ENROLLED
H. B. 2638
(By Delegate Kiss)
[Passed April 10, 1993; in effect ninety days form passage.]
AN ACT to repeal section five, article three, chapter forty-two
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section six,
article one, chapter forty-one of said code; to amend and
reenact sections eleven, twelve and thirteen, article five
of said chapter; to amend and reenact sections three and
three-b, article one, chapter forty-two of said code; to
amend and reenact sections one, two, three, three-a and
four, article three of said chapter forty-two; to amend and
reenact section fourteen, article one, chapter forty-four of
said code; to amend and reenact section one, article three,
chapter fifty-eight of said code; and to further amend said
article by adding thereto a new section, designated section
one-a, all relating to the probate of estates; effect of a
divorce or annulment of a marriage on dispositions,
appointments, conveyances or nominations made in testator's
will with respect to former spouse; making certain technical
corrections to statutory language; clarifying operative date
of certain provisions; setting forth right of surviving
spouse to an elective share in the case of intestacy;
entitling a surviving spouse to the supplemental share if
the amount provided by the will and other entitlements is
less than the supplemental share; clarifying the source of
payment of the supplemental elective share amount;
eliminating need to notify persons against whom surviving
spouse is not proceeding for elective share; reducing the
time period to challenge certain probate matters; providing
for the intestate share of a decedent's surviving spouse
when decedent is not survived by any descendants; removing
requirement that appraisers be appointed to appraise
decedents' estates; requiring personal representatives to
appraise such estates; setting forth when personal
representative is guilty of a misdemeanor; providing
criminal penalties; and permitting and providing procedures
for appeals of county commission final orders in cases
involving the elective shares of surviving spouses.
Be it enacted by the Legislature of West Virginia:
That section five, article three, chapter forty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section six, article one, chapter
forty-one of said code be amended and reenacted; that sections
eleven, twelve and thirteen, article five of said chapter be
amended and reenacted; that sections three and three-b, article
one, chapter forty-two of said code be amended and reenacted;
that sections one, two, three, three-a and four, article three of
said chapter forty-two be amended and reenacted; that section
fourteen, article one, chapter forty-four of said code be amendedand reenacted; that section one, article three, chapter
fifty-eight of said code be amended and reenacted; and that said
article three be further amended by adding thereto a new section,
designated section one-a, all to read as follows:
CHAPTER 41. WILLS.
ARTICLE 1. CAPACITY TO MAKE; REQUISITES; VALIDITY.
§41-1-6. Revocation by divorce; no revocation by other changes
of circumstances.
(a) If after executing a will the testator is divorced or
his marriage annulled, the divorce or annulment revokes any
disposition or appointment of property made by the will to the
former spouse, any provision conferring a general or special
power of appointment on the former spouse, and any nomination of
the former spouse as executor, trustee, conservator, or guardian,
unless the will expressly provides otherwise. Property prevented
from passing to a former spouse because of revocation by divorce
or annulment passes as if the former spouse failed to survive the
decedent, except that the provisions of section three, article
three, chapter forty-one do not apply, and other provisions
conferring some power or office on the former spouse are
interpreted as if the spouse failed to survive the decedent. If
provisions are revoked solely by this section, they are revived
by testator's remarriage to the former spouse. For purposes of
this section, divorce or annulment means any divorce or annulment
which would exclude the spouse as a surviving spouse. A decree
of separation which does not terminate the status of husband and
wife is not a divorce for purposes of this section. No change of
circumstances other than as described in this section revokes awill.
(b) This section applies to all divorces, annulments or
remarriages which become effective after the fifth day of June,
one thousand nine hundred ninety-two.
ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.
§41-5-11. Impeachment or establishment of will -- By person who
was not party to prior proceeding; trial by jury.
