ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2242
(By Delegates Doyle, Farris, Fleischauer, Jenkins and Walters)
(Originating in the Committee on the Judiciary)
[March 17, 1997]
A BILL to amend and reenact section three, article two, chapter
thirty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact article
eight, chapter thirty-six of said code; and to amend and
reenact section three-c, article one, chapter forty-two of
said code, all relating to adopting the uniform unclaimed
property act.
Be it enacted by the Legislature of West Virginia:
That section three, article two, chapter thirty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that article eight, chapter
thirty-six of said code be amended and reenacted; and that
section three-c, article one, chapter forty-two of said code be
amended and reenacted, all to read as follows:
CHAPTER 34. ESTRAYS, DRIFT AND DERELICT PROPERTY.
ARTICLE 2. DERELICT PROPERTY.
§34-2-3. Decree of title to state.
If, in such a suit as is mentioned in section one of this
article, no person appears to show title in himself, the court
shall decree the residuum or other property to the state, and
enforce the collection thereof, or of the proceeds of the sale of
such property. Any real property so decreed to the state shall
be remitted to the state auditor. Any personal property subject
to the provisions of article eight, chapter thirty-six of this
code shall be remitted to the state treasurer in accordance with
the provisions of that article. Any personal property not
subject to the provisions of article eight, chapter thirty-six of
this code shall be remitted to the state treasurer. The proceeds
of the sale of any such real or personal property shall be
deposited to the credit of the school fund.
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE 8. UNIFORM UNCLAIMED PROPERTY ACT.
§36-8-1. Definitions.
As used in this article:
(1) "Administrator" means the state treasurer.
(2) "Apparent owner" means a person whose name appears on
the records of a holder as the person entitled to property held,
issued, or owing by the holder.
(3) "Business association" means a corporation, joint stock company, investment company, partnership, unincorporated
association, joint venture, limited liability company, business
trust, trust company, safe deposit company, financial
organization, insurance company, mutual fund, utility, or other
business entity consisting of one or more persons, whether or not
for profit.
(4) "Domicile" means the state of incorporation of a
corporation and the state of the principal place of business of
a holder other than a corporation.
(5) "Financial organization" means a savings and loan
association, bank, banking organization, or credit union.
(6) "Holder" means a person obligated to hold for the
account of, or deliver or pay to, the owner property that is
subject to this article.
(7) "Insurance company" means an association, corporation,
or fraternal or mutual benefit organization, whether or not for
profit, engaged in the business of providing life endowments,
annuities, or insurance, including accident, burial, casualty,
credit life, contract performance, dental, disability, fidelity,
fire, health, hospitalization, illness, life, malpractice,
marine, mortgage, surety, wage protection, and workers'
compensation insurance.
(8) "Mineral" means gas; oil; coal; other gaseous, liquid,
and solid hydrocarbons; oil shale; cement material; sand and
gravel; road material; building stone; chemical raw material;
gemstone; fissionable and nonfissionable ores; colloidal and other clay; steam and other geothermal resource; or any other
substance defined as a mineral by the law of this state.
(9) "Mineral proceeds" means amounts payable for the
extraction, production, or sale of minerals, or, upon the
abandonment of those payments, all payments that become payable
thereafter. The term includes amounts payable:
(i) For the acquisition and retention of a mineral lease,
including bonuses, royalties, compensatory royalties, shut-in
royalties, minimum royalties, and delay rentals;
(ii) For the extraction, production, or sale of minerals,
including net revenue interests, royalties, overriding royalties,
extraction payments, and production payments; and
(iii) Under an agreement or option, including a joint
operating agreement, unit agreement, pooling agreement, and farm- out agreement.
(10) "Money order" includes an express money order and a
personal money order, on which the remitter is the purchaser.
The term does not include a bank money order or any other
instrument sold by a financial organization if the seller has
obtained the name and address of the payee.
(11) "Owner" means a person who has a legal or equitable
interest in property subject to this article or the person's
legal representative. The term includes a depositor in the case
of a deposit, a beneficiary in the case of a trust other than a
deposit in trust, and a creditor, claimant, or payee in the case
of other property.
