COMMITTEE SUBSTITUTE
FOR
H. B. 2768
(By Mr. Speaker, Mr. Kiss, and Delegates Staton and Keener)
(Originating in the Committee on the Judiciary)
[April 4, 2001]
A BILL to amend and reenact sections seven and thirty-five, article
eleven, chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section eighteen, article one, chapter thirty-six of
said code; to amend and reenact section three, article six,
chapter forty-two of said code; to amend article one, chapter
forty-four of said code, by adding thereto a new section,
designated section thirteen-a; to amend and reenact section
fourteen, article one of said chapter; to amend and reenact
sections one and twenty-nine, article two of said chapter; and
to amend and reenact section four-a, article three-a of said
chapter, all relating to the administration of estates and trusts; providing for certain nonprobate inventories of
estates and penalties for noncompliance; providing for the
privacy of certain information from the public; providing for
the administration of certain debts of beneficiaries and
spendthrift trusts; providing for the timing of disclaimers
and delivery; providing for the certain appraisal of real
estate and personal property; providing for certain
proceedings and references of decedents' estates; setting
forth certain requirements for waiver of a final settlement;
and providing for certain optional procedures for short form
settlements against estates of decedents.
Be it enacted by the Legislature of West Virginia:
That sections seven and thirty-five, article eleven, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that section
eighteen, article one, chapter thirty-six of said code be amended
and reenacted; that section three, article six, chapter forty-two
of said code be amended and reenacted; that article one, chapter
forty-four of said code be amended and reenacted by adding thereto
a new section, designated section thirteen-a; that section
fourteen, article one, chapter forty-four of said code be amended and reenacted; that sections one and twenty-nine, article two of
said chapter be amended and reenacted; and that section four-a,
article three-a of said chapter be amended and reenacted, all to
read as follows:
CHAPTER 11. TAXATION.
ARTICLE 11. ESTATE TAXES.
§11-11-7. Nonprobate inventory of estates; penalties.
(a) The personal representative of every resident decedent who
owned or had an interest in any nonprobate personal property, and
the personal representative of every nonresident decedent who owned
or had an interest in any nonprobate personal property which is a
part of the taxable estate located in West Virginia, shall, under
oath, list and appraise on a nonprobate inventory form designed and
formulated by the tax commissioner of the State of West Virginia,
all tangible and intangible nonprobate personal property owned by
the decedent or in which the decedent had an interest at its fair
market value on the date of the decedent's death. The nonprobate
personal property to be included on this nonprobate inventory form
includes, but is not limited to, the following:
(1) Personalty held as joint tenants with right of
survivorship with one or more third parties;
(2) Personalty payable on the death of the decedent to one or
more third parties;
(3) Personalty held by the decedent as a life tenant;
(4) Insurance on the decedent's life payable to beneficiaries
other than the executor or administrator of the decedent's estate;
(5) Powers of appointment;
(6) Annuities;
(7) Transfers during the decedent's life in which any
beneficial interest passes by trust or otherwise to another person
by reason of the death of the decedent;
(8) Revocable transfers in trust or otherwise;
(9) Taxable gifts under Section 2503 of the United States
Internal Revenue Code of 1986, as amended or renumbered, or in
successor provisions of the laws of the United States; and
(10) All other nonprobate personalty included in the Federal
gross estate of the decedent.
(b) For purposes of this section, the term "nonprobate
personal property" means all property which does not pass by
operation of the decedent's will or by the laws of intestate
descent and distribution or is otherwise not subject to
administration in a decedent's estate at common law.
(c) The personal representative shall execute and sign the
nonprobate inventory form and file it with the tax commissioner
within ninety days of the date of qualification of the personal
representative in West Virginia.
(d) Any personal representative who fails to comply with the
provisions of this section, without reasonable cause, is guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
less than twenty-five dollars nor more than five hundred dollars.
§11-11-35. Privacy of information.
(a)
Notwithstanding the provisions of article ten of this
chapter to the contrary, the tax return of an estate shall be open
to inspection by or disclosure to:
(1) The personal representative of the estate;
(2) Any heir at law,
next of kin
or beneficiary under the will
of the decedent,
but only if the tax commissioner finds that this
heir at law, next of kin or beneficiary has a material interest
which will be affected by information contained in the return
; or
(3) The attorney for the estate or its personal representative
or the attorney-in-fact duly authorized by any of the persons
described in subdivision (1) or (2).