After a judgment or order entered as aforesaid in a
proceeding for probate ex parte, any person interested who was
not a party to the proceeding, or any person who was not a party
to a proceeding for probate in solemn form, may proceed by
complaint to impeach or establish the will, on which complaint,
if required by any party, a trial by jury shall be ordered, to
ascertain whether any, and if any, how much, of what was so
offered for probate, be the will of the decedent. The court may
require all other testamentary papers of the decedent to be
produced, and the inquiry shall then be which one of all, or how
much of any, of the testamentary papers is the will of the
decedent. If the judgment or order was entered by the circuit
court on appeal from the county commission, such complaint shall
be filed within one year from the date thereof, and if the
judgment or order was entered by the county commission and there
was no appeal therefrom, such complaint shall be filed within one
year from the date of such order of the county commission. If no
such complaint be filed within the time prescribed, the judgment
or order shall be forever binding. Any complaint filed under this
section shall be in the circuit court of the county wherein
probate of the will was allowed or denied.
§41-5-12. Impeachment or establishment in court -- By person
under disability or nonresident.
Notwithstanding the two preceding sections, any person
interested who, at the time of the judgment or order is under the
age of eighteen years, or is a convict or a mentally
incapacitated person, may file a complaint to impeach or
establish the will, within one year after he becomes of age, or
other disability ceases; and any person interested who, at that
time, resided out of the state, or was proceeded against by
publication, may, unless he actually appeared as a party or was
personally summoned, file such complaint within one year after
the entry of such judgment or order.
§41-5-13. Probate of foreign will.
Where a will relative to an estate within this state has
been proved without the same, an authenticated copy thereof and
the certificate of probate thereof, may be offered for probate in
this state. When such copy is so offered, the county commission,
or the clerk thereof in the vacation of the commission, to which
or to whom it is offered, shall presume, in the absence of
evidence to the contrary, that the will was duly executed and
admitted to probate as a will of personalty in the state or
country of the testator's domicile, and shall admit such copy to
probate as a will of personalty in this state; and if it appears
from such copy that the will was proved in the foreign court of
probate to have been so executed as to be a valid will of land in
this state by the laws thereof, such copy may be admitted to
probate as a will of real estate. But any person interested may,
within one year from the time such authenticated copy is admittedto record, upon reasonable notice to the parties interested, have
the order admitting the same set aside, upon due and satisfactory
proof that such authenticated copy was not a true copy of such
will, or that the probate of such will has been set aside by the
court by which it was admitted to probate, or that such probate
was improperly made.
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 1. DESCENT.
§42-1-3. Share of spouse.
The intestate share of a decedent's surviving spouse is:
(a) The entire intestate estate if:
(1) No descendant of the decedent survives the decedent; or
(2) All of the decedent's surviving descendants are also
descendants of the surviving spouse and there is no other
descendant of the surviving spouse who survives the decedent;
(b) Three fifths of the intestate estate, if all of the
decedent's surviving descendants are also descendants of the
surviving spouse and the surviving spouse has one or more
surviving descendants who are not descendants of the decedent;
(c) One half of the intestate estate, if one or more of the
decedent's surviving descendants are not descendants of the
surviving spouse.
§42-1-3b. Requirement that heir survive decedent for one
hundred twenty hours.
An individual who fails to survive the decedent by one
hundred twenty hours is deemed to have predeceased the decedent
for purposes of intestate succession, and the decedent's heirs
are determined accordingly. If the time of death of a decedentor of an individual who would otherwise be an heir, or the times
of death of both, cannot be determined, and it is not established
that the individual who would otherwise be an heir survived the
decedent by one hundred twenty hours, it is deemed that the
individual failed to survive for the required period. This
section is not to be applied if its application would result in
a taking of intestate estate by the state under section three-c
of this article.
ARTICLE 3. PROVISIONS RELATING TO HUSBAND OR WIFE OF DECEDENT.
§42-3-1. Right to elective share.