(12) "Person" means an individual, business association,
financial organization, estate, trust, government, governmental
subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(13) "Property" means tangible property described in section
three or a fixed and certain interest in intangible property that
is held, issued, or owed in the course of a holder's business, or
by a government, governmental subdivision, agency, or
instrumentality, and all income or increments therefrom. The
term includes property that is referred to as or evidenced by:
(i) Money, a check, draft, warrant for payment, deposit,
interest, or dividend;
(ii) Credit balance, customer's overpayment, gift
certificate, security deposit, refund, credit memorandum, unpaid
wage, unused ticket, mineral proceeds, or unidentified
remittance;
(iii) Stock or other evidence of ownership of an interest in
a business association or financial organization;
(iv) A bond, debenture, note, or other evidence of
indebtedness;
(v) Money deposited to redeem stocks, bonds, coupons, or
other securities or to make distributions;
(vi) An amount due and payable under the terms of an annuity
or insurance policy, including policies providing life insurance,
property and casualty insurance, workers' compensation insurance,
or health and disability insurance; and
(vii) An amount distributable from a trust or custodial fund
established under a plan to provide health, welfare, pension,
vacation, severance, retirement, death, stock purchase, profit
sharing, employee savings, supplemental unemployment insurance,
or similar benefits.
(14) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(15) "State" means a state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or any
territory or insular possession subject to the jurisdiction of
the United States.
(16) "Utility" means a person who owns or operates for
public use any plant, equipment, real property, franchise, or
license for the transmission of communications or the production,
storage, transmission, sale, delivery, or furnishing of
electricity, water, steam, or gas as defined in section two,
article one, chapter twenty-four of this code.
§36-8-2. Presumptions of abandonment.
(a) Property is presumed abandoned if it is unclaimed by the
apparent owner during the time set forth below for the particular
property:
(1) Traveler's check, fifteen years after issuance;
(2) Money order, seven years after issuance;
(3) Stock or other equity interest in a business association
or financial organization, including a security entitlement under article eight of the uniform commercial code, five years after
the earlier of (i) The date of the most recent dividend, stock
split, or other distribution unclaimed by the apparent owner, or
(ii) the date of the second mailing of a statement of account or
other notification or communication that was returned as
undeliverable or after the holder discontinued mailings,
notifications, or communications to the apparent owner;
(4) Debt of a business association or financial
organization, other than a bearer bond or an original issue
discount bond, five years after the date of the most recent
interest payment unclaimed by the apparent owner;
(5) A demand, savings, or time deposit, including a deposit
that is automatically renewable, five years after the earlier of
maturity or the date of the last indication by the owner of
interest in the property; but a deposit that is automatically
renewable is deemed matured for purposes of this section upon its
initial date of maturity, unless the owner has consented to a
renewal at or about the time of the renewal and the consent is in
writing or is evidenced by a memorandum or other record on file
with the holder;
(6) Money or credits owed to a customer as a result of a
retail business transaction, three years after the obligation
accrued;
(7) Gift certificate, three years after the thirty-first day
of December of the year in which the certificate was sold, but if
redeemable in merchandise only, the amount abandoned is deemed to be sixty percent of the certificate's face value;
(8) Amount owed by an insurer on a life or endowment
insurance policy or an annuity that has matured or terminated,
three years after the obligation to pay arose or, in the case of
a policy or annuity payable upon proof of death, three years
after the insured has attained, or would have attained if living,
the limiting age under the mortality table on which the reserve
is based;
(9) Property distributable by a business association or
financial organization in a course of dissolution, one year after
the property becomes distributable;
(10) Property received by a court as proceeds of a class
action, and not distributed pursuant to the judgment, one year
after the distribution date;
(11) Property held by a court, government, governmental
subdivision, agency, or instrumentality, one year after the
property becomes distributable;
(12) Wages or other compensation for personal services, one
year after the compensation becomes payable;
(13) Deposit or refund owed to a subscriber by a utility,
two years after the deposit or refund becomes payable;
(14) Property in an individual retirement account, defined
benefit plan, or other account or plan that is qualified for tax
deferral under the income tax laws of the United States, three
years after the earliest of the date of the distribution or
attempted distribution of the property, the date of the required distribution as stated in the plan or trust agreement governing
the plan, or the date, if determinable by the holder, specified
in the income tax laws of the United States by which distribution
of the property must begin in order to avoid a tax penalty;
(15) All warrants issued by the state, six months after
issuance; and
(16) All other property, five years after the owner's right
to demand the property or after the obligation to pay or
distribute the property arises, whichever first occurs.
(b) At the time that an interest is presumed abandoned under
subsection (a) of this section, any other property right accrued
or accruing to the owner as a result of the interest, and not
previously presumed abandoned, is also presumed abandoned.
(c) Property is unclaimed if, for the applicable period set
forth in subsection (a) of this section, the apparent owner has
not communicated in writing or by other means reflected in a
contemporaneous record prepared by or on behalf of the holder,
with the holder concerning the property or the account in which
the property is held, and has not otherwise indicated an interest
in the property. A communication with an owner by a person other
than the holder or its representative who has not in writing
identified the property to the owner is not an indication of
interest in the property by the owner.
