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H0214...................................by JUDICIARY, RULES AND ADMINISTRATION
PROPERTY - SEPARATE/COMMUNITY - Amends existing law to revise definitions of
separate property and community property in the probate code; to clarify that
income includes the rent, issue and profit from various property.
02/10 House intro - 1st rdg - to printing
02/11 Rpt prt - to Jud
02/28 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/04 3rd rdg - PASSED - 64-0-6
AYES -- Andersen, Barraclough, Bauer, Bedke, Bell, Bieter, Black, Block,
Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal,
Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18),
Field(23), Gagner, Garrett, Harwood, Henbest, Kellogg, Kulczyk, Lake,
Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller,
Mitchell, Naccarato, Nielsen, Raybould, Ridinger, Ring, Ringo, Roberts,
Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Tilman, Trail,
Wills, Mr. Speaker
NAYS -- None
Absent and excused -- Barrett, Crow, Jaquet, Jones, Moyle, Wood
Floor Sponsor - Clark
Title apvd - to Senate
03/05 Senate intro - 1st rdg - to Jud
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 32-0-3
AYES -- Andreason(Rouse), Bailey, Brandt, Bunderson, Burkett,
Burtenshaw, Calabretta, Cameron, Compton, Darrington, Gannon, Geddes,
Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai,
McKenzie, McWilliams, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Davis, Marley, Noble
Floor Sponsor - Richardson
Title apvd - to House
03/17 To enrol
03/19 Rpt enrol - Sp signed
03/20 Pres signed
03/21 To Governor
03/27 Governor signed
Session Law Chapter 139
Effective: 07/01/03
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 214
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO SEPARATE AND COMMUNITY PROPERTY; AMENDING SECTION 15-1-201, IDAHO
3 CODE, TO REVISE DEFINITIONS OF "SEPARATE PROPERTY" AND "COMMUNITY PROP-
4 ERTY" AND TO MAKE A TECHNICAL CORRECTION; AND AMENDING SECTION 32-906,
5 IDAHO CODE, TO CLARIFY THAT INCOME INCLUDES THE RENTS, ISSUES AND PROFITS
6 FROM VARIOUS PROPERTY.
7 Be It Enacted by the Legislature of the State of Idaho:
8 SECTION 1. That Section 15-1-201, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 15-1-201. GENERAL DEFINITIONS. Subject to additional definitions con-
11 tained in the subsequent chapters which are applicable to specific chapters or
12 parts, and unless the context otherwise requires, in this code:
13 (1) "Application" means a written request to the registrar for an order
14 of informal probate or appointment under part 3 of chapter 3 of this code.
15 (2) "Augmented estate" means the estate described in section 15-2-202,
16 Idaho Code.
17 (3) "Beneficiary," as it relates to trust beneficiaries, includes a per-
18 son who has any present or future interest, vested or contingent, and also
19 includes the owner of an interest by assignment or other transfer and as it
20 relates to a charitable trust, includes any person entitled to enforce the
21 trust.
22 (4) "Child" includes any individual entitled to take as a child under
23 this code by intestate succession from the parent whose relationship is
24 involved and excludes any person who is only a stepchild, a foster child, a
25 grandchild or any more remote descendant.
26 (5) "Claims," in respect to estates of decedents and protected persons,
27 includes liabilities of the decedent or protected person whether arising in
28 contract, in tort or otherwise, and liabilities of the estate which arise at
29 or after the death of the decedent or after the appointment of a conservator,
30 including funeral expenses and expenses of administration. The term does not
31 include estate or inheritance taxes, other tax obligations arising from activ-
32 ities or transactions of the estate, demands or disputes regarding title of a
33 decedent or protected person to specific assets alleged to be included in the
34 estate.
35 (6) "Court" means the court or branch having jurisdiction in matters
36 relating to the affairs of decedents, minors, incapacitated and disabled per-
37 sons. This court in this state is known as the district court.
