Cross References.

Appointment of conservator in protective proceedings,§ 15-5-401.

Simultaneous deaths,§ 15-2-613.

Compiler’s Notes.

The term “this code” in the introductory paragraph refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Proof of Loss.

The information furnished in the “Statement of Disappearance” deemed sufficient at trial to establish a prima facie case for declaring the beneficiary’s husband dead was sufficient to constitute proof of loss under§ 41-1839. Thomas v. John Hancock Mut. Life Ins. Co., 113 Idaho 98, 741 P.2d 734 (Ct. App. 1987).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Compiler’s Notes.

The bracketed (2) was inserted by the compiler to be consistent with the designation of subsection (1).

Amendments.

The 2006 amendment, by ch. 163, added the last sentence in subsection (24). This section was amended by two 2007 acts which appear to be compatible and have been compiled together.

The 2007 amendment, by ch. 68, alphabetized the definitions and added subsection (46).

The 2007 amendment, by ch. 71, deleted “monetary” preceding “benefits” in the last sentence of subsection (25).

Compiler’s Notes.

The term “this code” in the introductory paragraph and in subsections (4), (16), (26), (33), (50), and (51) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Beneficiary.

Jury’s determination of damages in favor of a beneficiary, in his action for breach of a contract made by a husband and wife for disposition of a survivor’s estate, was reversed because the trial court and the parties mistakenly believed that the contract establishing the survivor’s estate contained provisions relating to the determination of the beneficiary’s entitlement, and because there was confusion regarding what expenses, particularly attorney fees, could be deducted from his share; the judge handling the probate was best positioned to determine the net share of any estate beneficiary. Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005).

Claims.

Under§ 56-218, the Idaho department of health and welfare could not recover Medicaid benefits paid to a decedent until his spouse died, but its claim for reimbursement was still subject to the deadlines of§ 15-3-803(a)(1); as the department did not present its claim within two years after the decedent’s death, the claim was untimely. State v. Estate of Kaminsky (In re Estate of Kaminsky), 141 Idaho 436, 111 P.3d 121 (2005), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Community Property.

Even though federal law preempted§ 56-218, where a marriage settlement agreement transmuted most of husband’s and wife’s community property and the income from that property into separate property of the husband, the department of health and welfare could recover only community property accumulated after the agreement. Idaho Dep’t of Health & Welfare v. Jackman, 132 Idaho 213, 970 P.2d 6 (1998), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Interested Person.

Minors.

Where language of a property settlement in a divorce proceeding stated that any claim wife had for a share of property that was not disclosed during the divorce trial was “specifically reserved” and that the agreement would not affect any of wife’s future claims to such undisclosed property, wife was an “interested person” and entitled to bring an action against the estate of deceased husband claiming her share of property that was secreted away in out-state bank accounts by husband during divorce proceedings. Thornton v. Estate of Thornton, 128 Idaho 773, 918 P.2d 1218 (1996). Minors.

The fact that the Idaho legislature abolished differing ages of majority for men and women was proof that whatever purpose may have been considered to be served when such a differential was first adopted in 1864, it no longer exists. Harrigfeld v. District Court of Seventh Judicial Dist., 95 Idaho 540, 511 P.2d 822 (1973).

Although the Uniform Probate Code did not go into effect until July 1, 1972, the legislative intent in this state by 1971 was to accord adult status to all persons at age eighteen which included the deceased who was twenty years of age at his death in 1971. Harrigfeld v. District Court of Seventh Judicial Dist., 95 Idaho 540, 511 P.2d 822 (1973).

Decisions Under Prior Law

Heirs.

Statutes governing succession in property determines who are the heirs of an intestate decedent and the common-law definition of heirs does not apply. In re Hornsby’s Estate, 75 Idaho 361, 272 P.2d 1017 (1954).

Compiler’s Notes.

The term “this code”, twice near the beginning of this section, refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Nonresident Decedents.

Where tort claimant filed a petition to have out-of-state decedent’s estate probated but did not allege that there was property of the decedent “located in this state,” the trial court should have granted motion to dismiss. In re Estate of Pierce, 96 Idaho 335, 528 P.2d 679 (1974).

Decisions Under Prior Law

Nonresident Decedents.

Personal Property.

The probate court of Ada County did not have jurisdiction to appoint an administrator for a resident of California, who was killed in an automobile accident in Payette County, merely on the basis that the nonresident had left an asset in Idaho, to wit an automobile liability insurance policy, and such appointment was void and subject to collateral attack. Feil v. Dice, 135 F. Supp. 851 (D. Idaho 1955). Personal Property.

General rule prevails here that succession to and disposition of and distribution of personal property is controlled by the law of the domicil of owner, or intestate, at time of his death, without regard to where property is located or where owner died. Vansickle v. Hazeltine, 29 Idaho 228, 158 P. 326 (1916).

Compiler’s Notes.

The term “this code” in subsection (a) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

The bracketed letter “s” and word “were” in subsection (b) were inserted by the compiler for clarity.

Compiler’s Notes.

The term “this code” near the beginning of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

Cross References.

Jury selection and service,§ 2-201 et seq. and Idaho Civil Procedure Rule 47.

Compiler’s Notes.

The term “this code” in this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Cross References.

Perjury,§ 18-5401 et seq.

Compiler’s Notes.

The term “this code”, appearing twice in this section, refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The term “this act” probably refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and compiled in chapters 1 through 7 of this title.

Cross References.

Commencement of probate proceedings,§§ 15-3-301, 15-3-401.

Failure to Give Notice.

Where the personal representative of an estate, who had been informally appointed by the probate court, attempted to formally close the estate pursuant to§ 15-3-1001, his failure to send notice to all interested persons, as required by this section, would not be excused by some of those parties having actual or constructive notice, since constructive notice is insufficient and the allegations of actual notice were conjectural in nature. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981). Decisions Under Prior Law

Decisions Under Prior Law

Constructive Notice.

Attorneys for will proponents and proponents are charged with notice of every official act in proceedings taken in accordance with law. Fite v. French, 54 Idaho 104, 30 P.2d 360 (1934).

Effect of Notice.

Probate proceedings in the settlement of estates are in the nature of proceedings in rem and the giving of statutory notice will charge the world with such notice. Connolly v. Probate Court, 25 Idaho 35, 136 P. 205 (1913).

Mailing of Notice Presumed.

Where record is silent as to mailing of notice of hearing of application for letters testamentary to heirs of testator, it will be presumed, for the purposes of an action by residuary legatee on bond of executor to recover share distributed to him by decree of probate court, that the notice was mailed. Knowles v. Kasiska, 46 Idaho 379, 268 P. 3 (1928).

ALR.

§ 15-1-402. Notice — Waiver.

A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding. The appearance in court of an interested party is a waiver of notice.

History.

I.C.,§ 15-1-402, as added by 1971, ch. 111, § 1, p. 233.

Amendments.

The 2011 amendment, by ch. 305, rewrote the section to the extent that a detailed comparison is impracticable

Compiler’s Notes.

This section does not have a counterpart in the uniform probate code adopted by the national conference of commissioners on uniform state laws.

Effective Dates.

Section 2 of S.L. 2010, ch. 68 declared an emergency retroactively to January 1, 2010 and approved March 18, 2010.

Section 2 of S.L. 2011, ch 305 declared an emergency retroactively to January 1, 2010 and approved April 11, 2011.

Cross References.

Notice to creditors,§ 15-3-801.

Compiler’s Notes.

The term “this code” at the end of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Common Law.

A complete system for the succession to property of decedents is provided for; hence, court will not consider the common law. In re Reil’s Estate, 70 Idaho 64, 211 P.2d 407 (1949); In re Hornsby’s Estate, 75 Idaho 361, 272 P.2d 1017 (1954).

Conflict of Laws.

Intestate Property.

The general rule is that succession and distribution of personal property, wherever situated, is governed by the lex domicilii of the owner or intestate at the time of his death: but, so far as creditors are concerned, each state will deal with the property of a decedent within its jurisdiction according to its own laws. Vansickle v. Hazeltine, 29 Idaho 228, 158 P. 326 (1916). Intestate Property.

Bequest of one-fourth of residue of estate to testatrix’s brother who died two weeks after death of testatrix vested in legatee as of testatrix’s death, and passed under his will and not as property as to which he died intestate. In re Zimmer’s Estate, 47 Idaho 364, 276 P. 302 (1929).

Passing of Title to Property to Heirs.

Property of one dying without disposing thereof by will passes to the heirs of the intestate, subject to the control of the court, and to the possession of the administrator appointed by the court. Reed v. Stewart, 12 Idaho 699, 87 P. 1002 (1906).

If the will clearly discloses that the testator did not dispose of all his property, particularly in the absence of a residual clause, then the omitted property must descend according to to the laws of succession. In re Corwin’s Estate, 86 Idaho 1, 383 P.2d 339 (1963).

Shares of Stock.

Shares of stock in a corporation are personal property and descend according to the laws of the state of domicile of the owner at his death; certificates of shares of stock, constituting evidence of ownership of such stock, are transferred according to the laws of the state in which the corporation was organized. State ex rel. Peterson v. Dunlap, 28 Idaho 784, 156 P. 1141 (1916).

ALR.

Family settlement of intestate estate. 29 A.L.R.3d 174.

Right of heir’s assignee to contest will. 39 A.L.R.3d 696.

Right of adopted child to inherit from intestate natural grandparent. 60 A.L.R.3d 631.

Legitimation by marriage to natural father of child born during mother’s marriage to another. 80 A.L.R.3d 219.

Rights in decedent’s estate as between legal and putative spouse. 81 A.L.R.3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse. 81 A.L.R.3d 110.

Modern status: inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

[General comment to §§ 15-2-101 — 15-2-11.]

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Part 1 of Article II [Chapter 2] contains the basic pattern of intestate succession historically called descent and distribution. It is no longer meaningful to have different patterns for real and personal property, and under the proposed statute all property not disposed of by a decedent’s will passes to his heirs in the same manner. The existing statutes on descent and distribution in the United States vary from state to state. The most common pattern for the immediate family retains the imprint of history, giving the widow a third of realty (sometimes only for life by her dower right) and a third of the personalty, with the balance passing to issue. Where the decedent is survived by no issue, but leaves a spouse and collateral blood relatives, there is wide variation in disposition of the intestate estate, some states giving all to the surviving spouse, some giving substantial shares to the blood relatives. The Code attempts to reflect the normal desire of the owner of wealth as to disposition of his property at death, and for this purpose the prevailing patterns in wills are useful in determining what the owner who fails to execute a will would probably want. A principal purpose of this Article [Chapter] and Article III [Chapter 3] of the Code is to provide suitable rules and procedures for the person of modest means who relies on the estate plan provided by law. For a discussion of this important aspect of the Code, see 3 Real Property, Probate and Trust Journal (Fall 1968) p. 199.

The principal features of Part 1 are:

1. A larger share is given to the surviving spouse, if there are issue, and the whole estate if there are no issue or parent.
2. Inheritance by collateral relatives is limited to grandparents and those descended from grandparents. This simplifies proof of heirship and eliminates will contests by remote relatives.
3. An heir must survive the decedent for five days in order to take under the statute. This is an extension of the reasoning behind the Uniform Simultaneous Death Act and is similar to provisions found in many wills.
4. Adopted children are treated as children of the adopting parents for all inheritance purposes and cease to be children of natural parents; this reflects modern policy of recent statutes and court decisions.
5. In an era when inter vivos gifts are frequently made within the family, it is unrealistic to preserve concepts of advancement developed when such gifts were rare. The statute provides that gifts during lifetime are not advancements unless declared or acknowledged in writing.

While the prescribed patterns may strike some as rules of law which may in some cases defeat intent of a decedent, this is true of every statute of this type. In assessing the changes it must therefore be borne in mind that the decedent may always choose a different rule by executing a will.

Cross References.

Effect of homicide on distribution,§ 15-2-803.

Homestead allowance,§ 15-2-402.

Notice to creditors,§ 15-3-801.

Where surviving spouse is sole legatee or devisee,§ 15-3-1205.

Who is not “surviving spouse,”§ 15-2-802.

Witness to will,§ 15-2-505.

Community Property.

Where title to motel held as community property vested in administratrix as surviving spouse upon decedent’s death under this section, surviving spouse in her role as administratrix was under no obligation to account to the heirs for her sale of the motel, rentals received, or any other disposition she may have chosen, since she was absolute owner. Freeburn v. Freeburn, 101 Idaho 739, 620 P.2d 773 (1980).

Parents of Decedent.

Cited

Under this section and§ 15-2-103, where the deceased leaves both a surviving spouse and issue, parents of a decedent are not entitled to inherit any property; therefore, parents are not “heirs” of their son and, not being “heirs,” they have no cause of action under§ 5-311 for their son’s wrongful death. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983) (decided prior to 1984 revision of§ 5-311). Cited In re Reichert, 95 Idaho 647, 516 P.2d 704 (1973); House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978); Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980); Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984); Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

Decisions Under Prior Law

Heirs Where No Issue.

Under former section dealing with succession of property, the parents and surviving spouse were the heirs of a decedent in the event there was no issue. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980).

Rights of Widow.

Rights given to widow by former section were in lieu of dower and could not be disposed of by husband by antenuptial will, but such will, if made, would be deemed to be revoked by marriage. Morgan v. Ireland, 1 Idaho 786 (1880).

A wife who, although separated from her husband, does not assert her right of interest in his property until after his death is not guilty of laches or estopped from asserting such right if she then prosecutes her action with diligence. Hilton v. Stewart, 15 Idaho 150, 96 P. 579 (1908).

A wife has no vested interest in the separate property of her husband; at most her interest therein is but an expectancy, subject to being defeated by his will. Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940).

ALR.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 486.

Estate tax as element in computation of widow’s share in estate. 70 A.L.R.3d 630.

Rights in decedent’s estate as between legal and putative spouse. 81 A.L.R.3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse. 81 A.L.R.3d 110.

Cross References.

Renunciation,§ 15-2-801.

Compiler’s Notes.

The bracketed insertion in the introductory paragraph was added by the compiler to conform to the statutory citation style.

Children and Grandchildren.

Where owner of property died intestate leaving as her heirs her children and the surviving grandchildren of those children who had predeceased her, all such heirs became cotenants in the property. Fairchild v. Fairchild, 106 Idaho 147, 676 P.2d 722 (Ct. App. 1984).

Parents of Decedent.

Under§ 15-2-102 and this section, where the deceased leaves both a surviving spouse and issue, parents of a decedent are not entitled to inherit any property; therefore, parents are not “heirs” of their son and, not being “heirs,” they have no cause of action under§ 5-311 for their son’s wrongful death. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983) (decided prior to 1984 revision of§ 5-311).

Decisions Under Prior Law

Burden of Proof.

In action by children of decedent’s half-sister as next of kin and heirs at law entitled to inherit on failure of their mother to claim estate within five years, burden of proving that they were the only heirs was on claimants. Connolly v. Elder, 293 F. 5 (9th Cir.), cert. denied, 263 U.S. 717, 44 S. Ct. 191, 68 L. Ed. 523 (1923).

Invalid Will.

Where a will, which gave all property to two children to the exclusion of other children, was declared invalid because of undue influence exercised by said two children they, nevertheless, remained heirs of the estate, and were “tenants in common” of the estate with the other children. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Parent of Decedent.

Attempt of divorced mother of a minor child to reconvey land previously conveyed to such minor fails, and on death of minor his mother is one of his heirs and is entitled to a half-interest in his share of said land. Lamb v. Brammer, 29 Idaho 770, 162 P. 246 (1916).

ALR.

Adopted child, right to inherit from intestate natural grandparent. 60 A.L.R.3d 631.

Compiler’s Notes.

This section, which comprised I.C.,§ 15-2-103A as added by S.L. 1971, ch. 111, § 1, was repealed by S.L. 1972, ch. 201, § 2.

Cross References.

Devisee must survive decedent by 120 hours,§ 15-2-601.

Simultaneous death,§ 15-2-613.

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

Section 15-2-105, referred to near the end of the section, was repealed in 1996. For present comparable provisions, see§ 14-113.

Compiler’s Notes.

This section, which comprised I.C.,§ 15-2-105, as added by 1971, ch. 111, § 1, p. 233; am. 1980, ch. 281, § 3, p. 730; am. 1984, ch. 36, § 4, p. 60; am. 1992, ch. 21, § 7, p. 67, was repealed by S.L. 1996, ch. 69, § 7, effective July 1, 1996.

Compiler’s Notes.

The term “this code” near the beginning of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Adopted Child.

In view of fact that adopted child is given all rights and made subject to all burdens of a natural child, he is entitled to equality of succession with a child by birth. Scott v. Scott, 247 F. 976 (D. Idaho 1917).

Illegitimate Child.

In a proceeding by alleged illegitimate son to establish right to inherit from father, who died in 1951, the plaintiff was entitled to testify concerning statement made by his mother prior to her death in 1941 as to who his father was, since the right asserted by the plaintiff could not have been asserted against the deceased father during his lifetime, and, at the time of the statement, the mother had no motive to distort the truth since there was no pending litigation. In re Stone’s Estate, 77 Idaho 63, 286 P.2d 329 (1955).

Sufficiency of Evidence.

The evidence was sufficient to require a finding that appellant was the illegitimate son of the deceased where, prior to hearing on petition for distribution in accordance with the will of deceased, appellant, asserting that he was a pretermitted son and sole heir of deceased, filed objections to distribution under the will and prayed the entire estate be distributed to him. In re Stone’s Estate, 78 Idaho 632, 308 P.2d 597 (1957). COMMENT TO OFFICIAL TEXT

The definition of “child” and “parent” in Section 1-201 incorporates the meanings established by this section, thus extending them for all purposes of the Code. See Section 2-802 for the definition of “spouse” for purposes of intestate succession.

Cross References.

Ademption by satisfaction,§ 15-2-612.

Decisions Under Prior Law

Writing Declaring Advancement.

Writings charging a gift as an advancement must be made contemporaneously with the gift and, where a deed of land contained no reference to being an advancement and the only writings designating it as an advancement were entries in account books with no evidence as to when such entries were made, it was error for the trial court to determine such gift of land to be an advancement against the grantee’s share of the grantor’s estate. Hirning v. Webb, 91 Idaho 229, 419 P.2d 671 (1966).

Cross References.

Claims against decedent,§ 15-3-104.

Right of retainer,§ 15-3-903.

Cross References.

Validity of foreign wills,§ 15-2-506.

Cross References.

Who is a “surviving spouse,”§ 15-2-802.

Prior Laws.

Sections which originally comprised Part 2 of Chapter 2 of this title, I.C.,§§ 15-2-201 to 15-2-207 as added by S.L. 1971, ch. 111, § 1, were repealed by S.L. 1972, ch. 201, § 3. Section 4, S.L. 1972, ch. 201, inserted new matter in lieu thereof.

Decisions Under Prior Law

In General.

Though the death of one of the spouses dissolves the marital community, it does not leave the estate in the condition of a partnership when one of the partners dies. Pierson v. Pierson, 63 Idaho 1, 115 P.2d 742 (1941).

Abandonment.

A wife who leaves her husband, whether in the wrong or not, is entitled to share in the community property up to the time of her act of abandonment. Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

Common Law Marriage.

A common law marriage may serve as a proper basis for establishing a community of property, especially where the equities are strongly in favor of such marriage. Huff v. Huff, 20 Idaho 450, 118 P. 1080 (1911).

Community Debts.

Where judgment is rendered against the husband individually and as executor of the estate of his deceased wife, it could not be collected from her separate estate, and there could be no judgment against the estate except insofar as the estate profited from the community property. Pierson v. Pierson, 63 Idaho 1, 115 P.2d 742 (1941).

Where the surviving husband of the marital community had the management and control of the community estate and business during the wife’s lifetime, the husband was personally liable for community debts, and the whole of the community property was liable therefor. Pierson v. Pierson, 63 Idaho 1, 115 P.2d 742 (1941).

Construction.

Former section must be construed with other sections of the statutes in regard to devolution of property and did not change general rule that succession to, and disposition and distribution of, personal property, wherever situated, is governed by lex domicilii of owner or intestate at time of his death, without regard to location of property or place of his death. Vansickle v. Hazeltine, 29 Idaho 228, 158 P. 326 (1916).

Intestacy.