(d) An indication of an owner's interest in property
includes:
(i) The presentment of a check or other instrument of payment of a dividend or other distribution made with respect to
an account or underlying stock or other interest in a business
association or financial organization or, in the case of a
distribution made by electronic or similar means, evidence that
the distribution has been received;
(ii) Owner-directed activity in the account in which the
property is held, including a direction by the owner to increase,
decrease, or change the amount or type of property held in the
account;
(iii) The making of a deposit to or withdrawal from a bank
account; and
(iv) The payment of a premium with respect to a property
interest in an insurance policy; but the application of an
automatic premium loan provision or other nonforfeiture provision
contained in an insurance policy does not prevent a policy from
maturing or terminating if the insured has died or the insured or
the beneficiary of the policy has otherwise become entitled to
the proceeds before the depletion of the cash surrender value of
a policy by the application of those provisions.
(e) Property is payable or distributable for purposes of
this article notwithstanding the owner's failure to make demand
or present an instrument or document otherwise required to obtain
payment.
§36-8-3. Contents of safe deposit box or other safekeeping
depository.
Tangible property held in a safe deposit box or other safekeeping depository in this state in the ordinary course of
the holder's business and proceeds resulting from the sale of the
property permitted by other law, are presumed abandoned if the
property remains unclaimed by the owner for more than five years
after expiration of the lease or rental period on the box or
other depository.
§36-8-4. Rules for taking custody.
Except as otherwise provided in this article or by other
statute of this state, property that is presumed abandoned,
whether located in this or another state, is subject to the
custody of this state if:
(1) The last known address of the apparent owner, as shown
on the records of the holder, is in this state;
(2) The records of the holder do not reflect the identity of
the person entitled to the property and it is established that
the last known address of the person entitled to the property is
in this state;
(3) The records of the holder do not reflect the last known
address of the apparent owner and it is established that:
(i) The last known address of the person entitled to the
property is in this state; or
(ii) The holder is domiciled in this state or is a
government or governmental subdivision, agency, or
instrumentality of this state and has not previously paid or
delivered the property to the state of the last known address of
the apparent owner or other person entitled to the property;
(4) The last known address of the apparent owner, as shown
on the records of the holder, is in a state that does not provide
for the escheat or custodial taking of the property and the
holder is domiciled in this state or is a government or
governmental subdivision, agency, or instrumentality of this
state;
(5) The last known address of the apparent owner, as shown
on the records of the holder, is in a foreign country and the
holder is domiciled in this state or is a government or
governmental subdivision, agency, or instrumentality of this
state;
(6) The transaction out of which the property arose occurred
in this state, the holder is domiciled in a state that does not
provide for the escheat or custodial taking of the property, and
the last known address of the apparent owner or other person
entitled to the property is unknown or is in a state that does
not provide for the escheat or custodial taking of the property;
or
(7) The property is a traveler's check or money order
purchased in this state, or the issuer of the traveler's check or
money order has its principal place of business in this state and
the issuer's records show that the instrument was purchased in a
state that does not provide for the escheat or custodial taking
of the property, or do not show the state in which the instrument
was purchased.
§36-8-5. Dormancy charge.
A holder may deduct from property presumed abandoned a
charge imposed by reason of the owner's failure to claim the
property within a specified time only if there is a valid and
enforceable written contract between the holder and the owner
under which the holder may impose the charge and the holder
regularly imposes the charge, which is not regularly reversed or
otherwise canceled. The amount of the deduction is limited to an
amount that is not unconscionable.
§36-8-6. Burden of proof as to property evidenced by record of
check or draft.
A record of the issuance of a check, draft, or similar
instrument is prima facie evidence of an obligation. In claiming
property from a holder who is also the issuer, the
administrator's burden of proof as to the existence and amount of
the property and its abandonment is satisfied by showing issuance
of the instrument and passage of the requisite period of
abandonment. Defenses of payment, satisfaction, discharge, and
want of consideration are affirmative defenses that must be
established by the holder.
§36-8-7. Report of abandoned property.
(a) A holder of property presumed abandoned shall make a
report to the administrator concerning the property.
(b) The report must be verified and must contain:
(1) A description of the property;
(2) Except with respect to a traveler's check or money order, the name, if known, and last known address, if any, and
the social security number or taxpayer identification number, if
readily ascertainable, of the apparent owner of property of the
value of fifty dollars or more;
(3) An aggregated amount of items valued under fifty dollars
each;
(4) In the case of an amount of fifty dollars or more held
or owing under an annuity or a life or endowment insurance
policy, the full name and last known address of the annuitant or
insured and of the beneficiary;
(5) In the case of property held in a safe deposit box or
other safekeeping depository, an indication of the place where it
is held and where it may be inspected by the administrator, and
any amounts owing to the holder;
(6) The date, if any, on which the property became payable,
demandable, or returnable, and the date of the last transaction
with the apparent owner with respect to the property; and
(7) Other information that the administrator by rule
prescribes as necessary for the administration of this article.
