Print Friendly SENATE BILL NO. 1396 – Probate, renunciation made, agent
SENATE BILL NO. 1396
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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
|||| 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
2 RELATING TO PROBATE; AMENDING SECTION 15-2-801, IDAHO CODE, TO CLARIFY THAT A
3 RENUNCIATION MAY BE MADE BY AN AGENT APPOINTED UNDER A POWER OF ATTORNEY,
4 OR BY A CONSERVATOR OR GUARDIAN, ON BEHALF OF AN INCAPACITATED PERSON, OR
5 BY THE PERSONAL REPRESENTATIVE OR ADMINISTRATOR OF A DECEASED PERSON AND
6 TO MAKE TECHNICAL CORRECTIONS.
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
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.
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
STATEMENT OF PURPOSE/FISCAL NOTE S 1396