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S1071aa..............................................by JUDICIARY AND RULES
TRUST AND ESTATE DISPUTE RESOLUTION ACT - Adds to existing law to set forth
the Trust and Estate Dispute Resolution Act; to state the purpose of the
act; to provide for court powers; to define terms; to set forth persons
entitled to certain judicial proceedings; to provide for judicial
proceedings; to provide for application of the Idaho Rules of Civil
Procedure; to provide for notice; to provide for application of the
doctrine of virtual representation; to provide for special notice; to
provide for waiver of notice; to provide for costs and attorney's fees; to
provide for the appointment of a guardian ad litem; to provide for trial by
jury; to provide for the execution on judgments; to provide for appellate
review; to set forth the purpose of nonjudicial resolution; to provide for
binding agreements; to provide for the entry of an agreement with the court
and the effect of such agreement; to provide for judicial approval of an
agreement; to provide for special representatives; and to set forth the
form of the petition and order for the appointment of a special
representative.
01/31 Senate intro - 1st rdg - to printing
02/01 Rpt prt - to Jud
02/10 Rpt out - to 14th Ord
02/16 Rpt out amen - to engros
02/17 Rpt engros - 1st rdg - to 2nd rdg as amen
02/18 2nd rdg - to 3rd rdg as amen
02/22 3rd rdg as amen - PASSED - 30-0-5
AYES -- Andreason, Broadsword, Bunderson, Burkett, Cameron, Coiner,
Compton, Corder, Darrington, Davis, Gannon, Geddes, Goedde, Hill,
Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley,
McGee, McKenzie, Richardson, Schroeder, Stegner, Stennett, Werk,
Williams
NAYS -- None
Absent and excused -- Brandt, Burtenshaw, Noble, Pearce, Sweet
Floor Sponsor - Bunderson
Title apvd - to House
02/23 House intro - 1st rdg - to Jud
03/04 Rpt out - rec d/p - to 2nd rdg
03/07 2nd rdg - to 3rd rdg
03/15 3rd rdg - PASSED - 66-0-4
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon,
Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
Field(18), Field(23), Garrett, Hart(Jacobson), Harwood, Henbest,
Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez,
Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen,
Nonini, Pasley-Stuart, Pence, Ring, Ringo, Rusche, Rydalch, Sali,
Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen,
Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills,
Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Crow, Eskridge, Raybould, Roberts
Floor Sponsor - Nielsen
Title apvd - to Senate
03/16 To enrol
03/17 Rpt enrol - Pres signed
03/18 Sp signed
03/21 To Governor
03/23 Governor signed
Session Law Chapter 122
Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE SENATE
SENATE BILL NO. 1071
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO TRUSTS AND ESTATES; AMENDING TITLE 15, IDAHO CODE, BY THE ADDITION
3 OF A NEW CHAPTER 8, TITLE 15, IDAHO CODE, TO SET FORTH THE TRUST AND
4 ESTATE DISPUTE RESOLUTION ACT, TO PROVIDE A SHORT TITLE, TO STATE THE PUR-
5 POSE OF THE ACT, TO PROVIDE FOR COURT POWERS, TO DEFINE TERMS, TO SET
6 FORTH PERSONS ENTITLED TO CERTAIN JUDICIAL PROCEEDINGS, TO PROVIDE FOR
7 JUDICIAL PROCEEDINGS, TO PROVIDE FOR APPLICATION OF THE IDAHO RULES OF
8 CIVIL PROCEDURE, TO PROVIDE FOR NOTICE, TO PROVIDE FOR APPLICATION OF THE
9 DOCTRINE OF VIRTUAL REPRESENTATION, TO PROVIDE FOR SPECIAL NOTICE, TO PRO-
10 VIDE FOR WAIVER OF NOTICE, TO PROVIDE FOR COSTS AND ATTORNEY'S FEES, TO
11 PROVIDE FOR THE APPOINTMENT OF A GUARDIAN AD LITEM, TO PROVIDE FOR TRIAL
12 BY JURY, TO PROVIDE FOR THE EXECUTION ON JUDGMENTS, TO PROVIDE FOR APPEL-
13 LATE REVIEW, TO SET FORTH THE PURPOSE OF NONJUDICIAL RESOLUTION, TO PRO-
14 VIDE FOR BINDING AGREEMENTS, TO PROVIDE FOR THE ENTRY OF AN AGREEMENT WITH
15 THE COURT AND THE EFFECT OF SUCH AGREEMENT, TO PROVIDE FOR JUDICIAL
16 APPROVAL OF AN AGREEMENT, TO PROVIDE FOR SPECIAL REPRESENTATIVES AND TO
17 SET FORTH THE FORM OF THE PETITION AND ORDER FOR THE APPOINTMENT OF A SPE-
18 CIAL REPRESENTATIVE.
19 Be It Enacted by the Legislature of the State of Idaho:
20 SECTION 1. That Title 15, Idaho Code, be, and the same is hereby amended
21 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
22 ter 8, Title 15, Idaho Code, and to read as follows:
23 CHAPTER 8
24 TRUST AND ESTATE DISPUTE RESOLUTION ACT
25 PART 1.
26 PURPOSE, POWERS OF COURTS AND DEFINITIONS
27 15-8-101. TITLE -- PURPOSE. (1) This chapter shall be known and may be
28 cited as either the "Trust and Estate Dispute Resolution Act" or "TEDRA."
29 (2) The overall purpose of this chapter is to set forth generally appli-
30 cable statutory provisions for the resolution of disputes and other matters
31 involving trusts and estates in a single chapter under title 15, Idaho Code.
32 The provisions of this chapter are intended to provide nonjudicial methods for
33 the resolution of matters by agreement. This chapter also provides for judi-
34 cial resolution of disputes if a nonjudicial resolution is not obtained that
35 are alternatives to the other provisions for resolution of contested matters
36 under other chapters of title 15, Idaho Code. The provisions of this chapter
37 shall not supersede, but shall supplement, any otherwise applicable provisions
38 and procedures contained in title 15, Idaho Code, or other Idaho law.
39 15-8-102. GENERAL POWERS OF COURTS -- INTENT -- PLENARY POWER OF THE
40 COURT. (1) It is the intent of the legislature that the courts shall have full
2
1 and ample power and authority under this chapter to administer and settle:
2 (a) All matters concerning the estates and assets of incapacitated, miss-
3 ing, and deceased persons, including matters involving nonprobate assets
4 and powers of attorney, in accordance with this chapter; and
5 (b) All trusts and trust matters.
6 (2) If this title 15, Idaho Code, should in any case or under any circum-
7 stances be inapplicable, insufficient or doubtful with reference to the admin-
8 istration and settlement of matters listed in subsection (1) of this section,
9 the court nevertheless has full power and authority to proceed with such
10 administration and settlement in any manner and way that to the court seems
11 right and proper, all to the end that the matters be expeditiously adminis-
12 tered and settled by the court.
