2008 Legislation
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SENATE BILL NO. 1328<br /> – Testacy proceedings, notice


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Bill Status

S1328................................................by JUDICIARY AND RULES
TESTACY PROCEEDINGS - Amends existing law relating to formal testacy
proceedings to remove a notice by publication requirement.

01/22    Senate intro - 1st rdg - to printing
01/23    Rpt prt - to Jud
02/05    Rpt out - rec d/p - to 2nd rdg
02/06    2nd rdg - to 3rd rdg
02/08    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
      Cameron, Coiner, Corder, Darrington, Fulcher, Gannon, Geddes, Goedde,
      Hammond, Heinrich, Hill, Kelly, Keough, Langhorst, Little, Lodge,
      Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
      Schroeder, Siddoway, Stegner, Stennett, Werk
      NAYS -- None
      Absent and excused -- Davis, Jorgenson
    Floor Sponsor - Hill
    Title apvd - to House
02/11    House intro - 1st rdg - to Jud
02/26    Rpt out - rec d/p - to 2nd rdg
02/27    2nd rdg - to 3rd rdg
03/03    3rd rdg - PASSED - 65-0-5
      AYES -- Anderson, Andrus, Barrett, Bedke, Bell, Bilbao, Black, Block,
      Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon, Chavez,
      Chew, Clark, Collins, Crane, Durst, Eskridge, Hagedorn, Hart,
      Harwood, Henderson, Jaquet, Killen, King, Kren, Labrador, Lake,
      LeFavour, Loertscher, Marriott, Mathews, McGeachin, Mortimer, Moyle,
      Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ringo,
      Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(02),
      Shepherd(08), Shirley, Shively, Smith(24), Smith(30), Snodgrass,
      Thayn, Thomas, Trail, Vander Woude, Wills, Wood(27), Wood(35)
      NAYS -- None
      Absent and excused -- Bayer, Henbest, Luker, Stevenson, Mr. Speaker
    Floor Sponsor - Smith(24)
    Title apvd - to Senate
03/04    To enrol
03/05    Rpt enrol - Pres signed
03/06    Sp signed
03/07    To Governor
03/11    Governor signed
         Session Law Chapter 75
         Effective: 07/01/08

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                                       IN THE SENATE

                                    SENATE BILL NO. 1328

                              BY JUDICIARY AND RULES COMMITTEE

  1                                        AN ACT

  6    Be It Enacted by the Legislature of the State of Idaho:

  7        SECTION 1.  That Section 15-3-403, Idaho Code, be, and the same is  hereby
  8    amended to read as follows:

 10    (a1) Upon commencement of a formal testacy proceeding, the court shall  fix  a
 11    time  and  place of hearing. Notice shall be given in the manner prescribed by
 12    section 15-1-401 of this code by the petitioner to the persons herein  enumer-
 13    ated and to any additional person who has filed a demand for notice under sec-
 14    tion 15-3-204 of this code.
 15        Notice  shall  be  given  to  the following persons: the surviving spouse,
 16    children, and other heirs of the decedent, the devisees and executors named in
 17    any will that is being, or has been, probated, or offered for informal or for-
 18    mal probate in the county, or that is known by the  petitioner  to  have  been
 19    probated,  or  offered  for informal or formal probate elsewhere, and any per-
 20    sonal representative of the decedent whose appointment  has  not  been  termi-
 21    nated. Notice may be given to other persons. In addition, the petitioner shall
 22    give  notice  by  publication  to all unknown persons and to all known persons
 23    whose addresses are unknown who have any interest in the matters  being  liti-
 24    gated.
 25        (b2)  If  it  appears  by  the  petition or otherwise that the fact of the
 26    death of the alleged decedent may be in doubt, or on the written demand of any
 27    interested person, a copy of the notice of the hearing on said petition  shall
 28    be  sent by registered mail to the alleged decedent at his last known address.
 29    The court shall direct the petitioner to report the results of,  or  make  and
 30    report  back concerning, a reasonably diligent search for the alleged decedent
 31    in any manner that may seem advisable, including any or all of  the  following
 32    methods:
 33        (1a)  bBy  inserting  in  one  (1)  or  more suitable periodicals a notice
 34        requesting information from any person having knowledge of the whereabouts
 35        of the alleged decedent;
 36        (2b)  bBy notifying law enforcement officials and public welfare  agencies
 37        in appropriate locations of the disappearance of the alleged decedent;
 38        (3c)  bBy  engaging  the  services  of  an  investigator. The costs of any
 39        search so directed shall be paid by the petitioner if there is no adminis-
 40        tration or by the estate of the decedent in case there is administration.