(a) The surviving spouse of a decedent who dies domiciled in
this state has a right of election, against either the will or
the intestate share, under the limitations and conditions stated
in this part, to take an elective-share amount equal to the value
of the elective-share percentage of the augmented estate,
determined by the length of time the spouse and the decedent were
married to each other, in accordance with the following schedule:
If the decedent and the spouseThe
elective-share
were married to each other percentage is:
Less than 1 year Supplemental Amount Only
1 year but less than 2 years 3% of the augmented estate.
2 years but less than 3 years 6% of the augmented estate.
3 years but less than 4 years 9% of the augmented estate.
4 years but less than 5 years 12% of the augmented estate.
5 years but less than 6 years 15% of the augmented estate.
6 years but less than 7 years 18% of the augmented estate.
7 years but less than 8 years 21% of the augmented estate.
8 years but less than 9 years 24% of the augmented estate.
9 years but less than 10 years 27% of the augmented estate.
10 years but less than 11 years 30% of the augmented estate.
11 years but less than 12 years 34% of the augmented estate.
12 years but less than 13 years 38% of the augmented estate.
13 years but less than 14 years 42% of the augmented estate.
14 years but less than 15 years 46% of the augmented estate.
15 years or more 50% of the augmented estate.
(b) If the sum of the amounts described in subdivisions (3)
and (4), subsection (b) of section two, and subdivisions (1) and
(3), subsection (a), section six of this article, and that part
of the elective-share amount payable from the decedent's probate
and reclaimable estates under subsections (b) and (c), section
six of this article, is less than twenty-five thousand dollars,
the surviving spouse is entitled to a supplemental elective-share
amount equal to twenty-five thousand dollars, minus the sum of
the amounts described in those sections. The supplemental
elective-share amount is payable from the decedent's probate
estate and from recipients of the decedent's reclaimable estate
in the order of priority set forth in subsections (b) and (c),
section six of this article.
(c) The right, if any, of the surviving spouse of a decedent
who dies domiciled outside this state to take an elective share
in property in this state is governed by the law of the
decedent's domicile at death.
§42-3-2. Augmented estate.
(a) Definitions.
(1) In this section:
(i) "Bona fide purchaser" means a purchaser for value in
good faith and without notice of an adverse claim. The notation
of a state documentary fee on a recorded instrument is prima
facie evidence that the transfer described therein was made to a
bona fide purchaser.
(ii) "Nonadverse party" means a person who does not have a
substantial beneficial interest in the trust or other property
arrangement that would be adversely affected by the exercise ornonexercise of the power that he or she possesses respecting the
trust or other property arrangement. A person having a general
power of appointment over property is deemed to have a beneficial
interest in the property.
(iii) "Presently exercisable general power of appointment"
means a power of appointment under which, at the time in
question, the decedent by an exercise of the power could have
created an interest, present or future, in himself or herself or
his or her creditors.
(iv) "Probate estate" means property, whether real or
personal, movable or immovable, wherever situated, that would
pass by intestate succession if the decedent died without a
valid will.
(v) "Right to income" includes a right to payments under an
annuity or similar contractual arrangement.
(vi) "Value of property owned by the surviving spouse at the
decedent's death" and "value of property to which the surviving
spouse succeeds by reason of the decedent's death" include the
commuted value of any present or future interest then held by the
surviving spouse and the commuted value of amounts payable to the
surviving spouse after the decedent's death under any trust, life
insurance settlement option, annuity contract, public or private
pension, disability compensation, death benefit or retirement
plan, or any similar arrangement, exclusive of the federal social
security system.
(2) In subsections (b)(2)(iii) and (iv), "transfer" includes
an exercise or release of a power of appointment, but does not
include a lapse of a power of appointment.