13 15-8-103. DEFINITIONS. The definitions in this section apply throughout
14 this chapter unless the context clearly requires otherwise:
15 (1) "Matter" includes any issue, question or dispute involving:
16 (a) The determination of any class of creditors, devisees, legatees,
17 heirs, next of kin, or other persons interested in an estate, trust,
18 nonprobate asset, or with respect to any other asset or property interest
19 passing at death;
20 (b) The direction of a personal representative or trustee to do or to
21 abstain from doing any act in a fiduciary capacity;
22 (c) The determination of any question arising in the administration of an
23 estate or trust, or with respect to any nonprobate asset, or with respect
24 to any other asset or property interest passing at death, that may
25 include, without limitation, questions relating to:
26 (i) The construction of wills, trusts, devolution agreements, and
27 other writings;
28 (ii) A change of personal representative or trustee;
29 (iii) A change of the situs of a trust;
30 (iv) An accounting from a personal representative or trustee; or
31 (v) The determination of fees for a personal representative or
32 trustee;
33 (d) The grant to a personal representative or trustee of any necessary or
34 desirable power not otherwise granted in the governing instrument or given
35 by law;
36 (e) The amendment, reformation, or conformation of a will or a trust
37 instrument to comply with statutes and regulations of the United States
38 internal revenue service in order to more efficiently allocate exemptions
39 or to achieve qualification for deductions, elections, and other tax
40 requirements including, but not limited to, the qualification of any gift
41 thereunder for the benefit of a surviving spouse who is not a citizen of
42 the United States for the estate tax marital deduction permitted by fed-
43 eral law, including the addition of mandatory governing instrument
44 requirements for a qualified domestic trust under section 2056A of the
45 Internal Revenue Code, the qualification of any gift thereunder as a qual-
46 ified conservation easement as permitted by federal law, or the qualifica-
47 tion of any gift for the charitable estate tax deduction permitted by fed-
48 eral law, including the addition of mandatory governing instrument
49 requirements for a charitable remainder trust; and
50 (f) With respect to any nonprobate asset, or with respect to any other
51 asset or property interest passing at death, including actual joint ten-
52 ancy property, property subject to a devolution agreement, or assets sub-
53 ject to a pay on death or transfer on death designation:
54 (i) The ascertaining of any class of creditors or others for pur-
3
1 poses of section 15-6-107, Idaho Code;
2 (ii) The ordering of a custodian of any of the decedent's records
3 relating to a nonprobate asset to do or abstain from doing any par-
4 ticular act with respect to those records;
5 (iii) The determination of any question arising in the administration
6 of a nonprobate asset under section 15-6-107, Idaho Code;
7 (iv) The determination of any questions relating to the abatement,
8 rights of creditors, or other matter relating to the administration,
9 settlement, or final disposition of a nonprobate asset under title
10 15, Idaho Code; and
11 (v) The resolution of any matter referencing this chapter, includ-
12 ing a determination of any questions relating to the ownership or
13 distribution of an individual retirement account on the death of the
14 spouse of the account holder as contemplated by section 11-604A(6),
15 Idaho Code;
16 (g) The resolution of any other matter that could affect the nonprobate
17 asset.
18 (2) "Nonprobate assets" means assets that are covered by chapter 6, title
19 15, Idaho Code.
20 (3) "Party" or "parties" means each of the following persons who has an
21 interest in the subject of the particular proceeding and whose name and
22 address are known to, or are reasonably ascertainable by, the petitioner:
23 (a) The trustor if living;
24 (b) The trustee;
25 (c) The personal representative;
26 (d) An heir;
27 (e) A beneficiary, including devisees, legatees, and trust beneficiaries;
28 (f) The surviving spouse of a decedent with respect to his or her inter-
29 est in the decedent's property;
30 (g) A guardian ad litem;
31 (h) A creditor;
32 (i) Any other person who has an interest in the subject of the particular
33 proceeding;
34 (j) The attorney general if required under section 67-1401 5., Idaho
35 Code;
36 (k) Any duly appointed and acting legal representative of a party such as
37 a guardian, conservator, special representative, or attorney in fact;
38 (l) Where applicable, the virtual representative of any person described
39 in this subsection (3), the giving of notice to whom would meet notice
40 requirements as provided in section 15-8-204, Idaho Code; and
41 (m) The owner or the personal representative of the estate of the
42 deceased owner of the nonprobate asset that is the subject of the particu-
43 lar proceeding, if the subject of the particular proceeding relates to the
44 beneficiary's liability to a decedent's estate or creditors under section
45 15-6-107, Idaho Code.
46 (4) "Persons interested in the estate or trust" means the trustor, if
47 living, all persons beneficially interested in the estate or trust, persons
48 holding powers over the trust or estate assets, the attorney general in the
49 case of any charitable trust where the attorney general would be a necessary
50 party to judicial proceedings concerning the trust, and any personal represen-
51 tative or trustee of the estate or trust.
52 (5) "Representative" and other similar terms refer to a person who virtu-
53 ally represents another person under section 15-8-205, Idaho Code.
54 (6) "Trustee" means any acting and qualified trustee of the trust.
4
1 PART 2.
2 JUDICIAL RESOLUTION
3 15-8-201. PERSONS ENTITLED TO JUDICIAL PROCEEDINGS FOR DECLARATION OF
4 RIGHTS OR LEGAL RELATIONS. (1) Any party may have a judicial proceeding for
5 the declaration of rights or legal relations with respect to:
6 (a) Any matter, as defined in section 15-8-103, Idaho Code;
7 (b) The resolution of any other case or controversy that arises under the
8 Idaho Code and referenced judicial proceedings under this chapter; or
9 (c) The determination of the persons entitled to notice under section
10 15-8-204, Idaho Code.
11 (2) The provisions of this chapter apply to disputes arising in connec-
12 tion with estates of incapacitated persons unless otherwise covered by chapter
13 5, title 15, Idaho Code. The provisions of this chapter shall not supersede,
14 but shall supplement, any otherwise applicable provisions and procedures con-
15 tained in title 15, Idaho Code, or other Idaho law. The provisions of this
16 chapter shall not apply to actions for wrongful death under any other chapter
17 or title of Idaho Code.
18 15-8-202. JUDICIAL PROCEEDINGS. (1) The provisions of this chapter shall
19 control over any inconsistent provision of the Idaho rules of civil procedure.
20 (2) A judicial proceeding under this chapter may be commenced as a new
21 action or as an action incidental to an existing judicial proceeding relating
22 to the same trust or estate or nonprobate asset.
23 (3) Once commenced, the action may be consolidated with an existing pro-
24 ceeding or converted to a separate action upon the motion of a party for good
25 cause shown, or by the court on its own motion.
26 (4) The Idaho rules of civil procedure apply to judicial proceedings
27 under this chapter only to the extent that they are consistent with this chap-
28 ter, unless otherwise provided by Idaho Code, or ordered by the court under
29 section 15-8-102, Idaho Code, or provided by other applicable Idaho rules of
30 civil procedure.
31 15-8-203. PROCEDURAL RULES. The Idaho rules of civil procedure apply to
32 all proceedings under part 2 of this chapter.
33 15-8-204. NOTICE IN JUDICIAL PROCEEDINGS UNDER THIS CHAPTER REQUIRING
34 NOTICE. (1) Subject to section 15-8-207, Idaho Code, in all judicial proceed-
35 ings under this chapter that require notice, the notice must be personally
36 served on or mailed to all parties or the parties' virtual representatives at
37 least fourteen (14) days before the hearing on the petition, unless a differ-
38 ent period is provided by statute or ordered by the court. The date of service
39 shall be determined under the Idaho rules of civil procedure.
40 (2) Proof of the service or mailing required in this section must be made
41 by affidavit or declaration filed at or before the hearing.
42 15-8-205. APPLICATION OF DOCTRINE OF VIRTUAL REPRESENTATION. (1) This
43 section is intended to adopt the common law concept of virtual representation.
44 This section supplements the common law relating to the doctrine of virtual
45 representation and the provisions of section 15-1-403, Idaho Code, and shall
46 not be construed as limiting the application of that common law doctrine or
47 the provisions of section 15-1-403, Idaho Code.