Upon the death of husband or wife without testamentary disposition of his or her share of the community property, it goes to the survivor subject to community debts, family allowance, and administration expenses. Shaw v. McDougall, 56 Idaho 697, 58 P.2d 463 (1936).

Procedure.

In sons’ action against their father individually, and as executor of the deceased mother’s estate, under contracts with the father, the father, as executor, was a “proper party” defendant, since though no individual judgment could be obtained against the estate for the claim, the indebtedness, if found to exist, was a charge against the entire community property and collectible out of the community estate, without, or independent of, any administration of the estate. Pierson v. Pierson, 63 Idaho 1, 115 P.2d 742 (1941).

Separate and Community Property.

In case of property that was the separate estate of intestate, the former section made the wife and children heirs-to-be; but in case of its having been community property, the wife is the sole heir. Powell v. Powell, 22 Idaho 531, 126 P. 1058 (1912).

Decree of probate court determining character of property as between widow and mother was not subject to collateral attack by independent action by mother for specific performance of agreement, stipulating that certain property was that of deceased separately, and providing for equal distribution. Larsen v. Larsen, 44 Idaho 211, 256 P. 369 (1927).

Where wife possessing separate property permitted title, with her knowledge, to be taken in name of her husband, and during lifetime knowingly permitted title to remain in him, which representation on her part made it possible for husband after her death to represent himself as sole owner of property in mortgaging it, husband as administrator was estopped to claim property as that of deceased wife to same extent that she would be estopped were she living. Moore v. Craft, 47 Idaho 568, 277 P. 425 (1929).

Spouses’ Rights and Duties.

Former section recognized husband and wife as equal partners in community estate and authorized each to dispose of his or her half by will. It also provided that survivor continued to be owner of half of such property subject only to the payment of community debts. Such statute clearly and unmistakably provided that surviving spouse takes his or her half of community property, not by succession, descent, or inheritance, but as survivor of the marital community or partnership. Kohny v. Dunbar, 21 Idaho 258, 121 P. 544 (1912); Ewald v. Hufton, 31 Idaho 373, 173 P. 247 (1918); Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922); Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940); Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

Where statute in effect at time of deceased’s death provided that “no administration of estate of wife shall be necessary if she dies intestate,” and husband was told that there was no need of administration at all, he was relieved of any duty to put in motion machinery for collection of inheritance tax. State ex rel. Gallet v. Naylor, 50 Idaho 113, 294 P. 333 (1930).

The interest of the wife in the community property is a vested interest and, as to degree, quality, nature and extent, is the same as that of her husband. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

Testamentary Disposition.

This section gives husband the right to will a life estate to wife in his half of community with their children as reversioners, but wife retains her half interest in the property, which interest she has a right to contract away. Amonson v. Amonson, 55 Idaho 42, 37 P.2d 228 (1934).

While a decedent’s one-half interest in the community property is subject to testamentary disposition and while the executor, under a will, may be authorized to sell said half interest, together with decedent’s separate property, it does not follow that the executor has authority to sell the one-half interest of the surviving spouse in the community property. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

ALR.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 486.

Rights of surviving spouse taking under or against will as affected by provision in will directing conversion. 33 A.L.R.3d 1280.

Right in decedent’s estate as between legal and putative spouse. 81 A.L.R.3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse. 81 A.L.R.3d 110.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator’s death. 7 A.L.R.4th 989.

[General comment to §§ 15-2-201 — 15-2-207.]

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[Attention is called to the fact that this Part (§§ 15-2-201 — 15-2-209) as amended in 1972 varies considerably from the Uniform Probate Code for which these comments were written.] The sections of this Part describe a system for common law states designed to protect a spouse of a decedent who was a domiciliary against donative transfers by will and will substitutes which would deprive the survivor of a “fair share” of the decedent’s estate. Optional sections adapting the elective share system to community property jurisdictions were contained in preliminary drafts, but were dropped from the final Code. Problems of disherison of spouses in community states are limited to situations involving assets acquired by domiciliaries of common law states who later become domiciliaries of a community property state, and to instances where substantially all of a deceased spouse’s property is separate property. Representatives of community property states differ in regard to whether either of these problem areas warrant statutory solution.

Almost every feature of the system described herein is or may be controversial. Some have questioned the need for any legislation checking the power of married persons to transfer their property as they please. See Plager, “The Spouse’s Nonbarrable Share: A Solution in Search of a Problem”, 33 Chi. L. Rev. 681 (1966). Still, virtually all common law states impose some restriction on the power of a spouse to disinherit the other. In some, the ancient concept of dower continues to prevent free transfer of land by a married person. In most states, including many which have abolished dower, a spouse’s protection is found in statutes which give a surviving spouse the power to take a share of the decedent’s probate estate upon election rejecting the provisions of the decedent’s will. These statutes expand the spouse’s protection to all real and personal assets owned by the decedent at death, but usually take no account of various will substitutes which permit an owner to transfer ownership at his death without use of a will. Judicial doctrines identifying certain transfers to be “illusory” or to be in “fraud” of the spouse’s share have been evolved in some jurisdictions to offset the problems caused by will substitutes, and, in New York and Pennsylvania, statutes have extended the elective share of a surviving spouse to certain non-testamentary transfers. Questions relating to the proper size of a spouse’s protected interest may be raised in addition to those concerning the need for, and method of assuring, any protection. The traditions in both common law and community property states point toward some capital sum related to the size of the deceased spouse’s holdings rather than to the needs of the surviving spouse. The community property pattern produces one-half for the surviving spouse, but is somewhat misleading as an analogy, for it takes no account of the decedent’s separate property. The fraction of one-third, which is stated in Section 2-201 [not in Idaho], has the advantage of familiarity, for it is used in many forced share statutes.

Although the system described herein may seem complex, it should not complicate administration of a married person’s estate in any but very unusual cases. The surviving spouse rather than the executor or the probate court has the burden of asserting an election, as well as the burden of proving the matters which must be shown in order to make a successful claim to more than he or she has received. Some of the apparent complexity arises from Section 2-202, which has the effect of compelling an electing spouse to allow credit for all funds attributable to the decedent when the spouse, by electing, is claiming that more is due. This feature should serve to reduce the number of instances in which an elective share will be asserted. Finally, Section 2-204 expands the effectiveness of attempted waivers and releases of rights to claim an elective share. Thus, means by which estate planners can assure clients that their estates will not become embroiled in election litigation are provided.

Uniformity of law on the problems covered by this Part is much to be desired. It is especially important that states limit the applicability of rules protecting spouses so that only estates of domiciliary decedents are involved.

[Comment to 15-2-201.]

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See Section 2-802 for the definition of “spouse” which controls this Part.

Under the common law a widow was entitled to dower, which was a life estate in a fraction of lands of which her husband was seized of an estate of inheritance at any time during the marriage. Dower encumbers titles and provides inadequate protection for widows in a society which classifies most wealth as personal property. Hence, the states have tended to substitute a forced share in the whole estate for dower and the widower’s comparable common law right of curtesy. Few existing forced share statutes make adequate provisions for transfers by means other than succession to the surviving spouse and others. This and the following sections are designed to do so. The theory of these sections is discussed in Fratcher, “Toward Uniform Succession Legislation,” 41 N.Y.U. L. Rev. 1037, 1050-1064 (1966). The existing law is discussed in MacDonald, Fraud on the Widow’s Share (1960). Legislation comparable to that suggested here became effective in New York on Sept. 1, 1966. See Decedent Estate Law, § 18 [CLS EPTL§ 5-1.1].

Decisions Under Prior Law

Insurance Policy.

Where the property insured and insurance policy were a part of the community property and the husband died intestate, the plaintiff became the sole heir to the husband’s share of the community assets. Lewis v. Snake River Mut. Fire Ins. Co., 82 Idaho 329, 353 P.2d 648 (1960).

Insurance Policy Proceeds.

Slayer of Spouse.

Where insured wife made a change of beneficiary from her husband to her daughter without the consent and knowledge of her husband, thus attempting to make a gift of the proceeds of the policy to the daughter, since premiums had been paid with community funds, the change of beneficiary was voidable insofar as it applied to husband’s half interest. Anderson v. Idaho Mut. Benefit Ass’n, 77 Idaho 373, 292 P.2d 760 (1956). Slayer of Spouse.

A wife convicted of the voluntary manslaughter of her husband is not, thereby, disqualified from succeeding to the community property. Anstine v. Hawkins, 92 Idaho 561, 447 P.2d 677 (1968) (see§ 15-2-803).

Wife’s Interest.

The wife’s interest in the community property is a present vested estate, and she has an equal interest in same with her husband, except for the management of the estate. Anderson v. Idaho Mut. Benefit Ass’n, 77 Idaho 373, 292 P.2d 760 (1956).

Prior Laws.

Former§ 15-2-203, which comprised I.C.,§ 15-2-203, as added by 1972, ch. 201, § 4, p. 510, was repealed by S.L. 1978, ch. 350, § 1.

Amendments.

The 2016 amendment, by ch. 262, deleted “family allowance” following “homestead allowance” in subsection (b).

Cross References.

Definition of “protected person,” and “protective proceeding,”§ 15-1-201.

Protective proceedings,§ 15-5-401 et seq.

Compiler’s Notes.

The bracketed insertion near the end of the first sentence in subsection (d) was added by the compiler to conform to the statutory citation style.

Amendments.

The 2016 amendment, by ch. 262, deleted “and family allowance” following “exempt property” near the beginning of subsection (b).

Cross References.

Exempt property,§ 15-2-403.

Homestead allowance,§ 15-2-402.

Who is “surviving spouse,”§ 15-2-803.

Amendments.

The 2016 amendment, by ch. 262, substituted “allowance and exempt property, or either of them” for “allowance, exempt property and family allowance, or any of them” in the first sentence and substituted “allowance and exempt property” for “allowance, exempt property and family allowance” in the second sentence.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Surviving Spouse.

Surviving wife was a surviving spouse by virtue of her remarriage following the divorce with the decedent; the wife did not sign the property settlement agreement in contemplation of the parties’ remarriage and, therefore, did not sign it after full disclosure. Barnedt v. Wilder, 137 Idaho 415, 49 P.3d 1265 (Ct. App. 2002). COMMENT TO OFFICIAL TEXT

The right to homestead allowance is conferred by Section 2-401, that to exempt property by Section 2-402, and that to family allowance by Section 2-403. The right to renounce interests passing by testate or intestate succession is recognized by Section 2-801. The provisions of this section, permitting a spouse or prospective spouse to waive all statutory rights in the other spouse’s property, seem desirable in view of the common and commendable desire of parties to second and later marriages to insure that property derived from prior spouses passes at death to the issue of the prior spouses instead of to the newly acquired spouse. The operation of a property settlement as a waiver and renunciation takes care of the situation which arises when a spouse dies while a divorce suit is pending.

Compiler’s Notes.

The bracketed insertion near the end of subsection (b) was added by the compiler to conform to the statutory citation style.

Determination Against Validity of Will.

Devise Made Before Contemplation of Marriage.

A determination that someone is an omitted spouse under this section is a determination “against . . . the validity of a will” for the purpose of appeal under§ 17-201(3) the will remains partially valid and subdivision 3 of§ 17-201 should not be read to mean court’s order must be against or in favor of the validity of the whole will before an appeal can be taken under this section. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986). Devise Made Before Contemplation of Marriage.

A testator can “provide by will for his surviving spouse” in such a way as to prevent the recipient from being an “omitted spouse” under this section, even though the devise was not expressly made in contemplation of marriage. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Minimal Devise.

It is possible that the devise in the will to the surviving spouse is so minimal and made in such a way that it appears the testator failed “to provide by will for his surviving spouse”; the burden of establishing this, however, is on the surviving spouse. In order to satisfy this burden, the evidence must be sufficient to establish that the testamentary gift specified before the marriage could not reasonably represent the testator’s effort “to provide by will for his surviving spouse.” Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Purpose.

This section is designed to avoid the unintentional disinheritance of the spouse of a testator who executes a will prior to the marriage but neglects to revise it afterwards. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

When Not Omitted Spouse.

Where the decedent and her husband had an intimate personal relationship and were living together well before the will was executed, and the decedent provided that her husband have a portion of her real property equal to that of one of her children, and, when statutory allowances were included, his share far exceeded the share of any of the children, the husband was amply provided for by the will and by the statutory allowances, and he could not be considered an omitted spouse. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Compiler’s Notes.

The bracketed insertion near the end of subsection (c) was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Instructions as to Omission.

The failure of the court to instruct the jury on the omission of the testator to provide in his will for any of his children or for the issue of any deceased child was not prejudicial where the verdict of the jury, although general, was its answer to specific questions of fact and the succession statute had nothing to do with the ability of the jury to make answers to the special questions. In re Stone’s Estate, 78 Idaho 632, 308 P.2d 597 (1957).

Presumption as to Omission.

Presumption is that omission was unintentional; in order to rebut this presumption it must appear in the will, by direct language or by language so strong as to render any other conclusion unreasonable, that testator had the omitted heir in mind at the time will was drawn and intentionally omitted such heir from the will. In re Fell’s Estate, 70 Idaho 399, 219 P.2d 941 (1950).

The fact that testator disposed of all of his property to designated beneficiaries furnishes no ground for the inference that he had in mind and intentionally omitted to provide for other heirs. In re Fell’s Estate, 70 Idaho 399, 219 P.2d 941 (1950).

Revocation of Will Provision.

Testatrix, aged 73, an Indian woman who could neither read, write nor speak English, who, in her will, left a life estate to son in real estate covered by her allotment, but who sold the real estate prior to her death, omitted to provide for son as though the revoked portion of her will had never been included, and son was, therefore, entitled to share in her estate as a pretermitted heir. Halfmoon v. Moore, 77 Idaho 247, 291 P.2d 846 (1955).

Where testatrix devised a life estate in her allotted land to her son and the remainder interest to her granddaughter, but sold the allotted land prior to her death, and balance of funds remaining from sale were distributed by Bureau of Indian Affairs to son and granddaughter respectively as life tenant and remainderman, such distribution did not bar parties from claiming in estate as pretermitted heirs, but such funds would be considered as advances to the two heirs in question. Halfmoon v. Moore, 77 Idaho 247, 291 P.2d 846 (1955).

ALR.

COMMENT TO OFFICIAL TEXT

This section provides for both the case where a child was born or adopted after the execution of the will and not foreseen at the time and thus not provided for in the will, and the rare case where a testator omits one of his existing children because of mistaken belief that the child is dead.

Although the sections dealing with advancement and ademption by satisfaction (2-110 and 2-612) provide that a gift during lifetime is not an advancement or satisfaction unless the testator’s intent is evidenced in writing, this section permits oral evidence to establish a testator’s intent that lifetime gifts or nonprobate transfers such as life insurance or joint accounts are in lieu of a testamentary provision for a child born or adopted after the will. Here there is no real contradiction of testamentary intent, since there is no provision in the will itself for the omitted child.

To preclude operation of this section, it is not necessary to make any provision, even nominal in amount, for a testator’s present or future children; a simple recital in the will that the testator intends to make no provision for then living children or any the testator thereafter may have would meet the requirement of (a)(1).

Under subsection (c) and Section 3-902, any intestate estate would first be applied to satisfy the share of a pretermitted child. This section is not intended to alter the rules of evidence applicable to statements of a decedent.

Amendments.

The 2008 amendment, by ch. 182, substituted “Rights to the homestead allowance and to exempt property for a decedent” for “Rights to the homestead allowance, exempt property, and the family allowance for a decedent” in the last sentence.

Compiler’s Notes.

Former§ 15-2-401 was amended and redesignated as§ 15-2-402 by S.L. 2001, ch. 294, § 3.

[General comment to §§ 15-2-401 — 15-2-406.]

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For decedents who die domiciled in this State, this part grants various allowances to the decedent’s surviving spouse and certain children. The allowances have priority over unsecured creditors of the estate and persons to whom the estate may be devised by will. If there is a surviving spouse, all of the allowances described in this Part, which (as revised to adjust for inflation) total $25,000, plus whatever is allowed to the spouse for support during administration, normally pass to the spouse. If the surviving spouse and minor or dependent children live apart from one another, the minor or dependent children may receive some of the support allowance. If there is no surviving spouse, minor or dependent children become entitled to the homestead exemption of $15,000 and to support allowances. The exempt property section confers rights on the spouse, if any, or on all children, to $10,000 in certain chattels, or funds if the unencumbered value of chattels is below the $10,000 level. This provision is designed in part to relieve a personal representative of the duty to sell household chattels when there are children who will have them. These family protection provisions supply the basis for the important small estate provisions of Article III, Part 12.

States adopting the Code may see fit to alter the dollar amounts suggested in these sections, or to vary the terms and conditions in other ways so as to accommodate existing traditions. Although creditors of estates would be aided somewhat if all family exemption provisions relating to probate estates were the same throughout the country, there is probably less need for uniformity of law regarding these provisions than for any of the other parts of this article. Still, it is quite important for all states to limit their homestead, support allowance and exempt property provisions, if any, so that they apply only to estates of decedents who were domiciliaries of the state.

[Cross Reference.]

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Notice that under Section 2-104 a spouse or child claiming under this Part must survive the decedent by 120 hours.

Cross References.

Who is “surviving spouse,”§ 15-2-802.

Amendments.

The 2008 amendment, by ch. 182, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

This section was formerly compiled as§ 15-2-401.

Former§ 15-2-402 was amended and redesignated as§ 15-2-403 by S.L. 2001, ch. 294, § 4.

Constitutionality.

The dual use of “homestead” in this section and in§ 55-1001 does not make this section vague in violation of Idaho Const., Art. III, § 17. Simmons v. Ewing, 96 Idaho 380, 529 P.2d 776 (1974).

This section is not unconstitutionally vague in failing to specify from what property the allowance is first taken; where the will passes all the community property to the surviving spouse, it is clear that the homestead allowance must come from the remaining property. Simmons v. Ewing, 96 Idaho 380, 529 P.2d 776 (1974).

Prior Homestead.

A showing that no prior homestead had been set aside during life of deceased spouse is not a prerequisite for claiming a probate homestead under this statute. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980).

ALR.

Waiver of right to widow’s allowance by postnuptial agreement. 9 A.L.R.3d 955.

Eligibility of illegitimate child to receive family allowance out of the estate of his deceased father. 12 A.L.R.3d 1140.

Waiver of right to widow’s allowance by antenuptial agreement. 30 A.L.R.3d 858.

Cross References.

Waiver of rights by “surviving spouse,”§ 15-2-208.

Who is “surviving spouse,”§ 15-2-802.

Prior Laws.

Former§ 15-2-403 was amended and redesignated as§ 15-2-404 by S.L. 2001, ch. 294, § 5 and was repealed by S.L. 2008, ch. 182, § 4.

Amendments.

The 2008 amendment, by ch. 182, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

This section was formerly compiled as§ 15-2-402.

The bracketed insertion in the first sentence was added by the compiler to make the sentence more clear.

Constitutionality.

The dual use of “homestead” in this section and in§ 55-1001 does not make this section vague in violation of Idaho Const., Art. III, § 17. Simmons v. Ewing, 96 Idaho 380, 529 P.2d 776 (1974).

Effect on Creditors.

The combined effect of this section and§§ 15-2-404 and 15-2-405 likely puts personal property belonging to the signing spouse at the time of death, with a value of up to $28,000, beyond a creditor’s reach, in the event of the death of the sole spouse who signed a promissory note or loan obligation.OAG 05-1.

Compiler’s Notes.

This section, which comprised I.C.,§ 15-2-403, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. and redesig. 2001, ch. 294, § 5, p. 1036; am. 2004, ch. 123, § 3, p. 412, was repealed by S.L. 2008, ch. 182, § 4.

Cross References.

Distribution in kind,§§ 15-3-906, 15-3-907.

Order of distribution; abatement,§ 15-3-902.

Amendments.

The 2008 amendment, by ch. 182, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

This section was formerly compiled as§ 15-2-404.

Effect on Creditors.

The combined effect of this section and§§ 15-2-403 and 15-2-404 likely puts personal property belonging to the signing spouse at the time of death, with a value of up to $28,000, beyond a creditor’s reach in the event of the death of the sole spouse who signed the promissory note or loan obligation.OAG 05-1.

Compiler’s Notes.

The term “this code” at the end of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Testamentary Capacity.

