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Enrolled Version - Final Version House Bill 2759 History

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WEST virginia legislature

2019 regular session

ENROLLED

House Bill 2759

By Delegate Shott

(By Request of the West Virginia State Bar Probate Committee)

[Passed March 1, 2019; in effect ninety days from passage.]

AN ACT to amend and reenact §41-5-13 of the Code of West Virginia, 1931, as amended; to amend and reenact §44-1-4 of said code; and to amend said code by adding thereto a new section, designated §44-1-14b, all relating to the administration of estates and providing for the ancillary administration of West Virginia real estate owned by nonresidents by affidavit and without administration.

Be it enacted by the Legislature of West Virginia:


CHAPTER 41. WILLS.


ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.


§41-5-13. Ancillary administration; Probate or recordation of foreign will.

(a) Where a will relative to any personalty or real estate located or situate within this state has been proved or probated outside of this state by another state or jurisdiction within the United States of America, an authenticated copy thereof and the certificate of probate thereof, by such other state or jurisdiction may be offered for probate in this state, in accordance with the provisions of §41-5-5 or §41-5-10 of this code, and an ancillary personal representative, executor, or administrator, as the case may be, may be appointed in this state with like effect and with the same powers, authorities, duties, and liabilities as are given to domiciliary personal representatives, executors, and administrators under the provisions of this code.

(b) Where a will, relative only to real estate situate within this state, has been proved or probated outside of this state by another state or jurisdiction within the United States of America and no appointment of an ancillary personal representative, executor, or administrator to administer the real estate within this state is necessary for any proper purpose, an authenticated copy thereof and the certificate of probate thereof may be admitted to record in any county of this state in which the real estate is situate by any person having an interest in the real estate, including a personal representative who has qualified in the other state or jurisdiction.

(1) The interested person or personal representative shall also execute and tender for recording in the county an affidavit setting forth in substance:

(A) A description of the real estate owned by the decedent at the time of his or her death situate within the county in this state where the affidavit is to be recorded together with its assessed value for tax purposes and its fair market value at the date of death of the decedent;

(B) That the decedent died testate a nonresident of this state and that the authenticated copy of the will and the certificate of probate of the other state or jurisdiction is being or has been recorded in the county; and

(C) The names and last known addresses of the personal representative of the decedent’s estate, if any, and of the decedent's devisees or beneficiaries who are devised or given the real estate under the will.

(2) The clerk of the county commission shall record and index the affidavit, together with the authenticated copy of the will and the certificate of probate, in the same manner and upon the same fees as wills and affidavits of beneficiaries or heirs are recorded and indexed in case of probate administration with appointment of a personal representative. The clerk of the county commission may require a certified copy of the decedent’s death certificate or other proof of death and residence prior to fulfilling the clerk’s responsibilities under this chapter.

(3) A bond, security, or oath is not required when no appointment of an ancillary personal representative, executor, or administrator is made under the provisions of this section.

(c) A document substantially in the following form may be used as the affidavit provided in subsection (b) of this section with the effect as prescribed in this section:

THE COUNTY COMMISSION OF   __________ COUNTY, WEST VIRGINIA

IN RE:            THE ESTATE OF ______________________

                        DOD:  _____________________

 

AFFIDAVIT FOR ANCILLARY ADMINISTRATION

OF WEST VIRGINIA REAL ESTATE

WITHOUT APPOINTMENT

(TESTATE)

 

STATE OF ________________,

COUNTY OF ______________, to-wit:

I, ______________________________,  whose address is __________________

_________________________________________________________________, being first duly sworn, upon oath and under penalty of perjury, do depose and say as follows:

1.            The decedent, _____________________________, died testate (with a will) on _____________________(date of death), a resident of ___________ County, State of ____________________. 

2.            On ____________________ (date), the following person(s) was/were appointed as the personal representative of the Estate of ________________ by the ___________________(name of foreign court), of ___________ (county), ________________(state), being case number _______________, if applicable:

a.            Name: ____________________________________________

            Address: ____________________________________________________

b.            Name: ______________________________________________________

            Address: ____________________________________________________

3.            An authenticated copy of the Last Will and Testament dated ____________ and the certificate of probate of such other state or jurisdiction is being furnished herewith for recording in this County.

4.            The Decedent died owning and possessing the following real estate situate in West Virginia:

 

 

Description

 

County

Assessed Value

Fair Market value

a.

 

 

 

 

b.

 

 

 

 

c.

 

 

 

 

d.