48 (2) Any notice requirement in this chapter is satisfied if notice is
49 given as follows:
50 (a) Where an interest in an estate, trust, or nonprobate asset, or an
5
1 interest that may be affected by a power of attorney, has been given to
2 persons who comprise a certain class upon the happening of a certain
3 event, notice may be given to the living persons who would constitute the
4 class if the event had happened immediately before the commencement of the
5 proceedings requiring notice, and the persons shall virtually represent
6 all other members of the class;
7 (b) Where an interest in an estate, trust, or nonprobate asset, or an
8 interest that may be affected by a power of attorney, has been given to a
9 living person, and the same interest, or a share in it, is to pass to the
10 surviving spouse or to persons who are, or might be, the distributees,
11 heirs, issue, or other kindred of that living person upon the happening of
12 a future event, notice may be given to that living person, and the living
13 person shall virtually represent the surviving spouse, distributees,
14 heirs, issue, or other kindred of the person; and
15 (c) Except as otherwise provided in this subsection (2), where an inter-
16 est in an estate, trust, or nonprobate asset, or an interest that may be
17 affected by a power of attorney, has been given to a person or a class of
18 persons, or both, upon the happening of any future event, and the same
19 interest or a share of the interest is to pass to another person or class
20 of persons, or both, upon the happening of an additional future event,
21 notice may be given to the living person or persons who would take the
22 interest upon the happening of the first event, and the living person or
23 persons shall virtually represent the persons and classes of persons who
24 might take upon the happening of the additional future event.
25 (3) A party is not virtually represented by a person receiving notice if
26 a conflict of interest involving the matter is known to exist between the
27 notified person and the party.
28 (4) An action taken by the court is conclusive and binding upon each per-
29 son receiving actual or constructive notice or who is otherwise virtually rep-
30 resented.
31 15-8-206. SPECIAL NOTICE. Nothing in this chapter eliminates the require-
32 ment to give notice to a person who has filed a demand for notice pursuant to
33 section 15-3-204, Idaho Code.
34 15-8-207. WAIVER OF NOTICE. Notwithstanding any other provision of this
35 chapter, notice of a hearing does not need to be given to a legally competent
36 person who has waived in writing notice of the hearing in person or by attor-
37 ney, or who has appeared at the hearing without objecting to the lack of
38 proper notice or personal jurisdiction. The waiver of notice may apply either
39 to a specific hearing or to any and all hearings and proceedings to be held,
40 in which event the waiver of notice is of continuing effect unless subse-
41 quently revoked by the filing of a written notice of revocation of the waiver
42 and the mailing of a copy of the notice of revocation of the waiver to the
43 other parties. Unless notice of a hearing is required to be given by publica-
44 tion, if all persons entitled to notice of the hearing waive the notice or
45 appear at the hearing without objecting to the lack of proper notice or per-
46 sonal jurisdiction, the court may hear the matter immediately. A guardian or
47 conservator or a guardian ad litem may make the waivers on behalf of the inca-
48 pacitated person, and a trustee may make the waivers on behalf of any compe-
49 tent or incapacitated beneficiary of the trust. A consul or other representa-
50 tive of a foreign government, whose appearance has been entered as provided by
51 law on behalf of any person residing in a foreign country, may make the waiver
52 of notice on behalf of the person.
6
1 15-8-208. COST -- ATTORNEY'S FEES. (1) Either the district court or the
2 court on appeal may, in its discretion, order costs, including reasonable
3 attorney's fees, to be awarded to any party:
4 (a) From any party to the proceedings;
5 (b) From the assets of the estate or trust involved in the proceedings;
6 or
7 (c) From any nonprobate asset that is the subject of the proceedings. The
8 court may order the costs to be paid in such amount and in such manner as
9 the court determines to be equitable.
10 (2) This section applies to all proceedings governed by this chapter
11 including, but not limited to, proceedings involving trusts, decedent's
12 estates and properties, and guardianship matters. This section shall not be
13 construed as being limited by any other specific statutory provision providing
14 for the payment of costs, unless such statute specifically provides otherwise.
15 15-8-209. APPOINTMENT OF A GUARDIAN AD LITEM. (1) The court, upon its own
16 motion or upon request of one (1) or more of the parties, at any stage of a
17 judicial proceeding or at any time in a nonjudicial resolution procedure, may
18 appoint a guardian ad litem to represent the interests of a minor, or incapac-
19 itated, or unborn, or unascertained person, or any person whose identity or
20 address is unknown, or a designated class of persons who are not ascertained
21 or are not in being. If not precluded by a conflict of interest, a guardian ad
22 litem may be appointed to represent several persons or interests.
23 (2) The court appointed guardian ad litem supersedes the special repre-
24 sentative if so provided in the court order.
25 (3) The court may appoint the guardian ad litem at an ex parte hearing,
26 or the court may order a hearing as provided in section 15-8-201, Idaho Code,
27 with notice as provided in this section and section 15-8-204, Idaho Code.
28 (4) The guardian ad litem is entitled to reasonable compensation for ser-
29 vices. Such compensation is to be paid from the principal of the estate or
30 trust whose beneficiaries are represented.
31 15-8-210. TRIAL BY JURY. If a party is entitled to a trial by jury and a
32 jury is demanded, and the issues are not sufficiently made up by the written
33 pleadings on file, the court, on due notice, shall settle and frame the issues
34 to be tried. Any jury for any proceeding under this part 2 shall consist of
35 six (6) jurors. If a jury is not demanded, the court shall try the issues, and
36 sign and file its findings and decision in writing, as provided for in civil
37 actions.
38 15-8-211. EXECUTION ON JUDGMENTS. Judgment on the issues, as well as for
39 costs, may be entered and enforced by execution or otherwise by the court as
40 in civil actions.
41 15-8-212. APPELLATE REVIEW. An interested party may seek appellate review
42 of a final order, judgment, or decree of the court respecting a judicial pro-
43 ceeding under this chapter. The review must be done in the manner and way pro-
44 vided by law for appeals in civil actions.
45 PART 3.
46 NONJUDICIAL RESOLUTION
47 15-8-301. PURPOSE. The purpose of this part 3 is to provide a binding
48 nonjudicial procedure to resolve matters through written agreements among the
49 parties interested in the estate or trust. The procedure is supplemental to,
7
1 and may not derogate from, any other proceeding or provision authorized by
2 statute or the common law.
3 15-8-302. BINDING AGREEMENT. Sections 15-8-301 through 15-8-305, Idaho
4 Code, shall be applicable to the resolution of any matter, as defined in sec-
5 tion 15-8-103, Idaho Code, other than matters subject to chapter 5, title 15,
6 Idaho Code, or a trust for a minor or other incapacitated person created at
7 its inception by the judgment or decree of a court unless the judgment or
8 decree provides that sections 15-8-301 through 15-8-305, Idaho Code, shall be
9 applicable. If all parties agree to a resolution of any such matter, then the
10 agreement shall be evidenced by a written agreement signed by all parties.
11 Subject to the provisions of section 15-8-304, Idaho Code, the written agree-
12 ment shall be binding and conclusive on all persons interested in the estate
13 or trust. The agreement shall identify the subject matter of the dispute and
14 the parties. If the agreement or a memorandum of the agreement is to be filed
15 with the court under section 15-8-303, Idaho Code, the agreement may, but need
16 not, include provisions specifically addressing jurisdiction, governing law,
17 the waiver of notice of the filing and the discharge of any special represen-
18 tative who has acted with respect to the agreement. If a party who virtually
19 represents another person under section 15-8-205, Idaho Code, signs the agree-
20 ment, then the party's signature constitutes the signature of all persons whom
21 the party virtually represents, and all the virtually represented persons
22 shall be bound by the agreement.