(b) Notwithstanding the provisions of article ten of this chapter to the contrary, the personal representative of the
decedent shall make the nonprobate inventory form of an estate
available for inspection by or disclosure to:
(1) The personal representative of the estate;
(2) Any heir at law, beneficiary under the will of the
decedent, a creditor who has duly filed a claim against the estate
of the decedent with the fiduciary commissioner or fiduciary
supervisor, or any party who has filed a civil action in any court
of competent jurisdiction which concerns or involves any asset or
assets of the decedent; or
(3) The attorney for the estate or its personal representative
of the attorney-in-fact duly authorized by any of the persons
described in subdivision (1) or (2).
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 1. CREATION OF ESTATES GENERALLY.
§36-1-18. Trust estates; debts of beneficiaries; spendthrift
trusts; nonmerger of trusts.
(a)
Estates of every kind in real or personal property, holden
or possessed in trust, shall be subject to the debts and charges of
the persons to whose use or for whose benefit they are holden or
possessed, as they would be if those persons owned the like interest in the things holden or possessed, as in the uses or
trusts thereof; but where the creator of
the
a
trust
at any
time
created has
expressly so provided in the instrument or conveyance
creating the trust, real or personal property may be held in trust
upon condition that the income therefrom,
and principal thereof, or
both,
shall be applied by the trustee to the
health, education,
support
and
or
maintenance of a beneficiary or beneficiaries of the
trust
in being at the time of the creation of the trust,
other than
the creator of the trust, for the life of such beneficiary or
beneficiaries, without being subject to the liabilities of, or
alienation by, such beneficiary or beneficiaries: Provided, That
no trust, whenever executed or created, may be deemed to be invalid
or terminated, and title to trust assets may not be merged, merely
because a creditor asserts that the trustee or trustees are the
same person or persons as the beneficiaries of the trust.
(b) This section applies to any trust establish under an
instrument executed on or after the effective date of this section,
as amended, except as otherwise expressly provided in terms of the
trust.
(c) With respect to any trust established under an instrument
executed prior to the effective date of this section, as amended, this section applies if the trustee elects, in the trustee's sole
discretion, to administer the trust under this section, as amended.
(d) Nothing in this section is intended to create or imply a
duty upon the trustee to apply this section. A trustee is not
liable for not considering whether to administer the trust
according to this section.
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 6. UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT.
§42-6-3. Time of disclaimer; delivery.
(a) Except as provided in subsection (c) of this section, if
the property or interest has devolved to the disclaimant under a
testamentary instrument or by the laws of intestacy, the disclaimer
shall be delivered, as to a present interest, not later than
six
nine
months after the death of the deceased owner or deceased donee
of a power of appointment and, as to a future interest, not later
than
six
nine
months after the event determining that the taker of
the property or interest has become finally ascertained and his
interest is indefeasibly vested. The disclaimer shall be delivered
in person or mailed by registered or certified mail to any personal
representative, or other fiduciary, of the decedent or the donee of
the power, to the holder of the legal title to which the interest relates or to the person entitled to the property or interest in
the event of disclaimer. A fully executed and acknowledged copy of
the disclaimer shall be filed and recorded with the probate
documents in the office of the clerk of the county commission of
the county in which proceedings for the administration of the
estate of the deceased owner or deceased donee of the power have
been commenced.
(b) Except as provided in subsection (c), if the property or
interest has devolved to the disclaimant under a nontestamentary
instrument or contract, the disclaimer shall be delivered as to a
present interest, not later than
six
nine
months after the
effective date of the nontestamentary instrument or contract and,
as to a future interest, not later than
six
nine
months after the
event determining that the taker of the property or interest has
become finally ascertained and his interest indefeasibly vested.
If the person entitled to disclaim does not have actual knowledge
of the existence of the interest, the disclaimer shall be delivered
not later than
six
nine
months after he has actual knowledge of the
existence of the interest. The effective date of a revocable
instrument or contract is the date on which the maker no longer has
power to revoke it or to transfer to himself or another the entire legal and equitable ownership of the interest. The disclaimer
shall be delivered in person or mailed by registered or certified
mail to the person who has legal title to or possession of the
interest disclaimed.
(c) In any case, as to a transfer creating an interest in the
disclaimant made after the thirty-first day of December, one
thousand nine hundred seventy-six, and subject to tax under
chapters eleven, twelve or thirteen of the Internal Revenue Code of
1954, as amended, a disclaimer intended as a qualified disclaimer
thereunder must specifically so state and must be delivered not
later than nine months after the later of the date the transfer is
made or the day on which the person disclaiming attains age twenty-
one.
(d) A surviving joint tenant may disclaim as a separate
interest any property or interest therein devolving to him by right
of survivorship. A surviving joint tenant may disclaim the entire
interest in any property or interest therein that is the subject of
a joint tenancy devolving to him, if the joint tenancy was created
by act of a deceased joint tenant and the survivor did not join in
creating the joint tenancy.
