SENATE BILL NO. 1324

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Bill Status



S1324aa..............................................by JUDICIARY AND RULES
NONPROBATE TRANSFERS - Adds to existing law relating to nonprobate
transfers to provide for community property with right of survivorship in
real property; and to provide for termination of community property with
right of survivorship in real property.

01/22    Senate intro - 1st rdg - to printing
01/23    Rpt prt - to Jud
02/05    Rpt out - to 14th Ord
02/12    Rpt out amen - to engros
02/13    Rpt engros - 1st rdg - to 2nd rdg as amen
02/14    2nd rdg - to 3rd rdg as amen
02/19    3rd rdg as amen - PASSED - 31-0-4
      AYES -- Andreason, Bair, Bastian, Broadsword, Burkett, Cameron,
      Coiner, Darrington, Davis, Fulcher, Geddes, Goedde, Hammond,
      Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge,
      Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
      Schroeder, Siddoway, Stegner, Werk
      NAYS -- None
      Absent and excused -- Bilyeu, Corder, Gannon, Stennett
    Floor Sponsor - Hill
    Title apvd - to House
02/20    House intro - 1st rdg - to Jud
03/06    Rpt out - rec d/p - to 2nd rdg
03/07    2nd rdg - to 3rd rdg
03/12    3rd rdg - PASSED - 68-0-2
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
      Block, Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon,
      Chavez, Chew, Clark, Collins, Durst, Eskridge, Hagedorn, Hart,
      Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador,
      Lake, LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin,
      Mortimer, Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence,
      Raybould, Ringo, Roberts, Rusche, Sayler, Schaefer, Shepherd(02),
      Shepherd(08), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
      Stevenson, Thayn, Thomas, Trail, Vander Woude, Wills, Wood(27),
      Wood(35), Mr. Speaker
      NAYS -- None
      Absent and excused -- Crane, Ruchti
    Floor Sponsor - Smith(24)
    Title apvd - to Senate
03/13    To enrol - Rpt enrol - Pres signed
03/14    Sp signed
03/17    To Governor
03/18    Governor signed
         Session Law Chapter 175
         Effective: 07/01/08

Bill Text




                                                                       
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008

                                                                       

                                       IN THE SENATE

                                    SENATE BILL NO. 1324

                              BY JUDICIARY AND RULES COMMITTEE

  1                                        AN ACT
  2    RELATING TO NONPROBATE TRANSFERS; AMENDING CHAPTER 6, TITLE 15, IDAHO CODE, BY
  3        THE ADDITION OF A NEW PART 4, CHAPTER 6, TITLE 15, IDAHO CODE, TO  PROVIDE
  4        FOR  COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY AND TO
  5        PROVIDE FOR TERMINATION OF COMMUNITY PROPERTY WITH RIGHT  OF  SURVIVORSHIP
  6        IN REAL PROPERTY.

  7    Be It Enacted by the Legislature of the State of Idaho:

  8        SECTION  1.  That  Chapter  6,  Title  15, Idaho Code, be, and the same is
  9    hereby amended by the addition thereto of a NEW PART, to be known  and  desig-
 10    nated as Part 4, Chapter 6, Title 15, Idaho Code, and to read as follows:

 11                   PART 4. COMMUNITY PROPERTY RIGHT OF SURVIVORSHIP

 12        15-6-401.  COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY.
 13    Any  estate  in real property held by a husband and wife as community property
 14    with right of survivorship shall, upon the death of one (1)  spouse,  transfer
 15    and belong to the surviving spouse. An estate in community property with right
 16    of  survivorship  is  created  by a grant, transfer or devise to a husband and
 17    wife, when expressly declared in the grant, transfer or devise to be an estate
 18    in community property with right of survivorship. An estate in community prop-
 19    erty with right of survivorship may also be created by grant or transfer  from
 20    a  husband and wife, when holding title as community property or otherwise, to
 21    themselves or from either husband or wife to both husband and wife.

 22        15-6-402.  TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN
 23    REAL PROPERTY. (1) In the case of real property owned by a husband and wife as
 24    community property with right of survivorship pursuant  to  section  15-6-401,
 25    Idaho  Code,  the  right of survivorship is extinguished on the recordation in
 26    the office of the recorder of the county or counties where the  real  property
 27    is located an affidavit entitled "affidavit terminating right of survivorship"
 28    executed by either spouse under oath which sets forth:
 29        (a)  A stated intent by the spouse to terminate the survivorship right;
 30        (b)  A  description  in  the instrument by which the right of survivorship
 31        was created, including the date the instrument was recorded and the county
 32        recorder's book and page or instrument reference number; and
 33        (c)  The legal description of the real property affected by the affidavit.
 34    The recordation shall not extinguish the community interest of either spouse.
 35        (2)  Divorce, or annulment of the  marriage  of,  the  husband  and  wife,
 36    unless  otherwise ordered by the court in which the divorce is granted, severs
 37    the interests of the former spouses in property held by them at  the  time  of
 38    the  divorce or annulment as community property with the right of survivorship
 39    and transforms the interests of the former spouses into tenancies in common. A
 40    severance under this section does not affect any third party interest in prop-
 41    erty acquired for value and in good faith reliance on  an  apparent  title  by

                                       2

  1    survivorship  in the survivor of the former spouses unless a writing declaring
  2    the severance has been noted, registered, filed or recorded in records  appro-
  3    priate  to  the kind and location of the property that a person relied upon as
  4    evidence of ownership in the ordinary course of  transactions  involving  that
  5    property.

