Senate Bill No. 582
(By Senator Mitchell)
____________
[Introduced March 23, 2001; referred to the Committee
on the
Judiciary
.]
____________
A BILL to amend and reenact section seventeen-a, article eleven,
chapter eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
fourteen, article one, chapter forty-four of said code; to
amend and reenact sections one, sixteen and nineteen, article
two of said chapter; to amend and reenact sections five,
seventeen, nineteen, twenty, twenty-one and twenty-two,
article three-a of said chapter; and to amend and reenact
sections one, three and ten, article four of said chapter, all
relating to the administration of estates and trusts;
providing that the fiduciary files an appraisement of the
assets of the estate with the tax commissioner, rather than the county clerk or fiduciary supervisor, and that the assets
and value of the assets of an estate are not a matter of
public record; and providing procedure for heir, beneficiaries
and creditors to obtain information relating to assets.
Be it enacted by the Legislature of West Virginia:
That section seventeen-a, article eleven, chapter eleven of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section fourteen, article
one, chapter forty-four of said code be amended and reenacted; that
sections one, sixteen and nineteen, article two of said chapter be
amended and reenacted; that sections five, seventeen, nineteen,
twenty, twenty-one and twenty-two, article three-a of said chapter
be amended and reenacted; and that sections one, three and ten,
article four of said chapter be amended and reenacted, all to read
as follows:
CHAPTER 11. TAXATION.
ARTICLE 11. ESTATE TAXES.
§11-11-17a. Discharge of nonresident decedent's real property in
absence of ancillary administration.
(a) The domiciliary personal representative of a nonresident
decedent may apply to the tax commissioner for a certificate releasing all real property situate in this state included in
decedent's gross estate from any lien imposed by section seventeen
of this article. In the absence of ancillary administration in
this state, the tax commissioner may consider reliable and
satisfactory evidence furnished by the personal representative
regarding the value of real property and the amount of tax due
under this article, or that no tax liability exists under this
article with respect to any real property.
(b) If the tax commissioner determines that reliable and
satisfactory evidence exists, an affidavit of value submitted by
the personal representative made pursuant to and in conjunction
with the evidence shall be marked as inspected by the commissioner
and
a certification of this action shall be filed by the estate in
the county or counties of this state where the real property is
situate:
Provided, That no evidence of the actual value of the
estate may be presented or filed and any such evidence may not be
made a matter of public record.
(c) In determining tax liability, the tax commissioner may
also consider an appraisal of the real property submitted in
writing to the tax commissioner, paid for by the personal
representative and made at the personal representative's request. The appraisal shall be performed by a licensed real estate
appraiser acceptable to the tax commissioner and
it a certification
that the appraisal was made and acceptable to the tax commissioner
shall be filed in the county or counties where the real property is
situate.
The appraisal or results of the appraisal may not be
required to be filed nor may it be made a matter of public record.
(d) If the tax commissioner is satisfied that no tax liability
exists, or that the tax liability of the estate has been fully
discharged, the tax commissioner may issue a certificate under
subsection (f), section seventeen of this article.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-14. Appraisal of estates in triplicate; disposition;
authority of appraisers to act throughout the
state; hiring of experts.
The real and personal estate of every deceased person, or in
which
such the deceased person had an interest at the time of his
or her death, shall be appraised by the personal representative of
such the deceased person.