38 (7) "Conservator" means a person who is appointed by a court to manage
39 the estate of a protected person and includes limited conservators as
40 described by section 15-5-420, Idaho Code.
41 (8) "Determination of heirship of community property" shall mean that
42 determination required by the provisions of section 15-3-303, Idaho Code, upon
43 an application for informal probate not accompanied by presentation of a will.
2
1 (9) "Determination of heirship" shall mean that determination of heirship
2 required by section 15-3-409, Idaho Code, upon a finding of intestacy.
3 (10) "Devise," when used as a noun, means a testamentary disposition of
4 real or personal property and when used as a verb, means to dispose of real or
5 personal property by will.
6 (11) "Devisee" means any person designated in a will to receive a devise.
7 In the case of a devise to an existing trust or trustee, or to a trustee or
8 trust described by will, the trust or trustee is the devisee and the benefi-
9 ciaries are not devisees.
10 (12) "Disability," with respect to an individual, means any mental or
11 physical impairment which substantially limits one (1) or more major life
12 activities of the individual including, but not limited to, self-care, manual
13 tasks, walking, seeing, hearing, speaking, learning, or working, or a record
14 of such an impairment, or being regarded as having such an impairment. Dis-
15 ability shall not include transvestism, transsexualism, pedophilia,
16 exhibitionism, voyeurism, other sexual behavior disorders, or substance use
17 disorders, compulsive gambling, kleptomania, or pyromania. Sexual preference
18 or orientation is not considered an impairment or disability. Whether an
19 impairment substantially limits a major life activity shall be determined
20 without consideration of the effect affect of corrective or mitigating mea-
21 sures used to reduce the effects of the impairment.
22 (13) "Distributee" means any person who has received property of a dece-
23 dent from his personal representative other than as a creditor or purchaser. A
24 testamentary trustee is a distributee only to the extent of distributed assets
25 or increment thereto remaining in his hands. A beneficiary of a testamentary
26 trust to whom the trustee has distributed property received from a personal
27 representative is a distributee of the personal representative. For the pur-
28 pose of this provision "testamentary trustee" includes a trustee to whom
29 assets are transferred by will, to the extent of the devised assets.
30 (14) "Emancipated minor" shall mean any male or female who has been mar-
31 ried.
32 (15) "Estate" means all property of the decedent, including community
33 property of the surviving spouse subject to administration, property of
34 trusts, and property of any other person whose affairs are subject to this
35 code as it exists from time to time during administration.
36 (16) "Exempt property" means that property of a decedent's estate which is
37 described in section 15-2-403, Idaho Code.
38 (17) "Fiduciary" includes personal representative, guardian, conservator
39 and trustee.
40 (18) "Foreign personal representative" means a personal representative of
41 another jurisdiction.
42 (19) "Formal proceedings" means those conducted before a judge with notice
43 to interested persons.
44 (20) "Guardian" means a person who has qualified as a guardian of a minor
45 or incapacitated person pursuant to testamentary or court appointment and
46 includes limited guardians as described by section 15-5-304, Idaho Code, but
47 excludes one who is merely a guardian ad litem.
48 (21) "Heirs" means those persons, including the surviving spouse, who are
49 entitled under the statutes of intestate succession to the property of a dece-
50 dent.
51 (22) "Incapacitated person" is as defined in section 15-5-101, Idaho Code.
52 (23) "Informal proceedings" means those conducted without notice to inter-
53 ested persons by an officer of the court acting as a registrar for probate of
54 a will or appointment of a personal representative.
55 (24) "Interested person" includes heirs, devisees, children, spouses,
3
1 creditors, beneficiaries and any others having a property right in or claim
2 against a trust estate or the estate of a decedent, ward or protected person
3 which may be affected by the proceeding. It also includes persons having pri-
4 ority for appointment as personal representative, and other fiduciaries repre-
5 senting interested persons. The meaning as it relates to particular persons
6 may vary from time to time and must be determined according to the particular
7 purposes of, and matter involved in, any proceeding.
