Senate Bill No. 574
(By Senator Rowe)
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[Introduced February 17, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to repeal section two, article two, chapter forty-four of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section
fourteen-a, article one of said chapter; and to amend and
reenact section one, article two of said chapter, all relating
to publication of notice of administration of estate by the
county clerk; and requiring publication of notice upon
referral of the estate to a fiduciary commissioner.
Be it enacted by the Legislature of West Virginia:
That section two, article two, chapter forty-four of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that section fourteen-a, article one of said chapter
be amended and reenacted; and that section one, article two of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 1. PERSONAL REPRESENTATIVES.
§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, 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, 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 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) 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) 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)
If an estate is referred to a fiduciary commissioner
after publishing of the initial notice required by subsection (a)
of this section, the clerk shall publish,
in the manner provided in
subsection (a),
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) of subsection (a). 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, 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 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 In a county which has not adopted the optional procedure
for proof and allowance of claims against estates of decedents
under article three-a of this chapter, a fiduciary commissioner may
not charge to the estate a fee greater than three hundred dollars
and expenses a fee set by the county commission 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.
(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 provide that where
an
estate is referred to a fiduciary commissioner
after initial
publishing of notice of administration of estate by the county clerk, the clerk must publish notice that the estate has been
referred and the date by which claims against the estate must be
filed.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§44-2-2 is repealed.
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