 41        SECTION 2.  That Section 15-3-412, Idaho Code, be, and the same is  hereby
 42    amended to read as follows:


  2    ject  to  appeal  and  subject  to  vacation as provided herein and in section
  3    15-3-413 of this Ppart, a formal testacy order under sections 15-3-409 through
  4    15-3-411 of this Ppart, including an order that the  decedent  left  no  valid
  5    will  and  determining  heirs,  is final as to all persons with respect to all
  6    issues concerning the decedent's estate that the  court  considered  or  might
  7    have  considered incident to its rendition relevant to the question of whether
  8    the decedent left a valid will, and to  the  determination  of  heirs,  except
  9    that:
 10        (a1)  The court shall entertain a petition for modification or vacation of
 11    its  order and probate of another will of the decedent if it is shown that the
 12    proponents of the later-offered will were unaware of its existence at the time
 13    of the earlier proceeding or were unaware of the earlier proceeding  and  were
 14    given no notice thereof, except by publication.
 15        (b2)  If  intestacy  of  all  or  part of the estate has been ordered, the
 16    determination of heirs of the decedent may be reconsidered if it is shown that
 17    one (1) or more persons were omitted from the determination  and  it  is  also
 18    shown  that  the  persons  were unaware of their relationship to the decedent,
 19    were unaware of his death or were given no notice of any proceeding concerning
 20    his estate, except by publication.
 21        (c3)  A petition for vacation under either subsection (a1)    or  (b2)  of
 22    this section must be filed prior to the earlier of the following time limits:
 23        (1a)  iIf a personal representative has been appointed for the estate, the
 24        time of entry of any order approving final distribution of the estate, or,
 25        if  the  estate is closed by statement, six (6) months after the filing of
 26        the closing statement.
 27        (2b)  wWhether or not a personal representative has been appointed for the
 28        estate of the decedent, the time prescribed by section  15-3-108  of  this
 29        code  when  it is no longer possible to initiate an original proceeding to
 30        probate a will of the decedent.
 31        (3c)  tTwelve (12) months after the  entry  of  the  order  sought  to  be
 32        vacated.
 33        (d4)  The order originally rendered in the testacy proceeding may be modi-
 34    fied  or vacated, if appropriate under the circumstances, by the order of pro-
 35    bate of the later-offered will or the order redetermining heirs.
 36        (e5)  The finding of the fact of death is conclusive  as  to  the  alleged
 37    decedent  only  if notice of the hearing on the petition in the formal testacy
 38    proceeding was sent by registered or certified mail addressed to  the  alleged
 39    decedent  at  his  last  known address and the court finds that a search under
 40    subsection (b2) of section 15-3-403 of this Ppart was made.
 41        If the alleged decedent is not dead, even if notice was  sent  and  search
 42    was  made, he may recover estate assets in the hands of the personal represen-
 43    tative. In addition to any remedies available to the alleged decedent by  rea-
 44    son  of  any fraud or intentional wrongdoing, the alleged decedent may recover
 45    any estate or its proceeds from distributees that is in their  hands,  or  the
 46    value  of distributions received by them, to the extent that any recovery from
 47    distributees is equitable in view of all of the circumstances.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                             RS 17510

In formal probate proceedings, Section 15-3-403(a) provides that
notice of hearing be given as provided in Section 15-1-401, Idaho
Code, the general notice provisions of the Idaho Probate Code.
Those general notice provisions provide, in Section 15-1-401(a),

     "(3) if the address, or identity of any person is not known
     and cannot be ascertained with reasonable diligence, by
     publishing at least once a week for three (3) consecutive
     weeks, a copy thereof in a newspaper having general
     circulation in the county where the hearing is to be held, the
     last publication of which is to be at least ten (10) days
     before the time set for the hearing."

Existing Section 15-3-403(a), however, also states that:
     "In addition, the petitioner shall give notice by publication
     to all unknown persons and to all known persons whose
     addresses are unknown who have any interest in the matters
     being litigated."

This duplicates the notice provisions already required by Section
15-1-401(a)(3), but with somewhat different language, which can
lead to confusion in the type of publication which may be needed,
and whether publication is needed at all.  Currently, only Ada
County appears to be requiring the notice which is stricken by this
bill, and that only recently.  Striking the language, as done in
this bill, will both eliminate confusion and will conform to the
actual practice throughout the State in formal probate proceedings.
Striking the language also allows flexibility in determining
whether a general notice publication is needed.

                          FISCAL NOTE

This bill will have no fiscal impact.

Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.   
Telephone: office: (208) 336-9880  Cell: (208) 631-2481

STATEMENT OF PURPOSE/FISCAL NOTE                          S 1328   

REVISED             REVISED             REVISED          REVISED