2004 Legislation
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SENATE BILL NO. 1250 – Estates, homestead allowance

SENATE BILL NO. 1250

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Bill Status



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

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN 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  is
 13    entitled  to  the  homestead  pursuant to section 55-1010, Idaho Code, then no
 14    person is entitled to a homestead allowance. If a surviving spouse of a  dece-
 15    dent is not entitled to the homestead pursuant to section 55-1010, Idaho Code,
 16    then  the surviving spouse of a decedent is entitled to a homestead allowance.
 17    If there is no surviving spouse, and if no homestead passes to the minor chil-
 18    dren and/or dependent children  of  the  decedent  as  set  forth  in  section
 19    55-1010, Idaho Code, each minor child and each dependent child of the decedent
 20    is  entitled  to  a  homestead  allowance  in  the amount determined hereafter
 21    divided 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  any homestead or homestead
 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  a  homestead
 32    or  homestead  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,  and  exempt  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, or and exempt
  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 instrument or deed of dis-
 13    tribution to establish the ownership of property taken as a  homestead  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 / Fiscal Impact


                       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