Testimony from an attorney was properly admitted that in his opinion a testator with dementia had testamentary capacity throughout his meetings with her, including on the day the will was executed. He described her as “alert,” “perky,” not distracted, and said she correctly answered questions about her family members, the value of her estate, and the current date. Wooden v. Martin (In re Conway), 152 Idaho 933, 277 P.3d 380 (2012).

Undue Influence.

Even though a 90-year-old testator was legally blind and almost deaf, testimony that the testator was a strong-willed and independent individual who was unlikely to be overborne by beneficiaries was enough to overcome the presumption of invalidity of a will based on undue influence arising from the fact that beneficiaries were both drafters of the will and sole witnesses to its execution. Roll v. Roll, 115 Idaho 797, 770 P.2d 806 (1989).

Cited

Evidence was sufficient to rebut the presumption of undue influence and find that a testator with dementia was not unduly influenced by her son, who was also her guardian, in part because she had independent and disinterested advice from an attorney, whom she met with three times, with almost no participation by the son. Wooden v. Martin (In re Conway), 152 Idaho 933, 277 P.3d 380 (2012). Cited In re Estate of Lane, 99 Idaho 850, 590 P.2d 577 (1979).

Decisions Under Prior Law

Contract to Make Will.

A contract between testator and second party may be made whereby testator agrees to devise or bequeath property. Failure to do so gives the promisee an action at law to recover damages. Casady v. Scott, 40 Idaho 137, 237 P. 415 (1924).

A mutual contract between husband and wife to leave property at death of the survivor to husband’s children did not include property owned absolutely by wife and given away by her before her death. Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P.2d 679 (1942).

Property Subject to Disposal.

Property acquired as legacy from estate of father domiciled in foreign state, and not yet paid, is nevertheless sole and separate property of legatee and may be disposed of by will. In re Rothchild’s Estate, 48 Idaho 485, 283 P. 598 (1929), cert. denied, 281 U.S. 757, 50 S. Ct. 409, 74 L. Ed. 1167 (1930).

A will operates only upon property legally and equitably belonging to the testator at the time of his death. Stone v. Fisher, 65 Idaho 52, 139 P.2d 479 (1943).

Testamentary Capacity.

A finding that a will was made under duress and undue influence presupposes testamentary capacity, or a sound and disposing mind. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

When the special finding of a jury that a testator was competent to make a will at the time it was made is in conflict with findings that the testator was laboring under an insane delusion and was not of sound and disposing mind, the true test as to such conflicts is whether one would support a different judgment from the one entered. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

A man may possess testamentary capacity and at the same time be unable to transact ordinary business; but and where a man is able to transact ordinary business, this is sufficient to establish his competency to make a will. Schwartz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

The physical and mental condition of testator as bearing on testamentary capacity before and after the time of execution of a will is admissible when not too remote, and evidence of mental condition from four to ten days before the execution of a will and one to four days thereafter is admissible. In re Brown’s Estate, 52 Idaho 286, 15 P.2d 604 (1932).

An instruction to jury which suggests that a person almost bereft of mental power and understanding would still be able to make a valid will and which fails to distinguish between simple and complicated wills is bad. Hedin v. Westdala Lutheran Church, 59 Idaho 241, 81 P.2d 741 (1938). The mental state of deceased on the day she executed a purported will is a question of fact for the trial court sitting without a jury. In re Brown’s Estate, 61 Idaho 320, 101 P.2d 11 (1940).

Validity in General.

Although a testator’s will should be upheld wherever possible, a will placing the disposal of the testator’s property beyond the supervision of the courts will not be upheld. Hedin v. Westdala Lutheran Church, 59 Idaho 241, 81 P.2d 741 (1938).

Undue Influence.

No presumption of the exercise of undue influence arises by reason of the relation of the parties alone, or from evidence that the wife had opportunity to exercise such influence. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

Questions regarding the sufficiency of evidence to sustain a finding on the issue of undue influence need not be considered where the evidence supports the court’s finding of a lack of testamentary capacity. In re Brown’s Estate, 61 Idaho 320, 101 P.2d 11 (1940).

Where a will which gave all property to two children to the exclusion of other children was declared invalid because of undue influence exercised by said two children, they, nevertheless, remained heirs of the estate and were “tenants in common” of the estate with the other children. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

ALR.

Testamentary capacity as affected by use of intoxicating liquor or drugs. 9 A.L.R.3d 15.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix. 17 A.L.R.3d 503.

Place of signature of attesting witnesses. 17 A.L.R.3d 705; 1 A.L.R.5th 965.

Testator’s illiteracy or lack of knowledge of language in which will is written as affecting its validity. 37 A.L.R.3d 889.

May parts of will be upheld notwithstanding failure of other parts for lack of testamentary capacity or undue influence. 64 A.L.R.3d 261.

Necessity that attesting witness realized instrument was intended as will. 71 A.L.R.3d 877.

Existence of illicit or unlawful relation between testator and beneficiary as evidence of undue influence. 76 A.L.R.3d 743.

[General comment to §§ 15-2-501 — 15-2-513.]

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[Comment to § 15-2-501.]

Part 5 of Article II [Chapter 2] deals with capacity and formalities for execution and revocation of wills. If the will is to be restored to its role as the major instrument for disposition of wealth at death, its execution must be kept simple. The basic intent of these sections is to validate the will whenever possible. To this end, the age for making wills is lowered to eighteen, formalities for a written and attested will are kept to a minimum, holographic wills, written and signed by the testator are authorized, choice of law as to validity of execution is broadened, and revocation by operation of law is limited to divorce or annulment. However, the statute also provides a more formal method of execution with acknowledgment before a public officer (the self-proved will). [Comment to§ 15-2-501.]

This section states a uniform minimum age of eighteen for capacity to execute a will. “Minor” is defined in Section 1-201, and may involve a different age than that prescribed here.

Cross References.

Probate and administration of wills,§ 15-3-101 et seq.

Amendments.

The 2008 amendment, by ch. 76, inserted “or except as provided in sections 51-109, 55-712A or 55-712B, Idaho Code.”

The 2017 amendment, by ch. 192, deleted “55-712A or 55-712B” following “51-109.”

Compiler’s Notes.

The bracketed insertions near the beginning of the section were added by the compiler to conform to the statutory citation style.

Applicability.

The will of any person dying after the effective date of this section must be executed in accordance with its provisions regardless of when the will was signed. In re Estate of Buffi, 98 Idaho 354, 564 P.2d 150 (1977).

Form of Will.

Telephone Acknowledgment.

Where the decedent merely signed a rough draft of his will, the document did not meet the formal requirements of the section and the decedent must be considered to have died intestate. In re Estate of Buffi, 98 Idaho 354, 564 P.2d 150 (1977). Telephone Acknowledgment.

This section preserves the observatory function as well as the signatory function of witnesses. In order for a will to be validly executed, each witness must have observed the testator sign the will or must have observed the testator’s acknowledgment of his or her signature or of the will; accordingly, a telephonic acknowledgment by the testator, without more, will not suffice. McGurrin v. Scoggin, 113 Idaho 341, 743 P.2d 994 (Ct. App. 1987).

Witnessing of Signature.

Where the magistrate found that not one of the three persons who signed the purported will as a witness ever observed decedent sign the document, and the testimony of the witnesses indicated that not one of them knew before signing the will whether decedent had affixed her signature because they only saw the one page which they signed, there was substantial evidence to support the magistrate’s finding that decedent’s will was not signed by at least two persons, each of whom witnessed the signing of the will, as required by this section. Toms v. Davies, 128 Idaho 303, 912 P.2d 671 (Ct. App. 1995).

The Idaho legislature has not enacted any requirement as to when the witnesses to a will must sign. As such, a will was properly admitted to probate, even though one of the witnesses signed after the testator’s death. Spelius v. Hollon (In re Estate of Miller), 143 Idaho 565, 149 P.3d 840 (2006), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Decisions Under Prior Law

Compliance With Section.

An instrument consisting of two pieces of paper glued together, one containing an agreement and the other the signatures, will not be admitted as evidence of testamentary disposition in the absence of convincing proof that it was in the same condition as when signed. Diamond v. Connolly, 276 F. 87 (9th Cir.), cert. denied, 257 U.S. 656, 42 S. Ct. 169, 66 L. Ed. 420 (1921).

Evidence showing the former section had been complied with entitled will to be probated as such, in absence of contest or contrary showing. Head v. Nixon, 22 Idaho 765, 128 P. 557 (1912).

Right to Make Will.

The right to dispose of property by will is not a property or natural right, and the legislature may prescribe the procedure and conditions under which it may be done. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

Sufficiency of Publication.

Where a testator produced a will, with what purported to be his signature clearly visible thereon, and asked that it be signed or witnessed by persons present, there has been sufficient acknowledgment of his signature. Parkison v. Artley, 93 Idaho 66, 455 P.2d 310 (1969). COMMENT TO OFFICIAL TEXT

The formalities for execution of a witnessed will have been reduced to a minimum. Execution under this section normally would be accomplished by signature of the testator and of two witnesses; each of the persons signing as witnesses must “witness” any of the following: the signing of the will by the testator, an acknowledgment by the testator that the signature is his, or an acknowledgment by the testator that the document is his will. Signing by the testator may be by mark under general rules relating to what constitutes a signature; or the will may be signed on behalf of the testator by another person signing the testator’s name at his direction and in his presence. There is no requirement that the testator publish the document as his will, or that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other. The testator may sign the will outside the presence of the witnesses if he later acknowledges to the witnesses that the signature is his or that the document is his will, and they sign as witnesses. There is no requirement that the testator’s signature be at the end of the will; thus, if he writes his name in the body of the will and intends it to be his signature, this would satisfy the statute. The intent is to validate wills which meet the minimal formalities of the statute.

A will which does not meet these requirements may be valid under Section 2-503 as a holograph.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

Sufficiency.

Where proponent asserted that handwritten message contained in greeting card sent to her by decedent prior to death was executed with testamentary intent by which decedent intended to devise all his real property to proponent upon his death, but where decedent’s widow presented testimony of friends and relatives that on several occasions decedent had said that he did not have a will and that everything was to go to his wife, the district court did not err in denying the greeting card probate as a holographic will because decedent did not write the card with testamentary intent. In re Estate of Webber, 97 Idaho 703, 551 P.2d 1339 (1976).

Decisions Under Prior Law

Alterations.

The proponent of a holographic will has the duty of explaining cancellations on such a will, or at least the burden to show that the will was not altered since coming into her hands. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

Cancellations or erasures of parts of a holographic will are permissible, and if only one clause of such a will is cancelled or obliterated only such clause is revoked. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

Proof of Will.

Testimony of appellant’s two half-brothers as to the existence of a lost holographic codicil is insufficient to overturn lower court’s finding rejecting the proof of existence of such instrument. Pedersen v. Moore, 32 Idaho 420, 184 P. 475 (1919). Evidence of witnesses as to contents of letter was not sufficiently clear to establish holographic will where the evidence was not as to any positive language and did not manifest a testamentary disposition by deceased. In re Harrington’s Estate, 43 Idaho 447, 252 P. 868 (1927).

Revocation of Prior Will.

A holographic will may revoke a prior will. In re Hengy’s Estate, 53 Idaho 515, 26 P.2d 178 (1933).

Sufficiency.

A holographic will, falling short of statutory requirements as to execution, is not valid although intent of testator is clear. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

A letter written by deceased to his son, entirely written, dated and signed by him, satisfies every requirement of a holographic will, and, if written with testamentary intent, will be given effect as a will. In re Hengy’s Estate, 53 Idaho 515, 26 P.2d 178 (1933).

Instrument written, dated and signed in handwriting of deceased is a valid will. In re Heazle’s Estate, 72 Idaho 307, 240 P.2d 821 (1952).

ALR.

Requirement that holographic will or its material provisions be entirely in testator’s handwriting as affected by appearance of some printed or written matter not in testator’s handwriting. 37 A.L.R.4th 528.

Prior Laws.

Former§ 15-2-504, which comprised I.C.,§ 15-2-504, as added by 1971, ch. 111, § 1, p. 233 was repealed by S.L. 1978, ch. 350, § 6.

Amendments.

The 2007 amendment, by ch. 90, inserted “witnesses” in the last paragraph of the form in subsection (b).

The 2008 amendment, by ch. 76, redesignated former subsections (a) and (b) as subsections (1) and (2), respectively, and added subsection (3).

The 2017 amendment, by ch. 192, deleted “55-712A or 55-712B” following “55-109” in subsection (3).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted. CASE NOTES

Legislative Intent.

On March 12, 1971, the legislature passed Laws 1971, ch. 111 which was to be codified as this section, and which provided that one generally competent as a witness could witness a will; four days later it passed Laws 1971, ch. 126 amending this section to require such witnesses also be 18 years of age or older, clearly showing its intent to make this requirement mandatory. In re Estate of Lane, 99 Idaho 850, 590 P.2d 577 (1979).

ALR.

COMMENT TO OFFICIAL TEXT

This section simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator’s family on a home-drawn will would no longer be penalized. This change does not increase appreciably the opportunity for fraud or undue influence. A substantial gift by will to a person who is one of the witnesses to the execution of the will would itself be a suspicious circumstance, and the gift could be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as witness but to use disinterested witnesses.

An interested witness is competent to testify to prove execution of the will, under Section 3-406.

Cross References.

Alien may take,§ 15-2-112.

Choice of laws as to meaning and effect of wills,§ 15-2-602.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

Applicability.

Where a decedent drafted and signed a rough copy of a will while in Idaho, this provision would not be applicable. In re Estate of Buffi, 98 Idaho 354, 564 P.2d 150 (1977).

This section is a choice of laws provision dealing solely with the validity of wills made in other jurisdictions and cannot be utilized where the question is not the validity of a foreign will. In re Estate of Buffi, 98 Idaho 354, 564 P.2d 150 (1977).

Decisions Under Prior Law

In General.

There cannot be two conflicting wills for the same estate unless the latter is a revocation of the former. Snyder v. Raymond, 48 Idaho 810, 285 P. 478 (1930).

Contract to Make Will.

A will is ordinarily revocable at any time before the testator’s death, even though delivered to the person beneficially interested; but, where made pursuant to a valid contract, the testator cannot escape the obligations of the contract by revocation. Andrews v. Aikens, 44 Idaho 797, 260 P. 423 (1927).

Holographic Will.

Cancellation or erasures of parts of a holographic will are permissible; and, if only one clause thereof is cancelled or obliterated, such clause only is revoked. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

Mental Competency.

If instrument purports to revoke prior wills, the trial court must make a finding as to mental competency of deceased at the time the revoking instrument was executed. In re Heazle’s Estate, 72 Idaho 307, 240 P.2d 821 (1952).

Presumption of Revocation.

Whenever new moral and testamentary duties arise subsequent to the execution of a will, the will is revoked by presumption or operation of law, unless the objects of these duties are provided for, either by the law or the will. Morgan v. Ireland, 1 Idaho 786.

Jurors were properly instructed that if they found that the will was left in the possession of decedent’s attorney there was no presumption of revocation by the testator arising out of the failure to find it, unless they should find from the evidence that the will, after such entrustment, subsequently came into the decedent’s possession. In re Killgore’s Estate, 86 Idaho 386, 387 P.2d 16 (1963).

Where a will is left in the custody of the testator, or is readily accessible to him, or is last seen in his possession, and cannot be found after his death, a presumption arises that he destroyed the will with intent to revoke it. In re Killgore’s Estate, 86 Idaho 386, 387 P.2d 16 (1963).

Sufficiency.

The subsequent oral declarations of the testator are not sufficient to impeach the will, although they show his dissatisfaction with the will and his intent to execute a new will. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

Instrument, written, dated and signed in handwriting of deceased which contained following statement “I revoke all former wills” was sufficient to show a revocation of prior will. In re Heazle’s Estate, 72 Idaho 307, 240 P.2d 821 (1952).

Where a will is left in the custody of a person other than the testator and is not found after the death of the testator, there is no presumption that it was revoked. In such case oral declarations of the testator, in the absence of evidence of some act of revocation required by the statute, are not competent to prove revocation for the reason that the statute does not permit a testator orally to revoke his will. In re Killgore’s Estate, 86 Idaho 386, 387 P.2d 16 (1963).

ALR.

Revocation of will by nontestamentary writing. 22 A.L.R.3d 1346.

Admissibility of testator’s declaration on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation. 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will. 49 A.L.R.3d 1223.

Testator’s failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will. 61 A.L.R.3d 958.

Rights and remedies against one who induces, prevents, or interferes in the making, changing, or revoking of a will, or holds the fruits thereof. 22 A.L.R.4th 1229.

Cross References.

Effect of divorce, annulment, or separation decree,§ 15-2-802.

Waiver of spouse’s rights by property settlement in anticipation of divorce or separation,§ 15-2-208.

Compiler’s Notes.

The bracketed insertion near the end of the next-to-last sentence was added by the compiler to conform to the statutory citation style.

Personal Representative.

Decedent’s will, executed at a time when former law was in effect, was not revoked by her subsequent remarriage, where her death occurred after the effective date of the Uniform Probate Code (July 1, 1972), insofar as the appointment of a personal representative was concerned. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980). RESEARCH REFERENCES

ALR.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce. 74 A.L.R.3d 1108.

Compiler’s Notes.

The bracketed insertion in subsection (a) was added by the compiler to conform to the statutory citation style.

Script Not Separate Instrument.

In challenge to trust by on-hand relative, settlor’s script was validly created pursuant to the Second Amendment and was then stapled to it, as required by new amendatory procedures; thus, the script was not a separate instrument from the trust which would require incorporation by reference in order for it to have been valid. Salfeety v. Seideman, 127 Idaho 817, 907 P.2d 794 (1995).

Amendments.

The 2006 amendment, by ch. 161, inserted “concurrently with” in subsection (1)(a)(ii).

ALR.

COMMENT TO OFFICIAL TEXT

Purpose and Scope or Revisions.

In addition to making a few stylistic changes, several substantive changes in this section are made. As revised, it has been made clear that the “trust” need not have been established (funded with a trust res) during the decedent’s lifetime, but can be established (funded with a res) by the devise itself. The pre-1990 version probably contemplated this result and reasonably could be so interpreted (because of the phrase “regardless of the existence . . . of the corpus of the trust”). Indeed, a few cases have expressly stated that statutory language like the pre-1990 version of this section authorizes pour-over devises to unfunded trusts. E.g., Clymer v. Mayo , 473 N.E.2d 1084 (Mass. 1985); Trosch v. Maryland Nat’l Bank , 32 Md. App. 249, 359 A.2d 564 (1976). The authority of these pronouncements is problematic, however, because the trusts in these cases were so-called “unfunded” life-insurance trusts. An unfunded life-insurance trust is not a trust without a trust res; the trust res in an unfunded life-insurance trust is the contract right to the proceeds of the life-insurance policy conferred on the trustee by virtue of naming the trustee the beneficiary of the policy. See Gordon v. Portland Trust Bank , 201 Or. 648, 271 P.2d 653 (1954) (“[T]he [trustee as the] beneficiary [of the policy] is the owner of a promise to pay the proceeds at the death of the insured . . .”); Gurnett v. Mutual Life Ins. Co. , 356 Ill. 612, 191 N.E. 250 (1934). Thus, the term “unfunded life-insurance trust” does not refer to an unfunded trust, but to a funded trust that has not received additional funding. For further indication of the problematic nature of the idea that the pre-1990 version of this section permits pour-over devises to unfunded trusts, see Estate of Daniels , 665 P.2d 594 (Colo. 1983) (pour-over devise failed; before signing the trust instrument, the decedent was advised by counsel that the “mere signing of the trust agreement would not activate it and that, before the trust could come into being, [the decedent] would have to fund it;” decedent then signed the trust agreement and returned it to counsel “to wait for further directions on it;” no further action was taken by the decedent prior to death; the decedent’s will devised the residue of her estate to the trustee of the trust, but added that the residue should go elsewhere “if the trust created by said agreement is not in effect at my death.”)

Additional revisions of this section are designed to remove obstacles to carrying out the decedent’s intention that were contained in the pre-1990 version. These revisions allow the trust terms to be set forth in a written instrument executed after as well as before or concurrently with the execution of the will; require the devised property to be administered in accordance with the terms of the trust as amended after as well as before the decedent’s death, even though the decedent’s will does not so provide; and allow the decedent’s will to provide that the devise is not to lapse even if the trust is revoked or terminated before the decedent’s death.

Revision of Uniform Testamentary Additions to Trusts Act.