(c) If a holder of property presumed abandoned is a
successor to another person who previously held the property for
the apparent owner or the holder has changed its name while
holding the property, the holder shall file with the report its
former names, if any, and the known names and addresses of all
previous holders of the property.
(d) The report must be filed before first day of November of each year and cover the twelve months next preceding the first
day of July of that year, but a report with respect to a life
insurance company must be filed before the first day of May of
each year for the calendar year next preceding.
(e) The holder of property presumed abandoned shall send
written notice to the apparent owner, not more than one hundred
twenty days or less than sixty days before filing the report,
stating that the holder is in possession of property subject to
this article, if:
(1) The holder has in its records an address for the
apparent owner which the holder's records do not disclose to be
inaccurate;
(2) The claim of the apparent owner is not barred by a
statute of limitations; and
(3) The value of the property is fifty dollars or more.
(f) Before the date for filing the report, the holder of
property presumed abandoned may request the administrator to
extend the time for filing the report. The administrator may
grant the extension for good cause. The holder, upon receipt of
the extension, may make an interim payment on the amount the
holder estimates will ultimately be due, which terminates the
accrual of additional interest on the amount paid.
(g) The holder of property presumed abandoned shall file
with the report an affidavit stating that the holder has complied
with subsection (e) of this section.
§36-8-8. Payment or delivery of abandoned property.
(a) Except for property held in a safe deposit box or other
safekeeping depository, upon filing the report required by
section seven, the holder of property presumed abandoned shall
pay, deliver, or cause to be paid or delivered to the
administrator the property described in the report as unclaimed,
but if the property is an automatically renewable deposit, and a
penalty or forfeiture in the payment of interest would result,
the time for compliance is extended until a penalty or forfeiture
would no longer result. Tangible property held in a safe deposit
box or other safekeeping depository may not be delivered to the
administrator until one hundred twenty days after filing the
report required by section seven.
(b) If the property reported to the administrator is a
security or security entitlement under article eight of the
uniform commercial code, the administrator is an appropriate
person to make an indorsement, instruction, or entitlement order
on behalf of the apparent owner to invoke the duty of the issuer
or its transfer agent or the securities intermediary to transfer
or dispose of the security or the security entitlement in
accordance with article eight of the uniform commercial code.
(c) If the holder of property reported to the administrator
is the issuer of a certificated security, the administrator has
the right to obtain a replacement certificate pursuant to article
eight, section four hundred eight of the uniform commercial code,
but an indemnity bond is not required.
(d) An issuer, the holder, and any transfer agent or other person acting pursuant to the instructions of and on behalf of
the issuer or holder in accordance with this section is not
liable to the apparent owner and must be indemnified against
claims of any person in accordance with section ten.
§36-8-9. Notice and publication of lists of abandoned property.
(a) The administrator shall publish a notice not later than
the thirtieth day of November of the year next following the year
in which abandoned property has been paid or delivered to the
administrator. The notice must be published in a newspaper of
general circulation in the county of this state in which is
located the last known address of any person named in the notice.
If a holder does not report an address for the apparent owner, or
the address is outside this state, the notice must be published
in the county in which the holder has its principal place of
business within this state or another county that the
administrator reasonably selects. The advertisement must be in
a form that, in the judgment of the administrator, is likely to
attract the attention of the apparent owner of the unclaimed
property. The form must contain:
(1) The name of each person appearing to be the owner of the
property, as set forth in the report filed by the holder;
(2) The last known address or location of each person
appearing to be the owner of the property, if an address or
location is set forth in the report filed by the holder;
(3) A statement explaining that property of the owner is
presumed to be abandoned and has been taken into the protective custody of the administrator; and
(4) A statement that information about the property and its
return to the owner is available to a person having a legal or
beneficial interest in the property, upon request to the
administrator.
(b) The administrator is not required to advertise the name
and address or location of an owner of property having a total
value less than fifty dollars or information concerning a
traveler's check, money order, or similar instrument.
§36-8-10. Custody by state; recovery by holder; defense of
holder.
(a) In this section, payment or delivery is made in "good
faith" if:
(1) Payment or delivery was made in a reasonable attempt to
comply with this article;
(2) The holder was not then in breach of a fiduciary
obligation with respect to the property and had a reasonable
basis for believing, based on the facts then known, that the
property was presumed abandoned; and
(3) There is no showing that the records under which the
payment or delivery was made did not meet reasonable commercial
standards of practice.