23 15-8-303. ENTRY OF AGREEMENT WITH COURT -- EFFECT. (1) Any party, or a
24 party's legal representative, may file the written agreement or a memorandum
25 summarizing the written agreement with the court having jurisdiction over the
26 estate or trust. However, if a special representative is a party to the writ-
27 ten agreement, the agreement or a memorandum of its terms may not be filed
28 within thirty (30) days of the agreement's execution by all parties unless the
29 written consent of the special representative is filed along with, or included
30 within, the provision of such agreement or memorandum. The agreement or a mem-
31 orandum of its terms may be filed after a special representative has commenced
32 a proceeding under section 15-8-304, Idaho Code, only after the court has
33 determined that the special representative has adequately represented and pro-
34 tected the parties represented. Failure to complete any action authorized or
35 required under this subsection does not cause the written agreement to be
36 ineffective and the agreement is nonetheless binding and conclusive on all
37 persons interested in the estate or trust.
38 (2) On filing the agreement or memorandum, the agreement will be deemed
39 approved by the court and is equivalent to a final court order binding on all
40 persons interested in the estate or trust.
41 15-8-304. JUDICIAL APPROVAL OF AGREEMENT. Within thirty (30) days of exe-
42 cution of the agreement by all parties, the special representative may notice
43 a hearing for presentation of the written agreement to a court of competent
44 jurisdiction. The special representative shall provide notice of the time and
45 date of the hearing to each party to the agreement whose address is known,
46 unless such notice has been waived. Proof of mailing or delivery of the notice
47 must be filed with the court. At such hearing, the court shall review the
48 agreement on behalf of the parties represented by the special representative.
49 The court shall determine whether or not the interests of the represented par-
50 ties have been adequately represented and protected, and an order declaring
51 the court's determination shall be entered. If the court determines that such
52 interests have not been adequately represented and protected, the agreement
8
1 shall be declared of no effect.
2 15-8-305. SPECIAL REPRESENTATIVE.
3 (1) (a) The personal representative or trustee may petition the court
4 having jurisdiction over the matter for the appointment of a special rep-
5 resentative to represent a person who is interested in the estate or trust
6 and:
7 (i) Who is a minor;
8 (ii) Who is incompetent or disabled;
9 (iii) Who is yet unborn or unascertained; or
10 (iv) Whose identity or address is unknown.
11 The petition may be heard by the court without notice.
12 (b) In appointing the special representative, the court shall give due
13 consideration and deference to any nomination(s) made in the petition, the
14 special skills required in the representation, and the need for a repre-
15 sentative who will act independently and prudently. The nomination of a
16 person as special representative by the personal representative or trustee
17 and the person's willingness to serve as special representative are not
18 grounds by themselves for finding a lack of independence; provided how-
19 ever, the court may consider any interests that the nominating fiduciary
20 may have in the estate or trust in making the determination.
21 (c) The special representative may enter into a binding agreement on
22 behalf of the person or beneficiary. The special representative may be
23 appointed for more than one (1) person or class of persons if the inter-
24 ests of such persons or class are not in conflict. The petition shall be
25 verified. The petition and order appointing the special representative may
26 be in the following forms:
27 CAPTION OF CASE PETITION FOR APPOINTMENT OF
28 SPECIAL REPRESENTATIVE UNDER
29 SECTION 15-8-305, IDAHO CODE
30 The undersigned petitioner petitions the court for the appointment of a spe-
31 cial representative in accordance with section 15-8-305, Idaho Code, and rep-
32 resents to the court as follows:
33 1. Petitioner. Petitioner ............... is the qualified and presently act-
34 ing (personal representative) (trustee) of the above (estate) (trust) having
35 been named (personal representative) (trustee) under (describe will and refer-
36 ence probate order or describe trust instrument.)
37 2. Issue Concerning (Estate) (Trust) Administration. A question concerning
38 administration of the (estate) (trust) has arisen as to (describe issue, for
39 example, "Related to interpretation, construction, administration, distribu-
40 tion.") The issues are appropriate for determination under section 15-8-305,
41 Idaho Code.
42 3. Beneficiaries. The beneficiaries of the (estate) (trust) include persons
43 who are unborn, unknown, or unascertained persons, or who are under eighteen
44 (18) years of age: (list, with status of each.)
45 4. Special Representative. The nominated special representative ........... is
46 a lawyer licensed to practice before the courts of this state or an individual
47 with special skills or training in the administration of estates or trusts.
48 The nominated special representative does not have an interest in the affected
9
1 estate or trust and is not related to any person interested in the estate or
2 trust. The nominated special representative is willing to serve. The peti-
3 tioner has no reason to believe that the nominated special representative will
4 not act in an independent and prudent manner and in the best interests of the
5 represented parties. (It is recommended that the petitioner also include
6 information specifying the particular skills of the nominated special repre-
7 sentative that relate to the matter in issue.)
8 5. Resolution. Petitioner desires to achieve a resolution of the questions
9 that have arisen concerning the (estate) (trust). Petitioner believes that
10 proceeding in accordance with the procedures permitted under sections 15-8-301
11 through 15-8-305, Idaho Code, would be in the best interests of the (estate)
12 (trust) and the beneficiaries.
13 6. Request of Court. Petitioner requests that (............... , an attorney
14 licensed to practice in the state of Idaho,) (OR) (................. , an
15 individual with special skills or training in the administration of estates or
16 trusts,) be appointed special representative for those beneficiaries who are
17 not yet adults, as well as for the unborn, unknown, and/or unascertained bene-
18 ficiaries, as provided under section 15-8-305, Idaho Code.
19 DATED this ....... date of ..............., .............
20 .................................................
21 (Petitioner or Petitioner's Legal Representative)
22 VERIFICATION
23 I certify under penalty of perjury under the laws of the state of Idaho that
24 the foregoing is true and correct.
25 DATED .............., ..........., at ......................, Idaho.
26 .............................................
27 (Petitioner or other person having knowledge)
28 CAPTION OF CASE ORDER FOR APPOINTMENT OF
29 SPECIAL REPRESENTATIVE UNDER
30 SECTION 15-8-305, IDAHO CODE
31 THIS MATTER having come on for hearing before this Court on Petition for
32 Appointment of Special Representative filed herein, and it appearing that it
33 would be in the best interests of the (estate) (trust) described in the Peti-
34 tion to appoint a special representative to address the issues that have
35 arisen concerning the (estate) (trust) and the Court finding that the facts
36 stated in the Petition are true, now, therefore,
37 IT IS ORDERED that ....................... is appointed under section
38 15-8-305, Idaho Code, as special representative for the (estate) (trust) bene-
39 ficiaries who are not yet adult age, and for unborn, unknown, or unascertained
40 beneficiaries to represent their respective interests in the (estate) (trust)
41 as provided in section 15-8-305, Idaho Code. The special representative shall
42 be discharged of responsibility with respect to the (estate) (trust) at such
43 time as a written agreement is executed resolving the present issues, all as
44 provided in that statute, or if an agreement is not reached within six (6)
10
1 months from entry of this Order, the special representative appointed under
2 this Order shall be discharged of responsibility, subject to subsequent reap-
3 pointment under section 15-8-305, Idaho Code.
4 DONE IN OPEN COURT this ........ day of ..................., .........
5 ......................................
6 JUDGE
7 (2) Upon appointment by the court, the special representative shall file
8 a sworn certificate made upon penalty of perjury that he or she:
9 (a) Is not interested in the estate or trust;
10 (b) Is not related to any person interested in the estate or trust;
11 (c) Is willing to serve; and
12 (d) Will act independently, prudently, and in the best interests of the
13 represented parties.
14 (3) The special representative must be a lawyer licensed to practice
15 before the courts of this state, or an individual with special skills or
16 training in the administration of estates or trusts. The special representa-
17 tive may not have an interest in the affected estate or trust, and may not be
18 related to a person interested in the estate or trust. The special representa-
19 tive is entitled to reasonable compensation for services, which must be paid
20 from the principal of the estate or trust whose beneficiaries are represented.
