ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2768
(By Mr. Speaker, Mr. Kiss, and Delegates Staton and Keener)
[Passed April 14, 2001; in effect ninety days from passage.]
AN ACT 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 prescribed
by the tax commissioner, 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 the 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; and
(10) All other nonprobate personalty included in the federal
gross estate of the decedent.
(b) For purposes of this section, "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 prepare the nonprobate inventory form and file it with the tax commissioner within ninety
days of the date of qualification of the personal representative in
this state.
(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, 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, or beneficiary under the will of the
decedent; 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) of this section.
(b) Notwithstanding the provisions of article ten of this
chapter, 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 timely 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 in which any asset of the decedent is in
issue; 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) of this subsection.
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 held in trust are subject to the debts of the
beneficiary of the trust, except where the creator has expressly
provided in the trust instrument that:
(1) The income or principal, or both, may only be applied to
the health, education, support or maintenance of a beneficiary,
other than the creator of the trust, for the life of the
beneficiary; and
(2) The trust is not subject to the liability of or alienation
by the beneficiary or beneficiaries.
(b) A trust, whenever created, may not be set aside or
terminated solely on the assertion of a creditor that the trustee
or trustees are the same person or persons as the beneficiary or
beneficiaries of the trust.
(c) This section applies to any trust established by an
instrument executed on or after the first day of July, two thousand
one, except as otherwise expressly provided in the terms of the
trust.
(d) This section applies to any trust established under an
instrument executed prior to the first day of July, two thousand
one, when the trustee elects, in his or her sole discretion, to
administer the trust pursuant to the provisions of this section.
(e) Except as provided in subsection (c) of this section, this
section may not be construed to create or imply a duty on a trustee
to administer the trust pursuant to the provisions of this section,
and a trustee may not be held liable for refusing to administer a
trust pursuant to the provisions of 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
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
nine
months after the event determining that the taker of the
property or interest has become finally ascertained and his or
her 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
nine
months after the effective
date of the nontestamentary instrument or contract and, as to a
future interest, not later than
nine
months after the event
determining that the taker of the property or interest has become
finally ascertained and his or her 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
nine
months after he or she 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 herself 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 or her
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 or her, 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.
Filing of objections and claims; notice of administration; liability of personal representative.
(a) Any person interested in the estate of a deceased person
may file a claim against the estate of the decedent as provided in
article two of this chapter.
(b) Any person interested in the estate who objects to the
validity of the will, the qualifications of the personal
representative or the venue or jurisdiction of the court, shall
file notice of an objection with the county commission within
ninety days after the date of the first publication as required in
subsection (c) of this section or within thirty days after service
of the notice as required by subsection (d) of this section,
whichever is later. If an objection is not timely filed, the
objection is forever barred.
(c) Within thirty days of the filing of the administration of
any estate, the clerk of the county commission shall publish, once
a week for two successive weeks, in a newspaper of general
circulation within the county of the administration of the estate,
a notice, which shall include:
(1) The name of the decedent;
(2) The file number of the estate, if any;
(3) The name and address of the county commission before whom the proceedings are pending;
(4) The name and address of the personal representative;
(5) The name and address of any attorney representing the
personal representative;
(6) The name and address of the fiduciary commissioner, if
any;
(7) The date of first publication;
(8) A statement that claims against the estate must be filed
in accordance with the provisions of article two of this chapter;
and
(9) A statement that an interested person objecting to the
validity of the will, the qualifications of the personal
representative or the venue or jurisdiction of the court, shall be
filed with the county commission within ninety days after the date
of the first publication or within thirty days of service of the
notice, whichever is later.
(d) The personal representative shall promptly make a diligent
search to determine the names and addresses of creditors of the
decedent who are reasonably ascertainable.
(e) The personal representative shall, within ninety days
after the date of first publication, serve a copy of the notice by first class mail, postage prepaid, as required in subsection (c) of
this section, on the following persons:
(1) The decedent's surviving spouse, if any;
(2) Any beneficiaries;
(3) The trustee of any trust in which the decedent was a
grantor, if any; and
(4) All creditors identified under subsection (d) above, other
than a creditor who filed a claim as provided in article two of
this chapter or a creditor whose claim has been paid in full.
(f) The service of the notice required by subdivision (4),
subsection (e) of this section may not be construed to admit the
validity or enforceability of a claim.
