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S1250................................................by JUDICIARY AND RULES ESTATES - Amends and repeals existing law relating to homestead allowance determinations of an estate to further define the right to a homestead allowance, the value of exempt property, and a family allowance; and to provide procedures in determination of homestead allowance, family allowance and exempt property. 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 - Richardson 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 03/09 3rd rdg - PASSED - 61-1-8 AYES -- Andersen, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Collins, Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Kulczyk, Langford, Langhorst, Martinez, McGeachin, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Mr. Speaker NAYS -- Clark Absent and excused -- Barraclough, Barrett, Gagner, Lake, McKague, Rydalch, Wills, Wood Floor Sponsor - Edmunson Title apvd - to Senate 03/10 To enrol 03/11 Rpt enrol - Pres signed 03/12 Sp signed 03/15 To Governor 03/19 Governor signed Session Law Chapter 123 Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1250 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO HOMESTEAD ALLOWANCE DETERMINATIONS OF AN ESTATE; AMENDING SECTION 3 15-2-402, IDAHO CODE, TO FURTHER DEFINE THE RIGHT TO A HOMESTEAD ALLOW- 4 ANCE; AMENDING SECTION 15-2-403, IDAHO CODE, TO FURTHER DEFINE THE VALUE 5 OF EXEMPT PROPERTY; AMENDING SECTION 15-2-404, IDAHO CODE, TO FURTHER 6 DEFINE A FAMILY ALLOWANCE; AMENDING SECTION 15-2-405, IDAHO CODE, TO PRO- 7 VIDE PROCEDURES IN DETERMINATIONS OF HOMESTEAD ALLOWANCE, FAMILY ALLOWANCE 8 AND EXEMPT PROPERTY; AND REPEALING SECTION 55-1010, IDAHO CODE. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 15-2-402, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 15-2-402. HOMESTEAD ALLOWANCE.If a surviving spouse of a decedent is13entitled to the homestead pursuant to section 55-1010, Idaho Code, then no14person is entitled to a homestead allowance. If a surviving spouse of a dece-15dent is not entitled to the homestead pursuant to section 55-1010, Idaho Code,16then the surviving spouse of a decedent is entitled to a homestead allowance.17If there is no surviving spouse, and if no homestead passes to the minor chil-18dren and/or dependent children of the decedent as set forth in section1955-1010, Idaho Code, each minor child and each dependent child of the decedent20is entitled to a homestead allowance in the amount determined hereafter21divided by the number of minor and dependent children of the decedent.The 22 homestead allowance is exempt from and has priority over all claims against 23 the estate except as hereinafter set forth. The homestead allowance is in 24 addition to any share passing to the surviving spouse or minor or dependent 25 child by the will of the decedent unless otherwise provided in the will, or by 26 intestate succession, or by way of elective share. The amount of the homestead 27 allowance shall be the sum set forth in the provisions of section 55-1003, 28 Idaho Code, as those provisions are in effect on the date of the decedent's 29 death. The homestead allowance is not a right to claim ownership of, or suc- 30 cession to, any homestead owned by the decedent at the time of the decedent's 31 death but is only the right to claim the sum set forth above. The right to a 32 homestead allowance is determined as follows: 33 (a) If there is a surviving spouse of the decedent, and the surviving 34 spouse does not, at the time of the death of the decedent, have a homestead, 35 which for purposes of this chapter shall have the same definition as set forth 36 in section 63-701(2), Idaho Code, the surviving spouse shall be entitled to a 37 homestead allowance unless the surviving spouse receives (by will or other 38 dispositive instrument, by intestate succession, by survivorship, or by other 39 means) such a homestead either from the decedent or due to the death of the 40 decedent; 41 (b) If there is no surviving spouse, and there are one (1) or more minor 42 and/or dependent children of the decedent, then each minor child and each 43 dependent child of the decedent is entitled to a portion of the homestead 2 1 allowance in the amount of the homestead allowance divided by the number of 2 minor and dependent children of the decedent entitled to receive the homestead 3 allowance, unless the minor child or dependent child receives (by will or 4 other dispositive instrument, by intestate succession, by survivorship, or by 5 other means) such a homestead either from the decedent or due to the death of 6 the decedent. 