(b) Upon payment or delivery of property to the
administrator, the state assumes custody and responsibility for
the safekeeping of the property. A holder who pays or delivers
property to the administrator in good faith is relieved of all liability arising thereafter with respect to the property.
(c) A holder who has paid money to the administrator
pursuant to this article may subsequently make payment to a
person reasonably appearing to the holder to be entitled to
payment. Upon a filing by the holder of proof of payment and
proof that the payee was entitled to the payment, the
administrator shall promptly reimburse the holder for the payment
without imposing a fee or other charge. If reimbursement is
sought for a payment made on a negotiable instrument, including
a traveler's check or money order, the holder must be reimbursed
upon filing proof that the instrument was duly presented and that
payment was made to a person who reasonably appeared to be
entitled to payment. The holder must be reimbursed for payment
made even if the payment was made to a person whose claim was
barred under section nineteen-a.
(d) A holder who has delivered property other than money to
the administrator pursuant to this article may reclaim the
property if it is still in the possession of the administrator,
without paying any fee or other charge, upon filing proof that
the apparent owner has claimed the property from the holder.
(e) The administrator may accept a holder's affidavit as
sufficient proof of the holder's right to recover money and
property under this section.
(f) If a holder pays or delivers property to the
administrator in good faith and thereafter another person claims
the property from the holder or another state claims the money or property under its laws relating to escheat or abandoned or
unclaimed property, the administrator, upon written notice of the
claim, shall defend the holder against the claim and indemnify
the holder against any liability on the claim resulting from
payment or delivery of the property to the administrator.
(g) Property removed from a safe deposit box or other
safekeeping depository is received by the administrator subject
to the holder's right to be reimbursed for the cost of the
opening and to any valid lien or contract providing for the
holder to be reimbursed for unpaid rent or storage charges. The
administrator shall reimburse the holder out of the proceeds
remaining after deducting the expense incurred by the
administrator in selling the property.
§36-8-11. Crediting of dividends, interest and increments to
owner's account.
If property other than money is delivered to the
administrator under this article, the owner is entitled to
receive from the administrator any income or gain realized or
accruing on the property at or before liquidation or conversion
of the property into money. If the property was an interest
bearing demand, savings, or time deposit, including a deposit
that is automatically renewable, the administrator shall pay
interest at a rate of ten percent per year or any lesser rate the
property earned while in the possession of the holder. Interest
begins to accrue when the property is delivered to the
administrator and ceases on the earlier of the expiration of ten years after delivery or the date on which payment is made to the
owner. Interest on interest bearing property is not payable for
any period before the effective date of this article, unless
authorized by law superseded by this article.
§36-8-12. Public sale of abandoned property.
(a) Except as otherwise provided in this section, the
administrator, within three years after the receipt of abandoned
property, shall sell it to the highest bidder at public sale at
a location in the state which in the judgment of the
administrator affords the most favorable market for the property.
The administrator may decline the highest bid and reoffer the
property for sale if the administrator considers the bid to be
insufficient. The administrator need not offer the property for
sale if the administrator considers that the probable cost of
sale will exceed the proceeds of the sale. A sale held under
this section must be preceded by a single publication of notice,
at least three weeks before sale, in a newspaper of general
circulation in the county in which the property is to be sold.
(b) Securities listed on an established stock exchange must
be sold at prices prevailing on the exchange at the time of sale.
Other securities may be sold over the counter at prices
prevailing at the time of sale or by any reasonable method
selected by the administrator. If securities are sold by the
administrator before the expiration of three years after their
delivery to the administrator, a person making a claim under this
article before the end of the three-year period is entitled to the proceeds of the sale of the securities or the market value of
the securities at the time the claim is made, whichever is
greater, less any deduction for expenses of sale. A person
making a claim under this article after the expiration of the
three-year period is entitled to receive the securities delivered
to the administrator by the holder, if they still remain in the
custody of the administrator, or the net proceeds received from
sale, and is not entitled to receive any appreciation in the
value of the property occurring after delivery to the
administrator, except in a case of intentional misconduct or
malfeasance by the administrator.
(c) A purchaser of property at a sale conducted by the
administrator pursuant to this article takes the property free of
all claims of the owner or previous holder and of all persons
claiming through or under them. The administrator shall execute
all documents necessary to complete the transfer of ownership.
§36-8-13. Deposit of funds.
(a) Except as otherwise provided by this section, the
administrator shall promptly deposit in the general revenue fund
of this state all funds received under this article, including
the proceeds from the sale of abandoned property under section
twelve. The administrator shall retain in a separate trust fund
at least one hundred thousand dollars from which the
administrator shall pay claims duly allowed. The administrator
shall record the name and last known address of each person
appearing from the holders' reports to be entitled to the property and the name and last known address of each insured
person or annuitant and beneficiary and with respect to each
policy or annuity listed in the report of an insurance company,
its number, the name of the company, and the amount due.
