2002 Legislation
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SENATE BILL NO. 1317 – Nonprobate transfers, liability

SENATE BILL NO. 1317

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Daily Data Tracking History



S1317................................................by JUDICIARY AND RULES
NONPROBATE TRANSFERS - Repeals and adds to existing law to provide for the
liability of nonprobate transferees for creditor claims and statutory
allowance.
                                                                        
01/22    Senate intro - 1st rdg - to printing
01/23    Rpt prt - to Jud
02/04    Rpt out - rec d/p - to 2nd rdg
02/05    2nd rdg - to 3rd rdg
02/07    3rd rdg - PASSED - 30-0-5
      AYES -- Andreason, Boatright, Branch(Bartlett), Bunderson,
      Burtenshaw, Cameron, Davis, Deide, Dunklin, Frasure, Geddes, Goedde,
      Hawkins, Hill, Ingram, Ipsen, Little, Lodge, Marley, Noh, Risch,
      Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler,
      Williams
      NAYS -- None
      Absent and excused -- Brandt, Darrington, Keough, King-Barrutia,
      Richardson
    Floor Sponsor - Davis
    Title apvd - to House
02/08    House intro - 1st rdg - to Jud

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1317
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO NONPROBATE TRANSFERS; REPEALING SECTION 15-6-107, IDAHO CODE,  AND
  3        AMENDING CHAPTER 6, TITLE 15, IDAHO CODE, BY THE ADDITION OF A NEW SECTION
  4        15-6-107,  IDAHO  CODE,  TO PROVIDE FOR THE LIABILITY OF NONPROBATE TRANS-
  5        FEREES FOR CREDITOR CLAIMS AND STATUTORY ALLOWANCES.
                                                                        
  6    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  7        SECTION 1.  That Section 15-6-107, Idaho Code, be, and the same is  hereby
  8    repealed.
                                                                        
  9        SECTION  2.  That  Chapter  6,  Title  15, Idaho Code, be, and the same is
 10    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 11    ignated as Section 15-6-107, Idaho Code, and to read as follows:
                                                                        
 12        15-6-107.  LIABILITY  OF  NONPROBATE  TRANSFEREES  FOR CREDITOR CLAIMS AND
 13    STATUTORY ALLOWANCES. (1) In this section, "nonprobate transfer" means a valid
 14    transfer effective at death, other than of a survivorship interest in a  joint
 15    tenancy  of real estate, by a transferor whose last domicile was in this state
 16    to the extent that the transferor immediately before death had  power,  acting
 17    alone,  to prevent the transfer by revocation or withdrawal and instead to use
 18    the property for the benefit of the transferor or apply it to discharge claims
 19    against the transferor's probate estate.
 20        (2)  Except as otherwise provided by statute, a transferee of a nonprobate
 21    transfer is subject to liability to the decedent's probate estate for  allowed
 22    claims  against  the decedent's probate estate and statutory allowances to the
 23    decedent's surviving spouse, minor children  and  dependent  children  to  the
 24    extent  the  decedent's probate estate is insufficient to satisfy those claims
 25    and allowances. The liability of a nonprobate transferee may  not  exceed  the
 26    value of nonprobate transfers received or controlled by that transferee.
 27        (3)  Nonprobate  transferees are liable for the insufficiency described in
 28    subsection (2) of this section in the following order:
 29        (a)  As provided in the decedent's will or any other governing instrument;
 30        (b)  To the extent of the value of the  nonprobate  transfer  received  or
 31        controlled  by  the trustee of a trust serving as the principal nonprobate
 32        instrument in the decedent's estate plan as shown by  its  designation  as
 33        devisee  of  the  decedent's residuary estate or by other facts or circum-
 34        stances;
 35        (c)  Other nonprobate transferees, in proportion to the values received.
 36        (4)  Unless otherwise provided by the trust instrument, interests of bene-
 37    ficiaries in all trusts incurring liabilities under this section  shall  abate
 38    as necessary to satisfy the liability, as if all of the trust instruments were
 39    a single will and the interests were devises under it.
 40        (5)  A  provision  made  in one instrument may direct the apportionment of
 41    the liability among the nonprobate transferees taking under that or any  other
 42    governing instrument. If a provision in one instrument conflicts with a provi-
                                                                        
                                           2
                                                                        
  1    sion in another, the later one prevails.
  2        (6)  Upon  due notice to a nonprobate transferee, the liability imposed by
  3    this section is enforceable in proceedings in this state, wherever the  trans-
  4    feree is located.
  5        (7)  A  proceeding under this section may not be commenced unless the per-
  6    sonal representative of the decedent's estate has received from the  surviving
  7    spouse  or one acting for a minor or dependent child, to the extent that stat-
  8    utory  allowances  are  affected, or a creditor, a written demand for the pro-
  9    ceeding. If the personal representative declines or fails to commence  a  pro-
 10    ceeding  after  demand,  a person making demand may commence the proceeding in
 11    the name of the decedent's estate, at the expense of  the  person  making  the
 12    demand  and  not of the estate. A personal representative who declines in good
 13    faith to commence a requested proceeding  incurs  no  personal  liability  for
 14    declining.
 15        (8)  A  proceeding  under  this  section  must be commenced within two (2)
 16    years after the decedent's death, but a proceeding on  behalf  of  a  creditor
 17    whose  claim  was  allowed  after  proceedings challenging disallowance of the
 18    claim may be commenced within sixty (60) days after  final  allowance  of  the
 19    claim.
 20        (9)  Unless a written notice asserting that a decedent's probate estate is
 21    insufficient  to pay allowed claims and statutory allowances has been received
 22    from the decedent's personal representative, the following rules apply:
 23        (a)  Payment or delivery of assets by a financial institution,  registrar,
 24        or  other obligor, to a nonprobate transferee in accordance with the terms
 25        of the governing instrument controlling the transfer releases the  obligor
 26        from all claims for amounts paid or assets delivered.
 27        (b)  A  trustee receiving or controlling a nonprobate transfer is released
 28        from liability under this section on any assets distributed to the trust's
 29        beneficiaries. Each beneficiary to the extent of the distribution received
 30        becomes liable for the amount of the trustee's liability  attributable  to
 31        that asset imposed by sections (2) and (3) of this section.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                            RS 11692

Nonprobate transfers are becoming increasingly used in Idaho to transfer
assets at death, with examples being revocable and irrevocable trusts, life
insurance, and multiple-party accounts (stock accounts, certificates of
deposit, checking accounts, and so forth).  This process can greatly impact
the provisions of the Idaho Probate Code giving protections to surviving
spouses, minor and dependent children, and creditors.  The original 15-6-107
has been outdated by new and often sophisticated nonprobate methods of
transfer.  The language in the bill is that of the Uniform Laws Commissioners
amendments to the Uniform Probate Act adopted by the National Conference of
Commissioners on Uniform State Laws at its meeting July 24-31, 1998, with
minor revisions to reflect existing Idaho probate law (for example, allowing
two years instead of one year after death to seek collection of the transfer). 
The bill still retains the protection of third party holders of accounts, such
as banks or trustees, acting in good faith.  This bill is part of an ongoing
review and revision of this complex area to reflect modern estate planning
methods while preserving basic protections for family of the deceased.

                          FISCAL NOTE

This bill will have no fiscal impact.

CONTACT:       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: rlaldridge@hotmail.com
                              

STATEMENT OF PURPOSE/FISCAL NOTE                 S 1317