2000 Legislation
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SENATE BILL NO. 1396 – Probate, renunciation made, agent


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Daily Data Tracking History

S1396................................................by JUDICIARY AND RULES
PROBATE - Amends existing law to clarify that a renunciation under the
probate laws may be made by an agent appointed under a power of attorney,
or by a conservator or guardian on behalf of an incapacitated person, or by
the personal representative or administrator of a deceased person.
02/10    Senate intro - 1st rdg - to printing
02/11    Rpt prt - to Jud
02/17    Rpt out - rec d/p - to 2nd rdg
02/18    2nd rdg - to 3rd rdg
02/24    3rd rdg - PASSED - 32-0-3
      AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
      Darrington, Deide, Dunklin, Frasure, Geddes, Hawkins, Ingram, Keough,
      King-Barrutia, Lee, McLaughlin, Noh, Parry, Richardson, Riggs, Risch,
      Sandy, Schroeder, Sorensen, Stegner, Stennett, Thorne, Walton,
      Wheeler, Whitworth, Williams
      Absent and excused--Danielson, Davis, Ipsen
    Floor Sponsor - Risch
    Title apvd - to House
02/25    House intro - 1st rdg - to Jud
03/16    Rpt out - rec d/p - to 2nd rdg
03/17    2nd rdg - to 3rd rdg
03/29    3rd rdg - PASSED - 68-0-2
      AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black, Boe,
      Bruneel, Callister, Campbell, Chase, Cheirrett, Clark, Crow, Cuddy,
      Deal, Denney, Ellsworth, Field(13), Field(20), Gagner, Gould, Hadley,
      Hammond, Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet, Jones,
      Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Loertscher, Mader,
      Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce,
      Pischner, Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali,
      Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stoicheff,
      Stone, Taylor, Tilman, Trail, Wheeler, Wood, Zimmermann, Mr Speaker
      NAYS -- None
      Absent and excused -- Geddes, Linford
    Floor Sponsor - Judd
    Title apvd - to Senate
03/30    To enrol - rpt enrol - Pres signed
03/31    Sp signed
04/03    To Governor
04/04    Governor signed
         Session Law Chapter 182
         Effective: 07/01/00