21 (4) The special representative shall be discharged from any responsibil-
22 ity and shall have no further duties with respect to the estate or trust or
23 with respect to any person interested in the estate or trust, on the earlier
24 of:
25 (a) The expiration of six (6) months from the date the special represen-
26 tative was appointed, unless the order appointing the special representa-
27 tive provides otherwise; or
28 (b) The execution of the written agreement by all parties or their vir-
29 tual representatives.
30 (5) Any action against a special representative must be brought before
31 the earlier of:
32 (a) One (1) year from the discharge of the special representative; or
33 (b) The entry of an order by a court of competent jurisdiction under sec-
34 tion 15-8-304, Idaho Code, approving the written agreement executed by all
35 interested parties in accordance with the provisions of section 15-8-302,
36 Idaho Code.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
Moved by Bunderson
Seconded by Darrington
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1071
1 AMENDMENT TO SECTION 1
2 On page 6 of the printed bill, in line 12, delete "This section shall not
3 be" and insert: "Except as provided in section 12-117, Idaho Code, this sec-
4 tion shall not be".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE SENATE
SENATE BILL NO. 1071, As Amended
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO TRUSTS AND ESTATES; AMENDING TITLE 15, IDAHO CODE, BY THE ADDITION
3 OF A NEW CHAPTER 8, TITLE 15, IDAHO CODE, TO SET FORTH THE TRUST AND
4 ESTATE DISPUTE RESOLUTION ACT, TO PROVIDE A SHORT TITLE, TO STATE THE PUR-
5 POSE OF THE ACT, TO PROVIDE FOR COURT POWERS, TO DEFINE TERMS, TO SET
6 FORTH PERSONS ENTITLED TO CERTAIN JUDICIAL PROCEEDINGS, TO PROVIDE FOR
7 JUDICIAL PROCEEDINGS, TO PROVIDE FOR APPLICATION OF THE IDAHO RULES OF
8 CIVIL PROCEDURE, TO PROVIDE FOR NOTICE, TO PROVIDE FOR APPLICATION OF THE
9 DOCTRINE OF VIRTUAL REPRESENTATION, TO PROVIDE FOR SPECIAL NOTICE, TO PRO-
10 VIDE FOR WAIVER OF NOTICE, TO PROVIDE FOR COSTS AND ATTORNEY'S FEES, TO
11 PROVIDE FOR THE APPOINTMENT OF A GUARDIAN AD LITEM, TO PROVIDE FOR TRIAL
12 BY JURY, TO PROVIDE FOR THE EXECUTION ON JUDGMENTS, TO PROVIDE FOR APPEL-
13 LATE REVIEW, TO SET FORTH THE PURPOSE OF NONJUDICIAL RESOLUTION, TO PRO-
14 VIDE FOR BINDING AGREEMENTS, TO PROVIDE FOR THE ENTRY OF AN AGREEMENT WITH
15 THE COURT AND THE EFFECT OF SUCH AGREEMENT, TO PROVIDE FOR JUDICIAL
16 APPROVAL OF AN AGREEMENT, TO PROVIDE FOR SPECIAL REPRESENTATIVES AND TO
17 SET FORTH THE FORM OF THE PETITION AND ORDER FOR THE APPOINTMENT OF A SPE-
18 CIAL REPRESENTATIVE.
19 Be It Enacted by the Legislature of the State of Idaho:
20 SECTION 1. That Title 15, Idaho Code, be, and the same is hereby amended
21 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
22 ter 8, Title 15, Idaho Code, and to read as follows:
23 CHAPTER 8
24 TRUST AND ESTATE DISPUTE RESOLUTION ACT
25 PART 1.
26 PURPOSE, POWERS OF COURTS AND DEFINITIONS
27 15-8-101. TITLE -- PURPOSE. (1) This chapter shall be known and may be
28 cited as either the "Trust and Estate Dispute Resolution Act" or "TEDRA."
29 (2) The overall purpose of this chapter is to set forth generally appli-
30 cable statutory provisions for the resolution of disputes and other matters
31 involving trusts and estates in a single chapter under title 15, Idaho Code.
32 The provisions of this chapter are intended to provide nonjudicial methods for
33 the resolution of matters by agreement. This chapter also provides for judi-
34 cial resolution of disputes if a nonjudicial resolution is not obtained that
35 are alternatives to the other provisions for resolution of contested matters
36 under other chapters of title 15, Idaho Code. The provisions of this chapter
37 shall not supersede, but shall supplement, any otherwise applicable provisions
38 and procedures contained in title 15, Idaho Code, or other Idaho law.
39 15-8-102. GENERAL POWERS OF COURTS -- INTENT -- PLENARY POWER OF THE
40 COURT. (1) It is the intent of the legislature that the courts shall have full
2
1 and ample power and authority under this chapter to administer and settle:
2 (a) All matters concerning the estates and assets of incapacitated, miss-
3 ing, and deceased persons, including matters involving nonprobate assets
4 and powers of attorney, in accordance with this chapter; and
5 (b) All trusts and trust matters.
6 (2) If this title 15, Idaho Code, should in any case or under any circum-
7 stances be inapplicable, insufficient or doubtful with reference to the admin-
8 istration and settlement of matters listed in subsection (1) of this section,
9 the court nevertheless has full power and authority to proceed with such
10 administration and settlement in any manner and way that to the court seems
11 right and proper, all to the end that the matters be expeditiously adminis-
12 tered and settled by the court.
13 15-8-103. DEFINITIONS. The definitions in this section apply throughout
14 this chapter unless the context clearly requires otherwise:
15 (1) "Matter" includes any issue, question or dispute involving:
16 (a) The determination of any class of creditors, devisees, legatees,
17 heirs, next of kin, or other persons interested in an estate, trust,
18 nonprobate asset, or with respect to any other asset or property interest
19 passing at death;
20 (b) The direction of a personal representative or trustee to do or to
21 abstain from doing any act in a fiduciary capacity;
22 (c) The determination of any question arising in the administration of an
23 estate or trust, or with respect to any nonprobate asset, or with respect
24 to any other asset or property interest passing at death, that may
25 include, without limitation, questions relating to:
26 (i) The construction of wills, trusts, devolution agreements, and
27 other writings;
28 (ii) A change of personal representative or trustee;
29 (iii) A change of the situs of a trust;
30 (iv) An accounting from a personal representative or trustee; or
31 (v) The determination of fees for a personal representative or
32 trustee;
33 (d) The grant to a personal representative or trustee of any necessary or
34 desirable power not otherwise granted in the governing instrument or given
35 by law;
36 (e) The amendment, reformation, or conformation of a will or a trust
37 instrument to comply with statutes and regulations of the United States
38 internal revenue service in order to more efficiently allocate exemptions
39 or to achieve qualification for deductions, elections, and other tax
40 requirements including, but not limited to, the qualification of any gift
41 thereunder for the benefit of a surviving spouse who is not a citizen of
42 the United States for the estate tax marital deduction permitted by fed-
43 eral law, including the addition of mandatory governing instrument
44 requirements for a qualified domestic trust under section 2056A of the
45 Internal Revenue Code, the qualification of any gift thereunder as a qual-
46 ified conservation easement as permitted by federal law, or the qualifica-
47 tion of any gift for the charitable estate tax deduction permitted by fed-
48 eral law, including the addition of mandatory governing instrument
49 requirements for a charitable remainder trust; and
50 (f) With respect to any nonprobate asset, or with respect to any other
51 asset or property interest passing at death, including actual joint ten-
52 ancy property, property subject to a devolution agreement, or assets sub-
53 ject to a pay on death or transfer on death designation:
54 (i) The ascertaining of any class of creditors or others for pur-
3
1 poses of section 15-6-107, Idaho Code;
2 (ii) The ordering of a custodian of any of the decedent's records
3 relating to a nonprobate asset to do or abstain from doing any par-
4 ticular act with respect to those records;
5 (iii) The determination of any question arising in the administration
6 of a nonprobate asset under section 15-6-107, Idaho Code;
7 (iv) The determination of any questions relating to the abatement,
8 rights of creditors, or other matter relating to the administration,
9 settlement, or final disposition of a nonprobate asset under title
10 15, Idaho Code; and
11 (v) The resolution of any matter referencing this chapter, includ-
12 ing a determination of any questions relating to the ownership or
13 distribution of an individual retirement account on the death of the
14 spouse of the account holder as contemplated by section 11-604A(6),
15 Idaho Code;
16 (g) The resolution of any other matter that could affect the nonprobate
17 asset.
