H. B. 4482
(By Delegates Amores and Staton)
[Introduced February 10, 2006;
referred to the Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §39-1-2c; and to
amend and reenact §44-1-13 of said code, all relating to
affidavits of descent; filing affidavit of heirship with deed
records; requiring that the estate be administered before the
heirs can deed the property to another; penalties; authorizing
the recording of affidavits stating facts that affect the
title to real property; penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §39-1-2c; and that §44-
1-13 of said code be amended and reenacted, all to read as follows:
CHAPTER 39. RECORDS AND PAPERS.
ARTICLE 1. AUTHENTICATION AND RECORD OF WRITINGS.
§39-1-2c. Recordation of Affidavits of Facts Relating to Title.
(a) An affidavit stating facts relating to matters that may
affect the title to real estate in this State, including the
matters set forth in subsection (b) of this section, made by any
person having personal knowledge of the facts or competent to
testify concerning them in open court, may be recorded in the
office of the clerk of the county commission of the county in which
the real property is situate. When so recorded, such affidavit, or
certified copy thereof, shall be evidence of the facts stated
therein insofar as such facts affect the title to real estate.
(b) The affidavits permitted pursuant to subsection (a) of
this section may relate to the following:
(1) The age, sex, birth, death, capacity, relationship, family
history, heirship, names, identity or marital status of parties, or
their residence or service in the armed forces;
(2) The identity of the heirs at law, distributees, devisees
or legatees of a decedent and their relationship to the decedent;
(3) Possession of the real property;
(4) The adverse or permissive nature of a party's use or
occupancy of real property;
(5) The happening of any condition or event that may create or
terminate an interest or estate in real property;
(6) The existence and location of monuments and physical
boundaries, such as fences, streams, roads and rights of way; and
(7) If the affidavit is made by a registered surveyor, facts
reconciling conflicts and ambiguities in descriptions of land in recorded instruments.
(c) The clerk of the county commission of the county in which
such affidavit is offered for recording shall receive and cause the
affidavit to be recorded in the deed records and shall collect the
same recording fee as is provided for the recording of a deed.
(d) Each affidavit made and provided for under this section
shall include a description of the real property the title to which
may be affected by the facts stated in such affidavit or a
reference to an instrument of record in said county clerk's office
containing such description, and shall state the name of the record
owner of such land at the time of recording of the affidavit. The
county clerk shall index the affidavit in the grantor index in the
names of each of the record owner or owners and each of the affiant
or affiants of the affidavit.
(e) It shall be unlawful for any person to knowingly and
willfully make a false statement in an affidavit made and recorded
pursuant to this section. Any person violating the provisions of
this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one hundred dollars nor more
than one thousand dollars or confined in jail not more than one
year, or both fined and confined.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-13. Affidavit showing heirs, distributees, devisees and
legatees of decedent.
(a) At the time of the qualification of an executor or
administrator, the court or clerk before whom he qualifies shall
require such executor or administrator to file his own affidavit,
or the affidavit of some credible person, showing the names and, as
far as possible, the addresses of the persons who would take any
part of the estate of the decedent as heirs or distributees in
cases of the intestacy of the decedent and of the persons who are
devisees and legatees under the will, if any, of the decedent, and
their relationship to decedent, and the clerk of the
court county
commission shall record such affidavit in the fiduciary record,
which affidavit and the record thereof shall be prima facie
evidence of what is contained therein. The personal representative
shall not receive any compensation for his
or her services until
such names and addresses be furnished by affidavit as aforesaid,
unless he
or she shows by affidavit that such heirs, distributees,
devisees and legatees and their addresses are unknown to him
or her
and that after diligent inquiry he
or she has been unable to
ascertain their names and addresses.
(b) If the estate involves an interest in real property which
passes to the decedent's heirs at law under the laws of descent and
distribution, whether by the intestate death of the decedent, by
the terms of a will, by failure of provisions of the will, by
operation of law, or otherwise, then a copy of the affidavit set
forth in subsection (a), shall be recorded by the clerk of the
county commission in the deed records and indexed in the general index of deeds in the name of such decedent as grantor and in the
name of each of such heirs at law as grantees. For indexing and
recording such affidavit of descent the clerk of the county
commission shall receive the same recording fees as are allowed for
recording of deeds. No excise tax under article eleven, chapter
twenty-two of this code shall be payable on account of the
recording of such affidavit of descent.
(c) No clerk of the county commission of any county shall
admit to record in the office of such clerk any deed to real
property, the title to which has passed to the grantor under the
laws of descent and distribution, until an affidavit of descent, as
provided in subsection (b), has been recorded: Provided, That the
recording or filing of a deed in violation of the provisions of
this section shall not invalidate or cloud the title passing by or
under such deed or affect the validity of such deed in any respect
whatever, and such recorded or filed deed shall constitute notice
with like effect as if such grantor had fully complied with this
section. This subsection does not apply to any deed executed prior
to the effective date hereof; to any decree, order, judgment or
writ of any court, to any will, or to any real property that is
devised or bequeathed by will, unless the effect of such will,
devise or bequest (or the failure of a devise or bequest) is that
the real property passed to the grantor of a deed under the laws of
descent and distribution.
(d) It shall be unlawful for any person to knowingly and willfully make a false statement in an affidavit filed pursuant to
subsection (a) of this section.
(e) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than one thousand
dollars or confined in jail not more than one year, or both fined
and confined.
Note: The purpose of this bill is to provide for the filing of
affidavits of heirship with deed records and to require that the
estate be administered before the heirs can deed the property to
someone else. Additionally, the bill expressly authorizes the
recording of affidavits stating facts that affect the title to real
property. This bill simply recognizes the current practice of
using affidavits as evidence of the identity of the heirs of an
intestate decedent when there has been no estate administration.
Section 39-1-2c is new; therefore, underscoring and strike-
throughs have been omitted
. In §44-1-13, strike-throughs indicate
language that would be stricken from the present law, and
underscoring indicates new language that would be added.