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S1332................................................by JUDICIARY AND RULES PROBATE PROCEEDINGS - Amends existing law relating to probate proceedings to delete a general requirement for publication of notice in a newspaper having general circulation; and to provide a general requirement for publication of notice in a newspaper of general interest. 01/22 Senate intro - 1st rdg - to printing 01/23 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1332 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO NOTICE IN PROBATE PROCEEDINGS; AMENDING SECTION 15-1-401, IDAHO 3 CODE, TO REMOVE A GENERAL REQUIREMENT FOR PUBLICATION OF NOTICE IN A NEWS- 4 PAPER HAVING GENERAL CIRCULATION, TO PROVIDE A GENERAL REQUIREMENT FOR 5 PUBLICATION OF NOTICE IN A NEWSPAPER OF GENERAL INTEREST AND TO MAKE TECH- 6 NICAL CORRECTIONS; AND AMENDING SECTION 15-3-801, IDAHO CODE, TO REMOVE A 7 REQUIREMENT FOR PUBLICATION OF NOTICE TO CREDITORS IN A NEWSPAPER OF GEN- 8 ERAL CIRCULATION AND TO PROVIDE FOR PUBLICATION OF NOTICE TO CREDITORS IN 9 A NEWSPAPER OF GENERAL INTEREST. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 15-1-401, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 15-1-401. NOTICE -- METHOD AND TIME OF GIVING. (a1) If notice of a hear- 14 ing on any petition is required and except for specific notice requirements as 15 otherwise provided, the petitioner shall cause notice of the time and place of 16 hearing of any petition to be given to any interested person or his attorney 17 if he has appeared by attorney or requested that notice be sent to his attor- 18 ney. Notice shall be given: 19 (1a)bBy mailing a copy thereof at least fourteen (14) days before the 20 time set for the hearing by certified, registered or ordinary first class 21 mail addressed to the person being notified at the post office address 22 given in his demand for notice, if any, or at his office or place of resi- 23 dence, if known; 24 (2b)bBy delivering a copy thereof to the person being notified person- 25 ally at least fourteen (14) days before the time set for the hearing; or 26 (3c)iIf the address, or identity of any person is not known and cannot 27 be ascertained with reasonable diligence, by publishing at least once a 28 week for three (3) consecutive weeks, a copy thereof in a newspaperhaving29 of generalcirculationinterest in the county where the hearing is to be 30 held, the last publication of which is to be at least ten (10) days before 31 the time set for the hearing. 32 (b2) The court for good cause shown may provide for a different method or 33 time of giving notice for any hearing. 34 (c3) Proof of the giving of notice shall be made by affidavit or in any 35 other manner permitted by the court at or before the hearing and filed in the 36 proceeding. 37 SECTION 2. That Section 15-3-801, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 15-3-801. NOTICE TO CREDITORS. (a) Unless notice has already been given 40 under this section, a personal representative upon his appointment may publish 41 a notice to creditors once a week for three (3) successive weeks in a news- 2 1 paper of generalcirculationinterest in the county announcing his appointment 2 and address and notifying creditors of the estate to present their claims 3 within four (4) months after the date of the first publication of the notice 4 or be forever barred. 5 (b) A personal representative may give written notice by mail or other 6 delivery to any creditor, notifying the creditor to present his claim within 7 four (4) months after the published notice if given as provided in subsection 8 (a) of this section or within sixty (60) days after the mailing or delivery of 9 the notice, whichever is later, or be forever barred. Written notice must be 10 the notice described in subsection (a) of this section or a similar notice. 11 (c) The personal representative is not liable to any creditor or to any 12 successor of the decedent for giving or failing to give notice under this sec- 13 tion. 14 (d) If medical assistance was paid on behalf of the decedent when the 15 decedent was fifty-five (55) years of age or older, the personal representa- 16 tive shall provide written notice as required by section 56-218(5), Idaho 17 Code.
STATEMENT OF PURPOSE
RS: 17515
The Idaho Probate Code requirements for publication of notice have
always been interpreted, since the adoption of the Idaho Probate
Code on January 1, 1972, by the practitioners in that the probate
field to require that such publication, expressed as a newspaper of
general circulation in the county, allowed publication of any
newspaper of "general interest". All forms, checklists, seminars,
and so forth regarding this question have so stated. Large numbers
of probates and other proceedings under the probate code have
consistently used that method.
Idaho Code 60-106 provides that:
"No legal notice, advertisement or publication of any kind
required or provided by the laws of the state of Idaho, to be
published in a newspaper, shall be published or have any force
or effect, as such, unless the same be published in a
newspaper of general interest published in the state of Idaho,
and which newspaper if published weekly, has been continuously
and uninterruptedly published in the county during a period of
seventy-eight (78) consecutive weeks prior to the first
publication of the notice, or advertisement, and, if published
daily, has been so published as a daily newspaper in the
county during a period of twelve (12) consecutive months prior
to the first publication of the notice or advertisement".
Approximately 11 years ago, Idaho Code Section 60-106 was amended
to provide that, following the above language:
provided that, notwithstanding any other provision of Idaho
laws, the term "newspaper of (or having) general circulation,"
wherever used in Idaho Code as a qualification of newspapers
required to be used for the publication of notice, shall mean
a "newspaper," as defined in this section, that is published
within the boundaries of the governmental entity wherein the
notice is required to be published and which newspaper has the
largest paid circulation among all newspapers published in
that governmental entity as verified by the sworn statement of
average total paid or requested circulation for the preceding
twelve (12) months that was filed on the annual statement of
ownership, management and circulation with the U.S. postal
service on the date immediately preceding the date of the
required publication of notice; excepting that, where no
newspaper is published within the governmental entity required
to publish a notice, the term "newspaper of (or having)
general circulation" shall mean the newspaper with the largest
paid circulation published within any county in which the
governmental entity is located, or the newspaper published
nearest to the boundaries of the governmental entity;"
However, this amendment was believed by practitioners in the
probate code area to apply only to publication by governmental
entities and not to probate code publications, in part because of
the language in the amendment about "governmental entities", and in
part because of the Statement of Purpose and testimony provided in
support of the amendment, all of which referred exclusively to
governmental entities. No changes were made in the method of
publication of notice by practitioners in the probate field, nor to
the forms books, checklists, seminars etc. regarding publication,
and no challenge was ever made to that method by a creditor or
interested person in a probate proceeding, nor by any newspaper.
A recent Ada County court case, brought by the Idaho Statesman
against the Idaho Business Review, currently on appeal to the Idaho
Supreme Court, has raised the question of whether the above 1994
amendment to Idaho Code 60-106 applies to all publications of
notice which use the term "newspaper of general circulation",
thereby including probate cases.
Therefore, to make this matter clear, and to guarantee that the
method of publication practiced under the probate code consistently
for many decades will not be brought into question and the legality
of literally hundreds of final decrees also brought into question,
this bill amends the notice provisions of the probate code to
clearly state the term "general interest" rather than "general
circulation". That term is adequately defined and covered in Idaho
Code Section 60-106.
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 1332