(e) If real property or an interest therein is disclaimed, in addition to recording the disclaimer in the county wherein
administration is had or commenced, a fully executed and
acknowledged copy of the disclaimer shall be recorded in the deed
books in the office of the clerk of the county commission of the
county in which the property or interest disclaimed is located.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-13a. Notice of administration; filing of objections and
claims.
(a)
The clerk of the county commission shall promptly publish
a notice of administration of the estate. The notice shall contain
the name of the decedent, the file number of the estate, if any,
the designation and address of the Commission in which the
proceedings are pending, the name and address of the personal
representative, the name and address of the personal
representative's attorney, if any, the name and address of the
fiduciary commissioner, if any, and state the date of first
publication. The notice shall require all interested persons to
file with the court:
(1) All claims against the estate pursuant to the provisions
set forth in article two of this chapter.
(2) Any objection by an interested person on whom notice was
served that challenges the validity of the will, the qualifications
of the personal representative, venue, or jurisdiction of the court
within the later of three months after the date of the first
publication of the notice for thirty days after the date of the
Commission's service of a copy of the notice on the objecting
person.
(b) Publication shall be a Class II legal ad as described by
section two, article three, chapter fifty-nine of this code.
(c) The personal representative shall serve a copy of the
notice on the following persons who are known to the personal
representative:
(1) The decedent's surviving spouse;
(2) Beneficiaries; and
(3) The trustee of any trust of which the decedent was a
grantor.
(d)(1) The personal representative shall promptly make a
diligent search to determine the names and addresses of creditors
of the decedent who are reasonably ascertainable and shall serve on
those creditors a copy of the notice within three months after the
first publication of the notice. Impracticable and extended searches are not required. Service is not required on any creditor
who has already filed a claim as provided in this article; a
creditor whose claim has been paid in full; or a creditor whose
claim is listed in a personal representative's timely proof of
claim if the personal representative notified the creditor of that
listing.
(2) The personal representative is not individually liable to
any person for giving notice under this section, regardless of
whether it is later determined that such notice was not required by
this section. The service of notice in accordance with this
subsection shall not be construed as admitting the validity or
enforceability of a claim.
(3) If the personal representative in good faith fails to give
notice required by this subsection, the personal representative is
not liable to any person for the failure. Liability, if any, for
the failure in such a case is on the estate.
(e) Objections under subsection thirteen-a(a)(2), by persons
on whom notice was served, that are not filed within the later of
three months after the date of first publication of the notice or
thirty days after the date of service of a copy of the notice on
the objecting person are forever barred.
§44-1-14. Appraisement of real estate and probate personal
property of decedents; disposition; and hiring of
experts.
The real and personal estate of every deceased person, or in
which such deceased person had an interest at the time of his or
her death, shall be appraised by the personal representative of
such deceased person. Such personal representative, after first
taking an oath for the purpose, shall list and appraise at its real
and actual value all the real estate and all the tangible property
of every description owned by the deceased at the time of his or
her death, including, but not limited to, all real estate and
tangible property in which the decedent had an interest as joint
tenant or otherwise or in which any beneficial interest passes to
another person by reason of the death of such decedent whose estate
is being so appraised and irrespective of whether such real estate
or tangible property is subject to administration and located in
each county or the counties, as the case may be. The personal
representative shall also list and appraise at its real and actual
value all of the decedent's intangible property of every
description, including moneys, credits, investments, annuities,
life insurance policies, (irrespective of whether such policies are payable to named beneficiaries or in trust or otherwise), judgments
and decrees for moneys, notes, bonds, accounts and all other
evidences of debt, whether owing to him or her by persons or
corporations in or out of the state, and the number and value,
including both the par value, if any, and the actual value, of any
shares of capital stock owned by the decedent in any corporation,
and every other item of intangible property of whatsoever nature or
kind, including all intangible property in which the decedent had
an interest as joint tenant or otherwise or in which any beneficial
interest passes to another by reason of the death of such decedent,
and irrespective of whether such intangible property is subject to
administration and whether located in this state or elsewhere.
(a) The personal representative of a deceased person shall
appraise the deceased person's real estate and personal probate
property, or any real estate or personal probate property the
deceased person had an interest in at the time of his or her death
in the manner of appraisement provided by this section.