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                       IN THE SENATE
                                    SENATE BILL NO. 1396
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  7    Be It Enacted by the Legislature of the State of Idaho:
  8        SECTION 1.  That Section 15-2-801, Idaho Code, be, and the same is  hereby
  9    amended to read as follows:
 10        15-2-801.  RENUNCIATION.
 11        (a)  (1) A   person   or   the   representative  of  an  incapacitated  or
 12        unascertained person who is an  heir,  devisee,  person  succeeding  to  a
 13        renounced  interest,  donee, beneficiary under a testamentary or nontesta-
 14        mentary instrument, donee of a power of  appointment,  grantee,  surviving
 15        joint  owner  or  surviving joint tenant, beneficiary of an insurance con-
 16        tract, person designated to take pursuant to a power of appointment  exer-
 17        cised  by  a  testamentary or nontestamentary instrument, or otherwise the
 18        recipient of any benefit under a testamentary or  nontestamentary  instru-
 19        ment, may renounce in whole or in part, powers, future interests, specific
 20        parts,  fractional shares or assets thereof by filing a written instrument
 21        within the time and at the place hereinafter provided.
 22        (2)  The  instrument  shall:  (i)  describe  the  property   or   interest
 23        renounced;  (ii) be signed by the person renouncing; and (iii) declare the
 24        renunciation and the extent thereof.
 25        (3)  The appropriate court may direct or permit a trustee under  a  testa-
 26        mentary  or  nontestamentary instrument to renounce or to deviate from any
 27        power of administration, management or allocation of benefit upon  finding
 28        that exercise of such power may defeat or impair the accomplishment of the
 29        purposes  of  the trust whether by the imposition of tax or the allocation
 30        of beneficial interest inconsistent with  such  purposes.  Such  authority
 31        shall be exercised after hearing and upon notice to all known persons ben-
 32        eficially    interested in such trust or estate, in the manner provided by
 33        this act.
 34        (b)  The writing specified in subsection (a) of this section must be filed
 35    within nine (9) months after the transfer or the death  of  the  decedent,  or
 36    donee  of the power, (whichever is the later) or, if the taker of the property
 37    is not then finally ascertained, not later than  nine  (9)  months  after  the
 38    event  that  determines  that the taker of the property or interest is finally
 39    ascertained or his interest indefeasibly vested. The writing must be filed  in
 40    the court of the county where proceedings concerning the decedent's estate are
 41    pending,  or  where they would be pending if commenced. If an interest in real
 42    estate is renounced, a copy of the writing may also be recorded in the  office
 43    of  the  recorder  in the county in which said real estate lies. A copy of the
  1    writing also shall be delivered in person or mailed by registered or certified
  2    mail to the personal representative of the decedent, the trustee of any  trust
  3    in  which  the interest renounced exists, and no such personal representative,
  4    trustee, or person shall be liable for any otherwise  proper  distribution  or
  5    other disposition made without actual notice of the renunciation.
  6        (c)  Unless  the  decedent  or donee of the power has otherwise indicated,
  7    the property or interest renounced passes as if the person renouncing had pre-
  8    deceased the decedent, or if the person renouncing is designated to take under
  9    a power of appointment as if the person renouncing had predeceased  the  donee
 10    of  the power. A future interest that takes  effect in possession or enjoyment
 11    after the termination of the estate or interest renounced takes effect  as  if
 12    the  person renouncing had predeceased the decedent or the donee of the power.
 13    In every case the renunciation relates back for all purposes to  the  date  of
 14    death of the decedent or the donee, as the case may be.
 15        (d)  The  right  to renounce property or an interest therein is barred by:
 16    (1) assignment,  conveyance,  encumbrance,  pledge  or  transfer  of  property
 17    therein or any contract therefor; (2) written waiver of the right to renounce;
 18    or  (3)  sale  or  other disposition of property pursuant to judicial process,
 19    made before the renunciation is effective.
 20        (e)  The right to renounce granted by this section exists irrespective  of
 21    any  limitation  on  the  interest of the person renouncing in the nature of a
 22    spendthrift provision or similar restriction.
 23        (f)  The renunciation or the written waiver of the right  to  renounce  is
 24    binding  upon the person renouncing or person waiving and all persons claiming
 25    through or under him.
 26        (g)  This section does not abridge the right of any person to assign, con-
 27    vey, release, or renounce any property or an interest  therein  arising  under
 28    any other statute.
 29        (h)  An interest in property existing on the effective date of this act as
 30    to  which,  if  a present interest, the time for filing a renunciation has not
 31    expired, or, if a future interest, the interest has  not  become  indefeasibly
 32    vested  or  the  taker  finally  ascertained  may be renounced within nine (9)
 33    months after the effective date of this act.
 34        (i)  In clarification and amplification of subsection (a)(1) of this  sec-
 35    tion, and to make clear the existing terms thereof, a renunciation may be made
 36    by  an agent appointed under a power of attorney, by a conservator or guardian
 37    on behalf of an incapacitated person, or by  the  personal  representative  or
 38    administrator  of a deceased person.  The ability to renounce on behalf of the
 39    person does not need to be specifically set forth in a power  of  attorney  if
 40    the power is general in nature.

Statement of Purpose / Fiscal Impact

                 STATEMENT OF PURPOSE
                       RS 09903 
     A question has arisen whether existing renunciation provisions under Section
     15-2-801, Idaho Code, allow a renunciation to be made an behalf of some through
     a power of attorney, through a conservator or guardian, or through a personal
     representative or administrator of a deceased person. This can have a dramatic
     effect on the tax consequences to an individual or the estate of the individual.
     While tax professionals generally believe that the existing statute allows such
     renunciations, the IRS and the State Tax Commission have indicated that they do
     not necessarily believe that this is the case. This bill amends the statute to make
     the ability to renounce clear. 
                     FISCAL NOTE 
     This bill should have no effect on revenues or expenditures. 
     Robert L. Aldridge 
     1209 North Eighth Street
     Boise, Idaho 83702-4297 
     Telephone: office: (208) 336-9880 home; (208) 888-4668
     Fax: (208) 336-9882 
     e-mail: roberta@micron.net 
                                                  STATEMENT OF PURPOSE/FISCAL NOTE             S 1396