(b) Before making a deposit to the credit of the general
revenue fund, the administrator may deduct:
(1) Expenses of sale of abandoned property;
(2) Costs of mailing and publication in connection with
abandoned property;
(3) Reasonable service charges; and
(4) Expenses incurred in examining records of holders of
property and in collecting the property from those holders.
§36-8-14. Claim of another state to recover property.
(a) After property has been paid or delivered to the
administrator under this article, another state may recover the
property if:
(1) The property was paid or delivered to the custody of
this state because the records of the holder did not reflect a
last known location of the apparent owner within the borders of
the other state and the other state establishes that the apparent
owner or other person entitled to the property was last known to
be located within the borders of that state and under the laws of
that state the property has escheated or become subject to a
claim of abandonment by that state;
(2) The property was paid or delivered to the custody of
this state because the laws of the other state did not provide for the escheat or custodial taking of the property, and under
the laws of that state subsequently enacted the property has
escheated or become subject to a claim of abandonment by that
state;
(3) The records of the holder were erroneous in that they
did not accurately identify the owner of the property and the
last known location of the owner within the borders of another
state and under the laws of that state the property has escheated
or become subject to a claim of abandonment by that state;
(4) The property was subjected to custody by this state
under subdivision (6), section four of this article, and under
the laws of the state of domicile of the holder the property has
escheated or become subject to a claim of abandonment by that
state; or
(5) The property is a sum payable on a traveler's check,
money order, or similar instrument that was purchased in the
other state and delivered into the custody of this state under
subdivision (6), section four of this article, and under the laws
of the other state the property has escheated or become subject
to a claim of abandonment by that state.
(b) A claim of another state to recover escheated or
abandoned property must be presented in a form prescribed by the
administrator, who shall decide the claim within ninety days
after it is presented. The administrator shall allow the claim
upon determining that the other state is entitled to the
abandoned property under subsection (a) of this article.
(c) The administrator shall require another state, before
recovering property under this section, to agree to indemnify
this state and its officers and employees against any liability
on a claim to the property.
§36-8-15. Filing claim with administrator; handling of claims
by administrator.
(a) A person, excluding another state, claiming property
paid or delivered to the administrator may file a claim on a form
prescribed by the administrator and verified by the claimant.
(b) Within ninety days after a claim is filed, the
administrator shall allow or deny the claim and give written
notice of the decision to the claimant. If the claim is denied,
the administrator shall inform the claimant of the reasons for
the denial and specify what additional evidence is required
before the claim will be allowed. The claimant may then file a
new claim with the administrator or maintain an action under
section sixteen of this article.
(c) Within thirty days after a claim is allowed, the
property or the net proceeds of a sale of the property must be
delivered or paid by the administrator to the claimant, together
with any dividend, interest, or other increment to which the
claimant is entitled under sections eleven and twelve of this
article.
(d) A holder who pays the owner for property that has been
delivered to the state and which, if claimed from the
administrator by the owner would be subject to an increment under sections eleven and twelve of this article, may recover from the
administrator the amount of the increment.
§36-8-16. Action to establish claim.
A person aggrieved by a decision of the administrator or
whose claim has not been acted upon within ninety days after its
filing may maintain an original action to establish the claim in
the circuit court of Kanawha County, naming the administrator as
a defendant. If the aggrieved person establishes the claim in an
action against the administrator, the court may award the
claimant reasonable attorney's fees.
§36-8-17. Election to take payment or delivery.
(a) The administrator may decline to receive property
reported under this article which the administrator considers to
have a value less than the expenses of notice and sale.
(b) A holder, with the written consent of the administrator
and upon conditions and terms prescribed by the administrator,
may report and deliver property before the property is presumed
abandoned. Property so delivered must be held by the
administrator and is not presumed abandoned until it otherwise
would be presumed abandoned under this article.
§36-8-18. Destruction or disposition of property having no
substantial commercial value; immunity from liability.
If the administrator determines after investigation that
property delivered under this article has no substantial commercial value, the administrator may destroy or otherwise
dispose of the property at any time. An action or proceeding may
not be maintained against the state or any officer or against the
holder for or on account of an act of the administrator under
this section, except for intentional misconduct or malfeasance.
§36-8-19. Periods of limitation.
(a) The expiration, before or after the effective date of
this article, of a period of limitation on the owner's right to
receive or recover property, whether specified by contract,
statute, or court order, does not preclude the property from
being presumed abandoned or affect a duty to file a report or to
pay or deliver or transfer property to the administrator as
required by this article.