(b) The augmented estate consists of the sum of:
(1) The value of the decedent's probate estate, reduced by
funeral and administration expenses and enforceable claims;
(2) The value of the decedent's reclaimable estate. The
decedent's reclaimable estate is composed of all property,
whether real or personal, movable or immovable, wherever
situated, not included in the decedent's probate estate, of any
of the following types:
(i) Property to the extent the passing of the principal
thereof to or for the benefit of any person, other than the
decedent's surviving spouse, was subject to a presently
exercisable general power of appointment held by the decedent
alone, if the decedent held that power immediately before his or
her death, or if and to the extent the decedent, while married to
his or her surviving spouse and during the two-year period next
preceding the decedent's death, released that power or exercised
that power in favor of any person other than the decedent or the
decedent's estate, spouse or surviving spouse;
(ii) Property, to the extent of the decedent's unilaterally
severable interest therein, held by the decedent and any other
person, except the decedent's surviving spouse, with right of
survivorship, acquired during the marriage of the decedent and
the surviving spouse, if the decedent held that interest
immediately before his or her death or if and to the extent the
decedent, while married to his or her surviving spouse and during
the two-year period preceding the decedent's death, transferred
that interest to any person other than the decedent's surviving
spouse;
(iii) Proceeds of insurance, including accidental death
benefits, on the life of the decedent payable to any person other
than the decedent's surviving spouse, if the decedent owned the
insurance policy, had the power to change the beneficiary of the
insurance policy, or the insurance policy was subject to a
presently exercisable general power of appointment held by the
decedent alone immediately before his or her death or if and to
the extent the decedent, while married to his or her surviving
spouse and during the two-year period next preceding the
decedent's death, transferred that policy to any person other
than the decedent's surviving spouse; and
(iv) Property transferred by the decedent to any person
other than a bona fide purchaser at any time during the
decedent's marriage to the surviving spouse, to or for the
benefit of any person, other than the decedent's surviving
spouse, if the transfer is of any of the following types:
(A) Any transfer to the extent that the decedent retained at
the time of or during the two-year period next preceding his or
her death the possession or enjoyment of, or right to income from
the property;
(B) Any transfer to the extent that, at the time of or
during the two-year period next preceding the decedent's death,
the income or principal was subject to a power, exercisable by
the decedent alone or in conjunction with any other person or
exercisable by a nonadverse party, for the benefit of the
decedent or the decedent's estate;
(C) Any transfer of property, to the extent the decedent's
contribution to it, as a percentage of the whole, was made withintwo years before the decedent's death, by which the property is
held, at the time of or during the two-year period next preceding
the decedent's death, by the decedent and another, other than the
decedent's surviving spouse, with right of survivorship; or
(D) Any transfer made to a donee within two years before the
decedent's death to the extent that the aggregate transfers to
any one donee in either of the years exceed ten thousand dollars.
(3) The value of property to which the surviving spouse
succeeds by reason of the decedent's death, other than by testate
succession, or intestate succession, including the proceeds of
insurance, including accidental death benefits, on the life of
the decedent and benefits payable under a retirement plan in
which the decedent was a participant, exclusive of the federal
social security system; and
(4) The value of property owned by the surviving spouse at
the decedent's death, reduced by enforceable claims against that
property or that spouse, plus the value of amounts that would
have been includible in the surviving spouse's reclaimable estate
had the spouse predeceased the decedent. But amounts that would
have been includible in the surviving spouse's reclaimable estate
under subsection (b)(2)(iii) are not valued as if he or she were
deceased.
(c) Any transfer or exercise or release of a power of
appointment is excluded from the decedent's reclaimable estate
(i) to the extent the decedent received adequate and full
consideration in money or money's worth for the transfer,
exercise or release, or (ii) if irrevocably made with the written
consent or joinder of the surviving spouse.
(d) Property is valued as of the decedent's death, but
property irrevocably transferred during the two-year period next
preceding the decedent's death which is included in the
decedent's reclaimable estate under subsections (b)(2)(i), (ii)
and (iv) is valued as of the time of the transfer. If the terms
of more than one of the subparagraphs or sub-subparagraphs of
subsection (b)(2) apply, the property is included in the
augmented estate under the subparagraph or sub-subparagraph that
yields the highest value. For the purposes of this subsection,
an "irrevocable transfer of property" includes an irrevocable
exercise or release of a power of appointment.