The freestanding Uniform Testamentary Additions to Trusts Act (UTATA) was revised in 1991 in accordance with the revisions to UPC§2-511. States that enact Section 2-511 need not enact the UTATA as revised in 1991 and should repeal the original version of the UTATA if previously enacted in the state.

ALR.

Validity and construction of testamentary gift conditioned upon beneficiary’s remaining married. 28 A.L.R.3d 1325.

Validity of testamentary provision making gift to person or persons meeting specified qualifications and authorizing another to determine who qualifies. 74 A.L.R.3d 1073.

Effect of and validity of provision conditioning testamentary gift upon divorce of beneficiary, or alternative provision conditioning gift upon spouse’s death. 74 A.L.R.3d 1095.

Wills: Condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith. 89 A.L.R.3d 984.

Gift by Memorandum.

Decedent’s gift by memorandum was properly admitted into probate as decedent’s will specifically contemplated the existence of, and authorized the effectiveness of, a separate writing pursuant to the statute; the gift by memorandum described items of property that were not specifically mentioned in the will, as well as the devisees of those items, with great specificity. Wilkins v. Wilkins, 137 Idaho 315, 48 P.3d 644 (2002).

Cross References.

Heir must survive decedent by 120 hours,§ 15-2-104.

Simultaneous deaths,§ 15-2-613.

Exception to Requirement.

Provision in testator’s will that “if my sister above-named does not survive me” then the contingent beneficiary should take fell under a statutory exception to this section’s 120 hour survivorship requirement; thus, testator’s sister, who died approximately 74 hours after his death, took under the will even though she did not survive for 120 hours. In re Estate of Kerlee, 98 Idaho 5, 557 P.2d 599 (1976).

ALR.

COMMENT TO OFFICIAL TEXT

[General comment to §§ 15-2-601 — 15-2-615.]

[]

Part 6 deals with a variety of construction problems which commonly occur in wills. All of the “rules” set forth in this part yield to a contrary intent expressed in the will and are therefore merely presumptions. Some of the sections are found in all states, with some variation in wording; others are relatively new. The sections deal with such problems as death before the testator (lapse), the inclusiveness of the will as to property of the testator, effect of failure of a gift in the will, change in form of securities specifically devised, ademption by reason of fire, sale and the like, exoneration, exercise of power of appointment by general language in the will, and the kinds of persons deemed to be included within various class gifts which are expressed in terms of family relationships.

[Comment to § 15-2-601.]

[]

This parallels Section 2-104 requiring an heir to survive by 120 hours in order to inherit.

Cross References.

Choice of law as to execution,§ 15-2-506.

Compiler’s Notes.

The bracketed insertions throughout this section was added by the compiler to conform to the statutory citation style.

Cross References.

Choice of law as to execution,§ 15-2-506.

Holographic Will.

When language in a holographic will is deleted or added to, a new will results, consisting only of the remaining and new language; if the remaining language in the will clearly expresses the testatrix’s intent, a court may not consider the deleted language to alter that intent or to render that intent ambiguous. Allison v. Bradley, 107 Idaho 860, 693 P.2d 1062 (Ct. App. 1984).

Judicially Created Rules.

If the testator’s intent can be determined from the face of his will, that intent, unless it is in contravention of some established rule of law or public policy, must be given effect; judicially created rules of construction may only be used as an aid in ascertaining the testator’s intent, if that intent cannot be ascertained from reading of the will itself. Allen v. Shea, 105 Idaho 31, 665 P.2d 1041 (1983).

Power of Appointment.

No technical, special, or particular form of words are necessary for the creation of a power of appointment, If the testator’s intention to confer the power appears from the entire will, full effect will be given to such intention. To show that a testator intended to convey a power of appointment, the law requires that the grantor must (1) intend to create a power, (2) indicate by whom the power is held, and (3) specify the property over which the power is to be exercised. Lanham v. Fleenor, 164 Idaho 355, 429 P.3d 1231 (2018).

Survival Clause.

A clause in a will which made a bequest to a legatee “provided he survive distribution thereof to him” was determined to mean that legatee was required to survive an order of the court approving the transfer or a final settlement or closing of the estate. Hintze v. Black, 125 Idaho 655, 873 P.2d 909 (Ct. App. 1994).

Decisions Under Prior Law

In General.

To ascertain the meaning of a testator, in construing a will, the cardinal rule of construction is to ascertain the testator’s intent; intent is ascertained by a full view of everything within the four corners of the instrument. Jones v. Broadbent, 21 Idaho 555, 123 P. 476 (1912).

Where the testator’s intent is clearly and unequivocably expressed, rules of construction need not be employed. Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P.2d 679 (1942).

ALR.

Meaning of term “relatives” or “relations” employed in will. 5 A.L.R.3d 715.

Validity, construction, and effect of bequest or devise to a person’s estate, or to the person or his estate. 10 A.L.R.3d 483.

Validity and construction of gift to A or B, or to A or B or survivor. 19 A.L.R.3d 1213.

Admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given. 21 A.L.R.3d 778.

What passes under term “securities” in will. 27 A.L.R.3d 1386.

What passes under terms “cash,” “cash on hand,” or “cash assets” in will. 27 A.L.R.3d 1406.

What passes under term “business” or “business enterprise” in will. 28 A.L.R.3d 1169.

What included in devise of “house,” “dwelling house,” or the like. 29 A.L.R.3d 574.

What passes under, and is included in, devise of “building,” “house,” or “dwelling house.” 29 A.L.R.3d 574.

What passes under terms “personal belongings,” “belongings,” “personal effects” or “effects” in will. 30 A.L.R.3d 797.

Who takes under testamentary gift to “parents.” 36 A.L.R.3d 323.

Construction of provision as to which of two or more persons shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time. 40 A.L.R.3d 359.

Word “grandchild” or “grandchildren” in will as including great-grandchild or great-grandchildren. 51 A.L.R.3d 1250.

Construction and operation of will or trust provision appointing advisors to trustee or executor. 56 A.L.R.3d 1249.

Validity and construction of bequest with limitation over to another in event that original beneficiary dies before distribution, payment, or receipt thereof. 59 A.L.R.3d 1043.

Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by amendment or repeal. 63 A.L.R.3d 603. Effect of doubtful construction of will devising property upon marketability of title. 65 A.L.R.3d 450.

Construction and effect of will provisions relied on as affecting payment of real or personal property taxes or income taxes. 70 A.L.R.3d 726.

Taxation, construction and effect of provisions of will relied upon as affecting the burden of. 70 A.L.R.3d 630.

What passes under term “personal property” in will. 31 A.L.R.5th 499.

Decisions Under Prior Law

Intent of Testator.

Under the statute all after-acquired property, whether real or personal, passes under the will of the testator unless a contrary intent is expressed in the will. In re Hartwig’s Estate, 70 Idaho 77, 211 P.2d 399 (1949).

Residuary Clause.

Use of the words, “remainder of my said estate”, in the residuary clause of the will passed all property owned by the testator at the time of his death, including property acquired from his wife since the date of his will. In re Hartwig’s Estate, 70 Idaho 77, 211 P.2d 399 (1949).

Where testator under will bequeathed one-half of his estate to his wife as her interest in their community property, and under terms of residuary clause gave all the rest, residue, and remainder of his property to two of his children, and thereafter wife died intestate prior to death of the testator, the court held that all of his property, real estate and personal, at the time of his death passed to the legatees under the residuary clause. In re Hartwig’s Estate, 70 Idaho 77, 211 P.2d 399 (1949).

ALR.

§ 15-2-605. Anti-lapse — Deceased devisee — Class gifts.

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by one hundred twenty (120) hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

History.

I.C.,§ 15-2-605, as added by 1971, ch. 111, § 1, p. 233.

ALR.

Gift over to “survivors” of class or group of designated beneficiaries as restricted to surviving members of class or group, or as passing to heirs or representatives of deceased beneficiary. 54 A.L.R.3d 280.

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

Conditions Precedent.

Finding in favor of the beneficiary in a will contest action was improper where the partnership terminated by operation of law when the testator died; under subsection (a), the ownership devise failed because it did not satisfy the conditions precedent and, under Idaho law, any devise that failed became part of the residue. Steelsmith v. Trout (In re Estate of Steelsmith), 139 Idaho 216, 76 P.3d 960 (2003).

ALR.

Admissibility of extrinsic evidence to identify stock, bonds, and other securities disposed of by will. 16 A.L.R.3d 432.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock. 46 A.L.R.3d 7.

Prior Laws.

Former§ 15-2-608, which comprised I.C.,§ 15-2-608, as added by 1971, ch. 111, § 1, p. 233 was repealed by S.L. 1978, ch. 350, § 8.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

ALR.

COMMENT TO OFFICIAL TEXT

Although there is some indication that more states will adopt special legislation on powers of appointment, and this Code has therefore generally avoided any provisions relating to powers of appointment, there is great need for uniformity on the subject of exercise by a will purporting to dispose of all of the donee’s property, whether by a standard residuary clause or a general recital of property passing under the will. Although a substantial number of states have legislation to the effect that a will with a general residuary clause does manifest an intent to exercise a power, the contrary rule is stated in the present section for two reasons: (1) this is still the majority rule in the United States, and (2) most powers of appointment are created in marital deduction trusts and the donor would prefer to have the property pass under his trust instrument unless the donee affirmatively manifests an intent to exercise the power.

Under this section and Section 2-603 the intent to exercise the power is effective if it is “indicated by the will.” This wording permits a Court to find the manifest intent if the language of the will interpreted in light of all the surrounding circumstances shows that the donee intended an exercise, except, of course, if the donor has conditioned exercise on an express reference to the original creating instrument. In other words, the modern liberal rule on interpretation of the donee’s will would be available.

Cross References.

Advancements,§ 15-2-110.

ALR.

Rule of ademption as applied to legacies of proceeds of life insurance. 45 A.L.R.3d 10.

What amounts to ademption of legacy of corporate stock or other corporate securities. 46 A.L.R.3d 7.

Ademption of legacy of business or interest therein. 65 A.L.R.3d 541.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator. 84 A.L.R.4th 462.

Compiler’s Notes.

The bracketed insertions in the introductory paragraph were added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Application of Section.

Where there is sufficient evidence to determine that one party survived another, the simultaneous death statute, providing for distribution of property of joint tenants or tenants by the entirety, is not applicable. In re Davenport’s Estates, 79 Idaho 548, 323 P.2d 611 (1958).

Evidence of Survival.

Where trial court was faced with conflicting evidence of a substantial nature, it had to resolve the conflict and, in doing so, stated in the findings of fact that the wife had lived for a period of approximately 15 minutes, surviving her husband following the time of automobile collision in petition brought for distribution by the administrator who had set forth the names of all heirs, both husband’s and wife’s. In re Davenport’s Estates, 79 Idaho 548, 323 P.2d 611 (1958).

Purpose.

The purpose of the former similar section was to prevent what was deemed a wrong and injustice to those who should naturally be the recipients of the bounty of a testator — his heirs at law. It was not enacted for the public good or as a matter of state policy, but for the benefit exclusively of those named in it — the heirs at law — and as a protection against hasty and improvident gifts to charity by a testator of his entire estate to the exclusion of those who, in the judgment of the legislature, had a better claim to his bounty. In re Coleman’s Estate, 66 Idaho 567, 163 P.2d 847 (1945).

ALR.

§ 15-2-614. Effect of devise.

Every devise in any will conveys all of the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that he intended to convey a lesser estate.

History.

I.C.,§ 15-2-614, as added by 1971, ch. 111, § 1, p. 233.

Compiler’s Notes.

This section, which comprised I.C.,§ 15-2-615, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 286, § 1, p. 696, was repealed by S.L. 1994, ch. 359, § 1, effective July 1, 1994.

Compiler’s Notes.

The phrase “the effective date of this act” near the beginning of this section refers to the effective date of S.L. 1971, Chapter 111, which was effective July 1, 1972.

Determination of Multiple Issues.

Trial court and the parties mistakenly believed that the contract establishing the survivor’s estate contained provisions relating to the determination of the beneficiary’s entitlement, and, because there was confusion regarding what expenses, particularly attorney fees, could be deducted from his share, the judge handling the probate was best positioned to determine the net share of any estate beneficiary, considering all expenses, the overall scheme of distribution, and the effect of one beneficiary’s entitlement upon that of the others; by following the intent of the applicable statutes and rules pertaining to assignment of probate proceedings to the magistrate division, confusion could be averted or alleviated. Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005).

Decisions Under Prior Law

Marriage Contract.

A conveyance after marriage by testator to his wife of 80 acres of land failed to constitute proof of consummation of a marriage contract contemplated by statute as sufficient to be received to rebut the presumption of revocation of an antenuptial will. White v. Conference Claimants Endowment Comm’n, 81 Idaho 17, 336 P.2d 674 (1959).

ALR.

Measure of damages for breach of contract to will property. 65 A.L.R.3d 632.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life. 85 A.L.R.3d 8.

Cross References.

Private agreements among successors to bind personal representatives,§ 15-3-912.

Prior Laws.

Former§ 15-2-801, which comprised I.C.,§ 15-2-801, as added by 1971, ch. 111, § 1, p. 233 was repealed by S.L. 1978, ch. 173, § 1.

Amendments.

Compiler’s Notes.

The 2011 amendment, by ch. 106, changed the designation scheme in the section; at the end of paragraph (1)(c), substituted “pursuant to part 4, chapter 1, title 15, Idaho Code” for “provided by this act”; added the exception at the beginning in subsection (2); deleted former subsection (h), which read: “An interest in property existing on the effective date of this act as to which, if a present interest, the time for filing a renunciation has not expired, or, if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained may be renounced within nine (9) months after the effective date of this act”; and added subsection (9). Compiler’s Notes.

Brackets were placed by the compiler around the word “the” near the beginning of subsection (2) to indicate that the word is surplusage following the 2011 amendment.

Effective Dates.

Section 3 of S.L. 1978, ch. 173 declared an emergency. Approved March 20, 1978.

Section 2 of S.L. 2011, ch. 106 declared an emergency retroactively to January 1, 2010, for all decedents who die on or after January 1, 2010. Approved March 22, 2011.

ALR.

COMMENT TO OFFICIAL TEXT

[General comment to §§ 15-2-801 — 15-2-803.]

[]

Part 8 contains three general provisions which cut across both testate and intestate succession. The first section permits renunciation; the existing law in most states permits renunciation of gifts by will but not by intestate succession, a distinction which cannot be defended on policy grounds. The second section deals with the effect of divorce and separation on the right to elect against a will, exempt property and allowances, and an intestate share. The last section, an optional provision, spells out the legal consequence of murder on the right of the murderer to take as heir, devisee, joint tenant or life insurance beneficiary.

[Comment to Subsection (1).]

[Comment to Subsection (1).]

Who May Disclaim: At common law it was settled that the taker of property under a will had the right to accept or reject a legacy or devise (per Abbott, C.J. in Townson v. Tickell , 3 B & Ald 3, 136, 106 Eng. Rep. 575, 576). The same rule prevails in the United States ( Peter v. Peter , 343 Ill. 493, 175 N.E. 846 (1931) 75 A.L.R. 890). It is said that no one can make another an owner of an estate against his consent by devising it to him. See, for example, People v. Flanagin , 331 Ill. 203, 162 N.E. 848 (1928) 60 A.L.R. 305:

“The law is clear that a legatee or devisee is under no obligation to accept a testamentary gift . . . and he may renounce the gift, by which act the estate will descend to the heir or pass in some other direction under the will . . .”

Under the rule permitting the disclaimer of testate successions, the disclaimed interest related back to the date of the testator’s death so that the interest did not vest in the grantee but remained in the original owner as if the will had never been executed ( People v. Flanagin , supra).

Unlike the devisee or legatee, an heir had no common law power to prevent passage of title to himself by disclaimer. “An heir at law is the only person in whom the law of England vests property, whether he will or not,” declares Williams on Real Property, and adds, “No disclaimer that he may make will have any effect, though, of course, he may as soon as he pleases dispose of the property by ordinary conveyance.” (Williams on Law of Real Property 75 [2d Am. Ed. 1857]. See also 6 Page on Wills [Bowe-Parker Revision] Section 49.1.) The difference between testate and intestate successions in respect to the right to disclaim has produced a number of illogical and undesirable consequences. An heir who sought to reject his inheritance was subjected to the Federal gift tax on the theory that since he could not prevent the passage of title to himself, any act done to rid himself of the interest necessarily involved a transfer subject to gift tax liability [ Hardenberg v. Com’r , 198 F.2d 63 (8th Cir.) cert. denied, 344 U.S. 863 (1952) aff’g 17 T.C. 166 (1951); Maxwell v. Com’r , 17 T.C. 1589 (1952). See Lauritzen, Only God Can Make an Heir, 48 NWL Rev. 568; Annotation 170 A.L.R. 435]. On the other hand, a legatee or devisee who rejected a legacy or devise under the will incurred no such tax consequences [ Brown v. Routzahn , 63 F.2d 914 (6th Cir.) cert. denied, 290 U.S. 641 (1933)].

Subsection (1) places an heir on the same basis as a devisee or legatee and provides that he and others upon whom successions may devolve, have the full right to disclaim in whole or in part the passage of property to them, with the same legal consequences applying in all such cases.

Successive disclaimers are permitted by the express inclusion of “person succeeding to a disclaimed interest” among those who may disclaim.

Beneficiary: The term beneficiary is used in a broad sense to include any person entitled, but for his disclaimer, to possess or enjoy an equitable or legal interest, present or future, in the property or interest, including a power to consume, appoint, or apply it for any purpose or to enforce the transfer in any respect.

Subsection (a) extends the right to disclaim to the representative of an incapacitated or protected person. This accords with the general rule that the probate or surrogate court in the exercise of its traditional jurisdiction over the person and estate of a minor or incompetent may authorize or direct the guardian, conservator or committee to exercise the right on behalf of his ward when it is in the ward’s interest to do so. Davis v. Mather , 309 Ill. 284, 141 N.E. 209 (1923).

On the other hand, absent a statute, the general rule is that the right to disclaim is personal to the person entitled to exercise it, and dies with him in the absence of fraud or concealment or conflict of interest of his representative, even though the time within which the right might have been utilized has not expired and even though he may be incompetent. Rock Island Bank & Trust Co. v. First Nat. Bank of Rock Island , 26 Ill. 2d 47, 185 N.E.2d 890 (1962), 3 A.L.R.3d 114. Subsection (a) adopts this position by stating that the right to disclaim does not survive the death of the person having it.

The Act makes no provision here or elsewhere, for an extension of time to disclaim or other relief from a strict observance of the statutory requirements for disclaimer and the time limitations for expressing the right of disclaimer apply to persons under disability as well as to others.

What May be Disclaimed: Subsection (1) specifies that the “succession” to any property, real or personal or interest therein, may be disclaimed, and it is immaterial whether it derives by way of will, intestacy, exercise of a power of appointment or disclaimer. It would include the right to renounce any survivorship interest in the community in a community property state. Cf. U.S. v. Mitchell, 403 U.S. 190 (1971), rev’g 430 F.2d (5th Cir. 1970), aff’g 51 T.C. 641 (1969). Future Interests: Subsection (1) contemplates the disclaimer of future interests by reference to “beneficiary under a testamentary instrument” and “appointee under a power of appointment.” The time for making such a disclaimer is dealt with in Subsection (2).

Partial Disclaimer: The status of partial disclaimers has been uncertain in many states. The result has often turned on whether the gift is “severable” or constitutes a “single, aggregate” gift [ Olgesby v. Springfield Marine Bank , 395 Ill. 37, 69 N.E.2d 269 (1946); Brown v. Routzahn , supra]. Subsection (a) makes it clear that a partial, as well as a total, disclaimer is permitted.

Discretionary administrative and investment powers under a trust have been held to constitute a “severable” interest and subject to partial disclaimer. Estate of Harry C. Jaecker , 58 T.C. 166, CCH Dec. 31, 356 (1972).

Method of Disclaiming: In many states no satisfactory case law has existed as to the form and manner of making disclaimers of devises or legacies under wills. See Annotation 93 A.L.R.2d 8 — What Constitutes or Establishes Beneficiary’s Acceptance of Renunciation of Bequest or Devise. Because certainty of titles and the expeditions administration of estates makes definiteness desirable in this area. Subsection (1) requires a disclaimer to (i) describe the property or interest disclaimed; (ii) declare the disclaimer and the extent thereof; and (iii) be signed by the disclaimant.

