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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
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature Second Regular Session - 2002IN 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 That Section 15-6-107, Idaho Code, be, and the same is hereby 8 repealed. 9 SECTION 2.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 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