix of the will does not have the powers of executor
or executrix until he
qualify as such by taking an oath before or she
qualifies by:
(1) (A) Filing with the clerk of the county commission or
fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this
state; and
(ii) Containing the names and last known addresses, if known,
of any persons who would take any part of the estate as required in
section thirteen of this article;
(B) The statement shall be sworn to by oath or affirmation
before a notary public or other person authorized to administer
oaths in this state; and
(2) Giving bond
the county court in which for his or her
service in this state unless the will or an authenticated copy
thereof of the will is admitted to record
or before the clerk
thereof in vacation, except that which specifically states that the
representative shall serve without bond, and the will: Provided,
That he
or she may provide for
the burial of the testator funeral
arrangements of the testator, pay reasonable funeral expenses and
preserve the estate from waste.
(b) The clerk may require a person appointed by the will to
appear personally to give the oath, for good cause found and
specifically stated in a letter or notice mailed to the person.
§44-1-4a. No probate of small estates.
In any estate where the probate assets of the estate,
excluding real estate, have a value of one hundred thousand dollars or less, the personal representative in addition to qualifying
under section one-a or three of this article may file a sworn
affidavit stating that the value of the estate, exclusive of real
estate, has a value of one hundred thousand dollars or less
exclusive of real estate and all known or discovered debts are or
will be satisfied in the next immediately succeeding one hundred
eighty days. If no protests or claims are filed within ninety days
after notice is published pursuant to section fourteen-a of this
article, the estate shall be closed by the clerk without further
action or administration. If a protest or claim is received within
ninety days, or if the personal representative reports to the clerk
that a debt of the estate was not satisfied, or will not be
satisfied, within the one hundred eighty-day period specified in
the affidavit, the personal representative shall begin probate of
the estate pursuant to the provisions of this chapter.
§44-1-6. Bond and oath; termination of grant in certain cases.
(a) At the time of the grant of administration upon the estate
of any intestate, the person to whom it is granted shall:
in the
court or before the clerk granting it, give
(1)(A) File with the clerk of the county commission or
fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this
state;
(ii) Averring that the deceased left no will so far as he or
she knows;
(iii) Containing the names and addresses, if known, of any persons who would take any part of the estate as required in
section thirteen of this article; and
(iv) That he or she will faithfully perform the duties of the
office to the best of his or her judgment;
(B) The statement shall be sworn to by oath or affirmation
before a notary public or other person authorized to administer
oaths in this state; and
(2) Give bond
and take an oath that the deceased has left no
will so far as he knows, and that he will faithfully perform the
duties of his office to the best of his judgment for his or her
service in this state.
(b) The clerk may require a person seeking to be appointed
under this section to appear personally to give the oath, for good
cause found and specifically stated in a letter or notice mailed to
the person.
(c) If a will of the deceased
be is afterwards admitted to
record or if, after administration is granted to a creditor or
other person
other than a distributee, any distributee who
shall
not have has not before
been refused
shall may apply for
administration
and there
may shall be a grant of probate or
administration, after reasonable notice to
such creditor or other
the person theretofore appointed, in like manner as if the former
grant had not been made, and
such the former grant shall
thereupon
cease
upon paying over of the estate which came into the former's
hand to the subsequent representative.
§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, On or
before the fifteenth day of each month, 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
of the filing of the
appraisement of any estate as required in section fourteen of this
article 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 published pursuant to article four-a of this
chapter shall state that if no protest or claim on estate assets is
made within ninety days, the estate will be closed without
administration and no further protests or claims will be accepted, except as may otherwise be permitted by law;
(8) (9) 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) (10) 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) (11) 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) At any time an estate is to be referred to a fiduciary
commissioner, as part of the next publication as required in
subsection (a) of this section, 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),
subsection (a) of this section. 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,
unless
the estate is closed by the clerk pursuant to section four-a 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 shall 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, a fiduciary commissioner may not charge to the estate a
fee greater than
three five hundred dollars and expenses 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 upon documentation that the fee is reasonable based upon the actual time
spent and actual services rendered pursuant to a schedule of fees
or rate of compensation for fiduciary commissioners promulgated by
the county commission in accordance with the provisions of section
nine, article one, chapter fifty-nine of this code. Any objections
to the fee shall be reviewed by the county commission.
(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 eliminate probate of
uncontested small estates. It also simplifies certain procedures
related to the administration of estates.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§41-5-1a and §44-1-4a are new; therefore, strike-throughs and
underscoring have been omitted.
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