ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 458

(By Senator Jackson)

____________

[Originating in the Committee on Judiciary;

reported March 3, 1995.]

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A BILL to amend and reenact sections one and twenty-nine, article two, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to proceedings of decedents' estates; references thereon; service and publication of notice of time for receiving claims; proceedings relating thereto; claims against decedents' estates; and providing that final settlement of certain decedents' estates may be waived in specified circumstances.

Be it enacted by the Legislature of West Virginia:
That sections one and twenty-nine, article two, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
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 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 commissioners in rotation, in order that, so far as possible, there may be an equal division of the work: Provided, however, That a fiduciary commissioner may not charge to the estate a fee greater than two hundred dollars for the settlement of an estate, except upon approval of the county commission because of complicating issues or problems attendant to such settlement and amount of time involved in and about its resolution.
(b) If the personal representative shall deliver to the clerk an appraisement of the assets of the estate showing their value to be fifty thousand dollars or less, exclusive of nonprobate assets, the clerk shall record said appraisement 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 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 ninety days from the first publication of this notice such reference is requested by a party in interest or an unpaid creditor and good cause is shown to support such reference.
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.
The personal representative shall, within a reasonable time after the date of recordation of the appraisement in such case, make a report to the clerk of his receipts, disbursements and distribution, and shall make affidavit 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 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

"I have before me the account 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 estate to a commissioner or object to confirmation of the accounting. In the absence of such 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 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.
(c) If upon the return and recordation of the appraisement, it appears to the clerk that there is only one beneficiary of the estate and that the beneficiary is competent at law, there shall be no further administration upon the estate, and no reference to a fiduciary commissioner, unless, for due cause, the county commission orders further administration and a reference to a fiduciary commissioner: 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 one claim before the estate is referred to a fiduciary commissioner and if all claims are approved as filed, then no reference may be made. The bond of the personal representative and his surety shall be discharged one year after the date of qualification of the personal representative if no claim has been filed with the county clerk and no suit has been instituted against the personal representative. The clerk shall 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 UNADMINISTERED ESTATE

"Notice is hereby given that, there being only one beneficiary of the deceased, there will be no administration of the estate unless within ninety days demand for administration be made by a party in interest or an unpaid creditor.
Dated this _____________ day of _____________________, _____.
___________________________________
Clerk of the County Commission
of ____________ County, W. Va."
The clerk shall charge to the personal representative, and receive, the reasonable cost of publication of the notice.
If no person demands administration and no creditor appears in response to the notice hereinabove provided, the clerk shall enter an order declaring the estate closed, without final settlement or waiver thereof and alienation of the decedent's real estate more than six months after the date of the notice to a bona fide purchaser for value shall be free of any lien for taxes or debts of the decedent, notwithstanding the provisions of section five, article eight, chapter forty-four of this code.
§44-2-29. Waiver of final settlement.
In all estates of decedents subject to administration under this article where a release of lien required by the provisions of article eleven, chapter eleven of this code has been filed with the clerk and more than ninety days have elapsed since the filing of any notice required by the provisions of this article, even though such estate may have been referred to a fiduciary commissioner, a final settlement may be waived by a waiver containing an affidavit made by the personal representative, that the time for filing of claims has expired, that no known and unpaid claims exist against the estate, and that all beneficiaries have each been advised of the share or shares to which each is entitled from the estate and signed by every beneficiary.
In the case of a beneficiary under a disability, the duly qualified personal representative of such beneficiary, may sign in lieu of such beneficiary. A personal representative signing such waiver shall be responsible to his or her cestui que trust for any loss resulting from such waiver.
The waiver shall be recorded as in the case of and in lieu of a settlement.