No. 33523 -
Steven W. Chip Dantzic, David Shawn Dantzic, and Karen Sue (Dantzic)
Tucker-Marsh v. Timothy Dantzic, Executor of the Estate of Luetta Dantzic
Emmart Miller, Deceased, Timothy Dantzic, Nathan Dantzic, Carla Emmart,
Debra Emmart, and Keyser Church of the Brethren
Albright, Justice, dissenting in part, concurring in part:
I agree that this Court should affirm the lower court's determination of the
effect of the will in this case. I am compelled to disagree with the majority's direction on
the matter of a special appraisal because it is based on law which no longer has vitality and
misinterprets the provisions of current statutory law.
There is no question that the lower court has authority under the Uniform
Declaratory Judgments Act “[t]o direct . . . executors, administrators, or trustees to do or
abstain from doing any particular act in their fiduciary capacity,” limited, of course, to
current law governing the administration of estates. W.Va. Code § 55-13-4 (b). Under the
current statutory scheme, there is no provision for raising a court challenge to the appraised
value of estate property, even by the Tax Commissioner. The circulated opinion contains
a citation to
Aul's Estate v. Haden, 154 W.Va. 484, 177 S.E.2d 142 (1970), a case involving
a suit brought by an executor of an estate to challenge the Tax Commissioner's assessment
of inheritance taxes because the assessment was based on some of the property in the estate
being valued at a higher rate than that at which it had been appraised. With that backdrop,
this Court in
Aul's Estate said that the only way that the Tax Commissioner could have the
value of estate property increased from the appraised value was by appeal to a circuit court.
At the time
Aul's Estate was decided, West Virginia Code § 11-11-17 expressly afforded the
Tax Commissioner _ and only the Tax Commissioner _ the right to appeal the appraisement
of estate property. However, when the Estate Tax replaced the Inheritance & Transfer Tax
in 1985, the Tax Commissioner's statutory right to appeal appraisements of a personal
representative was not preserved in that section or any portion of the 1985 enactment, nor
was it restored by subsequent amendment.
The appraisal of estate property required by our current statute, West Virginia
Code § 44-1-14, has importance in two settings. The first instance is if the estate, including
non-probate property, is large enough to generate a federal estate tax return with the
concomitant requirement of a state estate tax return. Given the generous federal estate tax
exemptions currently available, there are relatively few estates in which the probate and non-
probate property value has any significance in this context. The second instance in which
appraisal becomes important is when beneficiaries or, as in this case, remaindermen after a
life estate, may desire to sell probate or non-probate property of an estate and it becomes
necessary to ascertain the property value as of the date of decedent's death for the purpose
of determining whether any income tax is due the federal government or the state of West
Virginia as a result of the sale. In either the estate tax or income tax framework, the
appraised value assigned at the time of death is important because it establishes,
presumptively, the market value from which either tax is calculated. I say presumptively
because federal tax authorities leave no doubt that with clear and convincing proof the value
fixed by the appraisement of an estate of a decedent by its fiduciary as of the time of death
may be altered for tax purposes.
(See footnote 1)
Instead of recognizing the presumption employed by the federal authorities and
its effects, the majority opinion sets a course that forces the estate fiduciary to expend a
substantial sum of money to ascertain an expert's opinion of the value of non-probate
property, thus producing a benefit to the interested remaindermen but yielding no benefit
whatsoever to the estate or the fiduciary. By utilizing provisions of state law that have long
since been repealed, the majority imposes a duty, accompanied by considerable expense,
upon the fiduciary of the decedent's estate with absolutely no authority in law.
In this case, the fiduciary stated what he believes is market value of the subject
property as of the date of the decedent's death. The remaindermen contend that an
independently retained expert would arrive at a markedly different value. The remaindermen
may prove their point by seeking the appraisal they desire. If such is acquired and presented
to the fiduciary, the fiduciary retains the option of filing an amended appraisal, a courtesy the
fiduciary would certainly consider extending. Even if the fiduciary refuses, the
remaindermen are fully equipped to challenge the appraisal of the fiduciary upon any
subsequent sale or transfer of the subject real estate. What is crystal clear is that this Court
has no business imposing on the cash-strapped estate a costly exercise that is of no benefit
to the estate, and serves only the interests of the remaindermen who by way of the majority
opinion escape all costs of the appraisal exercise. All of which the majority justifies by citing
an opinion of this Court which now has no application because it relies upon a statutory
scheme that has had no force and effect for twenty years.
Having concurred in the determination of the effect of the will, I respectfully
dissent from the position adopted by the majority regarding special appraisals for the reasons
stated above.
I am authorized to state that Justice Starcher joins in this separate opinion.
Footnote: 1