Amendment




                                                                       
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008

                                                                       

                                                  Moved by          Hill

                                                  Seconded by Richardson


                                       IN THE SENATE
                             SENATE AMENDMENT TO S.B. NO. 1324

  1                                AMENDMENT TO SECTION 1
  2        On page 1 of the printed bill, in line 21, following  "husband  and  wife"
  3    insert:  "when  expressly  declared  in the grant, transfer or devise to be an
  4    estate in community property with right of survivorship".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)




                                                                       
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008

                                                                       

                                       IN THE SENATE

                              SENATE BILL NO. 1324, As Amended

                              BY JUDICIARY AND RULES COMMITTEE

  1                                        AN ACT
  2    RELATING TO NONPROBATE TRANSFERS; AMENDING CHAPTER 6, TITLE 15, IDAHO CODE, BY
  3        THE ADDITION OF A NEW PART 4, CHAPTER 6, TITLE 15, IDAHO CODE, TO  PROVIDE
  4        FOR  COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY AND TO
  5        PROVIDE FOR TERMINATION OF COMMUNITY PROPERTY WITH RIGHT  OF  SURVIVORSHIP
  6        IN REAL PROPERTY.

  7    Be It Enacted by the Legislature of the State of Idaho:

  8        SECTION  1.  That  Chapter  6,  Title  15, Idaho Code, be, and the same is
  9    hereby amended by the addition thereto of a NEW PART, to be known  and  desig-
 10    nated as Part 4, Chapter 6, Title 15, Idaho Code, and to read as follows:

 11                   PART 4. COMMUNITY PROPERTY RIGHT OF SURVIVORSHIP

 12        15-6-401.  COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY.
 13    Any  estate  in real property held by a husband and wife as community property
 14    with right of survivorship shall, upon the death of one (1)  spouse,  transfer
 15    and belong to the surviving spouse. An estate in community property with right
 16    of  survivorship  is  created  by a grant, transfer or devise to a husband and
 17    wife, when expressly declared in the grant, transfer or devise to be an estate
 18    in community property with right of survivorship. An estate in community prop-
 19    erty with right of survivorship may also be created by grant or transfer  from
 20    a  husband and wife, when holding title as community property or otherwise, to
 21    themselves or from either husband or  wife  to  both  husband  and  wife  when
 22    expressly  declared in the grant, transfer or devise to be an estate in commu-
 23    nity property with right of survivorship.

 24        15-6-402.  TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN
 25    REAL PROPERTY. (1) In the case of real property owned by a husband and wife as
 26    community property with right of survivorship pursuant  to  section  15-6-401,
 27    Idaho  Code,  the  right of survivorship is extinguished on the recordation in
 28    the office of the recorder of the county or counties where the  real  property
 29    is located an affidavit entitled "affidavit terminating right of survivorship"
 30    executed by either spouse under oath which sets forth:
 31        (a)  A stated intent by the spouse to terminate the survivorship right;
 32        (b)  A  description  in  the instrument by which the right of survivorship
 33        was created, including the date the instrument was recorded and the county
 34        recorder's book and page or instrument reference number; and
 35        (c)  The legal description of the real property affected by the affidavit.
 36    The recordation shall not extinguish the community interest of either spouse.
 37        (2)  Divorce, or annulment of the  marriage  of,  the  husband  and  wife,
 38    unless  otherwise ordered by the court in which the divorce is granted, severs
 39    the interests of the former spouses in property held by them at  the  time  of
 40    the  divorce or annulment as community property with the right of survivorship
 41    and transforms the interests of the former spouses into tenancies in common. A

                                       2

  1    severance under this section does not affect any third party interest in prop-
  2    erty acquired for value and in good faith reliance on  an  apparent  title  by
  3    survivorship  in the survivor of the former spouses unless a writing declaring
  4    the severance has been noted, registered, filed or recorded in records  appro-
  5    priate  to  the kind and location of the property that a person relied upon as
  6    evidence of ownership in the ordinary course of  transactions  involving  that
  7    property.

Statement of Purpose / Fiscal Impact


                       STATEMENT OF PURPOSE

                            RS: 17500

Idaho law allows for real estate to be held as "Joint Tenants with
Right of Survivorship" ("JTWROS") and that method is widely used in
this State.  This allows transfer of the real estate to the
surviving joint tenant by recordation of a death certificate in the
county where the real estate is held, thereby avoiding a probate of
such real estate.  However, there are clear tax and other
advantages to holding real estate in community property status. 
Holding property as JTWROS can be interpreted to lose the community
property status of the real estate and therefore holding community
property as JTWROS property to avoid probate is risky.  A husband
and wife can record a Devolution Agreement to pass the real estate
at death, somewhat like JTWROS property, but the method is
cumbersome and limited, and does not cover all potential questions
that may arise.  Arizona, like Idaho a community property state,
has had "Community Property With Right of Survivorship" for a
number of years, without problems being created.  The language of
this statute is taken almost verbatim from the Arizona statute,
with modifications as proposed by real estate professionals in
Idaho.

This Bill will allow spouses to pass property at the death of the
first to die spouse without a probate or summary administration,
while keeping the community property status of the property clear.


                          FISCAL NOTE

This bill will have no fiscal impact.



CONTACT:
Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Telephone: office: (208) 336-9880  Cell: (208) 631-2481


STATEMENT OF PURPOSE/FISCAL NOTE                         S 1324