COMMITTEE SUBSTITUTE
FOR
H. B. 4310
(By Mr. Speaker, Mr. Kiss, and Delegates
Jenkins, Staton, Varner, Trump and Dalton)
(Originating in the Committee on the Judiciary)
[February 20, 1998]
A BILL to amend and reenact sections one, two and twenty-nine,
article two, chapter forty-four of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to revising the short form settlement of a
decedent's estate; providing for fees and expenses of
fiduciary commissioners; establishing certain instances in
which estates may proceed without reference to a fiduciary
commissioner and requiring publication of notice in such
instances; requiring unpaid creditors to file a claim in
order to force reference to a fiduciary commissioner;
permitting personal representatives to approve such claims
and avoid reference to a fiduciary commissioner; addressing
and clarifying certain language with respect to waivers of
final settlement; and requiring unpaid creditors to file
claims against an estate with the fiduciary commissioner
within ninety days of the first notice publication date.
Be it enacted by the Legislature of West Virginia:
That sections one, two and twenty-nine, article two, chapter
forty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted , all
to read as follows:
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF
DECEDENTS.
§44-2-1. Reference of decedents' estates; proceedings thereon.
(a) Upon the return of the appraisement by the personal
representative to the county clerk, the estate of his or her
decedent shall, by order of the county commission to be then
made, be referred to a fiduciary commissioner for proof and
determination of debts and claims, establishment of their
priority, determination of the amount of the respective shares of
the legatees and distributees, and any other matter necessary and
proper for the settlement of the estate: Provided, That in
counties where there are two or more such commissioners, the
estates of decedents shall be referred to such commissioners in
rotation, in order that, so far as possible, there may be an
equal division of the work. Provided, however, That
Notwithstanding any other provision of this code to the contrary,
a fiduciary commissioner may not charge to the estate a fee
greater than two 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
because of after a hearing that complicating issues or problems
attendant to such settlement and amount of time involved in and
about its resolution
(b) If the personal representative shall deliver to the clerk
an appraisement of the assets of the estate showing their value
to be fifty thousand dollars or less, exclusive of 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 said appraisement and publish a notice once a week
for two successive weeks in a newspaper of general circulation
within the county of administration of the estate, substantially
as follows:
NOTICE OF PENDING OR UNADMINISTERED ESTATE
"Notice is hereby given that settlement of the estate of the
following named decedents will proceed without reference to a
fiduciary commissioner unless within ninety days from the first
publication of this notice such reference is requested by a party
in interest or an unpaid creditor
files a claim and good cause is
shown to support
such 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 receipts, disbursements and
distribution and
shall make 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. 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 surety shall be discharged; but if such
objection or request is made, the county commission may confirm
the accounting and record the same, or may refer the estate to
one of its fiduciary commissioners:
Provided, That the personal
representative has twenty days after the date of the filing of a
claim or claims against the estate of the decedent to approve or
reject the claim before the estate is referred to a fiduciary
commissioner and if all claims are approved as filed, then no
reference may be made.
(c) If upon the return and recordation of the appraisement,
it appears to the clerk that there is only one beneficiary of the
estate and that the beneficiary is competent at law, there shall
be no further administration upon the estate, and no reference to
a fiduciary commissioner, unless, for due cause, the county
commission orders further administration and a reference to a
fiduciary commissioner: Provided, That the personal
representative has twenty days after the date of the filing of a
claim or claims against the estate of the decedent to approve or
reject one claim before the estate is referred to a fiduciary
commissioner and if all claims are approved as filed, then no
reference may be made. The bond of the personal representative
and his surety shall be discharged one year after the date of
qualification of the personal representative if no claim has been
filed with the county clerk and no suit has been instituted against the personal representative. The clerk shall publish a
notice once a week for two successive weeks in a newspaper of
general circulation within the county of administration of the
estate, substantially as follows:
NOTICE OF UNADMINISTERED ESTATE
"Notice is hereby given that, there being only one
beneficiary of the deceased, there will be no administration of
the estate unless within ninety days demand for administration be
made by a party in interest or an unpaid creditor.
Dated this _____________ day of _____________________,
_____.
_____
_______________________
Clerk of the County Commission
of ____________ County, W. Va."
The clerk shall charge to the personal representative, and
receive, the reasonable cost of publication of the notice.
If no person demands administration and no creditor appears
in response to the notice hereinabove provided, the clerk shall
enter an order declaring the estate closed, without final
settlement or waiver thereof and alienation of the decedent's
real estate more than six months after the date of the notice to
a bona fide purchaser for value shall be free of any lien for
taxes or debts of the decedent, notwithstanding the provisions of
section five, article eight of this chapter.
§44-2-2. Fiduciary commissioner to publish notice of time for receiving claims against decedents estates.
Each month the fiduciary commissioner shall publish a notice
designating a convenient time and place when and where the date
by which claims against the estate or estates referred to him
during the previous calendar month may must be presented examined
and allowed. The time date so designated by the fiduciary
commissioner shall be not be less than two months nor more than
three months ninety days from the date of the first publication
of the notice hereinafter set forth. The notice shall be to the
following effect: To the Creditors and Beneficiaries of the
Estate(s) of ................
............................................................
(Naming the decedent or decedents, as the case may be)
All persons having claims against the estate(s) of the said
..........................................................., (Naming the decedent or decedents, as the case may be)
deceased, whether due or not, are notified to exhibit same, with
the voucher thereof, legally verified, to the undersigned, at
(designating the place) on or before the .......... day of
................, ....; otherwise they may by law be excluded
from all benefit of said estate(s). All beneficiaries of said
estate(s) may appear on or before said day to examine said claims
and otherwise protect their interests.
Given under my hand this ......... day of ................
.......................
Fiduciary Commissioner,
County of .............................. Such notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county. The publication of such
notice shall be equivalent to personal service on the creditors,
distributees and legatees, or any of them.
§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.
In the case of a deceased beneficiary or a beneficiary under a disability, the duly qualified personal representative
fiduciary or agent of such beneficiary may sign in lieu of such
beneficiary. A personal representative fiduciary or agent
signing such waiver shall be responsible to his or her cestui que
trust 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.
NOTE: The purpose of this bill is to revise certain
procedures related to the reference of decedent's estates to
fiduciary commissioners.
First, the bill addresses the fees a fiduciary commissioner
may charge for services. Second, the bill would clarify that
real estate not specifically devised is not to be included in the
$50,000 ceiling for estates which may proceed without reference
to a fiduciary commissioner. The bill would include in one
subsection both (i) estates below the $50,000 ceiling and (ii)
estates with a sole beneficiary who is competent at law. Third,
the bill provides that an unpaid creditor must actually file a
claim to have the estate referred to a fiduciary commissioner.
Fourth, the bill allows a personal representative either to file
an affidavit as to the payment of the decedent's taxes and debts
(as current law prescribes) or to file a waiver of final
settlement in accordance with §44-2-29. Finally, the bill amends
current §44-2-2 to provide that the unpaid creditors must file
claims with the fiduciary commissioner within ninety days of the
first publication of notice.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
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