Such The personal representative, after
first taking an oath for the purpose, shall list and appraise at
its real and actual value all the real estate and all the tangible property of every description owned by the deceased at the time of
his or her death, including, but not limited to, all real estate
and tangible property in which the decedent had an interest as
joint tenant or otherwise or in which any beneficial interest
passes to another person by reason of the death of
such the
decedent whose estate is being so appraised and irrespective of
whether
such the real estate or tangible property is subject to
administration and located in each county or the counties, as the
case may be. The personal representative shall also list and
appraise at its real and actual value all of the decedent's
intangible property of every description, including moneys,
credits, investments, annuities, life insurance policies,
(irrespective of whether
such the policies are payable to named
beneficiaries or in trust or otherwise), judgments and decrees for
moneys, notes, bonds, accounts and all other evidences of debt,
whether owing to him or her by persons or corporations in or out of
the state, and the number and value, including both the par value,
if any, and the actual value, of any shares of capital stock owned
by the decedent in any corporation, and every other item of
intangible property of whatsoever nature or kind, including all
intangible property in which the decedent had an interest as joint tenant or otherwise or in which any beneficial interest passes to
another by reason of the death of
such the decedent, and
irrespective of whether
such the intangible property is subject to
administration and whether located in this state or elsewhere
to be
submitted to the tax commissioner as provided by this section. Any
real estate or interest therein so appraised shall be identified
with particularity and description, shall identify the source of
title in the decedent and the location of
such the realty for
purposes of real property ad valorem taxation. In addition to all
other information required by law, the appraisement
submitted to
the tax commissioner shall contain and include a questionnaire
designed and formulated by the tax commissioner which is designed
for the purpose of examining the personal representative to
determine that he or she has made a thorough and proper search and
investigation as to the existence and value of each and every kind
and species of property required to be included within, and subject
to appraisement by, the provisions of this or any other section of
this code, which
said questionnaire shall be completed and answered
upon the oath or adjuration of the personal representative or
fiduciary.
The appraisement, list and questionnaire
aforesaid shall be executed and signed by the personal representative. The original
appraisement, list and questionnaire and two copies thereof must be
returned to the
clerk of the county commission by whom such
personal representative was appointed or to the fiduciary
supervisor tax commissioner within ninety days of the date of
qualification of the personal representative.
Such The clerk or
supervisor tax commissioner shall inspect
such the appraisement,
list and questionnaire, see that
the same they are in proper form,
and that all property, if any, suggested by the questionnaire is
included within the appraisement. If
such the appraisement, list
and questionnaire are returned to
a fiduciary supervisor the tax
commissioner within ten days after they are received and approved
by him or her,
such supervisor the tax commissioner shall deliver
the same a certification of the filing of the appraisement to the
clerk of the county commission.
The certification from the tax
commissioner must contain a statement indicating whether there is
a federal estate tax consequence. Upon receipt of
the
certification of appraisement
from the tax commissioner, list and
questionnaire, the clerk of the county commission shall record the
same certification. with the certificate of approval of the
supervisor, and mail a certified copy of the same to the tax commissioner of West Virginia The date of return of
an a
certification of appraisement shall be entered by the clerk of the
county commission in his or her record of fiduciaries.
The
appraisement and list shall be prima facie evidence of the value of
the property embraced therein, and that the personal estate
embraced therein which is subject to administration came to the
hands of the personal representative. No person
shall may be
permitted by any means whatsoever to avoid the appraisement and
listing of his or her estate and of all property, real, tangible
and intangible, of whatsoever nature and kind, in which a
beneficial interest passes to another by reason of the death of the
decedent and irrespective of whether
such the property is subject
to administration as herein provided, nor
shall may his or her
personal representative be permitted to do so. Any personal
representative who refuses or declines, without reasonable cause,
to comply with the provisions of this section
shall be is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than five hundred dollars.
Every personal representative
shall have authority to may
retain or hire the services of such expert or experts as
may be
deemed are determined appropriate to assist and advise him or her in and about his or her duties in appropriately and accurately
appraising all or any part of the assets or property to be
appraised according to the provisions of this section.
Such The
expert or experts so retained or hired shall be compensated a
reasonable sum by the personal representative from the assets
coming into his or her hands or of which he or she is embraced,
which compensation and the reasonableness thereof
shall be are
subject to review and approval by the county commission, upon
recommendation of the fiduciary supervisor.