(b) An action or proceeding may not be maintained by the
administrator to enforce this article in regard to the reporting,
delivery, or payment of property more than ten years after the
holder specifically identified the property in a report filed
with the administrator or gave express notice to the
administrator of a dispute regarding the property. In the
absence of such a report or other express notice, the period of
limitation is tolled. The period of limitation is also tolled by
the filing of a report that is fraudulent.
§36-8-20. Requests for reports and examination of records.
(a) The administrator or the administrator's designated
agent may require a person who has not filed a report, or a
person who the administrator believes has filed an inaccurate, incomplete, or false report, to file a verified report in a form
specified by the administrator. The report must state whether
the person is holding property reportable under this article,
describe property not previously reported or as to which the
administrator has made inquiry, and specifically identify and
state the amounts of property that may be in issue.
(b) The administrator or the administrator's designated
agent, at reasonable times and upon reasonable notice, may
examine the records of any person to determine whether the person
has complied with this article. The administrator may conduct
the examination even if the person believes it is not in
possession of any property that must be reported, paid, or
delivered under this article. The administrator may contract
with any other person to conduct the examination on behalf of the
administrator. However, this subsection shall not be construed
to grant the administrator the right to examine the records of a
national banking association to an extent greater than permitted
by applicable federal law, nor shall this subsection permit the
records of any bank chartered or incorporated under the laws of
any state to be subject to examination to an extent greater than
the examination permitted of the records of a national banking
association under applicable federal law.
(c) The administrator or the administrator's agent at
reasonable times may examine the records of an agent, including
a dividend disbursing agent or transfer agent, of a business
association or financial association that is the holder of property presumed abandoned if the administrator or the
administrator's agent has given the notice required by subsection
(b) of this section to both the association or organization and
the agent at least ninety days before the examination.
(d) Documents and working papers obtained or compiled by the
administrator, or the administrator's agents, employees, or
designated representatives, in the course of conducting an
examination are confidential and are not public records, but the
documents and papers may be:
(1) Used by the administrator or the administrator's
attorney in the course of an action to collect unclaimed property
or otherwise enforce this article;
(2) Used in joint examinations conducted with or pursuant to
an agreement with another state, the federal government, or any
other governmental subdivision, agency, or instrumentality;
(3) Produced pursuant to subpoena or court order; or
(4) Disclosed to the abandoned property office of another
state for that state's use in circumstances equivalent to those
described in this subdivision, if the other state is bound to
keep the documents and papers confidential.
(e) If an examination of the records of a person results in
the disclosure of property reportable under this article, the
administrator may assess the cost of the examination against the
holder at the rate of two hundred dollars a day for each
examiner, or a greater amount that is reasonable and was
incurred, but the assessment may not exceed the value of the property found to be reportable. The cost of an examination made
pursuant to subsection (c) of this section may be assessed only
against the business association or financial organization.
(f) If, after the effective date of this article, a holder
does not maintain the records required by section twenty-one of
this article and the records of the holder available for the
periods subject to this article are insufficient to permit the
preparation of a report, the administrator may require the holder
to report and pay to the administrator the amount the
administrator reasonably estimates, on the basis of any available
records of the holder or by any other reasonable method of
estimation, should have been but was not reported.
§36-8-21. Retention of records.
(a) Except as otherwise provided in subsection (b), a holder
required to file a report under section seven of this article
shall maintain the records containing the information required to
be included in the report for ten years after the holder files
the report, unless a shorter period is provided by rule of the
administrator.
(b) A business association or financial organization that
sells, issues, or provides to others for sale or issue in this
state, traveler's checks, money orders, or similar instruments
other than third-party bank checks, on which the business
association or financial organization is directly liable, shall
maintain a record of the instruments while they remain
outstanding, indicating the state and date of issue, for three years after the holder files the report.
§36-8-22. Enforcement.
The administrator may maintain an action in this or another
state to enforce this article. The court may award reasonable
attorney's fees to the prevailing party.
§36-8-23. Interstate agreements and cooperation; joint and
reciprocal actions with other states.
(a) The administrator may enter into an agreement with
another state to exchange information relating to abandoned
property or its possible existence. The agreement may permit the
other state, or another person acting on behalf of a state, to
examine records as authorized in section twenty of this article.
The administrator by rule may require the reporting of
information needed to enable compliance with an agreement made
under this section and prescribe the form.
(b) The administrator may join with another state to seek
enforcement of this article against any person who is or may be
holding property reportable under this article.
(c) At the request of another state, the administrator's
attorney may maintain an action on behalf of the other state to
enforce, in this state, the unclaimed property laws of the other
state against a holder of property subject to escheat or a claim
of abandonment by the other state, if the other state has agreed
to pay expenses incurred by the attorney general in maintaining
the action.
