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S1324aa..............................................by JUDICIARY AND RULES
NONPROBATE TRANSFERS - Adds to existing law relating to nonprobate
transfers to provide for community property with right of survivorship in
real property; and to provide for termination of community property with
right of survivorship in real property.
01/22 Senate intro - 1st rdg - to printing
01/23 Rpt prt - to Jud
02/05 Rpt out - to 14th Ord
02/12 Rpt out amen - to engros
02/13 Rpt engros - 1st rdg - to 2nd rdg as amen
02/14 2nd rdg - to 3rd rdg as amen
02/19 3rd rdg as amen - PASSED - 31-0-4
AYES -- Andreason, Bair, Bastian, Broadsword, Burkett, Cameron,
Coiner, Darrington, Davis, Fulcher, Geddes, Goedde, Hammond,
Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge,
Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Siddoway, Stegner, Werk
NAYS -- None
Absent and excused -- Bilyeu, Corder, Gannon, Stennett
Floor Sponsor - Hill
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
03/12 3rd rdg - PASSED - 68-0-2
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
Block, Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon,
Chavez, Chew, Clark, Collins, Durst, Eskridge, Hagedorn, Hart,
Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador,
Lake, LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin,
Mortimer, Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence,
Raybould, Ringo, Roberts, Rusche, Sayler, Schaefer, Shepherd(02),
Shepherd(08), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
Stevenson, Thayn, Thomas, Trail, Vander Woude, Wills, Wood(27),
Wood(35), Mr. Speaker
NAYS -- None
Absent and excused -- Crane, Ruchti
Floor Sponsor - Smith(24)
Title apvd - to Senate
03/13 To enrol - Rpt enrol - Pres signed
03/14 Sp signed
03/17 To Governor
03/18 Governor signed
Session Law Chapter 175
Effective: 07/01/08
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1324 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO NONPROBATE TRANSFERS; AMENDING CHAPTER 6, TITLE 15, IDAHO CODE, BY 3 THE ADDITION OF A NEW PART 4, CHAPTER 6, TITLE 15, IDAHO CODE, TO PROVIDE 4 FOR COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY AND TO 5 PROVIDE FOR TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP 6 IN REAL PROPERTY. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Chapter 6, Title 15, Idaho Code, be, and the same is 9 hereby amended by the addition thereto of a NEW PART, to be known and desig- 10 nated as Part 4, Chapter 6, Title 15, Idaho Code, and to read as follows: 11 PART 4. COMMUNITY PROPERTY RIGHT OF SURVIVORSHIP 12 15-6-401. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY. 13 Any estate in real property held by a husband and wife as community property 14 with right of survivorship shall, upon the death of one (1) spouse, transfer 15 and belong to the surviving spouse. An estate in community property with right 16 of survivorship is created by a grant, transfer or devise to a husband and 17 wife, when expressly declared in the grant, transfer or devise to be an estate 18 in community property with right of survivorship. An estate in community prop- 19 erty with right of survivorship may also be created by grant or transfer from 20 a husband and wife, when holding title as community property or otherwise, to 21 themselves or from either husband or wife to both husband and wife. 22 15-6-402. TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN 23 REAL PROPERTY. (1) In the case of real property owned by a husband and wife as 24 community property with right of survivorship pursuant to section 15-6-401, 25 Idaho Code, the right of survivorship is extinguished on the recordation in 26 the office of the recorder of the county or counties where the real property 27 is located an affidavit entitled "affidavit terminating right of survivorship" 28 executed by either spouse under oath which sets forth: 29 (a) A stated intent by the spouse to terminate the survivorship right; 30 (b) A description in the instrument by which the right of survivorship 31 was created, including the date the instrument was recorded and the county 32 recorder's book and page or instrument reference number; and 33 (c) The legal description of the real property affected by the affidavit. 34 The recordation shall not extinguish the community interest of either spouse. 35 (2) Divorce, or annulment of the marriage of, the husband and wife, 36 unless otherwise ordered by the court in which the divorce is granted, severs 37 the interests of the former spouses in property held by them at the time of 38 the divorce or annulment as community property with the right of survivorship 39 and transforms the interests of the former spouses into tenancies in common. A 40 severance under this section does not affect any third party interest in prop- 41 erty acquired for value and in good faith reliance on an apparent title by 2 1 survivorship in the survivor of the former spouses unless a writing declaring 2 the severance has been noted, registered, filed or recorded in records appro- 3 priate to the kind and location of the property that a person relied upon as 4 evidence of ownership in the ordinary course of transactions involving that 5 property.