ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 458
(By Senator Jackson)
____________
[Originating in the Committee on Judiciary;
reported March 3, 1995.]
____________
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.