[Comment to Subsection (2).]

[Comment to Subsection (2).]

Time for Making Disclaimer: At common law, no specific time evolved within which disclaimer had to be made. The only requirement was that it be within a “reasonable” time ( In re Wilson’s Estate , 298 N.Y. 398, 83 N.E.2d 852 (1949); Ewing v. Rountree , 228 F. Supp. 137 (D.C. Tenn. 1964)). As a result, divergent holdings were reached by the courts ( Brown v. Routzahn , 63 F.2d 914 (6th Cir.), cert. denied, 290 U.S. 641 (1933). Subsection (2) fixes a definite time for filing of disclaimers. This approach follows the pattern of the Federal estate tax law which prescribed the time for filing estate tax returns in terms of the decedent’s death. The time allowed should overlast the time for filing claims and contesting the will and enable the executor or administrator to know with certainty who the takers of the estate will be. On the other hand, it should not be so long as to work against an early determination of the acceptance or rejection of succession to an estate, or increase the risk of inadvertent acceptance of the benefits of the property, creating an estoppel. In the case of future interests the disclaimer period should run from the time the takers of the interest are finally ascertained and their interest indefeasibly fixed. Seifner v. Weller , 171 S.W.2d 617 (Mo. 1943). For the consequence of selecting too short a period, see Brodhag v. U.S. , 319 F. Supp. 747 (S.D. W. Va. 1970) involving a 2-month period fixed by West Virginia law.

In the case of future interests it should be noted that the person need not wait until the occurrence of the determinative event before filing a disclaimer, but may do so at any time after the death of the decedent or donee, so long as it is made “not later than” the prescribed period.

Federal Gift Tax Implications: Disclaimers have significance under the Federal gift tax law. Section 2511(a) of the Internal Revenue Code imposes a gift tax upon the transfer of property by gift whether the transfer is in trust or otherwise, and whether the gift is direct or indirect. The Treasury regulations under this section state that where local law gives the beneficiary, heir or next-of-kin an unqualified right to refuse to accept ownership of property transferred from a decedent, whether by will or by intestacy, a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a “reasonable time” after knowledge of the existence of the transfer. A “reasonable time” for gift tax purposes is not defined in the Code or regulations. It has been held that the courts will look to the law of the states in determining the questions. Brown v. Routzahn , 63 F.2d 914 (6th Cir.), cert. denied, 290 U.S. 641 (1933)), not conclusively, but as relevant and having probative value ( Keinath v. C.I.R. , 480 F.2d 57 (8th Cir. 1973), rev’g, 58 T.C. 352 (1972)), and that an unequivocal disclaimer filed within 6 months of the determinative event is made within a “reasonable time.” It has been held, further, that as regards future interests, the “reasonable time” period runs from the termination of the preceding estate or interest, and not from the time the transfer was made, Keinath v. C.I.R. , supra.

Place of Filing Disclaimer: Subsection (2) requires a disclaimer to be filed in the probate court. If real property or an interest therein is involved, a copy of the disclaimer may also be recorded in the office of the recorder of deeds or other appropriate office in the county in which the real estate is situated. If the Torrens system is in effect, appropriate provisions should be added to comply with local law.

Notice: A copy of the disclaimer is required to be delivered in person or mailed by registered or certified mail to the personal representative of other fiduciary of the decedent or of the donee of the power as the case may be.

[Comment to Subsection (3).]

[Comment to Subsection (3).]

Devolution of Disclaimed Property: When a beneficiary disclaimed his interest under a will, the question arises as to what happens to the rejected interest. In People v. Flanagin , 331 Ill. 203, 162 N.E. 848 (1928), 60 A.L.R. 305, the court, quoting the New York case of Burritt v. Sillman , 13 N.Y. 93 (1855) said that the disclaimed property will “descend to the heir or pass in some other direction under the will.” From this, it may be assumed that the court meant that if the decedent left no will, the renounced interest passed according to the rules of descent, but if he left a will, it passed according to its terms.

It has been generally thought that devolution in the case of disclaimer should be the same as in the case of lapse, which is controlled by sections of the probate law. Subsection (c) takes this approach. It provides that unless the will of the decedent or the donee of the power has otherwise provided, the disclaimed interest devolves as if the disclaimant had predeceased the decedent or the donee of the power. In every case the disclaimer relates back to the date of the death of the decedent or of the donee. The provision that the disclaimer “relates back”, codifies the rule that a renunciation of a devise or legacy relates to the date of death of the decedent or donee and prevents the succession from becoming operative in favor of the disclaimant. See In re Wilson’s Estate , 298 N.Y. 398, 83 N.E.2d 852 (1949). Also, Bouse, for use of State v. Hull , 168 Md. 1, 176 A. 645 (1935).

Acceleration of Future Interests: If a life estate or other future interest is disclaimed, the problem is raised of whether succeeding interests or estates accelerate in possession or enjoyment or whether the disclaimed interest must be marshalled to await the actual happening of the contingency. Subsection (c) provides that remainder interests are accelerated, the second sentence specifically stating that any future interest which is to take effect in possession or enjoyment after the termination of the estate or interest disclaimed, takes effect as if the disclaimant had predeceased the deceased owner or deceased donee of the power. Thus, if T leaves his estate in trust to pay the income to his son for life, remainder to his son’s children who survive him, and S disclaims with two children then living, the remainder in the children accelerates; the trust terminates and the children receive possession and enjoyment, even though the son may subsequently have other children or that one or more of the living children may die during their father’s lifetime. Effect of Death or Disability of Person Entitled to Disclaim: The effect of death of a person entitled to disclaim, including one under disability, is discussed under Subsection (a). A guardian or conservator of the estate on an incapacitated or protected person may disclaim for the ward. Subsection (b) makes no provision for an extension of time or for other relief in case of disability for the observance of the statutory requirements for effective disclaimer. The intent is that the period for disclaimer applies to a person under disability as well as to others, and includes a court which purports to act on behalf of one under disability in the absence of fraud, misconduct or other unusual circumstances. Pratt v. Baker , 48 Ill. App. 2d 442, 199 N.E.2d 307 (1964).

Rights of Creditors and Others: As regards creditors, taxing authorities and others, the provision for “relation back” has the legal effect of preventing a succession from becoming operative in favor of the disclaimant. The relation back is “for all purposes” which would include, among others for the purpose of rights of creditors, taxing authorities and assertion of dower. It is immaterial that the effect is to avoid the imposition of a higher death tax than would be the case if the interest had been accepted: Estate of Aylsworth , 74 Ill. App. 2d 375, 219 N.E.2d 779 (1966) [motive for the disclaimer is immaterial]; People v. Flanagin , 311 Ill. 203, 162 N.E. 848 (1928), 60 A.L.R. 305; Cook v. Dove , 32 Ill. 2d 109, 203 N.E.2d 892 (1965) [upholding for inheritance tax the right of appointees to take by default rather than under the power-holder’s exercise of power]; Matter of Wolfe’s Estate , 179 N.Y. 599, 72 N.E. 1152 (1904), aff’g, 89 App. Div. 349, 83 N.Y. Supp. 949 (1903); Brown v. Routzahn , 63 F.2d 914 (6th Cir.), cert. denied, 290 U.S. 641 (1933); In re Stone’s Estate , 132 Ia. 136, 109 N.W. 455 (1906); Tax Commission v. Glass , 199 Ohio St. 389, 164 N.E. 425 (1929); U.S. v. McCrackin , 189 F. Supp. 632 (S.D. Ohio 1960).

Similarly, numerous cases have held that a devisee or legatee can disclaim a devise or legacy despite the claims of creditors: Hoecker v. United Bank of Boulder , 476 F.2d 838 (CA 10 1973), aff’g, 334 F. Supp. 1080 (D. Colo. 1971) (bankruptcy); U.S. v. McCrackin , supra (Federal income tax liens); Shoonover v. Osborne , 193 Ia. 474, 187 N.W. 290 (1922); Bradford v. Calhoun , 120 Tenn. 53, 109 S.W. 502 (1908); Carter v. Carter , 63 N.J. Eq. 726, 53 A. 160 (1902); Estate of Hansen , 109 Ill. App. 2d 283, 248 N.E.2d 709 (1969) (judgment creditor); 37 Mich. L. Rev. 1168; 43 Yale L.J. 1030; 27 A.L.R. 477; 133 A.L.R. 1428. A creditor is not entitled to notice of the disclaimer ( In re Estate of Hansen , 109 Ill. App. 2d 283, 248 N.E.2d 709 (1969)).

[Comment to Subsection (4).]

[Comment to Subsection (4).]

Bars to Disclaimer — Waiver — Estoppel: It may be necessary or advisable to sell real estate in a decedent’s estate before the expiration of the period permitted for disclaimer. In such case, the possibility of a disclaimer being filed within the period, could be a deterrent to sale and delivery of good title. Subsection (4) expressly authorizes an heir, devisee, legatee or other person entitled to disclaim, to indicate in writing his intention to “waive” his right to disclaimer, and thus avoid any delay in the completion of a sale or other disposition of estate assets. the written waiver bars the right of the person subsequently to disclaim the property or interest therein and is binding on persons claiming through or under him.

Similarly, Subsection (4) provides that various acts of a person entitled to disclaim in regard to property or an interest therein, such as making an assignment, conveyance, encumbrance, pledge or transfer of the property or interest, or a contract therefor, bars the right of the person to disclaim and is binding on all persons claiming through or under him. Spendthrift Provisions: The existence of a limitation on the interest of an heir, legatee, devisee or other disclaimant in the nature of a spendthrift provision or similar restriction is expressly declared not to affect the right to disclaim. Without this provision, there might be a question as to whether the beneficiary of a spendthrift trust can disclaim under the statute (Griswold, Spendthrift Trust [2d Ed] Section 524, p. 603). If a person who is under no legal disability wishes to refuse a beneficial interest under a trust, he should not be powerless to make an effective disclaimer even though the intended interest once accepted by him would be inalienable. (Scott on Trust, Section 337.7, p. 2683, 3d Ed.)

When a beneficial interest is accepted by a beneficiary, he cannot thereafter disclaim or release it (Griswold, supra, Section 534, p. 603 note 48). As to what conduct amounts to an acceptances, see In re Wilson’s Estate , 298 N.Y. 398, 83, N.E.2d 852 (1949).

Judicial Sale: The section provides that the right to disclaim is barred by a sale of the property or interest under a judicial sale. Judicial sales are ordered in many different types of proceeding such as foreclosure of mortgage or trust deed, enforcement of lien, partition proceedings and proceedings for the sale of real property of a decedent or ward for certain purposes. Probate laws frequently permit a representative to mortgage or pledge property of the decedent or ward in certain circumstances. Execution sales are made pursuant to a writ to satisfy a money judgment. Subsection (4) has the effect of providing that the making of a judicial sale for the account of the heir, devisee, or beneficiary, bars him from renouncing the property or interest. To be distinguished from a judicial sale, is a taking pursuant to eminent domain, which is considered to be a taking of property without the owner’s comment and unrelated to his obligations or commitments. The right to disclaim the proceeds of a condemnation action if otherwise timely and in accordance with this Section, should not, therefore, be barred under Subsection (4).

[Comment to Subsection (5).]

[Comment to Subsection (5).]

Subsection (5) provides that the right to disclaim under the law does not abridge the right of any person to waive, release, disclaim or renounce any property or interest therein under any other statute. The principal statutes to which this provision is pointed are those dealing with spousal renunciations and release of powers.

Being a codification of the common law in regard to the renunciation of the property, this Section is intended to constitute an exclusive remedy for the disclaimer of testamentary successions apart from those provided by other statutes, and supplants the common law right to disclaim.

[Comment to Subsection (6).]

[Comment to Subsection (6).]

Subsection (6) deals with the application of this Section to property interests under instruments or in estates in existence on the effective date. If the interest is a present one and the filing time had not expired, the holder is given a full period after enactment within which to disclaim the interest. If the interest is a future one, the holder is given a full period after the interest becomes indefeasibly vested or the takers finally ascertained, after enactment in which to disclaim it. If T dies in 1960 trusteeing his estate to W for life, remainder to such of T’s sons as are living at W’s death and W dies in 1975, this Section permits a son to disclaim his remainder interest after it ripens even though it arises under an instrument predating the effective date of this Section. The application of statute to pre-existing instruments in like situations finds support in cases such as Wills of Allis , 6 Wis. 2d 1, 94 N.W.2d 226 (1959), 69 A.L.R.2d 1128.

[Comment to § 15-2-801.]

[]

The above text, consists of Sections 1 through 6 of Uniform Disclaimer of Transfers By Will, Intestacy or Appointment Act of 1973, redesignated as subsections (a) through (f).

The Comments following each subsection are the Official Comments to the 1973 statute. The word “renunciation” has been substituted for “disclaimer” because the original Section 2-801 used the term “renunciation” and several cross-references to this term appear in other sections of this Code. It is the view of the Joint Editorial Board that the terms “renunciation” and “disclaimer” have the same meaning.

The principal substantive difference between original Section 2-801 and the 1973 replacement therefor is that the former permitted renunciation by the personal representative of a person who might have renounced during his lifetime. Under the new uniform act, which is now the official text of Section 2-801, the right to renounce terminates upon the death of the person who might have renounced during his lifetime. Also, the original version was less precise than the present version in the important provisions of subsection (b) which govern the time for renunciation.

This section is designed to facilitate renunciation in order to aid postmortem planning. Although present law in all states permits renunciation of a devise under a will, the common law did not permit renunciation of an intestate share. There is no reason for such a distinction, and some states have already adopted legislation permitting renunciation of an intestate share. Renunciation may be made for a variety of reasons, including carrying out the decedent’s wishes not expressed in a properly executed will.

Under the rule of this section, renounced property passes as if the renouncing person had failed to survive the decedent. In the case of intestate property, the heir who would be next in line in succession would take; often this will be the issue of the renouncing person, taking by representation. For consistency the same rule is adopted for renunciation by a devisee; if the devisee is a relative who leaves issue surviving the testator, the issue will take under Section 2-605; otherwise disposition will be governed by Section 2-606 and general rules of law.

The section limits renunciation to nine months after the death of the decedent or if the taker of the property is not ascertained at that time, then nine months after he is ascertained. If the personal representative is concerned about closing the estate within that nine months period in order to make distribution, he can obtain a waiver of the right to renounce. Normally this should be no problem, since the heir or devisee cannot renounce once he has taken possession of the property.

The presence of a spendthrift clause does not prevent renunciation under this section.

Cross References.

Revocation by divorce,§ 15-2-508.

Waiver of rights by surviving spouse,§ 15-2-208.

Amendments.

The 2016 amendment, by ch. 362, substituted “An individual” for “A person” at the beginning of subsections (a) and paragraphs (b)(1) to (b)(3); in paragraph (b)(1), deleted “subsequently” preceding “live together” near the end; and inserted “an invalid” near the beginning of paragraph (b)(2).

Compiler’s Notes.

The bracketed insertion in the introductory paragraph in subsection (b) was added by the compiler to conform to the statutory citation style.

ALR.

COMMENT TO OFFICIAL TEXT

See Section 2-508 for similar provisions relating to the effect of divorce to revoke devises to a spouse.

Although some existing statutes bar the surviving spouse for desertion or adultery, the present section requires some definitive legal act to bar the surviving spouse. Normally, this is divorce. Subsection (a) states an obvious proposition, but subsection (b) deals with the difficult problem of invalid divorce or annulment, which is particularly frequent as to foreign divorce decrees but may arise as to a local decree where there is some defect in jurisdiction; the basic principle underlying these provisions is estoppel against the surviving spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not affected; but if the separation is accompanied by a complete property settlement, this may operate under Section 2-204 as a renunciation of benefits under a prior will and by intestate succession.

In 1975, the Joint Editorial Board recommended the addition, in the preliminary statement of subsection (b), of explicit reference to Section 3-203 which controls priorities for appointment as personal representative.

Compiler’s Notes.

The bracketed insertions in subsections (b) and (j)(1) were added by the compiler to make the sentences more clear.

Application.

This section applies only when there is no provision whatever in the insurance policy as to the disposition of proceeds when the beneficiary kills the insured. Wilkins v. Fireman’s Fund Am. Life Ins. Co., 107 Idaho 1006, 695 P.2d 391 (1985).

Plain reading of this section makes it unequivocally clear that the slayer-status question is the statute’s threshold requirement; in other words, this section does not apply unless a “slayer” is found. Hodge v. Waggoner, 164 Idaho 89, 425 P.3d 1232 (2018).

Burden of Proof.

Proof in a civil case, that a person is a “slayer” and, thus, barred by this statute from benefitting from his own action, need only be by a preponderance of the evidence. Hodge v. Waggoner, 164 Idaho 89, 425 P.3d 1232 (2018).

Claimant was given an opportunity to dispute whether he was a slayer, because decedent’s estate filed a detective’s affidavit, which stated that the claimant had confessed to shooting the decedent, and the claimant did not contest the veracity of the detective’s testimony or submit any controverting evidence. Hodge v. Waggoner, 164 Idaho 89, 425 P.3d 1232 (2018).

Cause of Death.

Magistrate’s conclusion that the wound inflicted by wife must necessarily have been the “direct cause” of death for this section to apply was erroneous, and the fact that the gunshot wound was not the immediate cause of death was not controlling; a nonfatal wound is the legal cause of death if it started a chain of causation which led to death, and the one who inflicted such a wound has committed homicide. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Where the gunshot wound inflicted by decedent’s wife hastened the decedent’s death by weakening his physical condition and by interrupting his chemotherapy treatments, thus allowing preexisting cancer, which had been controlled, to rebound and rapidly grow, the gunshot wound was a substantial factor and a proximate cause of the death of decedent, and therefore this section applied to prevent wife from inheriting from decedent husband’s estate. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Criminal Conviction.

A person may be acquitted of criminal charges because guilt is not proven beyond a reasonable doubt, or a person may not even be tried but nevertheless may still be shown in a civil action to have been a willful slayer; a criminal conviction is not a mandatory prerequisite to application of this section. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Insurance Policy.

Husband convicted of the murder of his wife was not entitled to any part of the proceeds of her term insurance policy for which he had been listed as the contingent beneficiary. Additionally, husband’s argument that this amounted to an unconstitutional taking was without merit. United Investors Life Ins. Co. v. Severson, 143 Idaho 628, 151 P.3d 824 (2007).

Property.

Although claimant’s future interest was not vested, but rather he had a contingent future interest in joint bank accounts, the contingency being that he had to lawfully survive the decedent, the claimant did stand to acquire property had he not killed the decedent and lawfully survived her. Hodge v. Waggoner, 164 Idaho 89, 425 P.3d 1232 (2018). RESEARCH REFERENCES

ALR.

COMMENT TO OFFICIAL TEXT

A growing group of states have enacted statutes dealing with the problems covered by this section, and uniformity appears desirable. The section is confined to intentional and felonious homicide and excludes the accidental manslaughter killing.

At first it may appear that the matter dealt with is criminal in nature and not a proper matter for probate courts. However, the concept that a wrongdoer may not profit by his own wrong is a civil concept, and the probate court is the proper forum to determine the effect of killing on succession to property of the decedent. There are numerous situations where the same conduct gives rise to both criminal and civil consequences. A killing may result in criminal prosecution for murder and civil litigation by the murdered person’s family under wrongful death statutes. While conviction in the criminal prosecution under this section is treated as conclusive on the matter of succession to the murdered person’s property, acquittal does not have the same consequences. This is because different considerations as well as a different burden of proof enter into the finding of guilty in the criminal prosecution. Hence it is possible that the defendant on a murder charge may be found not guilty and acquitted, but if the same person claims as an heir or devisee of the decedent, he may in the probate court be found to have feloniously and intentionally killed the decedent and thus be barred under this section from sharing in the estate. An analogy exists in the tax field, where a taxpayer may be acquitted of tax fraud in a criminal prosecution but found to have committed the fraud in a civil proceeding. In many of the cases arising under this section there may be no criminal prosecution because the murderer has committed suicide.

Purpose and Scope of Revision.