 

 

 

 

 

Total

 

 

 

 

5.            Pursuant to the provisions of the Last Will and Testament of ___________________, the decedent devised the aforesaid real estate to the following beneficiaries of the estate:

a.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

b.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

c.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

d.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

6.            The Estate of _______________, the decedent, will be/has been fully administered by the domiciliary personal representative under the domiciliary proceedings in the other state or jurisdiction. No appointment of an ancillary personal representative to administer the decedent’s real estate within the State of West Virginia is necessary for any proper purpose.

7.            I have personal knowledge of the above facts and am interested in the Estate of ____________________, the decedent, as the (  ) acting domiciliary personal representative, (  ) surviving spouse, (  ) beneficiary under the decedent’s will, (  ) heir at law, or (  ) other ______________________________ (describe relationship or interest). [Check one]

 

______________________________

Signature of Affiant

 

Taken, subscribed, and sworn to before me the undersigned authority by _________________________________, this          day of                               , 20___.

{seal}

My Commission expires: ______________________________ 

__________________________________________________                                 

Notary Public

 

(d) When the authenticated copy of the will and the certificate of probate is so offered, as provided in subsection (a) of this section, 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 the copy to probate as a will of personalty in this state; and if it appears from the 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, the copy may be admitted to probate as a will of real estate. But any person interested may, within one year from the time the authenticated copy is admitted to record,  and so probated, upon reasonable notice to the parties interested, object to the same and have the order admitting the same to probate in this state set aside, upon due and satisfactory proof that the authenticated copy was not a true copy of the will, or that the probate of the will has been set aside by the court by which it was admitted to probate, or that the probate was improperly made.

(e) Notwithstanding anything in this section to the contrary, where an original will of a nonresident decedent exists but has not been proved or probated outside of this state by another state or jurisdiction within the United States of America because the provisions of the laws of the state or jurisdiction do not require the proof or probate of the will, the original of the will may be offered for probate in this state as provided in subsection (a) of this section or may be admitted to record as provided in subsection (b) of this section.

CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.


ARTICLE 1. PERSONAL REPRESENTATIVES.


§44-1-4. Appointment of intestate administrator; affidavit of heirs of nonresident intestate decedent without appointment of intestate administrator.

(a) When a person dies intestate the jurisdiction to hear and determine the right of administration of his or her estate shall be in the county commission or clerk thereof during the recess of the regular sessions of the county commission which would have jurisdiction as to the probate of his or her will, if there were one. Administration shall be granted to the distributees who apply therefor, preferring first the husband or wife, and then such of the others entitled to distribution as the county commission or clerk shall see fit. If no distributee apply for administration within 30 days from the death of the intestate, the county commission or clerk may grant administration to one or more of the creditors of the decedent, or to any other person who shall be fit.

(b) Notwithstanding the provisions of subsection (a) of this section:

(1) Any person having an interest in real estate situate in this state that was seized and possessed by a decedent who was a nonresident of this state and who has died intestate without any will, including a personal representative who has qualified in another state or jurisdiction, for which no appointment of an ancillary personal representative or administrator to administer the real estate within this state is necessary for any proper purpose may execute and tender for recording in the county an affidavit setting forth in substance:

(A) A description of the real estate owned by the nonresident decedent at the time of his or her death situate within the county where the affidavit is to be recorded together with its assessed value for tax purposes and its fair market value at the date of death of the decedent;

(B) That the nonresident decedent died intestate without any will presented or probated in this state or in any other state or jurisdiction;

(C) That more than 60 days have passed since the death of the decedent and no personal representative or administrator of the decedent’s estate has been otherwise appointed in this state for any proper purpose; and

(D) The names and last known addresses of the decedent's heirs at law determined under the laws of this state entitled to the real estate situate in this state.

(2) The clerk of the county commission shall record and index the affidavit in the same manner and upon the same fees as affidavits of heirs are recorded and indexed in case of intestate administration with appointment of a personal representative. The clerk of the county commission may require a certified copy of the decedent’s death certificate or other proof of death and residence prior to fulfilling the clerk’s responsibilities under this chapter.

(3) A bond, security, or oath is not required when no appointment of an ancillary personal representative or administrator is made under the provisions of this section.

