2004 Legislation
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SENATE BILL NO. 1248 – Probate/property inventory/trustees


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Bill Status

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

Bill Text

  ]]]]              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
  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.
  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,
  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
  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:
 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:
  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 / Fiscal Impact

                       STATEMENT OF PURPOSE
                         RS 13742
This bill cleans up several areas of the Idaho Uniform Probate

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.

Name: Robert L. Adridge 
Phone: (208) 336-9880

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1248