Purpose and Scope of Revision. The revisions of this section, pre-1990 Section 2-508, intend to unify the law of probate and nonprobate transfers. As originally promulgated, pre-1990 Section 2-508 revoked a predivorce devise to the testator’s former spouse. The revisions expand the section to cover “will substitutes” such as revocable inter-vivos trusts, life-insurance and retirement-plan beneficiary designations, transfer-on-death accounts, and other revocable dispositions to the former spouse that the divorced individual established before the divorce (or annulment). As revised, this section also effects a severance of the interests of the former spouses in property that they held at the time of the divorce (or annulment) as joint tenants with the right of survivorship; their co-ownership interests become tenancies in common.

As revised, this section is the most comprehensive provision of its kind, but many states have enacted piecemeal legislation tending in the same direction. For example, Michigan and Ohio have statutes transforming spousal joint tenancies in land into tenancies in common upon the spouses’ divorce. Mich. Comp. Laws Ann. § 552.102; Ohio Rev. Code Ann. § 5302.20(c)(5). Ohio, Oklahoma, and Tennessee have recently enacted legislation effecting a revocation of provisions for the settlor’s former spouse in revocable inter-vivos trusts. Ohio Rev. Code Ann. § 1339.62; Okla. Stat. Ann. tit. 60, § 175; Tenn. Code Ann.§ 35-50-5115 (applies to revocable and irrevocable inter-vivos trusts). Statutes in Michigan, Ohio, Oklahoma, and Texas relate to the consequence of divorce on life-insurance and retirement-plan beneficiary designations. Mich. Comp. Laws Ann. § 552.101; Ohio Rev. Code Ann. § 1339.63; Okla. Stat. Ann. tit. 15, § 178; Tex. Fam. Code §§ 3.632-.633.

The courts have also come under increasing pressure to use statutory construction techniques to extend statutes like the pre-1990 version of Section 2-508 to various will substitutes. In Clymer v. Mayo , 473 N.E.2d 1084 (Mass. 1985), the Massachusetts court held the statute applicable to a revocable inter-vivos trust, but restricted its “holding to the particular facts of this case - specifically the existence of a revocable pour-over trust funded entirely at the time of the decedent’s death.” 473 N.E.2d at 1093. The trust in that case was an unfunded life-insurance trust; the life insurance was employer-paid life insurance. In Miller v. First Nat’l Bank & Tr. Co. , 637 P.2d 75 (Okla. 1981), the court also held such a statute to be applicable to an unfunded life-insurance trust. The testator’s will devised the residue of his estate to the trustee of the life-insurance trust. Despite the absence of meaningful evidence of intent to incorporate, the court held that the pour-over devise incorporated the life-insurance trust into the will by reference, and thus was able to apply the revocation-upon-divorce statute. In Equitable Life Assurance Society v. Stitzel , 1 Pa. Fiduc. 2d 316 (C.P. 1981), however, the court held a statute similar to the pre-1990 version of Section 2-508 to be inapplicable to effect a revocation of a life-insurance beneficiary designation of the former spouse.

Revoking Benefits of the Former Spouse’s Relatives. In several cases, including Clymer v. Mayo , 473 N.E.2d 1084 (Mass. 1985), and Estate of Coffed, 387 N.E.2d 1209 (N.Y. 1979), the result of treating the former spouse as if he or she predeceased the testator was that a gift in the governing instrument was triggered in favor of relatives of the former spouse who, after the divorce, were no longer relatives of the testator. In the Massachusetts case, the former spouse’s nieces and nephews ended up with an interest in the property. In the New York case, the winners included the former spouse’s child by a prior marriage. For other cases to the same effect, see Porter v. Porter , 286 N.W.2d 649 (Iowa 1979); Bloom v. Selfon , 555 A.2d 75 (Pa. 1989); Estate of Graef , 368 N.W.2d 633 (Wis. 1985). Given that, during divorce process or in the aftermath of the divorce, the former spouse’s relatives are likely to side with the former spouse, breaking down or weakening any former ties that may previously have developed between the transferor and the former spouse’s relatives, seldom would the transferor have favored such a result. This section, therefore, also revokes these gifts.

Consequence of Revocation.

Consequence of Revocation. The effect of revocation by this section is that the provisions of the governing instrument are given effect as if the divorced individual’s former spouse (and relatives of the former spouse) disclaimed all provisions revoked by this section (see Section 2-1106 for the effect of a disclaimer). Note that this means that the antilapse statute applies in appropriate cases in which the divorced individual or relative is treated as having disclaimed. In the case of a revoked nomination in a fiduciary or representative capacity, the provisions of the governing instrument are given effect as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If the divorced individual (or relative of the divorced individual) is the donee of an unexercised power of appointment that is revoked by this section, the gift-in-default clause, if any, is to take effect, to the extent that the gift-in-default clause is not itself revoked by this section.

Federal Preemption of State Law.

Federal Preemption of State Law. The Employee Retirement Income Security Act of 1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA.

ERISA’s preemption clause is extraordinarily broad. ERISA Section 514(a) does not merely preempt state laws that conflict with specific provisions in ERISA. Section 514(a) preempts “any and all State laws” insofar as they “relate to” any ERISA-governed employee benefit plan.

A complex case law has arisen concerning the question of whether to apply ERISA Section 514(a) to preempt state law in circumstances in which ERISA supplies no substantive regulation. For example, until 1984, ERISA contained no authorization for the enforcement of state domestic relations decrees against pension accounts, but the federal courts were virtually unanimous in refusing to apply ERISA preemption against such state decrees. See, e.g., American Telephone & Telegraph Co. v. Merry , 592 F.2d 118 (2d Cir. 1979). The Retirement Equity Act of 1984 amended ERISA to add Sections 206(d)(3) and 514(b)(7), confirming the judicially created exception for state domestic relations decrees.

The federal courts have been less certain about whether to defer to state probate law. In Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. H.F. Johnson, Inc. , 830 F.2d 1009 (9th Cir. 1987), the court held that ERISA preempted the Montana nonclaim statute (which is Section 3-803 of the Uniform Probate Code). On the other hand, in Mendez-Bellido v. Board of Trustees , 709 F. Supp. 329 (E.D.N.Y. 1989), the court applied the New York “slayer-rule” against an ERISA preemption claim, reasoning that “state laws prohibiting murderers from receiving death benefits are relatively uniform [and therefore] there is little threat of creating a ‘patchwork scheme of regulations’” that ERISA sought to avoid. It is to be hoped that the federal courts will continue to show sensitivity to the primary role of state law in the field of probate and nonprobate transfers. To the extent that the federal courts think themselves unable to craft exceptions to ERISA’s preemption language, it is open to them to apply state law concepts as federal common law. Because the Uniform Probate Code contemplates multistate applicability, it is well suited to be the model for federal common law absorption.

Another avenue of reconciliation between ERISA preemption and the primacy of state law in this field is envisioned in subsection (h)(2) of this section. It imposes a personal liability for pension payments that pass to a former spouse or relative of a former spouse. This provision respects ERISA’s concern that federal law govern the administration of the plan, while still preventing unjust enrichment that would result if an unintended beneficiary were to receive the pension benefits. Federal law has no interest in working a broader disruption of state probate and nonprobate transfer law than is required in the interest of smooth administration of pension and employee benefit plans.

Regrettably, the U.S. Supreme Court decided in Hillman v. Maretta , 133 S.Ct. 1943 (2013), that a Virginia statute essentially equivalent to subsection (h)(2) of this section was pre-empted by the federal law known as FEGLIA (the Federal Employees’ Group Life Insurance Act of 1954), 5 U.S.C. § 8701 et seq. FEGLIA provides that “[t]he provisions of any contract under [FEGLIA] which relate to the nature of extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State . . . which relates to group life insurance to the extent that the law or regulation is inconsistent with the contractual provisions.” 5 U.S.C. § 8709(d)(1). The Court’s decision in Hillman has many unfortunate consequences. First, the decision frustrates the dominant purpose of wealth transfer law, which is to implement the transferor’s intention. The result in Hillman, that the decedent’s ex-spouse remained entitled to the proceeds of the decedent’s life insurance policy purchased through a program established by FEGLIA, frustrates the decedent’s intention. Second, the Hillman decision ignores the decades-long trend of unifying the law governing probate and nonprobate transfers. The revocation-on-divorce rule has long been a part of probate law ( see, e.g. , pre-1990 Section 2-508). In 1990, this section extended the rule of revocation on divorce to nonprobate transfers. Third, the decision in Hillman fosters a division between state- and federally-regulated nonprobate mechanisms. If the decedent in Hillman had purchased a life insurance policy individually, rather than through the FEGLIA program, the policy would have been governed by the Virginia counterpart of this section. For persuasive critiques of the Hillman decision, see Langbein , “Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff,” 67 Vand. L. Rev. — (2014); Waggoner, “The Creeping Federalization of Wealth-Transfer Law,” 67 Vand. L. Rev. — (2014).

Cross References.

Cross References.

Contempt,§ 7-601 et seq.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to make the sentence more clear.

ALR.

COMMENT TO OFFICIAL TEXT

Model Probate Code Section 63, slightly changed. A person authorized by a Court to accept delivery of a will from a custodian may, in addition to a registrar or clerk, be a universal successor or other person authorized under the law of another nation to carry out the terms of a will.

Cross References.

General fund,§ 67-1205.

Secretary of state,§ 67-901 et seq.

Cross References.

Successors’ rights if no administration,§ 15-3-901.

Amendments.

Compiler’s Notes.

The term “this code” in the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Community Property.

The community property of a deceased spouse may be disposed of to persons other than the surviving spouse. Travelers Ins. Co. v. Johnson, 97 Idaho 336, 544 P.2d 294 (1975).

Devolution to Heirs.

Where owner of property died intestate leaving as her heirs her children and the surviving grandchildren of those children who had predeceased her, all such heirs became cotenants in the property. Fairchild v. Fairchild, 106 Idaho 147, 676 P.2d 722 (Ct. App. 1984).

Decisions Under Prior Law

Federal Homestead.

The court had no jurisdiction over federal homestead property and no power or authority to order sale of such real estate, and administrator of the estate of deceased entryman had no power or authority to convey any title to such property. Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7 (1909).

Entryman, prior to his final proof, had no devisable interest in land, but the land must go according to the acts of congress, and person taking the same upon the death of entryman took as a donee of the government, and not by descent or by devise. State laws in regard to descent of property have no application to a public land entry. Hays v. Wyatt, 19 Idaho 544, 115 P. 13 (1911).

Jurisdiction of Court.

The court has jurisdiction over and administers the entire community estate upon the death of either spouse, and the settlement of the entire community estate for the purpose of satisfying community debts. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

[General comment to §§ 15-3-101 — 15-3-1204.]

[]

The provisions of this Article [Chapter] describe the Flexible System of Administration of Decedents’ Estates. Designed to be applicable to both intestate and testate estates and to provide persons interested in decedents’ estates with as little or as much by way of procedural and adjudicative safeguards as may be suitable under varying circumstances, this system is the heart of the Uniform Probate Code. The organization and detail of the system here described may be expressed in varying ways and some states may see fit to reframe parts of this Article [Chapter] to better accommodate local institutions. Variations in language from state to state can be tolerated without loss of the essential purposes of procedural uniformity and flexibility, if the following essential characteristics are carefully protected in the redrafting process:

1. Post-mortem probate of a will must occur to make a will effective and appointment of a personal representative by a public official after the decedent’s death is required in order to create the duties and powers attending the office of personal representative. Neither are compelled, however, but are left to be obtained by persons having an interest in the consequence of probate or appointment. Estates descend at death to successors identified by any probated will, or to heirs if no will is probated, subject to rights which may be implemented through administration.
2. Two methods of securing probate of wills which include a non-adjudicative determination (informal probate) on the one hand, and a judicial determination after notice to all interested persons (formal probate) on the other, are provided.
3. Two methods of securing appointment of a personal representative which include appointment without notice and without final adjudication of matters relevant to priority for appointment (informal appointment), on the one hand, and appointment by judicial order after notice to interested persons (formal appointment) on the other, are provided.
4. A five day waiting period from death preventing informal probate or informal appointment of any but a special administrator is required.
5. Probate of a will by informal or formal proceedings or an adjudication of intestacy may occur without any attendant requirement of appointment of a personal representative.
6. One judicial, in rem, proceeding encompassing formal probate of any wills (or a determination after notice that the decedent left no will), appointment of a personal representative and complete settlement of an estate under continuing supervision of the Court (supervised administration) is provided for testators and persons interested in a decedent’s estate, whether testate or intestate, who desire to use it.
7. Unless supervised administration is sought and ordered, persons interested in estates (including personal representatives, whether appointed informally or after notice) may use an “in and out” relationship to the Court so that any question or assumption relating to the estate, including the status of an estate as testate or intestate, matters relating to one or more claims, disputed titles, accounts of personal representatives, and distribution, may be resolved or established by adjudication after notice without necessarily subjecting the estate to the necessity of judicial orders in regard to other or further questions or assumptions.
8. The status of a decedent in regard to whether he left a valid will or died intestate must be resolved by adjudication after notice in proceedings commenced within three years after his death. If not so resolved, any will probated informally becomes final, and if there is no such probate, the status of the decedent as intestate is finally determined, by a statute of limitations which bars probate and appointment unless requested within three years after death.
9. Personal representatives appointed informally or after notice, and whether supervised or not, have statutory powers enabling them to collect, protect, sell, distribute and otherwise handle all steps in administration without further order of the Court, except that supervised personal representatives may be subjected to special restrictions on power as endorsed on their letters. (10) Purchasers from personal representatives and from distributees of personal representatives are protected so that adjudications regarding the testacy status of a decedent or any other question going to the propriety of a sale are not required in order to protect purchasers.

(11) Provisions protecting a personal representative who distributes without adjudication are included to make nonadjudicated settlements feasible.

(12) Statutes of limitation bar creditors of the decedent who fail to present claims within four months after legal advertising of the administration and unsecured claims not previously barred by non-claim statutes are barred after three years from the decedent’s death.

Overall, the system accepts the premise that the Court’s role in regard to probate and administration, and its relationship to personal representatives who derive their power from public appointment, is wholly passive until some interested person invokes its power to secure resolution of a matter. The state, through the Court, should provide remedies which are suitable and efficient to protect any and all rights regarding succession, but should refrain from intruding into family affairs unless relief is requested, and limit its relief to that sought.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

The term “this code” near the beginning of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

ALR.

COMMENT TO OFFICIAL TEXT

The basic idea of this section follows Section 85 of the Model Probate Code. The exception referring to Section 3-1201 relates to affidavit procedures which are authorized for collection of estates worth less than $5,000 [$100,000 in Idaho].

Section 3-107 and various sections in Parts 3 and 4 of this Article [Chapter] make it clear that a will may be probated without appointment of a personal representative, including any nominated by the will.

The requirement of probate stated here and the limitations on probate provided in section 3-108 mean that questions as to testacy may be eliminated simply by the running of time. Under these sections, an informally probated will cannot be questioned after the later of three years from the decedent’s death or one year from the probate whether or not an executor was appointed, or, if an executor was appointed, without regard to whether the estate has been distributed. If the decedent is believed to have died without a will, the running of three years from death bars probate of a late-discovered will and so makes the assumption of intestacy conclusive. The exceptions to the section (other than the exception relevant to small estates) are not intended to accommodate cases of late-discovered wills. Rather, they are designed to make the probate requirement inapplicable where circumstances led survivors of a decedent to believe that there was no point to probating a will of which they may have had knowledge. If any will was probated within three years of death, or if letters of administration were issued in this period, the exceptions to the section are inapplicable. If there has been no proceeding in probate, persons seeking to establish title by an unprobated will must show, with reference to the estate they claim, either that it has been possessed by those to whom it was devised or that it has been unknown to the decedent’s heirs or devisees and not possessed by any.

It is to be noted, also, that devisees who are able to claim under one of the exceptions to this section may not obtain probate of the will or administration of the estate to assist them in their efforts to obtain the estate in question. The exceptions are to a rule which bars admission of a will into evidence, rather than to the section barring late probate and late appointment of personal representatives. Still, the exceptions should serve to prevent two “hard” cases which can be imagined readily. In one, a surviving spouse fails to seek probate of a will, giving her the entire estate of the decedent because she is informed or believes that all of her husband’s property was held by them jointly, with right of survivorship. Later, it is discovered that she was mistaken as to the nature of her husband’s title. The other case involves a devisee who sees no point to securing probate of a will in his favor because he is unaware of any estate. Subsequently, valuable rights of the decedent are discovered.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

The term “this code” near the beginning of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Illustrative Cases.

Decedent’s son was not acting as a personal representative of decedent’s estate when he sold property because he had not been appointed by order of the court under this section. Carpenter v. Turrell, 148 Idaho 645, 227 P.3d 575 (2010).

Decisions Under Prior Law

Power to Appoint Administrator.

Power to appoint an administrator is wholly statutory. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

ALR.

Eligibility of foreign corporation to appointment as executor, administrator, or testamentary trustee. 26 A.L.R.3d 1019.

Physical condition as affecting competency to act as executor or administrator. 71 A.L.R.3d 675. Propriety of court’s appointment, as administrator of decedent’s estate, of stranger rather than person having statutory preference. 84 A.L.R.3d 707.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Cross References.

Notice to creditors,§ 15-3-801.

Compiler’s Notes.

The bracketed insertions in the next-to-last sentence in this section were added by the compiler to conform to the statutory citation style.

The term “this code” in the next-to-last sentence in this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Procedural Rules.

When the Idaho department of health and welfare attempted to proceed against decedent’s estate to recover Medicaid benefits, the department argued that the estate’s motion for judgment on the pleadings was not a proper procedural vehicle under the probate code; nonetheless, the estate was entitled to challenge the department’s claim, and the Idaho Rules of Civil Procedure do apply to the probate code. State, Dept. of Health & Welfare v. Estate of Elliott (In re Estate of Elliott), 141 Idaho 177, 108 P.3d 324 (2005), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Cited Keeven v. Estate of Keeven, 126 Idaho 290, 882 P.2d 457 (Ct. App. 1994); Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005). Decisions Under Prior Law

Settlement Without Administration.

It is not absolutely necessary that administration be had of an estate of an intestate when there are no debts against the estate and the heirs have made a satisfactory distribution of the estate among themselves. Gwinn v. Melvin, 9 Idaho 202, 72 P. 961 (1903).

ALR.

Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff. 36 A.L.R.3d 693.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Allocation of Shares or Expenses.

Jury’s determination of damages in favor of a beneficiary, in his action for breach of a contract made by a husband and wife for disposition of a survivor’s estate, was reversed; trial court and the parties mistakenly believed that the contract establishing the survivor’s estate contained provisions relating to the determination of the beneficiary’s entitlement, and because there was confusion regarding what expenses, particularly attorney fees, could be deducted from his share, the judge handling the probate was best positioned to determine the net share of any estate beneficiary. Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005).

Magistrate Court.

Since magistrate judges have been assigned responsibility for probate proceedings, all matters related to decedents’ estates should first be considered and determined by the magistrate judge in a probate proceeding. Smith v. Smith (In re Estate of Smith), 164 Idaho 457, 432 P.3d 6 (2018).

Decisions Under Prior Law

Jurisdiction.

Proceedings in probate are statutory and it is necessary to their validity that the court have jurisdiction of the subject-matter; that is, of the estate of the deceased and of the question which its judgment assumes to decide. Swinehart v. Turner, 38 Idaho 602, 224 P. 74 (1924).

Nonresident Guardian Ad Litem.

When jurisdiction of court attaches to an estate it continues until the assets are distributed and the estate is closed. Walker Bank & Trust Co. v. Steely, 54 Idaho 591, 34 P.2d 56 (1934). Nonresident Guardian Ad Litem.

In an application for the admission of a will to probate, a nonresident may be appointed guardian ad litem for minor heirs. Pine v. Callahan, 8 Idaho 684, 71 P. 473 (1902).

Compiler’s Notes.

The Uniform Probate Code as proposed in section 15-3-105 contained an additional sentence which read: “The court has concurrent jurisdiction of any other action or proceeding concerning a succession or to which an estate, through a personal representative, may be a party, including actions to determine title to property, alleged to belong to the estate, and if any action or proceeding in which property distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.” This provision was stated in the Official Comments to be inappropriate where probate matters are assigned to a branch of a single court of general jurisdiction. The above section is a version suggested in the Comments to§ 3-106 to cover this matter in such cases.

Determination of Multiple Issues.