18 (2) "Nonprobate assets" means assets that are covered by chapter 6, title
19 15, Idaho Code.
20 (3) "Party" or "parties" means each of the following persons who has an
21 interest in the subject of the particular proceeding and whose name and
22 address are known to, or are reasonably ascertainable by, the petitioner:
23 (a) The trustor if living;
24 (b) The trustee;
25 (c) The personal representative;
26 (d) An heir;
27 (e) A beneficiary, including devisees, legatees, and trust beneficiaries;
28 (f) The surviving spouse of a decedent with respect to his or her inter-
29 est in the decedent's property;
30 (g) A guardian ad litem;
31 (h) A creditor;
32 (i) Any other person who has an interest in the subject of the particular
33 proceeding;
34 (j) The attorney general if required under section 67-1401 5., Idaho
35 Code;
36 (k) Any duly appointed and acting legal representative of a party such as
37 a guardian, conservator, special representative, or attorney in fact;
38 (l) Where applicable, the virtual representative of any person described
39 in this subsection (3), the giving of notice to whom would meet notice
40 requirements as provided in section 15-8-204, Idaho Code; and
41 (m) The owner or the personal representative of the estate of the
42 deceased owner of the nonprobate asset that is the subject of the particu-
43 lar proceeding, if the subject of the particular proceeding relates to the
44 beneficiary's liability to a decedent's estate or creditors under section
45 15-6-107, Idaho Code.
46 (4) "Persons interested in the estate or trust" means the trustor, if
47 living, all persons beneficially interested in the estate or trust, persons
48 holding powers over the trust or estate assets, the attorney general in the
49 case of any charitable trust where the attorney general would be a necessary
50 party to judicial proceedings concerning the trust, and any personal represen-
51 tative or trustee of the estate or trust.
52 (5) "Representative" and other similar terms refer to a person who virtu-
53 ally represents another person under section 15-8-205, Idaho Code.
54 (6) "Trustee" means any acting and qualified trustee of the trust.
4
1 PART 2.
2 JUDICIAL RESOLUTION
3 15-8-201. PERSONS ENTITLED TO JUDICIAL PROCEEDINGS FOR DECLARATION OF
4 RIGHTS OR LEGAL RELATIONS. (1) Any party may have a judicial proceeding for
5 the declaration of rights or legal relations with respect to:
6 (a) Any matter, as defined in section 15-8-103, Idaho Code;
7 (b) The resolution of any other case or controversy that arises under the
8 Idaho Code and referenced judicial proceedings under this chapter; or
9 (c) The determination of the persons entitled to notice under section
10 15-8-204, Idaho Code.
11 (2) The provisions of this chapter apply to disputes arising in connec-
12 tion with estates of incapacitated persons unless otherwise covered by chapter
13 5, title 15, Idaho Code. The provisions of this chapter shall not supersede,
14 but shall supplement, any otherwise applicable provisions and procedures con-
15 tained in title 15, Idaho Code, or other Idaho law. The provisions of this
16 chapter shall not apply to actions for wrongful death under any other chapter
17 or title of Idaho Code.
18 15-8-202. JUDICIAL PROCEEDINGS. (1) The provisions of this chapter shall
19 control over any inconsistent provision of the Idaho rules of civil procedure.
20 (2) A judicial proceeding under this chapter may be commenced as a new
21 action or as an action incidental to an existing judicial proceeding relating
22 to the same trust or estate or nonprobate asset.
23 (3) Once commenced, the action may be consolidated with an existing pro-
24 ceeding or converted to a separate action upon the motion of a party for good
25 cause shown, or by the court on its own motion.
26 (4) The Idaho rules of civil procedure apply to judicial proceedings
27 under this chapter only to the extent that they are consistent with this chap-
28 ter, unless otherwise provided by Idaho Code, or ordered by the court under
29 section 15-8-102, Idaho Code, or provided by other applicable Idaho rules of
30 civil procedure.
31 15-8-203. PROCEDURAL RULES. The Idaho rules of civil procedure apply to
32 all proceedings under part 2 of this chapter.
33 15-8-204. NOTICE IN JUDICIAL PROCEEDINGS UNDER THIS CHAPTER REQUIRING
34 NOTICE. (1) Subject to section 15-8-207, Idaho Code, in all judicial proceed-
35 ings under this chapter that require notice, the notice must be personally
36 served on or mailed to all parties or the parties' virtual representatives at
37 least fourteen (14) days before the hearing on the petition, unless a differ-
38 ent period is provided by statute or ordered by the court. The date of service
39 shall be determined under the Idaho rules of civil procedure.
40 (2) Proof of the service or mailing required in this section must be made
41 by affidavit or declaration filed at or before the hearing.
42 15-8-205. APPLICATION OF DOCTRINE OF VIRTUAL REPRESENTATION. (1) This
43 section is intended to adopt the common law concept of virtual representation.
44 This section supplements the common law relating to the doctrine of virtual
45 representation and the provisions of section 15-1-403, Idaho Code, and shall
46 not be construed as limiting the application of that common law doctrine or
47 the provisions of section 15-1-403, Idaho Code.
48 (2) Any notice requirement in this chapter is satisfied if notice is
49 given as follows:
50 (a) Where an interest in an estate, trust, or nonprobate asset, or an
5
1 interest that may be affected by a power of attorney, has been given to
2 persons who comprise a certain class upon the happening of a certain
3 event, notice may be given to the living persons who would constitute the
4 class if the event had happened immediately before the commencement of the
5 proceedings requiring notice, and the persons shall virtually represent
6 all other members of the class;
7 (b) Where an interest in an estate, trust, or nonprobate asset, or an
8 interest that may be affected by a power of attorney, has been given to a
9 living person, and the same interest, or a share in it, is to pass to the
10 surviving spouse or to persons who are, or might be, the distributees,
11 heirs, issue, or other kindred of that living person upon the happening of
12 a future event, notice may be given to that living person, and the living
13 person shall virtually represent the surviving spouse, distributees,
14 heirs, issue, or other kindred of the person; and
15 (c) Except as otherwise provided in this subsection (2), where an inter-
16 est in an estate, trust, or nonprobate asset, or an interest that may be
17 affected by a power of attorney, has been given to a person or a class of
18 persons, or both, upon the happening of any future event, and the same
19 interest or a share of the interest is to pass to another person or class
20 of persons, or both, upon the happening of an additional future event,
21 notice may be given to the living person or persons who would take the
22 interest upon the happening of the first event, and the living person or
23 persons shall virtually represent the persons and classes of persons who
24 might take upon the happening of the additional future event.
25 (3) A party is not virtually represented by a person receiving notice if
26 a conflict of interest involving the matter is known to exist between the
27 notified person and the party.
28 (4) An action taken by the court is conclusive and binding upon each per-
29 son receiving actual or constructive notice or who is otherwise virtually rep-
30 resented.
31 15-8-206. SPECIAL NOTICE. Nothing in this chapter eliminates the require-
32 ment to give notice to a person who has filed a demand for notice pursuant to
33 section 15-3-204, Idaho Code.
