2008 Legislation
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SENATE BILL NO. 1332<br /> – Probate proceedings, notice

SENATE BILL NO. 1332

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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

Bill Text




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

                                                                       

                                       IN 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 newspaper having
 29        of  general  circulation interest 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 general circulation interest 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 / Fiscal Impact


                       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