8 (25) "Issue" of a person means all his lineal descendants of all genera-
9 tions, with the relationship of parent and child at each generation being
10 determined by the definitions of child and parent contained in this code.
11 (26) "Lease" includes an oil, gas, or other mineral lease.
12 (27) "Letters" includes letters testamentary, letters of guardianship,
13 letters of administration, and letters of conservatorship.
14 (28) "Minor" means a male under eighteen (18) years of age or a female
15 under eighteen (18) years of age.
16 (29) "Mortgage" means any conveyance, agreement or arrangement in which
17 property is used as security.
18 (30) "Nonresident decedent" means a decedent who was domiciled in another
19 jurisdiction at the time of his death.
20 (31) "Organization" includes a corporation, government or governmental
21 subdivision or agency, business trust, estate, trust, partnership or associa-
22 tion, two (2) or more persons having a joint or common interest, or any other
23 legal entity.
24 (32) "Parent" includes any person entitled to take, or who would be enti-
25 tled to take if the child died without a will, as a parent under this code by
26 intestate succession from the child whose relationship is in question and
27 excludes any person who is only a stepparent, foster parent, or grandparent.
28 (33) "Person" means an individual, a corporation, an organization, or
29 other legal entity.
30 (34) "Personal representative" includes executor, administrator, successor
31 personal representative, special administrator, and persons who perform sub-
32 stantially the same function under the law governing their status. "General
33 personal representative" excludes special administrator.
34 (35) "Petition" means a written request to the court for an order after
35 notice.
36 (36) "Proceeding" includes action at law and suit in equity.
37 (37) "Property" includes both real and personal property or any interest
38 therein and means anything that may be the subject of ownership.
39 (38) "Protected person" is as defined in section 15-5-101, Idaho Code.
40 (39) "Protective proceeding" is as defined in section 15-5-101, Idaho
41 Code.
42 (40) "Quasi-community property" is the property defined by section
43 15-2-201, Idaho Code.
44 (41) "Registrar" refers to magistrates or judges of the district court who
45 shall perform the functions of registrar as provided in section 15-1-307,
46 Idaho Code.
47 (42) "Security" includes any note, stock, treasury stock, bond, debenture,
48 evidence of indebtedness, certificate of interest or participation in an oil,
49 gas or mining title or lease or in payments out of production under such a
50 title or lease, collateral trust certificate, transferable share, voting trust
51 certificate or, in general, any interest or instrument commonly known as a
52 security, or any certificate of interest or participation, any temporary or
53 interim certificate, receipt or certificate of deposit for, or any warrant or
54 right to subscribe to or purchase, any of the foregoing.
55 (43) "Settlement," in reference to a decedent's estate, includes the full
4
1 process of administration, distribution and closing.
2 (44) "Special administrator" means a personal representative as described
3 by sections 15-3-614 through 15-3-618, Idaho Code.
4 (45) "State" includes any state of the United States, the District of
5 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
6 subject to the legislative authority of the United States.
7 (46) "Successor personal representative" means a personal representative,
8 other than a special administrator, who is appointed to succeed a previously
9 appointed personal representative.
10 (47) "Successors" means those persons, other than creditors, who are enti-
11 tled to property of a decedent under his will or this code.
12 (48) "Supervised administration" refers to the proceedings described in
13 part 5, chapter 3, of this code.
14 (49) "Testacy proceeding" means a proceeding to establish a will or deter-
15 mine intestacy.
16 (50) "Trust" includes any express trust, private or charitable, with addi-
17 tions thereto, wherever and however created. It also includes a trust created
18 or determined by judgment or decree under which the trust is to be adminis-
19 tered in the manner of an express trust. "Trust" excludes other constructive
20 trusts, and it excludes resulting trusts, conservatorships, personal represen-
21 tatives, trust accounts as defined in chapter 6 of this code, custodial
22 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
23 viding for certificates to be issued to beneficiaries, common trust funds,
24 voting trusts, security arrangements, liquidation trusts, and trusts for the
25 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
26 its, pensions, or employee benefits of any kind, and any arrangement under
27 which a person is nominee or escrowee for another.