34 15-8-207. WAIVER OF NOTICE. Notwithstanding any other provision of this
35 chapter, notice of a hearing does not need to be given to a legally competent
36 person who has waived in writing notice of the hearing in person or by attor-
37 ney, or who has appeared at the hearing without objecting to the lack of
38 proper notice or personal jurisdiction. The waiver of notice may apply either
39 to a specific hearing or to any and all hearings and proceedings to be held,
40 in which event the waiver of notice is of continuing effect unless subse-
41 quently revoked by the filing of a written notice of revocation of the waiver
42 and the mailing of a copy of the notice of revocation of the waiver to the
43 other parties. Unless notice of a hearing is required to be given by publica-
44 tion, if all persons entitled to notice of the hearing waive the notice or
45 appear at the hearing without objecting to the lack of proper notice or per-
46 sonal jurisdiction, the court may hear the matter immediately. A guardian or
47 conservator or a guardian ad litem may make the waivers on behalf of the inca-
48 pacitated person, and a trustee may make the waivers on behalf of any compe-
49 tent or incapacitated beneficiary of the trust. A consul or other representa-
50 tive of a foreign government, whose appearance has been entered as provided by
51 law on behalf of any person residing in a foreign country, may make the waiver
52 of notice on behalf of the person.
6
1 15-8-208. COST -- ATTORNEY'S FEES. (1) Either the district court or the
2 court on appeal may, in its discretion, order costs, including reasonable
3 attorney's fees, to be awarded to any party:
4 (a) From any party to the proceedings;
5 (b) From the assets of the estate or trust involved in the proceedings;
6 or
7 (c) From any nonprobate asset that is the subject of the proceedings. The
8 court may order the costs to be paid in such amount and in such manner as
9 the court determines to be equitable.
10 (2) This section applies to all proceedings governed by this chapter
11 including, but not limited to, proceedings involving trusts, decedent's
12 estates and properties, and guardianship matters. Except as provided in sec-
13 tion 12-117, Idaho Code, this section shall not be construed as being limited
14 by any other specific statutory provision providing for the payment of costs,
15 unless such statute specifically provides otherwise.
16 15-8-209. APPOINTMENT OF A GUARDIAN AD LITEM. (1) The court, upon its own
17 motion or upon request of one (1) or more of the parties, at any stage of a
18 judicial proceeding or at any time in a nonjudicial resolution procedure, may
19 appoint a guardian ad litem to represent the interests of a minor, or incapac-
20 itated, or unborn, or unascertained person, or any person whose identity or
21 address is unknown, or a designated class of persons who are not ascertained
22 or are not in being. If not precluded by a conflict of interest, a guardian ad
23 litem may be appointed to represent several persons or interests.
24 (2) The court appointed guardian ad litem supersedes the special repre-
25 sentative if so provided in the court order.
26 (3) The court may appoint the guardian ad litem at an ex parte hearing,
27 or the court may order a hearing as provided in section 15-8-201, Idaho Code,
28 with notice as provided in this section and section 15-8-204, Idaho Code.
29 (4) The guardian ad litem is entitled to reasonable compensation for ser-
30 vices. Such compensation is to be paid from the principal of the estate or
31 trust whose beneficiaries are represented.
32 15-8-210. TRIAL BY JURY. If a party is entitled to a trial by jury and a
33 jury is demanded, and the issues are not sufficiently made up by the written
34 pleadings on file, the court, on due notice, shall settle and frame the issues
35 to be tried. Any jury for any proceeding under this part 2 shall consist of
36 six (6) jurors. If a jury is not demanded, the court shall try the issues, and
37 sign and file its findings and decision in writing, as provided for in civil
38 actions.
39 15-8-211. EXECUTION ON JUDGMENTS. Judgment on the issues, as well as for
40 costs, may be entered and enforced by execution or otherwise by the court as
41 in civil actions.
42 15-8-212. APPELLATE REVIEW. An interested party may seek appellate review
43 of a final order, judgment, or decree of the court respecting a judicial pro-
44 ceeding under this chapter. The review must be done in the manner and way pro-
45 vided by law for appeals in civil actions.
46 PART 3.
47 NONJUDICIAL RESOLUTION
48 15-8-301. PURPOSE. The purpose of this part 3 is to provide a binding
49 nonjudicial procedure to resolve matters through written agreements among the
7
1 parties interested in the estate or trust. The procedure is supplemental to,
2 and may not derogate from, any other proceeding or provision authorized by
3 statute or the common law.
4 15-8-302. BINDING AGREEMENT. Sections 15-8-301 through 15-8-305, Idaho
5 Code, shall be applicable to the resolution of any matter, as defined in sec-
6 tion 15-8-103, Idaho Code, other than matters subject to chapter 5, title 15,
7 Idaho Code, or a trust for a minor or other incapacitated person created at
8 its inception by the judgment or decree of a court unless the judgment or
9 decree provides that sections 15-8-301 through 15-8-305, Idaho Code, shall be
10 applicable. If all parties agree to a resolution of any such matter, then the
11 agreement shall be evidenced by a written agreement signed by all parties.
12 Subject to the provisions of section 15-8-304, Idaho Code, the written agree-
13 ment shall be binding and conclusive on all persons interested in the estate
14 or trust. The agreement shall identify the subject matter of the dispute and
15 the parties. If the agreement or a memorandum of the agreement is to be filed
16 with the court under section 15-8-303, Idaho Code, the agreement may, but need
17 not, include provisions specifically addressing jurisdiction, governing law,
18 the waiver of notice of the filing and the discharge of any special represen-
19 tative who has acted with respect to the agreement. If a party who virtually
20 represents another person under section 15-8-205, Idaho Code, signs the agree-
21 ment, then the party's signature constitutes the signature of all persons whom
22 the party virtually represents, and all the virtually represented persons
23 shall be bound by the agreement.
24 15-8-303. ENTRY OF AGREEMENT WITH COURT -- EFFECT. (1) Any party, or a
25 party's legal representative, may file the written agreement or a memorandum
26 summarizing the written agreement with the court having jurisdiction over the
27 estate or trust. However, if a special representative is a party to the writ-
28 ten agreement, the agreement or a memorandum of its terms may not be filed
29 within thirty (30) days of the agreement's execution by all parties unless the
30 written consent of the special representative is filed along with, or included
31 within, the provision of such agreement or memorandum. The agreement or a mem-
32 orandum of its terms may be filed after a special representative has commenced
33 a proceeding under section 15-8-304, Idaho Code, only after the court has
34 determined that the special representative has adequately represented and pro-
35 tected the parties represented. Failure to complete any action authorized or
36 required under this subsection does not cause the written agreement to be
37 ineffective and the agreement is nonetheless binding and conclusive on all
38 persons interested in the estate or trust.
39 (2) On filing the agreement or memorandum, the agreement will be deemed
40 approved by the court and is equivalent to a final court order binding on all
41 persons interested in the estate or trust.
42 15-8-304. JUDICIAL APPROVAL OF AGREEMENT. Within thirty (30) days of exe-
43 cution of the agreement by all parties, the special representative may notice
44 a hearing for presentation of the written agreement to a court of competent
45 jurisdiction. The special representative shall provide notice of the time and
46 date of the hearing to each party to the agreement whose address is known,
47 unless such notice has been waived. Proof of mailing or delivery of the notice
48 must be filed with the court. At such hearing, the court shall review the
49 agreement on behalf of the parties represented by the special representative.
50 The court shall determine whether or not the interests of the represented par-
51 ties have been adequately represented and protected, and an order declaring
52 the court's determination shall be entered. If the court determines that such
8
1 interests have not been adequately represented and protected, the agreement
2 shall be declared of no effect.
3 15-8-305. SPECIAL REPRESENTATIVE.