(g) A personal representative acting in good faith is not
personally liable for serving notice under this section,
notwithstanding a determination that notice was not required by
this section. A personal representative acting in good faith who
fails to serve the notice required by this section is not
personally liable.
(h) The clerk of the county commission shall collect a fee of
ten dollars for the publication of the notice required in this
section.
§44-1-14. Appraisement of real estate and probate personal
property of decedents; disposition; and hiring of
experts.
(a) The personal representative of an estate of a deceased
person shall appraise the deceased's real estate and personal
probate property, or any real estate or personal probate property
in which the deceased person had an interest at the time of his or
her death, as provided in this section.
(b)(1) After having taken the appropriate oath, the personal
representative shall, on a form prescribed by the tax commissioner
list the following items owned by the decedent or in which the
decedent had an interest and the fair market value of the items at
the date of the decedent's death:
(A) All real estate including, but not limited to, real estate
owned by the decedent, as a joint tenant with right of survivorship
with one or more 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, whether tangible or
intangible, including, but not limited to, stocks and bonds, bank accounts, mortgages, notes, cash, life insurance payable to the
executor or administrator of the decedent's estate and all other
items of probate personal property.
(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 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 under common law.
(4)
In addition, the personal representative shall complete,
under oath, a questionnaire included in the appraisement form
designed by the tax commissioner for the purpose of reporting to
the tax commissioner whether the estate of the decedent is subject
to estate tax as provided in article eleven, chapter eleven of this
code and whether the decedent owned or had an interest in any
nonprobate personal property.
(5)
The appraisement and questionnaire shall be executed and
signed by the personal representative. The original appraisement and questionnaire and two copies thereof
shall
be returned to the
clerk of the county commission by whom the personal representative
was appointed or to the fiduciary supervisor within ninety days of
the date of qualification of the personal representative. The
clerk or supervisor shall inspect the appraisement and
questionnaire to determine whether the documents are in proper
form. If the appraisement and questionnaire are returned to a
fiduciary supervisor within ten days after being received and
approved by him or her, the supervisor shall deliver the documents
to the clerk of the county commission. Upon receipt of the
appraisement and questionnaire, the clerk of the county commission
shall record the documents, with the certificate of approval of the
supervisor, mail a certified copy of the documents to the tax
commissioner,
and mail a copy of the documents to every known heir
or beneficiary of the estate of the decedent. The clerk of the
county commission may charge an appropriate mailing fee for mailing
the documents.
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)
An
appraisement is prima facie evidence of:
(1) The value of the property listed;
(2) The property is subject to administration;
and
(3) The property was received by the personal representative.
(d)
Any personal representative who refuses or declines,
without reasonable cause, to comply with the provisions of this
section is 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 has authority to retain the
services of an expert as may be appropriate to assist and advise
him or her concerning his or her duties in appraising any asset or
property pursuant to the provisions of this section. An expert so
retained shall be compensated a reasonable sum by the personal
representative from the assets of the estate. The compensation and
the reasonableness thereof is subject to review and approval by the
county commission, upon recommendation of the fiduciary supervisor.
(f) Except as specifically provided in paragraph (A),
subdivision (1), subsection (b) of this section and in section
seven, article eleven, chapter eleven of this code, the personal
representative is not required to list and appraise nonprobate real
estate or nonprobate personal property of the decedent on the forms
required in this section or 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, 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 for the settlement of the estate:
Provided, That in counties where there are two or more
commissioners, the estates of decedents shall be referred to the
commissioners in rotation, so 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
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 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
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 may charge the personal representative a reasonable cost for 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: (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 mail
copies to each beneficiary and creditor of by first class mail,
postage prepaid. The clerk shall retain the report for ten days to
allow any beneficiary or creditor to appear before the county
commission to request reference to a fiduciary commissioner. The
clerk shall collect a fee of ten dollars for recording and mailing
the waiver of final settlement or report
.
If no request or objection is made to the clerk or to the
county commission, the county commission may confirm the report of
the personal representative, the personal representative and his or
her surety shall be discharged; but if such objection or request is
made, the county commission may confirm and record the accounting
or may refer the estate to its fiduciary commissioners: Provided,
That 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 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.
Each 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 bequest of cash may 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.