(e) (1) Although under this section a payment, item of
property, or other benefit is included in the decedent's
reclaimable estate, a payor or other third party is not liable
for having made a payment or transferred an item of property or
other benefit to a beneficiary designated in a governing
instrument, or for having taken any other action in good faith
reliance on the validity of a governing instrument, upon request
and satisfactory proof of the decedent's death, before the payor
or other third party received written notice from the surviving
spouse or spouse's representative of an intention to file a
petition for the elective share or that a petition for the
elective share has been filed. A payor or other third party is
liable for payments made or other actions taken after the payor
or other third party received written notice of an intention to
file a petition for the elective share or that a petition for the
elective share has been filed.
(2) The written notice of intention to file a petition forthe elective share or that a petition for the elective share has
been filed must be mailed to the payor's or other third party's
main office or home by registered or certified mail, return
receipt requested, or served upon the payor or other third party
in the same manner as a summons in a civil action. Upon receipt
of written notice of intention to file a petition for the
elective share or that a petition for the elective share has been
filed, a payor or other third party may pay any amount owed or
transfer or deposit any item of property held by it to or with
the court having jurisdiction of the probate proceedings relating
to the decedent's estate, or if no proceedings have been
commenced, to or with the court having jurisdiction of probate
proceedings relating to decedents' estates located in the county
of the decedent's residence. The court shall hold the funds or
item of property and, upon its determination under subsection (d)
of section four of this article, shall order disbursement in
accordance with the determination. If no petition is filed in
the court within the specified time under subsection (a) of
section four of this article or, if filed, the demand for an
elective share is withdrawn under subsection (c) of section four
of this article, the court shall order disbursement to the
designated beneficiary. Payments, transfers, or deposits made to
or with the court discharge the payor or other third party from
all claims for the value of amounts paid to or items of property
transferred to or deposited with the court.
(3) Upon petition to the probate court by the beneficiary
designated in a governing instrument, the court may order that
all or part of the property be paid to the beneficiary in anamount and subject to conditions consistent with this section.
(f) (1) A person who purchases property from a recipient for
value and without notice, or who receives a payment or other item
of property in partial or full satisfaction of a legally
enforceable obligation, is neither obligated under this part to
return the payment, item of property, or benefit nor is liable
under this part for the amount of the payment or the value of the
item of property or benefit. But a person who, not for value,
receives a payment, item of property, or any other benefit
included in the decedent's reclaimable estate is obligated to
return the payment, item of property, or benefit, or is
personally liable for the amount of the payment or the value of
the item of property or benefit, as provided in section six of
this article.
(2) If any section or part of any section of this part is
preempted by federal law with respect to a payment, an item of
property, or any other benefit included in the decedent's
reclaimable estate, a person who, not for value, receives the
payment, item of property, or any other benefit is obligated to
return that payment, item of property, or benefit, or is
personally liable for the amount of that payment or the value of
that item of property or benefit, as provided in section six of
this article to the person who would have been entitled to it
were that section or part of that section not preempted.
§42-3-3. Right of election personal to surviving spouse.
(a) The right of election may be exercised only by a
surviving spouse who is living when the petition for the elective
share is filed in the court under subsection (a), section four ofthis article. If the election is not exercised by the surviving
spouse personally, it may be exercised on the surviving spouse's
behalf by his or her conservator, guardian, or agent under the
authority of a power of attorney.
