Bill Text: WV HB4398 | 2014 | Regular Session | Introduced
Bill Title: Eliminating the filing of nonprobate inventory with the Tax Commissioner for certain decedents
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-02-04 - To House Judiciary [HB4398 Detail]
Download: West_Virginia-2014-HB4398-Introduced.html
H. B. 4398
(By Delegates Boggs and Reynolds)
[By Request of the Division of Tax]
[Introduced February 4, 2014; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §11-11-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §44-1-14 of said code, all relating to eliminating the filing of nonprobate inventory with the Tax Commissioner for decedents dying on and after July 1, 2014; providing the filing of a nonprobate inventory with the clerk of the county commission or fiduciary representative only; providing criminal offenses and penalties for failure to comply; and specifying effective dates.
Be it enacted by the Legislature of West Virginia:
That §11-11-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §44-1-14 of said code 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 Personal property held as joint tenants with right of survivorship with one or more third parties;
(2) Personalty Personal property payable on the death of the decedent to one or more third parties;
(3) Personalty Personal property 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 personal property 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, together with the appraisement form required by section fourteen, article one, chapter forty-four of this code for estates of decedents dying on or after July 13, 2001, with the clerk of the county commission or the fiduciary supervisor within ninety days of the date of qualification of the personal representative in this state: Provided, That for estates of decedents dying on or after the said thirteenth day of July 13, 2001, but before the date the amendments to this section become effective, the requirement to file the nonprobate inventory form with the clerk or supervisor shall may apply only if that form has not already been filed with Tax Commissioner.
(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 $25 nor more than $500.
(e) On and after July 1, 2014, the provisions of this section no longer apply.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§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) After having taken the appropriate oath, the personal representative shall, on the appraisement 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:
(1) All probate and nonprobate 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
(2) 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.
(c) Any real estate or interest in real estate so appraised must be identified with particularity and description. The personal representative shall identify the source of title in the decedent and the location of the realty for purposes of real property ad valorem taxation.
(d) 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.
(e) 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: Provided, That the Tax Commissioner shall design a questionnaire that is as much as possible phrased in understandable English. Provided further: That for estates of decedents dying on and after July 1, 2014, the personal representative may no longer complete the form provided in this subsection and instead comply with subsection (k) of this section.
(f) The appraisement form must shall be executed and signed by the personal representative. The original appraisement form and two of its copies thereof, together with the completed and notarized nonprobate inventory form required by section seven, article eleven, chapter eleven of this code, 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 form to determine whether it is in proper form. If the appraisement form is returned to a fiduciary supervisor, within ten days after being received and approved, the supervisor shall deliver the documents to the clerk of the county commission. Upon receipt of the appraisement form, the clerk of the county commission shall record it with the certificate of approval of the supervisor and mail a certified copy of the appraisement form, together with the unrecorded nonprobate inventory form, to the Tax Commissioner. The date of return of an appraisement form must be entered by the clerk of the county commission in his or her record of fiduciaries. The nonprobate inventory form shall be considered is confidential tax return information subject to the provisions of section five-d, article ten, chapter eleven of this code and may not be disclosed by the clerk of the county commission and his or her officers and employees or former officers and employees, except to the Tax Commissioner as provided in this section. Nothing in this section shall may be construed to hinder, abrogate, or prevent disclosure of information as authorized in section thirty-five, article eleven of said this chapter.
(g) An executed and signed appraisement form is prima facie evidence:
(1) Of the value of the property listed;
(2) That the property is subject to administration; and
(3) That the property was received by the personal representative.
(h) 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 $25 nor more than $500.
(i) 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 its reasonableness is subject to review and approval by the county commission, upon recommendation of the fiduciary supervisor.
(j) Except as specifically provided in 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 of said article.
(k) Beginning on and after July 1, 2014:
(1) 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 estate located in West Virginia, shall, under oath, list and appraise on a nonprobate inventory form, 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:
(i) Personal property held as joint tenants with right of survivorship with one or more third parties;
(ii) Personal property payable on the death of the decedent to one or more third parties;
(iii) Personal property held by the decedent as a life tenant;
(iv) Insurance on the decedent's life payable to beneficiaries other than the executor or administrator of the decedent's estate;
(v) Powers of appointment;
(vi) Annuities;
(vii) 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;
(viii) Revocable transfers in trust or otherwise;
(ix) Taxable gifts under section 2503 of the United States Internal Revenue Code of 1986; and
(x) All other nonprobate personal property included in the federal gross estate of the decedent.
(2) 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.
(3) The personal representative shall prepare the nonprobate inventory form and file it, together with the appraisement form required by this section for estates of decedents dying on or after July 1, 2014, with the clerk of the county commission or the fiduciary supervisor within ninety days of the date of qualification of the personal representative in this state.
(4) 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 $25 nor more than $500.
NOTE: The purpose of this bill is to eliminate the nonprobate appraisement filing with the State Tax Commissioner and require that it only be filed with the clerk of the county commission or fiduciary representative.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