The tax commissioner shall design a form for an affidavit, to
be completed and executed by the personal representative,
identifying heirs or beneficiaries of an estate and that the
personal representative has timely filed an appraisement of the
estate with the tax commissioner. The affidavit may be filed with
the clerk of the county commission by whom the personal
representative was appointed or to the fiduciary supervisor. The
personal representative is not required to file any itemized
appraisement of assets or the value of assets of an estate with the
fiduciary supervisor or clerk of the county commission. The tax
commissioner shall file a certification with the clerk of the
county commission by whom the personal representative was appointed or to the fiduciary supervisor that an itemized appraisement of the
value of assets of an estate was filed with the tax commissioner
and that the tax commissioner has approved and accepted the
appraisement, together with the identification of any real estate
or interest therein so appraised with particularity and
description, identifying the source of title in the decedent and
the location of the realty. The information contained in the
appraisement is not a matter of public record and may not be made
a matter of public record.
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 certification of appraisement by
the personal representative tax commissioner to the county clerk,
the estate of his or her decedent shall, by order of the county
commission to be then made, 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 and proper for the settlement of the estate: Provided,
That in counties where there are two or more such commissioners, the estates of decedents shall be referred to such the
commissioners in rotation, in order that, so far as possible, 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 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 such the settlement
substantiate the allowance of a greater fee.
(b) If the personal representative or the tax commissioner
delivers to the clerk, an appraisement of the assets of the estate
showing their value to be fifty thousand dollars or less, exclusive
of real estate specifically devised and nonprobate assets, or, a
certification from the tax commissioner that the appraisement
required to be filed by the provisions of section fourteen, article
one of this chapter has been filed with the tax commissioner and
that the commissioner has approved and accepted the appraisement,
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 certification of the appraisement by the tax commissioner and publish a notice once a
week for two successive weeks in a newspaper of general circulation
within the county of administration of the estate, substantially as
follows:
NOTICE OF PENDING OR UNADMINISTERED ESTATE
"Notice is hereby given that settlement of the estate of the
following named decedents will proceed without reference to a
fiduciary commissioner unless within forty-five days from the first
publication of this notice such 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.
Dated this ______ day of ____________________________, _____.
____________________________________
Clerk of the County Commission of
___________ County, West Virginia."
The clerk shall charge to the personal representative, and
receive, the reasonable cost of publication of the notice. 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 in such case
certification of the appraisement by the tax commissioner: (i)
File a waiver of final settlement in accordance with the provisions
of section twenty-nine of this article; or (ii) make a report,
that
must not be recorded, nor subject to public inspection nor a matter
of public record, 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. The clerk shall
collect a fee of ten dollars for recording
such report and the
affidavit and for publication of the notice hereafter provided, the
fee to be in lieu of any other fee provided by law for recording a
report of settlement of the accounts of a decedent's personal
representative. At least once a month the clerk shall cause to be
published once a week for two successive weeks in a newspaper of
general circulation within the county of the administration of the
estate, with regard to reports received in the prior month, a
notice substantially as follows:
NOTICE OF FILING OF ESTATE ACCOUNTS
OR WAIVERS OF FINAL SETTLEMENT
"I have before me the account or waiver of final settlement of
the executor(s) or administrator(s) of the estates of the following
deceased persons:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Any person having a claim against the estate of any such
deceased person, or who has any beneficial interest therein, may
appear before me or the county commission at any time within thirty
days after first publication of this notice, and request reference
of
said the estate to a commissioner or object to confirmation of
the accounting. In the absence of
such a request or objection, the
accounting may be approved by the county commission.
___________________________________
Clerk of the County Commission
of _________________ County, W.Va."
If no
such request or objection is made to the clerk or to the
county commission, the county commission may confirm the report of
the personal representative and thereupon the personal representative and his or her surety shall be discharged; but if
such objection or request is made, the county commission may
confirm the accounting
and record the same or may refer the estate
to one of its fiduciary commissioners:
Provided, That the personal
representative has twenty days after the date of the filing of a
claim or claims 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.
§44-2-16. Fiduciary commissioner to report on claims of
creditors, assets and shares of distributees and
legatees.