(d) The administrator may request that the attorney general
of another state or another attorney commence an action in the
other state on behalf of the administrator. The administrator
may retain any other attorney to commence an action in this state
on behalf of the administrator. This state shall pay all
expenses, including attorney's fees, in maintaining an action
under this subsection. With the administrator's approval, the
expenses and attorney's fees may be paid from money received
under this article. The administrator may agree to pay expenses
and attorney's fees based in whole or in part on a percentage of
the value of any property recovered in the action. Any expenses
or attorney's fees paid under this subsection may not be deducted
from the amount that is subject to the claim by the owner under
this article.
§36-8-24. Interest and penalties.
(a) A holder who fails to report, pay, or deliver property
within the time prescribed by this article shall pay to the
administrator interest at the annual rate of twelve percent on
the property or value thereof from the date the property should
have been reported, paid or delivered.
(b) Except as otherwise provided in subsection (c), a holder
who fails to report, pay, or deliver property within the time
prescribed by this article, or fails to perform other duties
imposed by this article, shall pay to the administrator, in
addition to interest as provided in subsection (a), a civil
penalty of two hundred dollars for each day the report, payment, or delivery is withheld, or the duty is not performed, up to a
maximum of five thousand dollars.
(c) A holder who willfully fails to report, pay, or deliver
property within the time prescribed by this article, or willfully
fails to perform other duties imposed by this article, shall pay
to the administrator, in addition to interest as provided in
subsection (a) of this section, a civil penalty of one thousand
dollars for each day the report, payment, or delivery is
withheld, or the duty is not performed, up to a maximum of
twenty-five thousand dollars, plus twenty-five percent of the
value of any property that should have been but was not reported.
(d) A holder who makes a fraudulent report shall pay to the
administrator, in addition to interest as provided in subsection
(a) of this section, a civil penalty of one thousand dollars for
each day from the date a report under this article was due, up to
a maximum of twenty-five thousand dollars, plus twenty-five
percent of the value of any property that should have been but
was not reported.
(e) The administrator for good cause may waive, in whole or
in part, interest under subsection (a) of this section and
penalties under subsections (b) and (c) of this section, and
shall waive penalties if the holder acted in good faith and
without negligence.
§36-8-25. Records of abandoned property.
Records of abandoned property kept by the administrator are
available for inspection and copying only by an owner of such property as to the particular property he or she owns, or by his
personal representative, next of kin, attorney at law, or such
person entitled to inherit from the owner conducting a legal
audit thereof. These records are exempt from the provisions of
chapter twenty-nine-b of this code.
§36-8-26. Foreign transactions.
This article does not apply to property held, due, and owing
in a foreign country and arising out of a foreign transaction.
§36-8-27. Transitional provisions.
(a) An initial report filed under this article for property
that was not required to be reported before the effective date of
this article but which is subject to this article must include
all items of property that would have been presumed abandoned
during the ten-year period next preceding the effective date of
this article as if this article had been in effect during that
period.
(b) This article does not relieve a holder of a duty that
arose before the effective date of this article to report, pay,
or deliver property. Except as otherwise provided in subsection
(b), section nineteen of this article, a holder who did not
comply with the law in effect before the effective date of this
article is subject to the applicable provisions for enforcement
and penalties which then existed, which are continued in effect
for the purpose of this section.
§36-8-28. Rules.
On or before the first day of July, one thousand nine
hundred ninety-seven, the agency shall promulgate emergency
legislative rules in accordance with the provisions of section
fifteen, article three, chapter twenty-nine-a of this code. The
administration shall propose legislative rules for promulgation
in accordance with the requirements of the secretary of state and
the provisions of chapter twenty-nine-a to otherwise effectuate
the purposes of this article.
§36-8-29. Uniformity of application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this article among states enacting it.
§36-8-30. Short title.
This article may be cited as the Uniform Unclaimed Property
Act (1997).
§36-8-31. Severability clause.
If any provision of this article or the application thereof
to any person or circumstance is held invalid, the invalidity
does not affect other provisions or applications of this article
which can be given effect without the invalid provision or
application, and to this end the provisions of this article are
severable.
§36-8-32. Effective date.
This article shall takes effect on the first day of July,
one thousand nine hundred ninety-seven.
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 2. DESCENT.
§42-1-3c. No taker.
If there is no taker under the provisions of this article,
the intestate estate passes to the state. Any real property so
decreed to the state shall be remitted to the state auditor. Any
personal property subject to the provisions of article eight,
chapter thirty-six of this code shall be remitted to the state
treasurer in accordance with the provisions of that article. Any
personal property not subject to the provisions of article eight,
chapter thirty-six of this code shall be remitted to the state
treasurer. The proceeds of any such real or personal property
shall be deposited to the credit of the school fund.