Print Friendly SENATE BILL NO. 1328
– Testacy proceedings, notice
SENATE BILL NO. 1328
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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
]]]] 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
2 RELATING TO FORMAL TESTACY PROCEEDINGS; AMENDING SECTION 15-3-403, IDAHO CODE,
3 TO REMOVE A NOTICE BY PUBLICATION REQUIREMENT AND TO MAKE TECHNICAL COR-
4 RECTIONS; AND AMENDING SECTION 15-3-412, IDAHO CODE, TO CORRECT A CODE
5 REFERENCE AND TO MAKE TECHNICAL CHANGES.
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:
9 15-3-403. FORMAL TESTACY PROCEEDING -- NOTICE OF HEARING ON PETITION.
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-
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
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:
1 15-3-412. FORMAL TESTACY PROCEEDINGS -- EFFECT OF ORDER -- VACATION. Sub-
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
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
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
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
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.
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