After the completion of the hearings for the presentation of
claims and for reception of proof for and against disputed claims,
but not later than five months from the qualification of the
personal representative, the fiduciary commissioner may, and upon
motion of any interested person, shall prepare a report of claims
against the estate, showing in such the report all the claims
presented, or exhibited in offset, or certified to the fiduciary
commissioner by any court, and stating as to each claim how much
was allowed and how much disallowed, together with the final balance, whether in favor of the creditor or the estate. The
fiduciary commissioner shall also show in such the report what
assets are in the hands of the personal representative, and shall
designate how the same shall be applied to the payment of debts and
claims; also in what order of priority the claims shall be paid and
also what sum shall be reserved to pay contingent or unliquidated
claims and claims not matured, or a proportion of any such claim
equal to what is allowed to other creditors of the same class, when
payment of such claims shall become proper. Such The report shall
also show what persons are entitled to share in the estate as
legatees, and as such in what property or amounts; or as
distributees, and as such in what proportions. The fiduciary
commissioner report required by this section is confidential and
may not be recorded or otherwise made a matter of public record.
However, heirs, beneficiaries and creditors, whose claims against
the estate are being considered, may be informed of the assets and
what debts and claims are proper and the proposed distributions.
§44-2-19. Hearing on report and exceptions; appeal; effect of
confirmation.
The hearing on the report of claims returned by a fiduciary
commissioner shall be had at the first term of the county commission occurring not earlier than ten days after its return.
If there be are no exceptions to such the report it shall be
confirmed, but if excepted to, the county commission shall pass
upon the exceptions and make its order thereon, without hearing or
receiving any new evidence; but if good cause be shown for the
introduction of further proof regarding any matter contained in
such the report, the report shall be is referred back to the
fiduciary commissioner for the taking of further proof and the
making of a supplemental report that is also confidential as to
specific assets and may not be recorded or otherwise made a matter
of public record, except that heirs, beneficiaries and creditors,
whose claims against the estate are being considered, may be
informed of the assets and what debts and claims are proper and
the proposed distributions.
An appeal from the decision of such
the county commission on such the report and exceptions and on the
supplemental report and exceptions, if there be such is a
supplemental report, may, without any formal bill of exceptions, be
taken to the circuit court of the county. The appeal shall be
tried and heard in the circuit court, or before the judge thereof
in vacation, on the record made before the fiduciary commissioner
and on order of the county commission. After the report of the fiduciary commissioner on the claims against the estate of any
decedent has been confirmed by the county commission, or the
circuit court on appeal, or corrected and confirmed after appeal,
the same shall be report is forever binding and final.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-5. Reference to fiduciary commissioner; exceptions and
limitations.
When the personal representative shall deliver delivers to the
fiduciary supervisor, the appraisement
the certification of the
appraisement by the tax commissioner
required by section fourteen,
article one of this chapter, and is notified as to the completeness
thereof, the fiduciary supervisor shall, unless otherwise ordered
by the county commission, proceed to receive claims and proceed to
supervise settlement of the estate.
The county commission shall may not remove the estate from
supervision by the fiduciary supervisor and no reference to a
fiduciary commissioner shall may be made if the appraisement,
properly completed,
certification of the appraisement by the tax
commissioner
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 the dispute.
The county commission shall may 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 the 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
the disputed question.
In the event If 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 the reference
may be made generally or for the sole purpose of determining those
matters in dispute. In any event, such the reference shall be withdrawn at any time upon the settlement or determination or
resolution of the reason or reasons giving rise to such the
reference or at any other time deemed determined 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 is, in any event, be later withdrawn at any
time required by this section or deemed determined 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 such
the commissioners in rotation in order that, so far as possible,
there may be an equal division of the work.
§44-3A-17. Fiduciary commissioner to report on claims of
creditors; report by fiduciary supervisor; assets
and shares of distributees and legatees.