7 SECTION 2. That Section 15-2-403, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 15-2-403. EXEMPT PROPERTY. In addition to anyhomestead orhomestead 10 allowance, the decedent's surviving spouse is entitled from the estate to 11 value, not exceeding ten thousand dollars ($10,000) in excess of any security 12 interests therein, in household furniture, automobiles, furnishings, appli- 13 ances and personal effects. If there is no surviving spouse, the decedent's 14 children are entitled jointly to the same value unless the decedent's will 15 provides otherwise. If encumbered chattels are selected and if the value in 16 excess of security interests, plus that of other exempt property, is less than 17 ten thousand dollars ($10,000), or if there is not ten thousand dollars 18 ($10,000) worth of exempt property in the estate, the spouse or children are 19 entitled to other assets of the estate, if any, to the extent necessary to 20 make up the ten thousand dollar ($10,000) value. Rights to exempt property and 21 assets needed to make up a deficiency of exempt property have priority over 22 all claims against the estate, except that the right to any assets to make up 23 a deficiency of exempt property shall abate as necessary to permit prior pay- 24 ment of homestead allowance and family allowance, and except as otherwise pro- 25 vided. These rights are in addition to any benefit or share passing to the 26 surviving spouse or children by the will of the decedent (unless otherwise 27 provided in the will), or by intestate succession, or by way of elective 28 share. 29 SECTION 3. That Section 15-2-404, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 15-2-404. FAMILY ALLOWANCE. (a) In addition to the right to ahomestead32orhomestead allowance and exempt property, the decedent's surviving spouse 33 and minor children whom the decedent was obligated to support and children who 34 were in fact being supported by the decedent are entitled to a reasonable 35 allowance in money out of the estate for their maintenance during the period 36 of administration, which allowance may not continue for longer than one (1) 37 year if the estate is inadequate to discharge allowed claims. The allowance 38 may be paid as a lump sum or in periodic installments. It is payable to the 39 surviving spouse, if living, for the use of the surviving spouse and minor and 40 dependent children; otherwise to the children, or persons having their care 41 and custody. If a minor child or dependent child is not living with the sur- 42 viving spouse, the allowance may be made partially to the child or the child's 43 guardian or other person having the child's care and custody, and partially to 44 the spouse, as their needs may appear. The family allowance is exempt from and 45 has priority over all claims except the homestead allowance, except as other- 46 wise provided. 47 (b) The family allowance is not chargeable against any benefit or share 48 passing to the surviving spouse or children by the will of the decedent unless 49 otherwise provided in the will, or by intestate succession, or by way of elec- 50 tive share. The death of any person entitled to family allowance terminates 51 the right to allowances not yet paid. 3 1 SECTION 4. That Section 15-2-405, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 15-2-405. SOURCE -- DETERMINATION -- DOCUMENTATION -- MISCELLANEOUS PRO- 4 VISIONS. If the estate is otherwise sufficient, property specifically devised 5 may not be used to satisfy rights to the homestead allowance, family allowance 6 or,andexempt property. Subject to this restriction, the surviving spouse, 7 the guardians of the minor children, or children who are adults may select 8 property of the estate as homestead allowance, family allowance, orandexempt 9 property. The personal representative may make these selections if the surviv- 10 ing spouse, the children or the guardians of the minor children are unable or 11 fail to do so within a reasonable time or if there is no guardian of a minor 12 child. The personal representative may execute an instrumentor deed of dis-13tributionto establish theownership of property taken as ahomestead allow- 14 ance, family allowance, or exempt property. The personal representative may 15 determine the family allowance in a lump sum not exceeding eighteen thousand 16 dollars ($18,000) or periodic installments not exceeding one thousand five 17 hundred dollars ($1,500) per month for one (1) year, and may disburse funds of 18 the estate in payment of the family allowance and any part of the homestead 19 allowance payable in cash. The personal representative or any interested per- 20 son aggrieved by any selection, determination, payment, proposed payment, or 21 failure to act under this section may petition the court for appropriate 22 relief, which may include a family allowance other than that which the per- 23 sonal representative determined or could have determined. Despite any language 24 to the contrary in this chapter, the homestead allowance, family allowance, 25 and exempt property are not mandatory automatic allowances, but rather must be 26 applied for by the surviving spouse and/or children, as appropriate, as set 27 forth in this title. Even though these allowances and the right to apply for 28 exempt property are not claims against estates, the manner of and time period 29 for applying for these allowances or the exempt property shall be the same as 30 set forth in sections 15-3-801, 15-3-803 and 15-3-804, Idaho Code; provided 31 however, that the personal representative shall not be required to give actual 32 notice to a surviving spouse