(b) If the election is exercised on behalf of a surviving
spouse who is an incapacitated person, the court must set aside
that portion of the elective-share and supplemental elective-
share amounts due from the decedent's probate estate and
recipients of the decedent's reclaimable estate under subsections
(b) and (c), section six of this article and must appoint a
trustee to administer that property for the support of the
surviving spouse. For the purposes of this subsection, an
election on behalf of a surviving spouse by an agent under a
durable power of attorney is presumed to be on behalf of a
surviving spouse who is an incapacitated person. The trustee
must administer the trust in accordance with the following terms
and such additional terms as the court determines appropriate:
(1) Expenditures of income and principal may be made in the
manner, when, and to the extent that the trustee determines
suitable and proper for the surviving spouse's support, without
court order but with regard to other support, income, and
property of the surviving spouse and benefits of medical or other
forms of assistance from any state or federal government or
governmental agency for which the surviving spouse must qualify
on the basis of need;
(2) During the surviving spouse's incapacity, neither the
surviving spouse nor anyone acting on behalf of the surviving
spouse has a power to terminate the trust; but if the survivingspouse regains capacity, the surviving spouse then acquires the
power to terminate the trust and acquire full ownership of the
trust property free of trust, by delivering to the trustee a
writing signed by the surviving spouse declaring the termination;
(3) Upon the surviving spouse's death, the trustee shall
transfer the unexpended trust property under the residuary
clause, if any, of the will of the predeceased spouse against
whom the elective share was taken, as if that predeceased spouse
died immediately after the surviving spouse, or, if there was no
residuary clause or no will of that predeceased spouse, to the
persons and in such shares as would succeed to that predeceased
spouse's intestate estate as if that predeceased spouse died
immediately after the surviving spouse.
§42-3-3a. Waiver of right to elect; other rights.
(a) The right of election of a surviving spouse may be
waived, wholly or partially, before or after marriage, by a
written contract, agreement, or waiver signed by the surviving
spouse.
(b) A surviving spouse's waiver is not enforceable if the
surviving spouse proves that:
(1) He or she did not execute the waiver voluntarily; or
(2) The waiver was unconscionable when it was executed and,
before execution of the waiver, he or she:
(i) Was not provided a fair and reasonable disclosure of the
property or financial obligations of the decedent;
(ii) Did not voluntarily and expressly waive, in writing,
any right to disclosure of the property or financial obligations
of the decedent beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of
the decedent.
(c) An issue of unconscionability of a waiver is for
decision by the court as a matter of law.
(d) Unless it provides to the contrary, a waiver of "all
rights," or equivalent language, in the property or estate of a
present or prospective spouse or a complete property settlement
entered into after or in anticipation of separation or divorce is
a waiver of all rights of elective share by each spouse in the
property of the other and renunciation by each of all benefits
that would otherwise pass to him or her from the other by
intestate succession or by virtue of any will executed before the
waiver or property settlement.
§42-3-4. Proceeding for elective share; time limit.
(a) Except as provided in subsection (b), the election must
be made by filing in the court and mailing or delivering to the
personal representative, if any, a petition for the elective
share within nine months after the date of the decedent's death,
or within six months after the probate of the decedent's will,
whichever limitation later expires. The surviving spouse must
give notice of the time and place set for hearing to persons
interested in the estate and to the distributees and recipients
of portions of the augmented estate whose interests will be
adversely affected by the taking of the elective share. Except
as provided in subsection (b), the decedent's reclaimable estate,
described in subdivision (2), subsection (b), section two of this
article, is not included within the augmented estate for thepurpose of computing the elective share, if the petition is filed
more than nine months after the decedent's death.
(b) Within nine months after the decedent's death, the
surviving spouse may petition the court for an extension of time
for making an election. If, within nine months after the
decedent's death, the spouse gives notice of the petition to all
persons interested in the decedent's reclaimable estate, against
whom the spouse chooses to proceed under subsection (d) of this
section, the court for cause shown by the surviving spouse may
extend the time for election. If the court grants the spouse's
petition for an extension, the decedent's reclaimable estate,
described in subdivision (2), subsection (b), section two of this
article, in the hands of those persons against whom the spouse
chooses to proceed under subsection (d) of this section, is not
excluded from the augmented estate for the purpose of computing
the elective-share and supplemental elective-share amounts, if
the spouse makes an election by filing in the court and mailing
or delivering to the personal representative, if any, a petition
for the elective share within the time allowed by the extension.