If an estate has been referred generally to a fiduciary commissioner, after the presentation of all claims and after the
completion of the hearings for the proof for and against any
disputed claims, but not later than ten months from the
qualification of the personal representative, the commissioner
shall prepare a report of all claims, disputed or otherwise,
against the estate, showing in such the report all such claims
presented, disputed, exhibited in offset, or certified to the
commissioner by the fiduciary supervisor or by any court, and
stating as to each claim how much was allowed and how much
disallowed, together with the final balance, whether in favor of
the creditor or the estate. The commissioner shall also show in
such the report what assets are in the hands of the personal
representative, and shall designate how the same assets shall be
applied to the payment of debts and claims; also in what order of
priority the claims shall be paid and also what sum shall be
reserved to pay contingent or unliquidated claims and claims not
matured, or a proportion of any such claims equal to what is
allowed to other creditors of the same class, when payment of such
the claims shall become becomes proper. In the event If the
estate is not referred to any such fiduciary commissioner, then a
report shall be prepared by the fiduciary supervisor which shall contain all such information as is herein required to be included
in the report filed by such the commissioner. In lieu of a formal
report of claims, the fiduciary supervisor or fiduciary
commissioner may prepare an abbreviated or condensed report which
summarizes the status of claims and the entitlements of the
legatees or beneficiaries and identifies other matters that require
completion in the particular estate before the estate is closed.
Any report or abbreviated report, whether by the fiduciary
supervisor or fiduciary commissioner, shall show what persons are
entitled to share in the estate as legatees, and as such in what
property or amounts; or as distributees, and as such in what
proportions.
The report required by this section is confidential and may
not be recorded or otherwise made a matter of public record.
However, heirs, beneficiaries and creditors, whose claims against
the estate are being considered, may be informed of the assets and
what debts and claims are proper and the proposed distributions.
§44-3A-19. Summary settlement before fiduciary supervisor.
(a) At any time after the expiration of the period for filing
claims, the fiduciary supervisor may proceed with summary
settlement under this section if the estate has not been referred to a fiduciary commissioner or if the estate, having been referred
to a fiduciary commissioner generally or for a specific reason, has
been withdrawn and placed before the fiduciary supervisor for
settlement.
The fiduciary supervisor shall require that the personal
representative, or the personal representative may on his or her
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 determined
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 may 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 the proposed settlement is filed, or
prior thereto, the personal representative shall prepare and
furnish to the fiduciary supervisor, and such the 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 the supervisor.
Such The supervisor shall compare the proposed settlement with
any proper inheritance tax return and with the appraisement and any
and all other documents deemed considered appropriate by the
supervisor in order to investigate the propriety of such the
proposed settlement.
(d) The supervisor may, if he deems the supervisor considers
it appropriate, reject such the 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 the 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 the proposed settlement, or insist
on the propriety thereof, with or without amendment thereof.
(e) The supervisor shall, after he the supervisor is satisfied
as to the propriety of the settlement or, after the period set by
him the supervisor
for amendment thereof has expired, prepare a
report of his recommendations of the supervisor
to the county
commission with respect thereto and his findings and
determinations, which shall include his findings with respect to:
(1) A proper appraisement
certification of the appraisement by
the tax commissioner
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 or her 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 to be
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 considered
pertinent by
the fiduciary supervisor.
(f) The fiduciary supervisor shall give notice of such the
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 the notice. In addition, on the first Monday of the next
month, the supervisor shall publish as a Class I-10 legal
advertisement, a notice that the accounts of the personal
representative are before him the supervisor for approval.
Such The 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 may not be more than fifteen days
after such the publication. Such The advertisement shall be is
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 ..................., 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:
APPROVED
Name(s) of Decedent:...................................
...................................
...................................
NOT APPROVED
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 or
her interests as they may appear or else may be forever thereafter
barred from asserting such interests.
Given under my hand this ........ day of ........,
..............................
Fiduciary Supervisor
................ County, W.Va.