(c) A document substantially in the following form may be used as the affidavit provided in subsection (b) of this section with the effect as prescribed in this section:

THE COUNTY COMMISSION OF   __________ COUNTY, WEST VIRGINIA

IN RE:             THE ESTATE OF ______________________

                        DOD:  _____________________

AFFIDAVIT FOR ANCILLARY ADMINISTRATION

OF WEST VIRGINIA REAL ESTATE

WITHOUT APPOINTMENT

(INTESTATE)

 

STATE OF ________________,

COUNTY OF ______________, to-wit:

 

I, ______________________________,  whose address is __________________

_________________________________________________________________, being first duly sworn, upon oath and under penalty of perjury, do depose and say as follows:

 

1.            The decedent, _____________________________, died on _____________________(date of death), a resident of ___________ County, State of ____________________. The decedent has left no will so far as I know, and no will of the decedent has been presented or probated in this state or in any other state or jurisdiction.

2.            More than 60 days have passed since the death of the decedent and no personal representative or administrator of the decedent’s estate has been otherwise appointed in the State of West Virginia for any proper purpose.

3.            A certified death certificate has been furnished herewith for filing in this County.

4.            The Decedent died owning and possessing the following real estate situate in West Virginia:

 

 

Description

 

County

Assessed Value

Fair Market value

a.

 

 

 

 

b.

 

 

 

 

c.

 

 

 

 

d.

 

 

 

 

 

Total

 

 

 

 

5.            The decedent, ____________________, left as his/her heirs at law in accordance with the laws of intestate descent and distribution of the State of West Virginia the following persons:

a.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

b.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

c.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

d.         Name: ____________________________________________________

            Address: __________________________________________________

            Relationship to Decedent: ____________________________________

            Share or percentage: __________

6.            No appointment of an ancillary personal representative to administer the decedent’s real estate within the State of West Virginia is necessary for any proper purpose.

7.            I have personal knowledge of the above facts and am interested in the Estate of ____________________, the decedent, as the (  ) acting domiciliary personal representative, (  ) surviving spouse, (  ) beneficiary under the decedent’s will, (  ) heir at law, or (  ) other ______________________________ (describe relationship or interest). [Check one]

 

______________________________

Signature of Affiant

 

Taken, subscribed, and sworn to before me the undersigned authority by _________________________________, this          day of                               , 20___.

{seal}

My Commission expires: ______________________________ 

__________________________________________________                                 

Notary Public

§44-1-14b. Notice of ancillary filing without any administration of estate; time limits for filing of objections.


(a) Within 30 days of the filing of a foreign will of a nonresident of this state without appointment of an ancillary personal representative, executor, or administrator as provided in the provisions of §41-5-13(b) of this code or within 30 days of the filing of an affidavit concerning the intestacy of a nonresident of this estate without appointment of an ancillary intestate administrator as provided in the provisions of §44-1-4(b) of this code, 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 filing of the foreign will or the affidavit, a notice which is to include:

(1) The name and last known address of the decedent;

(2) The name and address of the county commission before whom the foreign will or affidavit has been filed and a statement that no appointment or administration is being made pursuant to the provisions of law but that a foreign will or affidavit of heirs of the decedent has been filed with the county commission;

(3) The name and address of the party filing the foreign will or affidavit and his or her relationship to the decedent;

(4) The date of first publication of the notice;

(5) A statement that an interested person objecting to the filing of the foreign will or affidavit or objecting to the absence of appointment or administration being made in this state must be filed with the county commission within 60 days after the date of first publication or 30 days of service of the notice, whichever is later.

(b) This notice shall be published as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code. The publication of the notice is equivalent to personal service on creditors, devisees or beneficiaries under the will, and heirs at law of the decedent.

(c) The party filing the foreign will or affidavit shall, not later than 30 days after the date of first publication, serve a copy of the notice, published pursuant to subsection (a) of this section, at the last known address by first class mail, postage prepaid or by personal service on the following persons:

(1) The decedent’s surviving spouse, if any;

(2) If there is a will, the personal representative or personal representatives named therein;

(3) If there is a will, all devisees or beneficiaries named therein;

(4) The heirs at law of the decedent determined under the laws of this state; and

(5) Any known creditors of the decedent residing or located in this state or who may claim a lien or interest against the real estate of the decedent situate in this state.

(d) Any person interested in the estate who objects to the filing of the foreign will or affidavit or objects to the absence of appointment or administration being made in this state shall file notice of an objection with the county commission within 60 days after the date of the first publication as required in subsection (a) of this section or within 30 days after service of the notice as required by subsection (c) of this section, whichever is later. If an objection is not timely filed, the objection is forever barred. The county commission upon receiving any timely objection thereto shall schedule a hearing or hearings thereon and order relief, if any, it considers proper including, but not limited to, an order directing that full and complete ancillary administration of the estate of the nonresident decedent be made in this state.

(e) The clerk of the county commission shall collect a fee that is the amount of the publication of the notice required in this section.  


 

  

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