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S1248................................................by JUDICIARY AND RULES
PROBATE - Amends existing law relating to matters of probate to further
define the term "person"; to provide instruction regarding the inventory of
property prepared by a personal representative; and to provide that
appointment of a trustee does not require a hearing.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to Jud
02/12 Rpt out - rec d/p - to 2nd rdg
02/13 2nd rdg - to 3rd rdg
02/19 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Davis, Gannon, Geddes, Goedde, Hill,
Ingram, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Darrington, Kennedy
Floor Sponsor - Burkett
Title apvd - to House
02/20 House intro - 1st rdg - to Rev/Tax
02/23 Rpt out - Ref'd to Jud
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/08 3rd rdg - PASSED - 69-0-1
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest,
Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez,
McGeachin, McKague, Meyer, Miller, Mitchell, Moyle, Naccarato,
Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts,
Robison, Rydalch, Sali, Sayler, Schaefer, Shirley, Skippen,
Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills,
Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Shepherd
Floor Sponsor - Sali
Title apvd - to Senate
03/09 To enrol
03/10 Rpt enrol - Pres signed
03/11 Sp signed
03/12 To Governor
03/16 Governor signed
Session Law Chapter 55
Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1248
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO MATTERS OF PROBATE; AMENDING SECTION 15-1-201, IDAHO CODE, TO FUR-
3 THER DEFINE TERMS; AMENDING SECTION 15-3-706, IDAHO CODE, TO PROVIDE
4 INSTRUCTION REGARDING THE INVENTORY OF PROPERTY PREPARED BY A PERSONAL
5 REPRESENTATIVE; AND AMENDING SECTION 15-7-403, IDAHO CODE, TO PROVIDE THAT
6 APPOINTMENT OF TRUSTEE DOES NOT REQUIRE A HEARING.
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 affect of corrective or mitigating measures used
21 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 business
29 trust, estate, trust, partnership, limited liability company, association,
30 joint venture, public corporation, government, governmental subdivision,
31 agency, or instrumentality, or any other legal or commercial entity.
32 (34) "Personal representative" includes executor, administrator, successor
33 personal representative, special administrator, and persons who perform sub-
34 stantially the same function under the law governing their status. "General
35 personal representative" excludes special administrator.
36 (35) "Petition" means a written request to the court for an order after
37 notice.
38 (36) "Proceeding" includes action at law and suit in equity.
39 (37) "Property" includes both real and personal property or any interest
40 therein and means anything that may be the subject of ownership.
41 (38) "Protected person" is as defined in section 15-5-101, Idaho Code.
42 (39) "Protective proceeding" is as defined in section 15-5-101, Idaho
43 Code.
44 (40) "Quasi-community property" is the property defined by section
45 15-2-201, Idaho Code.
46 (41) "Registrar" refers to magistrates or judges of the district court who
47 shall perform the functions of registrar as provided in section 15-1-307,
48 Idaho Code.
49 (42) "Security" includes any note, stock, treasury stock, bond, debenture,
50 evidence of indebtedness, certificate of interest or participation in an oil,
51 gas or mining title or lease or in payments out of production under such a
52 title or lease, collateral trust certificate, transferable share, voting trust
53 certificate or, in general, any interest or instrument commonly known as a
54 security, or any certificate of interest or participation, any temporary or
55 interim certificate, receipt or certificate of deposit for, or any warrant or
4
1 right to subscribe to or purchase, any of the foregoing.
2 (43) "Settlement," in reference to a decedent's estate, includes the full
3 process of administration, distribution and closing.
4 (44) "Special administrator" means a personal representative as described
5 by sections 15-3-614 through 15-3-618, Idaho Code.
6 (45) "State" includes any state of the United States, the District of
7 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
8 subject to the legislative authority of the United States.
9 (46) "Successor personal representative" means a personal representative,
10 other than a special administrator, who is appointed to succeed a previously
11 appointed personal representative.
12 (47) "Successors" means those persons, other than creditors, who are enti-
13 tled to property of a decedent under his will or this code.
14 (48) "Supervised administration" refers to the proceedings described in
15 part 5, chapter 3, of this code.
16 (49) "Testacy proceeding" means a proceeding to establish a will or deter-
17 mine intestacy.
18 (50) "Trust" includes any express trust, private or charitable, with addi-
19 tions thereto, wherever and however created. It also includes a trust created
20 or determined by judgment or decree under which the trust is to be adminis-
21 tered in the manner of an express trust. "Trust" excludes other constructive
22 trusts, and it excludes resulting trusts, conservatorships, personal represen-
23 tatives, trust accounts as defined in chapter 6 of this code, custodial
24 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
25 viding for certificates to be issued to beneficiaries, common trust funds,
26 voting trusts, security arrangements, liquidation trusts, and trusts for the
27 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
28 its, pensions, or employee benefits of any kind, and any arrangement under
29 which a person is nominee or escrowee for another.
30 (51) "Trustee" includes an original, additional, or successor trustee,
31 whether or not appointed or confirmed by court.
32 (52) "Ward" is as defined in section 15-5-101, Idaho Code.
33 (53) "Will" is a testamentary instrument and includes codicil and any tes-
34 tamentary instrument which merely appoints an executor or revokes or revises
35 another will.
