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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 organizationbusiness 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, who42 is notexcept for a special administrator or a successor to another represen- 43 tative who has previously discharged this duty, shall prepare and file or mail44 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 tointerested persons who request it, 50 orand 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 afternotice 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