(g) Any person, who is an interested party, may examine such
the proposed settlement in the office of the fiduciary supervisor
and file objection thereto at or prior to the time set by such the
notice for presentation thereof to the county commission. The
commission shall proceed to hear the presentation of such the
proposed settlement and findings and hear interested parties, if
any appear, and approve, modify and approve, or refuse to approve
such the 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 the supervisor of evidence to his the satisfaction
of the supervisor that all claims including claims of beneficiaries
have been satisfied and that all taxes have been paid, he the
supervisor shall submit his a report of the proposed or amended
proposed settlement to the county commission for ratification,
confirmation and approval as otherwise provided by law.
§44-3A-20. How contingent and unliquidated claims and claims not
matured may be provided for.
The fiduciary supervisor or fiduciary commissioner, as may be,
in his the report on claims shall direct the personal
representative to withhold from distribution to beneficiaries
sufficient assets to take care of such contingent and unliquidated
claims and claims not matured as shall be are presented and proved
or a proportion thereof equal to what is paid to other creditors of
the same class, and such the assets shall be so withheld until such
the contingent liability becomes fixed, or such the unliquidated liability becomes liquidated, or until such the claim not matured
matures, as the case may be, at which time such the assets shall be
disbursed or distributed as the fiduciary supervisor or fiduciary
commissioner in his the report may have designated and the
circumstances may require. But in any case where there are
sufficient assets to pay all liquidated claims against any estate,
any legatee or distributee of the estate shall be is entitled to be
paid his or her share of the full surplus of the estate, after
payment of, or provision for, all liquidated claims, both those
matured and those not matured has been made, upon such the
legatee's or distributee's giving to the personal representative a
bond, executed by himself, herself or some other person, with
sufficient security, to be approved by the county commission, or
the fiduciary supervisor thereof during any recess thereof,
conditioned to refund a due proportion of any unliquidated or
contingent debts or demands which may afterwards appear against the
decedent or become liquidated or have their liability fixed, and of
the costs attending their recovery. Such The bond shall be filed
in the office of the clerk of the county commission where probate
of the will or administration of the estate was had, and recorded
by such the clerk in the record of bonds. After the giving of any such bond or bonds, creditors holding unliquidated or contingent
debts and demands shall may, as to the estate distributed by virtue
of the giving of such the bond or bonds, look only to such the bond
or bonds for the payment of such the debts and demands.
§44-3A-21. Exceptions to fiduciary supervisor's or fiduciary
commissioner's report; return of report.
After preparing his a report of claims the fiduciary
supervisor or the fiduciary commissioner, as may be, shall give
notice thereof, in writing, delivered personally or by mail, to all
parties interested or their attorneys, and hold the report and the
evidence taken in connection therewith in his or her office for ten
days for the examination of or by all parties interested. Any
party may inspect such the report and evidence and file exceptions
thereto before said supervisor or commissioner; and such the
supervisor or commissioner, in all cases, shall return with his
the report all the evidence taken in connection with any claim
listed in such the report, and the exceptions, if any, taken to the
report, and shall submit such remarks upon the exceptions as he or
she may deem considers pertinent. Such The report shall include
the same findings as are required to be made by the provisions of
section nineteen of this article. After the expiration of such ten days such the supervisor or commissioner shall return the report,
evidence, exceptions and remarks to the county commission, and
until the report is acted upon by the commission it shall be is
subject to further exceptions by the same or other parties
interested.
The report required by this section is confidential and may
not be recorded or otherwise made a matter of public record.
However, heirs, beneficiaries and creditors, whose claims against
the estate are being considered, may be informed of the assets and
what debts and claims are proper and the proposed distributions.
§44-3A-22. Hearing on report and exceptions; appeal; effect of
confirmation.