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008Moved by Hill Seconded by Richardson IN THE SENATE SENATE AMENDMENT TO S.B. NO. 1324 1 AMENDMENT TO SECTION 1 2 On page 1 of the printed bill, in line 21, following "husband and wife" 3 insert: "when expressly declared in the grant, transfer or devise to be an 4 estate in community property with right of survivorship".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1324, As Amended BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO NONPROBATE TRANSFERS; AMENDING CHAPTER 6, TITLE 15, IDAHO CODE, BY 3 THE ADDITION OF A NEW PART 4, CHAPTER 6, TITLE 15, IDAHO CODE, TO PROVIDE 4 FOR COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY AND TO 5 PROVIDE FOR TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP 6 IN REAL PROPERTY. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Chapter 6, Title 15, Idaho Code, be, and the same is 9 hereby amended by the addition thereto of a NEW PART, to be known and desig- 10 nated as Part 4, Chapter 6, Title 15, Idaho Code, and to read as follows: 11 PART 4. COMMUNITY PROPERTY RIGHT OF SURVIVORSHIP 12 15-6-401. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY. 13 Any estate in real property held by a husband and wife as community property 14 with right of survivorship shall, upon the death of one (1) spouse, transfer 15 and belong to the surviving spouse. An estate in community property with right 16 of survivorship is created by a grant, transfer or devise to a husband and 17 wife, when expressly declared in the grant, transfer or devise to be an estate 18 in community property with right of survivorship. An estate in community prop- 19 erty with right of survivorship may also be created by grant or transfer from 20 a husband and wife, when holding title as community property or otherwise, to 21 themselves or from either husband or wife to both husband and wife when 22 expressly declared in the grant, transfer or devise to be an estate in commu- 23 nity property with right of survivorship. 24 15-6-402. TERMINATION OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN 25 REAL PROPERTY. (1) In the case of real property owned by a husband and wife as 26 community property with right of survivorship pursuant to section 15-6-401, 27 Idaho Code, the right of survivorship is extinguished on the recordation in 28 the office of the recorder of the county or counties where the real property 29 is located an affidavit entitled "affidavit terminating right of survivorship" 30 executed by either spouse under oath which sets forth: 31 (a) A stated intent by the spouse to terminate the survivorship right; 32 (b) A description in the instrument by which the right of survivorship 33 was created, including the date the instrument was recorded and the county 34 recorder's book and page or instrument reference number; and 35 (c) The legal description of the real property affected by the affidavit. 36 The recordation shall not extinguish the community interest of either spouse. 37 (2) Divorce, or annulment of the marriage of, the husband and wife, 38 unless otherwise ordered by the court in which the divorce is granted, severs 39 the interests of the former spouses in property held by them at the time of 40 the divorce or annulment as community property with the right of survivorship 41 and transforms the interests of the former spouses into tenancies in common. A 2 1 severance under this section does not affect any third party interest in prop- 2 erty acquired for value and in good faith reliance on an apparent title by 3 survivorship in the survivor of the former spouses unless a writing declaring 4 the severance has been noted, registered, filed or recorded in records appro- 5 priate to the kind and location of the property that a person relied upon as 6 evidence of ownership in the ordinary course of transactions involving that 7 property.
STATEMENT OF PURPOSE
RS: 17500
Idaho law allows for real estate to be held as "Joint Tenants with
Right of Survivorship" ("JTWROS") and that method is widely used in
this State. This allows transfer of the real estate to the
surviving joint tenant by recordation of a death certificate in the
county where the real estate is held, thereby avoiding a probate of
such real estate. However, there are clear tax and other
advantages to holding real estate in community property status.
Holding property as JTWROS can be interpreted to lose the community
property status of the real estate and therefore holding community
property as JTWROS property to avoid probate is risky. A husband
and wife can record a Devolution Agreement to pass the real estate
at death, somewhat like JTWROS property, but the method is
cumbersome and limited, and does not cover all potential questions
that may arise. Arizona, like Idaho a community property state,
has had "Community Property With Right of Survivorship" for a
number of years, without problems being created. The language of
this statute is taken almost verbatim from the Arizona statute,
with modifications as proposed by real estate professionals in
Idaho.
This Bill will allow spouses to pass property at the death of the
first to die spouse without a probate or summary administration,
while keeping the community property status of the property clear.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Telephone: office: (208) 336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1324