or a minor or dependent child of the right to 33 apply for these allowances or the exempt property, and provided further that 34 any notice actually given by the personal representative does not need to make 35 any additional or special reference to an application by the surviving spouse 36 or dependent or minor children also being barred if not submitted within the 37 time period set forth in the notice. Also, the personal representative shall 38 not be liable to the surviving spouse, minor or dependent child, any creditor, 39 or any other successor to the estate in the same manner as provided in section 40 15-3-801(c), Idaho Code, as a result of giving or failing to give notice. The 41 homestead allowance, family allowance, and exempt property may not be enforced 42 or applied for on behalf of a surviving spouse or a minor or dependent or 43 adult child of the decedent by a creditor of the surviving spouse or a minor 44 or dependent or adult child of the decedent, or by any person or entity claim- 45 ing by, through, or because of the surviving spouse or minor or dependent or 46 adult child of the decedent. Despite any language to the contrary in other 47 sections of this chapter, the homestead allowance, family allowance, and 48 exempt property do not take precedence over reasonable administrative costs 49 and expenses of the estate of the decedent. 50 SECTION 5. That Section 55-1010, Idaho Code, be, and the same is hereby 51 repealed.
STATEMENT OF PURPOSE RS 13790 "Homestead" appears in two different areas of the Idaho Code. In 55-1001 et seq., homestead is defined in the context of an exemption from seizure or execution under judgments and so forth. Current Section 55-1010 contains a "devolution" that appears to mandate that a homestead, if "selected" from community property, mandatorily passes by operation of law to the surviving spouse of a decedent. The other area is in the Probate Code, where 15-2-401 et seq. describe a "Homestead Allowance", "Exempt Property", and "Family Allowance". The interplay between theses two areas of law, and the application of the Probate Code terms and conditions, have a source on constant problem to the probate bar. Judges have interpreted the terms of sections 55-1010 and 15-2-401 et seq. in multiple inconsistent ways. This bill clarifies the relationship between the two different areas of law, and also clarifies how the Probate Code provisions work. (1) Devolution The bill deletes 55-1010. This solves numerous problems caused by the automatic passage of the homestead to the surviving spouse, which is often the direct opposite of the result intended by the decedent, including in tax planning situations. The homestead can still pass to the surviving spouse, but the passage will be pursuant to the planning of the decedent. (2) Homestead Allowance The existing statute has, as noted above, interpreted in many ways, all conflicting, by attorneys and courts in Idaho. The bill clarifies this allowance by providing: (a) The homestead is an optional choice by the surviving spouse or, if appropriate, minor or dependent children of the decedent. It is not mandated and may be waived by the spouse or children. (b) The right to a homestead allowance depends on whether the spouse (or children, as appropriate) already have a homestead independently, or receive, because of the death of the decedent a homestead. If so, no homestead allowance is given, since the spouse, or children, already have an actual homestead. If not, then the spouse, or children, are entitled to a homestead allowance. (c) The amount of the homestead allowance is the sum stated in 55-1003 (currently $50,000.00). This is existing law. However, the deletion of 55-1010 greatly clarifies when that amount is available to the surviving spouse or children. (d) 15-2-405 has substantial language added to the existing language to clarify: (1) The two allowances and exempt property are not mandatory and automatic, but must be applied for by the surviving spouse or children. The time period for application is defined as being the same as for creditor's claims under 15-3-801, 803, and 804. (2) The Personal Representative is not required to give actual notice to the surviving spouse or children of the allowances or exempt property. This removes the Personal Representative from a potential conflict of interest when there are multiple beneficiaries of the estate. The Personal Representative can give such notice, however. (3) The allowances and exempt property can only be applied for by the spouse or children. Creditors cannot apply on behalf of the spouse or children. (4) Finally, the allowances and exempt property do not take precedence over the reasonable administrative costs and expenses of the estate. The net effect of the bill should be make clear and certain an area of probate law that has been confused and conflicting. The confusion has caused a great deal of court time to be wasted and has lead to conflicting results on identical fact patterns. FISCAL NOTE This bill will have no fiscal impact. CONTACT: Name: Robert L. Aldridge Phone: (208) 336-9880 STATEMENT OF PURPOSE/FISCAL NOTE S 1250