TITLE 15

UNIFORM PROBATE CODE

CHAPTER 1

GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION OF COURT

PART 5.

MISCELLANEOUS PROVISIONS

15-1-501.  construction of certain formula clauses. (1) A will or trust of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "applicable credit amount," "applicable exclusion amount," "generation-skipping transfer tax exemption," "GST exemption," "marital deduction," "maximum marital deduction" or "unlimited marital deduction," or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010, without regard to whether the decedent’s personal representative or other fiduciary elects not to have the estate tax apply with respect to that estate. This provision shall not apply with respect to a will, trust or other instrument that manifests an intent that a contrary rule shall apply.

(2)  The personal representative, trustee, other fiduciary or any affected beneficiary under the will, trust or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section. A proceeding under this section shall be commenced before January 1, 2012. In a proceeding under this section, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust or other instrument. The court shall have the power to modify a provision of the will, trust or other instrument that refers to the federal estate tax or generation-skipping tax laws as described in subsection (1) of this section to:

(a)  Conform the terms to the decedent’s intention; or

(b)  Achieve the decedent’s tax objectives in a manner that is not contrary to the decedent’s probable intention.

The court may provide that an interpretation or modification pursuant to this section shall be effective as of the decedent’s date of death. A person who commences a proceeding under this section has the burden of proof, by clear and convincing evidence, in establishing the decedent’s intent that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section.

(3)   For purposes of this section only, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section and to conform the terms to the decedent’s intention, without court approval as provided in subsection (2) of this section. As used in the subsection, "interested persons" means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to chapter 8, title 15, Idaho Code. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved.

History:

[15-1-501, added 2010, ch. 68, sec. 1, p. 116; am. 2011, ch. 305, sec. 1, p. 872.]