(b)(1) The personal representative, after first taking an oath
for the purpose, shall list and appraise on a form designed and
formulated by the tax commissioner of the State of West Virginia at
its fair market value at the date of the decedent's death all of the following items owned by the decedent or in which the decedent
had an interest:
(A) All real estate including, but not limited to, real estate
owned outright by the decedent, as joint tenant with right of
survivorship with one or more third parties, as a life estate,
subject to a power of appointment of the decedent, or in which any
beneficial interest passes by trust or otherwise to another person
by reason of the death of the decedent; and
(B) All probate personal property of every description,
whether tangible or intangible, including but not limited to stocks
and bonds, bank accounts, mortgages, notes, and cash, life
insurance payable to the executor or administrator of the
decedent's estate, and all other miscellaneous items of probate
personalty.
(2)
Any real estate or interest therein so appraised shall be
identified with particularity and description, shall identify the
source of title in the decedent and the location of such realty for
purposes of real property ad valorem taxation.
(3) For purposes of this section, the term "probate personal
property" means all such property which passes by or under the
decedent's will or by the laws of intestate descent and distribution or is otherwise subject to administration in a
decedent's estate as at common law.
(4)
In addition, to all other information required by law, the
appraisement shall contain and include a questionnaire designed and
formulated by the tax commissioner which is designed for the
purpose of examining the personal representative to determine that
he or she has made a thorough and proper search and investigation
as to the existence and value of each and every kind and species of
property required to be included within, and subject to
appraisement by, the provisions of this or any other section of
this code, which said questionnaire shall be completed and answered
upon the oath or adjuration of the personal representative or
fiduciary.
In addition, the personal representative shall complete,
under oath or adjuration, a questionnaire included in the
appraisement designed by the tax commissioner of the State of West
Virginia for the purpose of reporting to the tax commissioner
whether or not the estate of the decedent is subject to West
Virginia estate tax as provided in article eleven of chapter eleven
of this code and whether or not the decedent owned or had an
interest in any nonprobate personal property.
(5)
The appraisement
list
and questionnaire
aforesaid
shall be executed and signed by the personal representative. The original
appraisement
list
and questionnaire and two copies thereof
must
shall
be returned to the clerk of the county commission by whom
such personal representative was appointed or to the fiduciary
supervisor within ninety days of the date of qualification of the
personal representative. Such clerk or supervisor shall inspect
such appraisement
list
and questionnaire
and shall
see that the
same are in proper form.
and that all property, if any, suggested
by the questionnaire is included within the appraisement.
If such
appraisement
list
and questionnaire are returned to a fiduciary
supervisor within ten days after they are received and approved by
him or her, such supervisor shall deliver the same to the clerk of
the county commission. Upon receipt of the appraisement
list
and
questionnaire, the clerk of the county commission shall record the
same, with the certificate of approval of the supervisor,
and
mail
a certified copy of the same to the tax commissioner of West
Virginia,
and mail a copy of the same to every heir or beneficiary,
as the case may be, of the estate of such decedent for which the
clerk shall charge the appropriate mailing fee.
The date of return
of an appraisement shall be entered by the clerk of the county
commission in his or her record of fiduciaries.
(c)
The
Every such
appraisement
and list
shall be prima facie
evidence of the value of the property embraced therein, and that
the personal
estate
property
embraced therein
which
is subject to
administration
and
came to the hands of the personal
representative.
(d)
No person shall be permitted by any means whatsoever to
avoid the appraisement and listing of his or her estate and of all
property, real, tangible and intangible, of whatsoever nature and
kind, in which a beneficial interest passes to another by reason of
the death of the decedent and irrespective of whether such property
is subject to administration as herein provided, nor shall his or
her personal representative be permitted to do so.
Any personal
representative who refuses or declines, without reasonable cause,
to comply with the provisions of this section shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than five hundred dollars.
(e)
Every personal representative shall have authority to
retain or hire the services of such expert or experts as may be
deemed appropriate to assist and advise him or her in and about his
or her duties in appropriately and accurately appraising all or any
part of the assets or property to be appraised according to the provisions of this section. Such expert or experts so retained or
hired shall be compensated a reasonable sum by the personal
representative from the assets coming into his or her hands or of
which he or she is embraced, which compensation and the
reasonableness thereof shall be subject to review and approval by
the county commission, upon recommendation of the fiduciary
supervisor.
(f) Except as specifically provided in subsection (b)(1)(A) of
this section and in section seven, article eleven, chapter eleven
of this code, the personal representative shall not otherwise be
required to list and appraise nonprobate real estate or nonprobate
personal property of the decedent on the forms provided in this
section and section seven-a, article eleven, chapter eleven of this
code.
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST THE ESTATE 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.