4 (1) (a) The personal representative or trustee may petition the court
5 having jurisdiction over the matter for the appointment of a special rep-
6 resentative to represent a person who is interested in the estate or trust
7 and:
8 (i) Who is a minor;
9 (ii) Who is incompetent or disabled;
10 (iii) Who is yet unborn or unascertained; or
11 (iv) Whose identity or address is unknown.
12 The petition may be heard by the court without notice.
13 (b) In appointing the special representative, the court shall give due
14 consideration and deference to any nomination(s) made in the petition, the
15 special skills required in the representation, and the need for a repre-
16 sentative who will act independently and prudently. The nomination of a
17 person as special representative by the personal representative or trustee
18 and the person's willingness to serve as special representative are not
19 grounds by themselves for finding a lack of independence; provided how-
20 ever, the court may consider any interests that the nominating fiduciary
21 may have in the estate or trust in making the determination.
22 (c) The special representative may enter into a binding agreement on
23 behalf of the person or beneficiary. The special representative may be
24 appointed for more than one (1) person or class of persons if the inter-
25 ests of such persons or class are not in conflict. The petition shall be
26 verified. The petition and order appointing the special representative may
27 be in the following forms:
28 CAPTION OF CASE PETITION FOR APPOINTMENT OF
29 SPECIAL REPRESENTATIVE UNDER
30 SECTION 15-8-305, IDAHO CODE
31 The undersigned petitioner petitions the court for the appointment of a spe-
32 cial representative in accordance with section 15-8-305, Idaho Code, and rep-
33 resents to the court as follows:
34 1. Petitioner. Petitioner ............... is the qualified and presently act-
35 ing (personal representative) (trustee) of the above (estate) (trust) having
36 been named (personal representative) (trustee) under (describe will and refer-
37 ence probate order or describe trust instrument.)
38 2. Issue Concerning (Estate) (Trust) Administration. A question concerning
39 administration of the (estate) (trust) has arisen as to (describe issue, for
40 example, "Related to interpretation, construction, administration, distribu-
41 tion.") The issues are appropriate for determination under section 15-8-305,
42 Idaho Code.
43 3. Beneficiaries. The beneficiaries of the (estate) (trust) include persons
44 who are unborn, unknown, or unascertained persons, or who are under eighteen
45 (18) years of age: (list, with status of each.)
46 4. Special Representative. The nominated special representative ........... is
47 a lawyer licensed to practice before the courts of this state or an individual
48 with special skills or training in the administration of estates or trusts.
9
1 The nominated special representative does not have an interest in the affected
2 estate or trust and is not related to any person interested in the estate or
3 trust. The nominated special representative is willing to serve. The peti-
4 tioner has no reason to believe that the nominated special representative will
5 not act in an independent and prudent manner and in the best interests of the
6 represented parties. (It is recommended that the petitioner also include
7 information specifying the particular skills of the nominated special repre-
8 sentative that relate to the matter in issue.)
9 5. Resolution. Petitioner desires to achieve a resolution of the questions
10 that have arisen concerning the (estate) (trust). Petitioner believes that
11 proceeding in accordance with the procedures permitted under sections 15-8-301
12 through 15-8-305, Idaho Code, would be in the best interests of the (estate)
13 (trust) and the beneficiaries.
14 6. Request of Court. Petitioner requests that (............... , an attorney
15 licensed to practice in the state of Idaho,) (OR) (................. , an
16 individual with special skills or training in the administration of estates or
17 trusts,) be appointed special representative for those beneficiaries who are
18 not yet adults, as well as for the unborn, unknown, and/or unascertained bene-
19 ficiaries, as provided under section 15-8-305, Idaho Code.
20 DATED this ....... date of ..............., .............
21 .................................................
22 (Petitioner or Petitioner's Legal Representative)
23 VERIFICATION
24 I certify under penalty of perjury under the laws of the state of Idaho that
25 the foregoing is true and correct.
26 DATED .............., ..........., at ......................, Idaho.
27 .............................................
28 (Petitioner or other person having knowledge)
29 CAPTION OF CASE ORDER FOR APPOINTMENT OF
30 SPECIAL REPRESENTATIVE UNDER
31 SECTION 15-8-305, IDAHO CODE
32 THIS MATTER having come on for hearing before this Court on Petition for
33 Appointment of Special Representative filed herein, and it appearing that it
34 would be in the best interests of the (estate) (trust) described in the Peti-
35 tion to appoint a special representative to address the issues that have
36 arisen concerning the (estate) (trust) and the Court finding that the facts
37 stated in the Petition are true, now, therefore,
38 IT IS ORDERED that ....................... is appointed under section
39 15-8-305, Idaho Code, as special representative for the (estate) (trust) bene-
40 ficiaries who are not yet adult age, and for unborn, unknown, or unascertained
41 beneficiaries to represent their respective interests in the (estate) (trust)
42 as provided in section 15-8-305, Idaho Code. The special representative shall
43 be discharged of responsibility with respect to the (estate) (trust) at such
44 time as a written agreement is executed resolving the present issues, all as
10
1 provided in that statute, or if an agreement is not reached within six (6)
2 months from entry of this Order, the special representative appointed under
3 this Order shall be discharged of responsibility, subject to subsequent reap-
4 pointment under section 15-8-305, Idaho Code.
5 DONE IN OPEN COURT this ........ day of ..................., .........
6 ......................................
7 JUDGE
8 (2) Upon appointment by the court, the special representative shall file
9 a sworn certificate made upon penalty of perjury that he or she:
10 (a) Is not interested in the estate or trust;
11 (b) Is not related to any person interested in the estate or trust;
12 (c) Is willing to serve; and
13 (d) Will act independently, prudently, and in the best interests of the
14 represented parties.
15 (3) The special representative must be a lawyer licensed to practice
16 before the courts of this state, or an individual with special skills or
17 training in the administration of estates or trusts. The special representa-
18 tive may not have an interest in the affected estate or trust, and may not be
19 related to a person interested in the estate or trust. The special representa-
20 tive is entitled to reasonable compensation for services, which must be paid
21 from the principal of the estate or trust whose beneficiaries are represented.
22 (4) The special representative shall be discharged from any responsibil-
23 ity and shall have no further duties with respect to the estate or trust or
24 with respect to any person interested in the estate or trust, on the earlier
25 of:
26 (a) The expiration of six (6) months from the date the special represen-
27 tative was appointed, unless the order appointing the special representa-
28 tive provides otherwise; or
29 (b) The execution of the written agreement by all parties or their vir-
30 tual representatives.
31 (5) Any action against a special representative must be brought before
32 the earlier of:
33 (a) One (1) year from the discharge of the special representative; or
34 (b) The entry of an order by a court of competent jurisdiction under sec-
35 tion 15-8-304, Idaho Code, approving the written agreement executed by all
36 interested parties in accordance with the provisions of section 15-8-302,
37 Idaho Code.
STATEMENT OF PURPOSE
RS 14731
The purpose of this legislation is to provide a non-judicial
method for the resolution of disputes and other matters involving
trusts and estates. This legislation also provides for judicial
resolution of disputes if a non-judicial resolution is not
obtained. This legislation represents a continuation by the
Legislative Committee of the Taxation, Probate & Trust Section of
the Idaho State Bar of its ongoing examination of the Uniform
Trust Act, and the adoption of specific legislation contained
therein, in conjunction with the Idaho Bankers Association and
with the Trust & Estate Professionals of Idaho, Inc., an Idaho
nonprofit corporation representing a wide range of professionals
in the area of trusts and estates. Much of the language in this
bill comes from existing statutes in the State of Washington.
FISCAL IMPACT
This legislation will have no fiscal impact.
CONTACT:
Name: Robert L. Aldridge
Trust & Estate Professionals of Idaho, Inc.
Telephone: Office: 208-336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1071