Senate Bill No. 725
(By Senator Kessler)
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[Introduced March 23, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §44-2-19 of the Code of West Virginia,
1931, as amended; and to amend and reenact §44-3A-2 of said
code, all relating to providing a standard of review that the
county commission may apply in reviewing the findings or
orders of a fiduciary supervisor or fiduciary commissioner on
probate matters.
Be it enacted by the Legislature of West Virginia:
That §44-2-19 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §44-3A-2 of said code be amended
and reenacted, all to read as follows:
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF
DECEDENTS.
§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
it is 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 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.
The county commission may vacate
or modify the order or finding of the fiduciary commissioner on the
grounds that the order or finding was clearly wrong in view of the
reliable, probative and substantial evidence on the whole record.
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 is such 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 is forever binding and final.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-2. Nature of office of fiduciary supervisor and fiduciary
commissioner; duties of county commission with
respect to orders and findings of such supervisor or
commissioner.
Except as may be provided in article thirteen of this chapter,
the office of fiduciary supervisor and of fiduciary commissioner
shall not be construed to does not vest judicial power in the
holder or holders thereof.
Such The offices are created to aid and
assist the county commission in the proper and expeditious
performance of the duties of
such the commissions with respect to
the administration of estates and trusts and every order or finding
of any fiduciary supervisor or fiduciary commissioner
shall be is
subject to confirmation and approval of the county commission, and
shall be considered for confirmation at the next regular or special
session of the commission and be promptly confirmed or, if not
confirmed, a date set for hearing thereon.
The county commission
may confirm the order or finding of the fiduciary supervisor or
fiduciary commissioner or refer the matter back to the fiduciary
supervisor or fiduciary commissioner for further proceedings as
provided in section twenty-two of this article. The county
commission may vacate or modify the order or finding of the fiduciary supervisor or fiduciary commissioner on the grounds that
the order or finding was clearly wrong in view of the reliable,
probative and substantial evidence on the whole record.
Every
order of the fiduciary supervisor or fiduciary commissioner shall
remain remains in effect while awaiting confirmation by the county
commission unless the commission provides an alternative means of
effectuating the purpose or purposes of the order by providing a
lawful alternative thereto. Every fiduciary supervisor and
fiduciary commissioner shall have the power to may sign and issue
process directed to the various parties in any proceeding before
them and may summon witnesses, administer oaths and take testimony
with respect thereto as may be required to carry out the purposes
of this chapter. but They shall apply to the county commission or
to the circuit court, as may be appropriate and lawful for any
order to compel obedience to any such process or order issued by
any such fiduciary supervisor or fiduciary commissioner them or to
compel the obedience with any of the provisions of this chapter.
NOTE: The purpose of this bill is to provide a detailed and
consistent standard of review that the county commission may apply
in reviewing the findings or orders of a fiduciary supervisor or
fiduciary commissioner on probate matters.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.