2006 Legislation
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SENATE BILL NO. 1328 – Guardian/minor, testamentory appt


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Bill Status

S1328................................................by JUDICIARY AND RULES
GUARDIANSHIP - Amends existing law to revise provisions applicable to the
testamentary appointment of a guardian for a minor.
01/30    Senate intro - 1st rdg - to printing
01/31    Rpt prt - to Jud
02/09    Rpt out - rec d/p - to 2nd rdg
02/10    2nd rdg - to 3rd rdg
02/17    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
      Gannon, Geddes, Goedde, Hill, Kelly, Keough, Langhorst, Little,
      Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
      Schroeder, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Fulcher, Jorgenson
    Floor Sponsor - Lodge
    Title apvd - to House
02/20    House intro - 1st rdg - to Jud
03/06    Rpt out - rec d/p - to 2nd rdg
03/07    2nd rdg - to 3rd rdg
03/16    3rd rdg - PASSED - 63-0-7
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bell,
      Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon,
      Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Hart, Harwood, Henbest, Henderson,
      Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews,
      McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pence,
      Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sayler, Schaefer,
      Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(24), Smylie,
      Snodgrass, Stevenson, Trail, Wills, Mr. Speaker
      NAYS -- None
      Absent and excused -- Bedke, Crow, Garrett, Pasley-Stuart, Sali,
      Smith(30), Wood
    Floor Sponsor - Shirley
    Title apvd - to Senate
03/17    To enrol
03/20    Rpt enrol - Pres signed - Sp signed
03/21    To Governor
03/24    Governor signed
         Session Law Chapter 183
         Effective: 07/01/06

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                       IN THE SENATE
                                    SENATE BILL NO. 1328
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  4        MINOR.
  5    Be It Enacted by the Legislature of the State of Idaho:
  6        SECTION 1.  That Section 15-5-202, Idaho Code, be, and the same is  hereby
  7    amended to read as follows:
  8        15-5-202.  TESTAMENTARY  APPOINTMENT OF GUARDIAN OF MINOR. The A parent of
  9    a minor may appoint by will a guardian of an unmarried minor. Subject by will,
 10    subject to the right of the minor under section 15-5-203, Idaho Code.,  a  The
 11    termination  of  parental rights of a parent as to the minor shall also termi-
 12    nate the right of that parent to appoint a guardian for the minor. A testamen-
 13    tary appointment becomes effective upon the filing of  the  guardian's  accep-
 14    tance  in the court in which the will is probated, if, before acceptance, both
 15    parents are dead. If both parents are dead, an effective appointment by the at
 16    the decedent's death, no parent who died later has priority of the  minor  was
 17    alive  who  had a right to appoint a guardian for the minor. This state recog-
 18    nizes a testamentary appointment effected by filing the guardian's  acceptance
 19    under a will probated in another state which is the testator's domicile. Writ-
 20    ten  notice  of acceptance of the appointment must be given by the guardian to
 21    the minor and to the person having his care or to his nearest  adult  relation
 22    immediately upon acceptance of appointment.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                             RS 15820

Existing section 15-5-202 allows a parent of an unmarried minor
to appoint a guardian for the minor, through the will of the
parent.  The will must be probated. Acceptance of the appointment
is made by the guardian filing a notice of acceptance in the
court in which the will is being probated.  There is no hearing
of any kind and no guardian ad litem or attorney is appointed to
represent the child.  Both parents of the minor must be dead at
the time of acceptance, and "[i]f both parents are dead, an
effective appointment by the parent who died later has priority." 
A minor who is age 14 or more may object to the appointment under
section 15-5-203.  The testamentary acceptance of appointment
does not preclude a later formal guardianship petition before a

The language of the existing section leaves several situations
unclear. First, what if the parental rights of one parent have
been terminated as to the minor?  That parent is still alive, and
the language of the existing section would appear to bar an
appointment by the other parent.  Second, if both parents are
dead, what does the phrase "effective appointment by the parent
who died later has priority" mean?  The existing language does
not describe, directly or indirectly, what an ineffective
appointment might be.  Third, what if a parent who made an
appointment by will dies first, and later the second parent dies
without making an appointment by will?  Can a probate for the
first parent be used to make an appointment, under the argument
that the use of the word "priority" means that the failure to
make an appointment leaves a second choice, the appointment by
the predeceased parent?  Probates can be commenced up to three
years after death, so all sorts of combinations of dates of
deaths and dates of probate filings could occur, with no clear
answer in the statute.

The rewritten language clarifies all these situations, and makes
some additional minor wording changes.  First, the new language
makes it clear that the termination of parental rights also
terminates the right to make an appointment by will for the
minor.  Second, an appointment is only effective if, at the time
of death of the appointing parent, no other parent was alive who
had the right to make an appointment by will.  This clarifies the
situation where a parent is still alive but has had his or her
parental rights terminated.  It  also clarifies the situation
where the first to die parent makes an appointment by will, but
the second to die parent does not.  In that case, the appointment
in the first will is not effective, since at the death of the
first to die parent, there was a parent alive who had the right
to make an appointment.  In that case, standard minor
guardianship procedures would be used.  This removes all
questions raised about the order in which the probates of the two
parents are commenced.

The effect of the amendment is to make the section clear and to
remove any potential ambiguities or conflicts in the language of
the section. 

                          FISCAL NOTE

This bill will have no fiscal impact.


Name: Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc. 
Phone: 208-336-9880
Cell:  208-631-2481

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1328