(c) The surviving spouse may withdraw his or her demand for
an elective share at any time before entry of a final
determination by the court.
(d) After notice and hearing, the court shall determine the
elective share and supplemental elective-share amounts, and shall
order its payment from the assets of the augmented estate or by
contribution as appears appropriate under section six of this
article. If it appears that a fund or property included in the
augmented estate has not come into the possession of the personalrepresentative, or has been distributed by the personal
representative, the court nevertheless shall fix the liability of
any person who has any interest in the fund or property or who
has possession thereof, whether as trustee or otherwise. The
proceeding may be maintained against fewer than all persons
against whom relief could be sought, but no person is subject to
contribution in any greater amount than he or she would have been
under section two had relief been secured against all persons
subject to contribution.
(e) An order or judgment of the court may be enforced as
necessary in suit for contribution or payment in other courts of
this state or other jurisdictions.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-14. Appraisal of estates in triplicate; disposition;
authority of appraisers to act throughout the state;
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 suchdecedent 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. 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.
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 determinethat 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.
The appraisement, list and questionnaire aforesaid shall be
executed in triplicate and shall be signed by the personal
representative and be forthwith returned to the clerk of the
county commission by whom such personal representative was
appointed or to the fiduciary supervisor. Such clerk or
supervisor shall inspect such appraisement, list and
questionnaire, 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 two copies of 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 one copy of the same to the tax commissioner
of West Virginia. The date of return of an appraisement shall
be entered by the clerk of the county commission in his or her
record of fiduciaries. Every such appraisement and list shall
be prima facie evidence of the value of the property embraced
therein, and that the personal estate embraced therein which issubject to administration came to the hands of the personal
representative. 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 fails, refuses or declines 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.
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.
CHAPTER 58. APPEAL AND ERROR.
ARTICLE 3. APPEALS FROM COUNTY COMMISSIONS.
§58-3-1. When appeal lies to circuit court.
An appeal shall lie to the circuit court of the county from
the final order of the county commission in the following cases:
(a) In cases of contested elections tried and determined by such
court; (b) in cases of contempt; (c) the establishment and
regulation of a road, way, bridge, public landing, ferry or mill;
(d) the probate of a will; (e) the appointment and qualification
of a personal representative, guardian, including, but not
limited to, all fiduciaries made pursuant to article ten-a,
chapter forty-four of this code, or committee, and the settlement
of their accounts; (f) the disposition of disputes arising from
the provisions of article three, chapter forty-two of this code,
which appeal shall be de novo; (g) in any other case by law
specially provided.
§58-3-1a. Procedures for appeals.
Any interested person may appeal the final order of the
county commission described by the provisions of subdivision (f),
section one of this article to the circuit court as a matter of
right by requesting the appeal within four months after the final
order of the county commission is rendered. The appeal shall be
determined by trial de novo. Upon receipt of the request for
appeal, the clerk of the county commission shall collect the
circuit court filing fee therefor and forward the same, together
with the final order and the request, to the clerk of the circuit
court. The court may require the clerk of the county commission
to file with the circuit clerk all or any portion of the record
of the proceedings which resulted in the final order. No bond may
be required from any party to the appeal. The final order of the
county commission shall be stayed pending the appeal proceedings. If, after the appeal is filed in the circuit court, the matter is
not brought on for hearing before the end of the second term
thereafter, the appeal shall be considered abandoned and shall be
dismissed at the cost of the appellant unless sufficient cause is
shown for a further continuance. Upon such dismissal, the final
order of the county commission is affirmed. No appeal which has
been so dismissed by the circuit court may be reinstated after
the expiration of the next regular term following such dismissal.