A hearing, open only to interested parties and their
witnesses, on the report of claims returned by the fiduciary
supervisor or fiduciary commissioner shall be had at the first term
of the county commission occurring not earlier than ten days after
its return. If there be are no exceptions to such the report it
shall be confirmed, but if excepted to the commission shall pass
upon the exceptions and make its order thereon, without hearing or
receiving any new evidence, but if good cause be is shown for the
introduction of further proof regarding any matter contained in such the report, the report shall be referred back to the fiduciary
commissioner for the taking of further proof and the making of a
supplemental report. An appeal from the decision of such the
county commission on such the report and exceptions and on the
supplemental report and exceptions, if there be such is a
supplemental report, may, without any formal bill of exceptions, be
taken to the circuit court of the county. The appeal shall be
tried and heard in the circuit court, or before the judge thereof
in vacation, on the record made before the commissioner and the
county commission. After the report of the commissioner on the
claims against the estate of any decedent has been confirmed by the
county commission, or the circuit court on appeal, or corrected and
confirmed after appeal, the same shall be report is forever binding
and final.
ARTICLE 4. ACCOUNTING BY FIDUCIARIES.
§44-4-1. Record of certification of appraisements.
Every certification of appraisement returned by the tax
commissioner under this article shall be recorded by the clerk of
the county commission in appropriate books and indexed in the same
manner as the record of fiduciaries.
§44-4-3. Fiduciaries from whom inventories, appraisals or accounts are due when this article effective may be
proceeded against.
Any fiduciary who has been appointed or qualified before this
article takes effect and has not given sufficient bond, nor
returned any appraisement to the tax commissioner as required by
law, nor has had any appraisal made of the estate under his or her
control and management, nor has fully and finally accounted, may be
summoned, by the fiduciary commissioner as the county commission
may designate, to appear before him or her
to return the appraisal
or account as may be due from him or her
to the tax commissioner,
or to appear before the county commission or clerk and give a
sufficient bond, if one has not been given. Any fiduciary who
fails to comply with the summons shall be proceeded against in the
same manner, and be subject to the same penalties, as this article
provides for fiduciaries who fail to return appraisements to the
tax commissioner.
§44-4-10. Securities and moneys to be exhibited to fiduciary
commissioner.
In settling the account of any fiduciary, the fiduciary
commissioner may require him the fiduciary, or any of them, if
there are more than one, to produce, before the completion of the account, any securities or moneys comprised in the account or any
documents relating to the investments of the estate, and the
fiduciary commissioner shall check the same these with the items
with which the fiduciary has charged himself to the fiduciary, and
with the appraisement of the estate or trust. The commissioner in
his report shall show in a report what money and securities were so
produced. before him. In case If the fiduciary commissioner
finds a shortage of money or securities, he the fiduciary
commissioner
shall cause a rule to be issued against the fiduciary
to show cause before the circuit court, or judge thereof in
vacation, of the county wherein such in which the fiduciary is
qualified, why such the fiduciary should not be required to replace
any moneys or securities that have been improperly applied or
disposed of, or the value thereof. The proceedings upon every such
rule shall be considered for all purposes to be proceedings in
equity, and the orders and decrees therein shall be enforceable
accordingly. The court or judge thereof shall have has full power
to require the fiduciary to replace any moneys, securities or
property that have been improperly applied or disposed of, or the
value thereof, or to pay or transfer the same
or any moneys,
securities or property, with which the fiduciary may be charged, into a proper account or otherwise, as the court or judge thereof
may order. If the order or decree is not complied with within a
time to be fixed by the court, the powers of the fiduciary shall be
revoked and annulled, and the court shall so order. The failure of
the fiduciary to comply with the order or decree shall also be is
also a breach of the fiduciary's bond.
NOTE: The purpose of this bill is to allow the fiduciary of
an estate to file an appraisement of the assets of the estate with
the tax commissioner, rather than the county clerk or fiduciary
supervisor and to receive a certification of that filing from the
tax commissioner so that the assets and value of the assets of an
estate are not a matter of public record. It further provides that
heirs or beneficiaries are entitled to asset information, as are
creditors who file claims that are not immediately paid.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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