Trial court and the parties mistakenly believed that the contract establishing the survivor’s estate contained provisions relating to the determination of the beneficiary’s entitlement, and because there was confusion regarding what expenses, particularly attorney fees, could be deducted from his share, the judge handling the probate was best positioned to determine the net share of any estate beneficiary, considering all expenses, the overall scheme of distribution, and the effect of one beneficiary’s entitlement upon that of the others; by following the intent of the applicable statutes and rules pertaining to assignment of probate proceedings to the magistrate division, confusion could be averted or alleviated. Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005).

Magistrate Court.

Since magistrate judges have been assigned responsibility for probate proceedings, all matters related to decedents’ estates should first be considered and determined by the magistrate judge in a probate proceeding. Smith v. Smith (In re Estate of Smith), 164 Idaho 457, 432 P.3d 6 (2018).

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

The term “this code” near the beginning of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Discretion.

In a dispute involving the distribution and management of deceased’s estate which had been at various levels of the court system for nearly four years, where the involved parties had repeatedly appealed multiple issues, including an order to remove the personal representative and an order to pay attorney fees, the magistrate did not err in conducting one continuous proceeding to decide the multiple issues, thus avoiding the even more unnecessary delay and expense of requiring decisions to be made without reference to, and in, entirely separate, proceedings. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Amendments.

The 2014 amendment, by ch. 264, inserted “or proceedings under section 15-3-1201, Idaho Code, or section 15-3-1205, Idaho Code” or similar language in the introductory language and the last paragraph in the section.

Compiler’s Notes.

The term “this code” near the end of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

CASE NOTES

Limitations.

Section 15-1-106 allows for the commencement of an action, within two years, against the perpetrator of a fraud, but it does not toll the three-year statute of limitations in this section. Erickson v. McKee (In re Estate of McKee), 153 Idaho 432, 283 P.3d 749 (2012).

While this section typically requires probate proceedings to be initiated within three years of a decedent’s death,§ 15-3-111 provides a narrow exception, which tolls the three-year period for probating a deceased spouse’s estate until the death of a surviving spouse. However,§ 15-3-111 cannot be construed to extend the timeframe in§ 15-3-803 to bring a creditor’s claim against the estate of the first spouse to die. In re Estate of Melton, 163 Idaho 158, 408 P.3d 913 (2018).

Decisions Under Prior Law

Laches.

A wife who does not assert her rights to, or interest in, the property of her husband until after his death, even though living separate and apart from such husband, but does assert such right immediately after the death of such husband, and prosecutes her action with diligence, is not guilty of laches or estopped from asserting such right. Hilton v. Stewart, 15 Idaho 150, 96 P. 579 (1908).

ALR.

COMMENT TO OFFICIAL TEXT

This section establishes a basic limitation period of three years within which it may be determined whether a decedent left a will and to commence administration of his estate. But, an exception assures that heirs will have at least one year after an informal probate to initiate a contest and to secure administration of the estate as intestate.

If no will is probated within three years from death, the section has the effect of making the assumption of intestacy final. If a will has been informally probated within the period, the section has the effect of making the informal probate conclusive after three years or within twelve months from informal probate, if later. Heirs or devisees can protect themselves against change within the three years of assumption concerning whether the decedent left a will or died intestate by bringing a formal proceeding shortening the period to that described in Sections 3-412 and 3-413.

A personal representative who has been appointed under an assumption concerning testacy which may be reversed in the three-year period if there has been no formal proceeding, is protected by Section 3-703. It relieves a personal representative of liability for surcharge for certain distributions made pursuant to an informally probated will, or under authority of informally issued letters of administration. Distributees who receive an estate distributed before the three-year period expires where there has been no formal determination accelerating the time for certainty, remain potentially liable to persons determined to be entitled by formal proceedings instituted within the basic period under Sections 3-909 and 3-1006. Purchasers from personal representatives and distributees may be protected without regard to whether the three-year period has run. See Sections 3-715 and 3-910.

All creditors’ claims are barred after three years from death. See Section 3-803(a)(2). Because of this, and since any possibility that letters may be issued at any time would be seen as a “cloud” on the title of heirs or devisees otherwise secure under 3-101, the three year statute of limitations applies to bar appointment of a personal representative after the basic period has passed. Section 83 of the Model Probate Code barred probate and administration after five years, and other statutes imposing time limits on these proceedings are cited at pp. 307-310 of the Model Probate Code. A qualification covers the situation where a closed administration is sought to be re-opened to administer after discovered assets. See Section 3-1008. If there has been no probate or appointment within three years, and if either exception to Section 3-102 applies, devisees under a late-discovered will may use a will to establish their title. But, they may not secure probate of the will, nor may they obtain appointment of a personal representative. The same pattern applies to heirs who, in a case where there has been no administration discover assets after the three year period has run. Such persons will not be able to protect purchasers with the ease of those interested in an estate where a personal representative has been appointed.

The basic premise underlying all of these time provisions is that interested persons who want to assume the risks implicit in the three-year period of limitations should be provided legitimate means by which they can do so. At the same time, parties should be afforded ample opportunity for earlier protection if they want it.

Compiler’s Notes.

This section which comprised I.C.,§ 15-3-110, as added by S.L. 1971, ch. 111, § 1, was repealed by S.L. 1972, ch. 201, § 7.

Compiler’s Notes.

The term “this code” near the end of this section was added by S.L. 1973, ch. 26, § 1 and presumably refers to the Uniform Probate Code, generally compiled in chapters 1 through 7 of this title.

Limitations.

While§ 15-3-108 typically requires probate proceedings to be initiated within three years of a decedent’s death, this section provides a narrow exception, which tolls the three-year period for probating a deceased spouse’s estate until the death of a surviving spouse. However, this section cannot be construed to extend the timeframe in§ 15-3-803 to bring a creditor’s claim against the estate of the first spouse to die. In re Estate of Melton, 163 Idaho 158, 408 P.3d 913 (2018).

Cross References.

Venue in cases of multiple proceedings,§ 15-1-303.

Amendments.

The 2009 amendment, by ch. 11, in the introductory paragraph in subsection (a), substituted “proceedings” for “proceeding” and made minor grammatical corrections in subsection (d).

Compiler’s Notes.

The bracketed insertion in subsection (b) was added by the compiler to conform to the statutory citation style.

The term “this code” in subsection (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Effect of Appointment.

An order appointing an administrator by a probate court imports verity, and that there was sufficient evidence to establish the jurisdictional facts necessary to sustain the judgment. In re Barr’s Estate, 43 Idaho 400, 252 P. 676 (1927).

Admission by plaintiff, suing as administrator of decedent’s estate, that subsequent to commencement of suit he had, for jurisdictional considerations, sought and received an appointment as administrator from probate court of Bannock County was a judicial admission that deceased died a resident of that county. Rogers v. Mellon, 43 Idaho 466, 258 P. 166 (1927).

Nonresident Decedents.

Where a legatee of a will of a testator, in a foreign state, in turn by will left an interest in a legacy to his wife, who by will, left property to their children, and first testator’s legatee and his wife died before the payment of the original legacy, resort must be had to the courts of the state where the husband and wife resided to settle the estates of the original legatee and his wife. In re Rothchild’s Estate, 48 Idaho 485, 283 P. 598 (1929), cert. denied, 281 U.S. 757, 50 S. Ct. 409, 74 L. Ed. 1167 (1930).

The appointment of an administrator is unauthorized where the counterclaim of a nonresident deceased defendant has been disallowed and no appeal taken. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

Court may appoint an administrator for decedent having no property in state, when he was plaintiff in a pending action surviving death, but not when he was defendant in such action. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

A court has no jurisdiction to appoint an administrator where a nonresident decedent leaves no property or right of property within the state. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

The probate court of Ada County did not have jurisdiction to appoint an administrator for a resident of California, who was killed in an automobile accident in Payette County, merely on the basis that the nonresident had left an asset in Idaho, to wit, an automobile liability insurance policy, and such appointment was void and subject to collateral attack. Feil v. Dice, 135 F. Supp. 851 (D. Idaho 1955).

Cross References.

Foreign personal representatives,§ 15-4-201 et seq.

ALR.

COMMENT TO OFFICIAL TEXT

This section is designed to reduce the possibility that conflicting findings of domicile in two or more states may result in inconsistent administration and distribution of parts of the same estate. Section 3-408 dealing with the effect of adjudications in other states concerning testacy supports the same general purpose to use domiciliary law to unify succession of property located in different states.

Whether testate or intestate, succession should follow the presumed wishes of the decedent whenever possible. Unless a decedent leaves a separate will for the portion of his estate located in each different state, it is highly unlikely that he would want different portions of his estate subject to different rules simply because courts reach conflicting conclusions concerning his domicile. It is pointless to debate whether he would prefer one or the other of the conflicting rules, when the paramount inference is that the decedent would prefer that his estate be unified under either rule rather than wasted in litigation.

The section adds very little to existing law. If a previous estate proceeding in State A has determined that the decedent was a domiciliary of A, persons who were personally before the court in A would be precluded by the principles of res judicata or collateral estoppel (and full faith and credit) from relitigating the issue of domicile in a later proceeding in State B. Probably, it would not matter in this setting that domicile was a jurisdictional fact. Stoll v. Gottlieb, 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 104 (1938). Even if the parties to a present proceeding were not personally before the Court in an earlier proceeding in State A involving the same decedent, the prior judgment would be binding as to property subject to the power of the courts in A, on persons to whom due notice of the proceeding was given. Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 (1942); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Where a court learns that parties before it are also parties to previously initiated litigation involving a common question, traditional judicial reluctance to deciding unnecessary questions, as well as considerations of comity, are likely to lead it to delay the local proceedings to await the result in the other court. A somewhat more troublesome question is involved when one of the parties before the local court manifests a determination not to appear personally in the prior initiated proceedings so that he can preserve his ability to litigate contested points in a more friendly, or convenient, forum. But, the need to preserve all possible advantages available to particular litigants should be subordinated to the decedent’s probable wish that his estate not be wasted in unnecessary litigation. Thus, the section requires that the local claimant either initiate litigation in the forum of his choice before litigation is started somewhere else, or accept the necessity of contesting unwanted views concerning the decedent’s domicile offered in litigation pending elsewhere.

It is to be noted, in this connection, that the local suitor always will have a chance to contest the question of domicile in the other state. His locally initiated proceedings may proceed to a valid judgment accepting his theory of the case unless parties who would oppose him appear and defend on the theory that the domicile question is currently being litigated elsewhere. If the litigation in the other state has proceeded to judgment, Section 3-408 rather than the instant section will govern. If this section applies, it will mean that the foreign proceedings are still pending, so that the local person’s contention concerning domicile can be made therein even though until the defense of litigation elsewhere is offered in the local proceedings, he may not have been notified of the foreign proceeding.

Cross References.

Appointment of special administrator,§ 15-3-614.

Powers of personal representatives in general,§ 15-3-711.

Termination of appointment of personal representative,§ 15-3-608 et seq.

Mandatory Priorities.

This section in establishing the priority for appointment of personal representatives is mandatory and not to be disregarded. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980).

Surviving Spouse.

The position of a surviving spouse that he be appointed as personal representative could not be upheld on the theory that by reason of his claim for a family allowance that he was a creditor of the estate. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980).

Decisions Under Prior Law

Ancillary Administration.

Application for Appointment.

A person nominated and appointed as executor in another state, afterwards appointed administrator in Idaho, represents the estate in both jurisdictions. Hilton v. Stewart, 15 Idaho 150, 96 P. 579 (1908). Application for Appointment.

Letters of administration must be granted to applicant unless person who has a better right thereto appears and asks for letters or nominates someone. In re Daggett’s Estate, 15 Idaho 504, 98 P. 849 (1908).

Persons entitled to administration must make application within a reasonable time, and, if they fail to make such application, letters should be granted to any qualified prior applicant. Wright v. Merrill, 26 Idaho 8, 140 P. 1101 (1914).

Creditors.

Where widow, next of kin, and public administrator neglect to take out letters, creditor desiring to do so must exercise reasonable diligence and cannot without good cause defer making application until the statute of limitation has run, and then enforce his claim on theory that the statute was suspended on account of the nonappointment of administrator. Gwinn v. Melvin, 9 Idaho 202, 72 P. 961 (1903).

Discretion of Court.

Former similar section meant to provide for appointment of any competent person upon the request of someone entitled thereto, where no application had been made by some person entitled to administer under the statute. It was a matter addressed to the sound discretion of court and was not an arbitrary or mandatory provision or requirement. In re Daggett’s Estate, 15 Idaho 504, 98 P. 849 (1908).

Nomination.

Where a person of kin nominates and requests the appointment of an administrator, until such petition is acted upon, such request may be withdrawn and the one of kin has the right to make application for the appointment of himself as administrator, and the former nomination and request are of no force and effect. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

The law clearly grants to the person entitled to administration the power to select some competent person to discharge the duties of administration, and the court is limited in its power by such request; and, if such person entitled to appointment applies for the appointment of a stranger or a person not of kin, the appointment depends wholly upon the request of the one who is of kin, if there is such kin, and such person of kin can control the appointment until the judge has acted upon the appointment by appointing the person so nominated, provided that such person must be a competent person under the law. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

The application of a nonresident brother and other heirs of the deceased does not give the person recommended by them a preference over any others entitled to appointment but further removed in priority. Wright v. Merrill, 26 Idaho 8, 140 P. 1101 (1914).

Partners.

Member of a partnership is not entitled to appointment as administrator of the estate of deceased partner. Miller v. Mitcham, 21 Idaho 741, 123 P. 941 (1912).

Priority.

Any person legally competent may be appointed administrator of an estate, if no one falling in the preferred classes desires appointment. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

A person who is not of kin to the deceased may be appointed administrator only when no one of kin has made application who is a resident and competent and entitled to appointment or upon nomination or written request of the person entitled to appointment. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

A resident son of deceased has a priority of right of administration on the estate over nominee of the deceased’s sister, who is a creditor, residing in another state. Schwarze v. Logan, 60 Idaho 251, 90 P.2d 692 (1939).

Public Administrator.

By virtue of holding office of county treasurer, individual becomes public administrator and is, thereby, and for that reason alone, qualified to become an administrator of an estate. In re Rice, 12 Idaho 305, 85 P. 1109 (1906).

The public administrator of a county, which was the residence of decedent with known heirs in Sweden, could be appointed according to his classification under the priority statute, notwithstanding decedent died in another county. Vaught v. Struble, 63 Idaho 352, 120 P.2d 259 (1941).

The court properly granted letters of administration to the public administrator in preference to a special administrator who was seeking appointment as general administrator, where the public administrator appeared within a reasonable time to claim the issuance of letters to him as such public administrator. Vaught v. Struble, 63 Idaho 352, 120 P.2d 259 (1941).

ALR.

Eligibility of foreign corporation to appointment as executor, administrator, or testamentary trustee. 26 A.L.R.3d 1019.

Physical condition as affecting competency to act as executor or administrator. 71 A.L.R.3d 675.

Right in appointment of administrator to pass over eligible person interested in estate and appoint a stranger. 84 A.L.R.3d 707.

Adverse interest or portion as disqualification for appointment of administrator, executor, or other. 11 A.L.R.4th 638.

Compiler’s Notes.

The bracketed insertion in the third sentence was added by the compiler to conform to the statutory citation style.

The term “this code” in the third sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Cross References.

Perjury,§ 18-5401 et seq.

Compiler’s Notes.

The bracketed insertions in paragraphs (a)(7), (d)(1), and (d)(2) and subsection (f) were added by the compiler to conform to the statutory citation style.

The term “this code” in paragraphs (a)(7), (d)(1), and (d)(2) and subsection (f) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Effective Dates.

Section 2 of S.L. 1995, ch. 166 declared an emergency. Approved March 16, 1995.

Ex Parte Proceedings.

Where a person applies to probate court for informal appointment as a personal representative, the process initiated pursuant to this section is ex parte in that no notice of the application is generally required, and where the estate letter is issued to the personal representative, the requirement of§ 15-3-303A that notice be given to the heirs and devisees does not apply; however, since the partial exclusion of notice in§ 15-3-303A is due to a related notice requirement in§ 15-3-705, applicable upon appointment, notice still was required under§ 15-3-705. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Notice in Informal Proceeding.

Where a person applies to probate court for informal appointment as a personal representative, the process initiated pursuant to§ 15-3-301 is ex parte in that no notice of the application is generally required, and where the estate letter is issued to the personal representative, the requirement of this section that notice be given to the heirs and devisees does not apply, however, since the partial exclusion of notice in this section is due to a related notice requirement in§ 15-3-705, applicable upon appointment, notice still was required under§ 15-3-705. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).

Compiler’s Notes.

This section, which comprised I.C.,§ 15-3-303B, as added by 1972, ch. 201, § 10, p. 510, was repealed by S.L. 1978, ch. 350, § 11.

Amendments.

The 2015 amendment, by ch. 76, substituted “a will and one (1) or more codicils thereto)” for “wills and codicils)”.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions in the first sentence were added by the compiler to conform to the statutory citation style.

The term “this code” in the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

The term “this code” near the beginning of subsection (a) and near the end of subsection (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapter 1 through 7 of this title.

Amendments.

The 2020 amendment, by ch. 82, substituted “Idaho Code” for “of this code” throughout and substituted “subsection (25) of section 15-1-201” for “subsection (24) of section 15-1-201” at the end of paragraph (a)(3).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions in the first sentence were added by the compiler to conform to the statutory citation style.

The term “this code” in the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Cross References.

Appeal of probate proceedings, Idaho Appellate Rule 11.

Compiler’s Notes.

The bracketed insertions in the first paragraph were added by the compiler to conform to the statutory citation style.

ALR.

Right to probate subsequent discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Compiler’s Notes.

The bracketed insertions in paragraph (a)(2) and subsection (c) were added by the compiler to conform to the statutory citation style.

The term “this code” in paragraph (a)(2) and subsection (c) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

The bracketed “s” in subsection (c) was inserted by the compiler to correct the syntax of the reference.

Decisions Under Prior Law

Amendments.

The allowance of amendments in a will contest is largely within the discretion of the trial court. Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

False Statements.

Complaint, which alleged that defendant was appointed administrator of estate under a petition signed by defendant stating that as far as he knew he was the only heir, when, as a matter of fact, he knew that the plaintiffs were heirs, and that defendant though knowing the addresses of the plaintiffs failed to advise the plaintiffs as to the true value of the estate, and thereafter had the assets in the estate transferred to himself as sole heir stated an equitable cause of action against the defendant. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Proof of Death.

At the hearing on the application for the appointment as administrator of an estate, the applicant must prove the death of the deceased. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

ALR.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata. 55 A.L.R.3d 755.

Cross References.

Notice, method and time of giving,§ 15-1-401.

Notice, waiver of,§ 15-1-402.

Amendments.

The 2008 amendment, by ch. 75, redesignated subsections; in the second paragraph in subsection (1), deleted the last sentence, which read: “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.” See§ 15-1-401(a)(3).

Compiler’s Notes.

The bracketed insertions, twice in the first paragraph of subsection (1), were added by the compiler to conform to the statutory citation style.

The term “this code” in the first paragraph of subsection (1) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Proof of Death.

The requirement of proof of death is complied with where two separate applications are made and filed for appointment of two different persons as administrator, and both petitions allege the death of testator and the evidence supports the allegations. McCormick v. Brownell, 25 Idaho 11, 136 P. 613 (1913).

ALR.

COMMENT TO OFFICIAL TEXT

Provisions governing the time and manner of notice required by this section and other sections in the Code are contained in Section 1-401.

The provisions concerning search for the alleged decedent are derived from Model Probate Code, Section 71.

Testacy proceedings involve adjudications that no will exists. Unknown wills as well as any which are brought to the attention of the Court are affected. Persons with potential interests under unknown wills have the notice afforded by death and by publication. Notice requirements extend also to persons named in a will that is known to the petitioners to exist, irrespective of whether it has been probated or offered for formal or informal probate, if their position may be affected adversely by granting of the petition. But, a rigid statutory requirement relating to such persons might cause undue difficulty. Hence, the statute merely provides that the petitioner may notify other persons.

It would not be inconsistent with this section for the Court to adopt rules designed to make petitioners exercise reasonable diligence in searching for as yet undiscovered wills.

Section 3-106 provides that an order is valid as to those given notice, though less than all interested persons were given notice. Section 3-1001(b) provides a means of extending a testacy order to previously unnotified persons in connection with a formal closing.