28 (51) "Trustee" includes an original, additional, or successor trustee,
29 whether or not appointed or confirmed by court.
30 (52) "Ward" is as defined in section 15-5-101, Idaho Code.
31 (53) "Will" is a testamentary instrument and includes codicil and any tes-
32 tamentary instrument which merely appoints an executor or revokes or revises
33 another will.
34 (54) "Separate property" includes all property of either the husband or
35 the wife owned by him or her before marriage, and that acquired afterward
36 either by gift, bequest, devise or descent, or that which either he or she
37 acquires with proceeds of his or her separate property, by way of moneys or
38 other property is as defined in section 32-903, Idaho Code.
39 (55) "Community property" includes all other property acquired after mar-
40 riage by either husband or wife, including the rents and profits of the sepa-
41 rate property of the husband and wife, unless, by the instrument by which any
42 such property is acquired by the wife, it is provided that the rents and prof-
43 its thereof be applied to her sole and separate use. Real property conveyed by
44 one (1) spouse to the other shall be presumed to be the sole and separate
45 estate of the grantee is as defined in section 32-906, Idaho Code.
46 SECTION 2. That Section 32-906, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 32-906. COMMUNITY PROPERTY -- INCOME FROM SEPARATE AND COMMUNITY PROPERTY
49 -- CONVEYANCE BETWEEN SPOUSES. (1) All other property acquired after marriage
50 by either husband or wife is community property. The income, including the
51 rents, issues and profits, of all property, separate or community, is commu-
52 nity property unless the conveyance by which it is acquired provides or both
53 spouses, by written agreement specifically so providing, declare that all or
5
1 specifically designated property and the income, including the rents, issues
2 and profits, from all or the specifically designated property shall be the
3 separate property of one of the spouses or the income, including the rents,
4 issues and profits, from all or specifically designated separate property be
5 the separate property of the spouse to whom the property belongs. Such prop-
6 erty shall be subject to the management of the spouse owning the property and
7 shall not be liable for the debts of the other member of the community.
8 (2) Property conveyed by one spouse to the other shall be presumed to be
9 the sole and separate estate of the grantee and only the grantor spouse need
10 execute and acknowledge the deed or other instrument of conveyance notwith-
11 standing the provisions of section 32-912, Idaho Code; provided, however, that
12 the income, including the rents, issues and profits, from such property shall
13 not be the separate property of the grantee spouse unless this fact is specif-
14 ically stated in the instrument of conveyance.
STATEMENT OF PURPOSE
RS 12794
Sections 15-1-201(54) and 15-1-201(55) of the Idaho Code provide
definitions for use in the Uniform Probate Code in Idaho, which
covers a wide range of areas, including conservatorship,
guardianship, and probate proceedings. However, these
definitions in the UPC approximate Idaho Code Sections 32-903 and
32-906, but vary slightly in wording and possible effect from
Sections 32-903 and 32-906. Additionally, court cases in Idaho
have held that the term "income", in relationship to community
property law, includes "rents, issues, and profits" from
property. Those holdings are reflected in the language of
Section 15-1-201(55), but not in the language of Section 32-906.
To make all these definitions consistent with each other and with
the case law, the bill first amends the two definitional sections
in the Probate Code to simply cross reference to Sections 32-903
and 32-906, and then adds the "rents and profits" language to
Section 32-906.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT: Robert L. Aldridge
office: (208) 336-9880
home: (208) 888-4668
Fax: (208) 336-9882
e-mail: rlaldridge@hotmail.com
STATEMENT OF PURPOSE/FISCAL NOTE H 214