Notwithstanding any other provision of this code to the contrary,
a fiduciary commissioner may not charge to the estate a fee greater
than three hundred dollars and expenses for the settlement of an
estate, except upon: (i) Approval of the personal representative;
or (ii) a determination by the county commission after a hearing
that complicating issues or problems attendant to such settlement
substantiate the allowance of a greater fee.
(b) If the personal representative delivers to the clerk an
appraisement of the assets of the estate showing their value to be
fifty thousand
one hundred
thousand dollars
or less, exclusive of
real estate specifically devised and nonprobate assets, or, if it
appears to the clerk that there is only one beneficiary of the
probate estate and that the beneficiary is competent at law, the
clerk shall record the 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 OR UNADMINISTERED ESTATE
NOTICE TO CREDITORS AND BENEFICIARIES
"Notice is hereby given that settlement of the estate of the
following named decedents will proceed without reference to a
fiduciary commissioner unless within
forty-five
ninety days
from
the first publication of this notice such reference is requested by
a party in interest or an unpaid creditor files a claim and good
cause is shown to support reference to a fiduciary commissioner.
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. If an
unpaid creditor files a claim against the estate, the personal
representative has twenty days after the date of the filing of a
claim against the estate of the decedent to approve or reject the
claim before the estate is referred to a fiduciary commissioner. If the personal representative approves all claims as filed, then
no reference may be made.
The personal representative shall, within a reasonable time
after the date of recordation of the appraisement in such case:
(i) File a waiver of final settlement in accordance with the
provisions of section twenty-nine of this article; or (ii) make a
report to the clerk of his or her receipts, disbursements and
distribution and submit an affidavit stating that all claims
against the estate for expenses of administration, taxes and debts
of the decedent have been paid in full.
Upon receipt of the waiver
of final settlement or report, the clerk shall record the waiver or
report and shall mail copies of the waiver or report to each
beneficiary and creditor of decedent's estate via U.S. Postal
Service. The clerk shall hold said report for a ten day period to
allow any beneficiary or creditor to appear before the county
commission or through its clerk to request reference to a fiduciary
commissioner. The clerk shall collect a fee of ten dollars for
recording and mailing such waiver of final settlement or report.
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
OR WAIVERS OF FINAL SETTLEMENT
"I have before me the account or waiver of final settlement 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 or her 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.
§44-2-29. Waiver of final settlement.
In all estates of decedents subject to administration under
this article where a release of lien, if 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
Every beneficiary
shall sign the waiver unless the beneficiary receives a bequest of
tangible personal property or a bequest of cash.
In the case of a deceased beneficiary or a beneficiary under
a disability, the duly qualified fiduciary or agent of such
beneficiary may sign in lieu of such beneficiary. A fiduciary or
agent signing such waiver shall be responsible to the beneficiary
for any loss resulting from such waiver.
The waiver shall be recorded as in the case of and in lieu of
a settlement as provided in section one, article two of this
chapter.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-4a. Short form settlement.
(a) In all estates of decedents administered under the provisions of this article where more than ninety days has elapsed
since the filing of any notice required by section four, an estate
may be closed by a short form settlement filed in compliance with
this section: Provided, That any lien for payment of estate taxes
under article eleven, chapter eleven of this code is released and
that the release is filed with the clerk.
(b) The fiduciary may file with the fiduciary supervisor a
proposed short form settlement which shall contain an affidavit
made by the fiduciary that the time for filing claims has expired,
that no known and unpaid claims exist against the estate and
showing the allocation to which each distributee and beneficiary is
entitled in the distribution of the estate and contain a
representation that the property to which each distributee or
beneficiary is entitled has been or upon approval of the settlement
will be delivered thereto, or that each distributee and beneficiary
has agreed to a different allocation. The application shall
contain a waiver signed by each distributee and beneficiary;
Provided, That a beneficiary receiving a bequest of tangible
personal property or a specific bequest of cash shall not be
required to sign the waiver.
(c) Such waiver may be signed in the case of a distributee or
beneficiary under a disability by the duly qualified personal
representative of such distributee or beneficiary. A personal
representative signing such waiver shall be responsible to his or
her cestui que trust for any loss resulting from such waiver.
(d) The fiduciary supervisor shall examine the affidavit and
waiver and determine that the allocation to the distributees and
beneficiaries set forth in the affidavit is correct and all proper
parties signed the waiver, both shall be recorded as in the case of
and in lieu of settlement. If the fiduciary supervisor identifies
any error the fiduciary supervisor shall within five days of the
filing of such settlement give the fiduciary notice as in the case
of any other incorrect settlement.
(e) If the short form settlement is proper the fiduciary
supervisor shall proceed as in the case of any other settlement.