ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 458
(Senator Jackson, original sponsor)
____________
[Passed March 11, 1995; in effect ninety days from passage.]
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AN ACT 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 of this chapter.
§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.