36 (54) "Separate property" is as defined in section 32-903, Idaho Code.
37 (55) "Community property" is as defined in section 32-906, Idaho Code.
38 SECTION 2. That Section 15-3-706, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 15-3-706. DUTY OF PERSONAL REPRESENTATIVE -- INVENTORY AND APPRAISEMENT.
41 Within three (3) months after his appointment, a personal representative, who
42 is not except for a special administrator or a successor to another represen-
43 tative who has previously discharged this duty, shall prepare and file or mail
44 an inventory of property owned by the decedent at the time of his death, list-
45 ing it with reasonable detail, and indicating as to each listed item, its fair
46 market value as of the date of the decedent's death, and the type and amount
47 of any encumbrance that may exist with reference to any item.
48 The personal representative shall send a copy of the inventory to heirs,
49 devisees, the state tax commission and to interested persons who request it,
50 or and he may file the original of the inventory with the court.
51 SECTION 3. That Section 15-7-403, Idaho Code, be, and the same is hereby
52 amended to read as follows:
5
1 15-7-403. APPOINTMENT OF TRUSTEE AND LETTERS OF TRUSTEESHIP. Upon appli-
2 cation to the court in which the trust is registered in the state of Idaho,
3 and upon hearing after notice to all interested parties, the court may appoint
4 the trustee as such (or as successor trustee, if applicable). Upon filing of
5 an acceptance of the duties of the office of trustee by the trustee, contain-
6 ing the oath of the trustee to the effect that the trustee will perform the
7 duties of his office according to the law, letters of trusteeship shall be
8 issued, evidencing the authority of the trustee. Such letters may be recorded
9 in the office of the county recorder in any county in which property held by
10 the trust is located and, from the time of filing of such letters for record,
11 notice is imparted to all persons of the contents of such letters of trustee-
12 ship. The application to the court shall contain at least the following:
13 (1) A statement of the interest of the applicant in the matter, including
14 the priority of the person whose appointment is sought and a statement of the
15 names and addresses and priority for appointment of any other persons having a
16 prior or equal right to the appointment under law or the terms of the trust;
17 (2) A description of the trust;
18 (3) A statement identifying and indicating the address of any existing
19 trustee of the trust whose appointment has not been terminated;
20 (4) The name and address of the person or entity for whom appointment is
21 sought;
22 (5) A statement identifying and indicating the address of all current and
23 contingent beneficiaries of the trust, and the ages of any such beneficiaries
24 that are minors;
25 (6) A statement that a copy of the trust is either in the possession of
26 the court or accompanies the application, or that copies of portions of the
27 trust accompany the application showing:
28 (a) The grantor and original trustee of the trust,
29 (b) Any language regarding the appointment of an original or successor
30 trustee, including any limitations thereon,
31 (c) The signature page(s) of the trust,
32 (d) Any amendments to the trust which relate to the appointment of an
33 original or successor trustee, including any limitations thereon;
34 (7) A statement that, after the exercise of reasonable diligence, the
35 applicant is unaware of any instrument revoking the trust;
36 (8) If the application is for appointment of a successor trustee, a
37 statement of the method of termination of the appointment of the prior trustee
38 and the effective date thereof and that copies of any documents relating
39 thereto are in the possession of the court or accompany the application.
STATEMENT OF PURPOSE
RS 13742
This bill cleans up several areas of the Idaho Uniform Probate
Code.
SECTION ONE. The existing language of Idaho Code 15-1-201(33),
contained in the general definitions section of the Uniform
Probate Code, was adopted in 1971 in Idaho. It provides a
definition of "person" which does not reflect more modern forms
of entities. The language of this bill is from revisions to the
Uniform Probate Code by the National Conference of Commissioners
on Uniform State Laws ("NCCUSL"). This definition is needed to
properly cross reference with other uniform acts, including the
Uniform Estate Tax Apportionment Act, which is also being
considered by the Idaho legislature in this session, and which
cross references this definition by section.
SECTION TWO. 15-3-706 addresses the inventory to be prepared by
the personal representative. In most cases, none of the persons
involved in the case require a formal inventory and often do not
want, for privacy reasons, to have an inventory filed in the
court documents, which is public. Therefore, the bill modifies
the language of this section to require that the inventory only
be sent to interested persons, as defined in the probate code,
who request a copy and that the personal representative may, but
is not required to, file the inventory with the court. It also
clarifies that if an interested person requests a copy of the
inventory, the personal representative is to send that person a
copy, even if an original of the inventory has been filed with
the court.
SECTION THREE. 15-7-403 addresses the appointment of a Trustee
for a trust registered in the State of Idaho, and the issuance of
Letters of Trusteeship. In most cases, no hearing is actually
necessary on the appointment or issuance of Letters of
Trusteeship. The requirement in the existing statute for a
hearing prior to issuance of Letters of Trusteeship can cause
significant damage to the trust financially. Having the
application submitted to the Court and notice given to all
"interested persons", as defined in the Probate Code, gives
sufficient protection. If there is any dispute of any nature,
the interested person having the dispute can notice up a hearing.
FISCAL IMPACT
This bill will have no fiscal impact.
Contact
Name: Robert L. Adridge
Phone: (208) 336-9880
STATEMENT OF PURPOSE/FISCAL NOTE S 1248