ALR.

Right of heir’s assignee to contest will. 39 A.L.R.3d 696.

Modern status: inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Estoppel to contest will or attack its validity. 78 A.L.R.4th 90.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Mistake as to Hearing Date.

Misapprehension on part of petitioner’s counsel as to the time when the hearing would be held is sufficient to set aside trial court’s default orders, where he honestly, though mistakenly, thought that case was to be heard at a later date, took reasonably prompt action when he learned trial had been had in his absence, and no request under this section had been made. In re Henry’s Estate, 70 Idaho 108, 212 P.2d 393 (1949).

Prima Facie Proof.

Evidence showing that the statutes governing due execution of the will have been complied with entitle such will to be probated as the last will of the testator in the absence of a contest or a showing to the contrary. Head v. Nixon, 22 Idaho 765, 128 P. 557 (1912).

Decisions Under Prior Law

Construction of Will.

The court’s authority to construe a will creating a trust to buy and equip a Youth Center was unquestioned on appeal, although generally in a will contest proceeding the issues presented to the court relate only to the proof of facts relating to the execution of the will and may not relate to a construction of the terms of the will. Sawyer v. Huff, 86 Idaho 328, 386 P.2d 563 (1963).

Costs.

Costs in an action contesting validity of a will cannot be awarded until final determination of the case, and each party will be required to pay his own costs subject to recovery dependent upon the final outcome. Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

Proof of Will.

Where an attesting witness undertakes to impeach the will, his testimony should be received with the utmost caution. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

Law requires examination of subscribing witnesses if they are present in county, but it does not make their testimony conclusive. Testimony of other witnesses is admissible to establish due execution of will. In re Gordon’s Estate, 48 Idaho 171, 279 P. 625 (1929). In a proceeding to contest a will, evidence showing that the testator called in the subscribing witnesses and asked them to witness his signature thereto immediately followed by production of the will, its subscription by the testator, and an attestation by the subscribing witnesses is sufficient to show compliance with the law respecting the execution of a will. In re Gordon’s Estate, 48 Idaho 171, 279 P. 625 (1929).

The relationship between will contestant and decedent as bearing upon whether decedent would probably have made a will revoking the first, and whether decedent’s attitude toward contestant has changed from the time of making the former will, is relevant and evidence on such relationship is admissible. In re Brown’s Estate, 52 Idaho 286, 15 P.2d 604 (1932).

Right to Open and Close.

Proponents of will held not to have right of opening and closing. Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

Subsequent Declaration of Testator.

The declarations of a testator, after the execution of a will, showing his dissatisfaction therewith and his intention to execute a new will, are not admissible to show that the said will was not executed, and a will cannot generally be impeached by the subsequent oral declarations of the testator. Gwin v. Gwin, 5 Idaho 271, 48 P. 295 (1897).

Testamentary Capacity.

In a will contest, evidence to the effect that decedent was not able to transact ordinary business was prejudicial where there is no instruction to the effect that one might possess testamentary capacity even though unable to transact ordinary business. Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

In an action contesting the validity of a will, letters in the handwriting of the deceased, properly identified, should be received in evidence as bearing upon the condition of his mind. Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082 (1927).

ALR.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix. 17 A.L.R.3d 503.

Undue influence in gift to testator’s attorney. 19 A.L.R.3d 575.

Solicitation of testator to make will or specify bequest as undue influence. 48 A.L.R.3d 961.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata. 55 A.L.R.3d 755.

May parts of will be upheld notwithstanding failure of other parts for lack of testamentary capacity or undue influence. 64 A.L.R.3d 261.

Existence of illicit or unlawful relation between testator and beneficiary as evidence of undue influence. 76 A.L.R.3d 743. Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

Decisions Under Prior Law

Burden of Proof.

Where a contest is filed in opposition to the probating of a will and both the petition to probate and the opposition are tried at the same time, and at the hearing proof is offered by the proponent of the will showing a due execution thereof, the burden of proof is then upon the contestant to meet, overturn, and disprove the prima facie case made by the proponent. Head v. Nixon, 22 Idaho 765, 128 P. 557 (1912).

The contestant of a will that has been admitted to probate has the burden of showing undue influence and that burden never shifts to the proponent of a will. Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692 (1946).

In action to contest a will already admitted to probate, the defendants are not required to establish necessary facts to admit will to probate since burden of proof is on contestants to proceed and to sustain the burden of proof. In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002 (1953).

Contestants of a will on the basis of incompetency of the testatrix are the plaintiffs in such a case and, as such, must sustain the burden of proof of their affirmative claim. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961). Where contention was that the testatrix was incompetent at the time she executed her will, an inference, arising from testatrix’ illness of high blood pressure and age of 81 years and from the fact that subsequent to the execution of her will she was less alert, that she was incompetent at the time of the execution of the will was insufficient to sustain the burden of the proof or the verdict. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

Evidence.

There is no provision which prescribes the evidence required upon a hearing of a contest of a will except the general rule, which applies to all actions brought in a court having jurisdiction, that facts alleged in pleadings are true. Head v. Nixon, 22 Idaho 765, 128 P. 557 (1912).

Testamentary Capacity.

Testamentary capacity is a question of fact to be determined on the evidence in the individual case. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

Undue Influence.

No presumption of undue influence arises on the mere existence of a confidential relation between beneficiary and testator in relationship, or business or professional work, during the lifetime of the testator. Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692 (1946).

In a contest on the ground of undue influence, it must be shown that such undue influence existed and was operating at the time of the execution of the will. Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692 (1946).

ALR.

Testator’s failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will. 61 A.L.R.3d 958.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to make the section more readable.

Compiler’s Notes.

The bracketed insertions in the first and third sentences were added by the compiler to conform to the statutory citation style.

The term “this code” in the first and third sentences refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Lost Wills.

Contents of lost will can be proved only in two ways — first by a proven copy, second by someone who has read, or heard read, the original. Subscribing witness who never read, or heard read, the will cannot prove the will by reading a copy identified by a third person who wrote it, and then testifying that copy contained the contents of the will. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940). While an alleged carbon or duplicate copy of a lost will may be the best evidence of the contents of the will, that does not make such copy the “best evidence” or even admissible on examination of a witness as to the provisions of the will, unless such witness personally knows it is a carbon or duplicate copy of the alleged lost will. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

The declarations of a testator after the due execution of a will may be admitted to show the will was lost or unavoidably destroyed or stolen against the wish of the testator during his lifetime, and such evidence may rebut the legal presumption that a will has been destroyed animo revocandi. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

Evidence consisting of a copy of the will, testimony of the attorney who drafted and typed the will, and testimony of witnesses who were informed by the testator as to part of the contents of the will were insufficient to prove a lost will. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

In a proceeding to probate a lost will, a carbon copy of the will proven by the one witness thereto did not constitute original evidence or a duplicate original of the will where the copy was never executed by being signed and witnessed. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

Failure to establish either execution or contents of alleged lost will precluded recovery in will contest based on revocation by a subsequent will allegedly lost. Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692 (1946).

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

ALR.

COMMENT TO OFFICIAL TEXT

Except as otherwise provided in Section 3-412, an order in a formal testacy proceeding serves to end the time within which it is possible to probate after-discovered wills or to give effect to late-discovered facts concerning heirship. Determination of heirs is not barred by the three year limitation but a judicial determination of heirs is conclusive unless the order may be vacated.

This section authorizes a court to engage in some construction of wills incident to determining whether a will is entitled to probate. It seems desirable to leave the extent of this power to the sound discretion of the court. If wills are not construed in connection with a judicial probate, they may be subject to construction at any time. See Section 3-108.

Amendments.

The 2008 amendment, by ch. 75, redesignated subsections and made internal reference updates.

Compiler’s Notes.

The bracketed insertions in the introductory paragraph, paragraph (3)(b), and subsection (5) were added by the compiler to conform to the statutory citation style.

The term “this code” in paragraph (3)(b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Laches.

In will contest based on undue influence where contestant nine months later raised question of revocation for the first time, the question came too late to raise a new issue. Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692 (1946).

Petition.

To contest the probate or validity of a will, the person contesting must file a petition in writing containing the allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked. Hagan v. Sullivan, 24 Idaho 19, 132 P. 106 (1913).

Setting Aside Decree.

The laws providing for the setting aside of judgments or decrees on account of mistake, inadvertence, or excusable neglect apply to probate practice. Luke v. Kettenbach, 32 Idaho 191, 181 P. 705 (1919).

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

The term “this code” in subsections (a) and (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The bracketed insertion in subsection (b) was added by the compiler to conform to the statutory citation style.

The term “this code” in subsection (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The term “this code” in the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Restriction.

A restriction on the power of the personal representative may be ordered by the probate court, if endorsed on the letters of administration. If the restriction is not endorsed on the letters of appointment, it is ineffective as to the persons dealing in good faith with the personal representative. AgAmerica v. Westgate, 129 Idaho 621, 931 P.2d 1 (Ct. App. 1997).

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

The term “this code” in the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Cross References.

Time of accrual of powers and duties,§ 15-3-701.

Decisions Under Prior Law

Effect of Failure to Take Oath.

Administrator who fails to take the oath and file the bond required by law, but nevertheless administers the estate, is administrator de facto and may close up the estate, if no objection is made, and is liable for his acts as administrator. Harris v. Coates, 8 Idaho 491, 69 P. 475 (1902).

Compiler’s Notes.

The bracketed insertion near the end of the first sentence was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion in the next-to-last sentence was added by the compiler to conform to the statutory citation style.

The term “this code” in the next-to-last sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

The words enclosed in parentheses so appear in the law as enacted.

Decisions Under Prior Law

Effect of Judgment or Decree.

The decree of distribution in the probate court fixing the amount of money to be distributed and the court’s order passing upon and approving the final account of the executor, in the absence of fraud or collusion between the legatees and the executor, are binding upon the executor and his sureties although the sureties were not parties to the proceeding. Knowles v. Kasiska, 46 Idaho 379, 268 P. 3 (1928).

A judgment or decree against an executor or administrator is conclusive against the sureties on his bond and they cannot collaterally question the judgment rendered against their principals. Knowles v. Kasiska, 46 Idaho 379, 268 P. 3 (1928).

Notice to Surety.

A surety on a guardian’s bond is chargeable with notice of every proceeding affecting the guardian’s liability, and the guardian’s appearance in court was the surety’s appearance; hence, the surety could not contend that it had not had its day in court or that it had been deprived of property without due process of law. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936).

Compiler’s Notes.

The bracketed insertion near the end of the third sentence was added by the compiler to conform to the statutory citation style.

ALR.

COMMENT TO OFFICIAL TEXT

Paragraph (2) is based, in part, on Section 109 of the Model Probate Code. Paragraph (3) is derived from Section 118 of the Model Probate Code.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

The term “this code” in the second sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Liability.

An executor under a will which was subsequently declared invalid, and who, as such executor, was in possession of the estate premises, was not liable for rent for the period of his occupancy. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

The term “this code” in subsections (a) and (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Final Report.

Where administrator tenders his resignation and makes his final report, order of judge approving report and discharging him as administrator and appointing his successor approves of all that is contained in such final report. Miller v. Lewiston Nat’l Bank, 18 Idaho 124, 108 P. 901 (1910).

Compiler’s Notes.

The bracketed insertion in the next-to-last sentence in subsection (a) was added by the compiler to conform to the statutory citation style.

Removal of Personal Representative.

Where substantial, competent evidence in the record supported the finding that the personal representative failed to act in the best interests of the estate, mismanaged the affairs of the estate, operated under a conflict of interest, failed to marshal estate assets and breached the fiduciary duty owed to the estate, and where evidence demonstrated that this mismanagement was not merely a mistake, but was, in fact, fraudulent and willful, the magistrate did not err in removing the personal representative from that position. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996). RESEARCH REFERENCES

ALR.

COMMENT TO OFFICIAL TEXT

Thought was given to qualifying subsection (a) above so that no formal removal proceedings could be commenced until after a set period from entry of any previous order reflecting judicial consideration of the qualifications of the personal representative. It was decided, however, that the matter should be left to the judgment of interested persons and the Court.

Compiler’s Notes.

The bracketed insertion near the end of the first sentence was added by the compiler to conform to the statutory citation style.

The term “this code” near the end of the first sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Cross References.

Powers of personal representative,§ 15-3-711.

Compiler’s Notes.

The bracketed insertion near the end of subsection (a) was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Appointment Not Favored.

It is the policy of the law to keep the administration of the decedent’s estates in the hands of regularly appointed administrators, and to rely on special ones only in cases of emergency, and for a limited time. Vaught v. Struble, 65 Idaho 26, 139 P.2d 456 (1943).

Priority of Public Administrator.

A public administrator who appeared before the probate court within a reasonable time and claimed the issuance of letters to him was entitled to priority in appointment over a special administrator. Vaught v. Struble, 63 Idaho 352, 120 P.2d 259 (1941).

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

The term “this code” in the last sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Powers.

The powers of a special administrator of a decedent’s estate are limited to those granted to him by the statute, and it cannot be concluded that the court intended to, or would, grant him powers not authorized by the statutes in the granting of special letters of administration. Vaught v. Struble, 65 Idaho 26, 139 P.2d 456 (1943).

Where a special administrator surrendered to warehouse a certificate evidencing decedent’s deposit of wheat therein and received therefor the market value of the wheat at the time of the transaction, less the amount owed to the warehouse by decedent for storage, and accounted for the sum received, and made no private or personal gain by the transaction, and the estate lost no money because of it, the transaction should be approved by the court, though the certificate might have become more valuable at a later time. Vaught v. Struble, 65 Idaho 26, 139 P.2d 456 (1943).

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Termination of Powers.

When general letters of administration are granted, a special administrator’s term and authority ceases. Vaught v. Struble, 65 Idaho 26, 139 P.2d 456 (1943).

The authority of a special administrator, who appeals from an order granting general letters of administration to another, does not continue pending termination of such appeal, and he retains no authority except to account for and to pay over and deliver the property in his hands to the general administrator. Vaught v. Struble, 65 Idaho 26, 139 P.2d 456 (1943).

ALR.

COMMENT TO OFFICIAL TEXT

This section codifies the doctrine that the authority of a personal representative relates back to death from the moment it arises. It also makes it clear that authority of a personal representative stems from his appointment. The sentence concerning ratification is designed to eliminate technical questions that might arise concerning the validity of acts done by others prior to appointment. Section 3-715(21) relates to delegation of authority after appointment. The third sentence accepts an idea found in the Illinois Probate Act, § 79 [S.H.A. ch. 3, § 79].

Compiler’s Notes.

The bracketed insertion in the first sentence in subsection (a) was added by the compiler to conform to the statutory citation style.

The term “this code” in subsection (a) and at the end of subsection (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Fiduciary Duty.

An executrix, with a life estate in community property, owed a fiduciary duty to the holders of remainder interests and has an obligation not to pay more taxes out of those interests than is due. West v. Tax Comm’n, 99 Idaho 26, 576 P.2d 1060 (1978).

Solicitation of Bids.

Where an administrator, deeming himself in a somewhat precarious position due to the disparity between the several appraisements and offers, petitioned the magistrate for a resolution of the question how best to dispose of the property, and the magistrate’s resolution of the question was that disposition of the property could best be effected by another solicitation of sealed bids, and order the administrator to do so, but where the order did not, however, require confirmation by the court for completion of the sale, the contemplated disposition, then, was not a judicial sale by the court through the administrator as agent for the court, but rather the solicitation of bids and acceptance of a bid by the administrator. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980).

Wrongful Death.

Because the decedent’s own cause of action against an underinsured motorist abated upon her death, her personal representative, and heirs, who were not insureds under the policy, were not entitled to payment for wrongful death pursuant to her underinsured motorist coverage. Farm Bureau Mut. Ins. Co. v. Eisenman, 153 Idaho 549, 286 P.3d 185 (2012).

Decisions Under Prior Law

Executors Continuing as Trustees.

In a will appointing trustees, where the same persons are the executors, the duties as executors continue until the estate is settled or distributed; and, as to part of the estate not distributed, the executors cannot assume the duties of trustees. Jones v. Broadbent, 21 Idaho 555, 123 P. 476 (1912).

Fiduciary Relationship.

An executor or administrator has a trust of the most sacred character and should be held to the duty of performing his trust with the utmost fidelity. Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568 (1923).

Executors and administrators occupy fiduciary relations toward the estate to which the utmost fidelity is owed. In re Fleshman’s Estate, 51 Idaho 312, 5 P.2d 727 (1931).

Liability.

Executrixes, in possession of estate premises under a will subsequently declared invalid, are not liable for rent for the period of their occupancy. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Executors or administrators must be appointed to care for the property of an estate, and, whether the appointment is legal or illegal, such person is equally liable for the care of the estate and is entitled to his lawful expenses and disbursements in connection therewith. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Powers.

Although an administrator owns no part of an estate, he is the trustee thereof in the broadest sense; the administrator represents the legal title of the deceased; and while the administrator is functioning, no heir or other person interested in the estate may sue to enforce a claim in the estate’s favor. State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354 (1932).

Even though an executrix failed to perform a statutory duty of distributing realty to heirs or devisees, she retained all the powers and duties of executrix provided by law so long as she remained executrix. Walker Bank & Trust Co. v. Steely, 54 Idaho 591, 34 P.2d 56 (1934).

The administrator or executor of an estate of a deceased is the official and legal representative and trustee of the heirs and creditors of the estate, and it is his duty to protect, collect, and conserve the estate. Uyeda v. Diefendorf, 54 Idaho 614, 34 P.2d 65 (1934); Wiesenthal v. Goff, 63 Idaho 342, 120 P.2d 248 (1941).

Where an employee’s death occurred after he sustained compensable injury from causes other than the compensable accident, award made under special schedule for fixed definite loss, although determined after employee’s death, was recoverable by the administrator, since the right to the award was fixed at the time of the accident. Mahoney v. Payette, 64 Idaho 443, 133 P.2d 927 (1943).

Suits Against.

Ordinarily, where a creditor or other person files an action that should be filed by administrator or executor, such action must be brought in the name of the administrator or executor, so when an executor or an administrator sets up an adverse claim to property alleged by a creditor to belong to the estate, such creditor, even though his claim has been rejected by the administrator or executor, may sue such administrator or executor to determine the title to the disputed property in an action to recover the debt of such alleged creditor. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920).

An executor may be sued by a second administrator for an accounting and is responsible for property coming into his possession and also for property which he should have taken into his possession. Felton v. Anderton, 67 Idaho 160, 174 P.2d 212 (1946).

ALR.

Duty and liability of executor with respect to locating and noticing legatees, devisees, or heirs. 10 A.L.R.3d 547.

Executor’s or administrator’s right to appeal from order granting or denying distribution. 16 A.L.R.3d 1274. Right of executor or administrator to appeal from order of distribution. 16 A.L.R.3d 1274.

Right to partial distribution of estate or distribution of particular assets, prior to final closing. 18 A.L.R.3d 1173.

Compiler’s Notes.

The term “this code” near the end of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Invocation of Court’s Jurisdiction.

Where an administrator elected to invoke the court’s jurisdiction to resolve the question whether, in the best interests of the estate, one of two bids should be accepted or new bids solicited, the administrator essentially waived his power to accept either bid by petitioning the court for an order therefor. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980).

Solicitation of Bids.

Where an administrator, deeming himself in a somewhat precarious position due to the disparity between the several appraisements and offers, petitioned the magistrate for a resolution of the question how best to dispose of the property, and the magistrate’s resolution of the question was that disposition of the property could best be effected by another solicitation of sealed bids, and order the administrator to do so, but where the order did not, however, require confirmation by the court for completion of the sale, the contemplated disposition, then, was not a judicial sale by the court through the administrator as agent for the court, but rather the solicitation of bids and acceptance of a bid by the administrator. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980).

Notice in Informal Proceeding.

Where a person applies to probate court for informal appointment as a personal representative, the process initiated pursuant to§ 15-3-301 is ex parte in that no notice of the application is generally required, and, where the estate letter is issued to the personal representative, the requirement of§ 15-3-303A that notice be given to the heirs and devisees does not apply; however, since the partial exclusion of notice in§ 15-3-303A is due to a related notice requirement in this section, applicable upon appointment, notice still was required under this section. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).

Decisions Under Prior Law

Inventory.

Where the testator sold certain machinery that had theretofore been represented in his will, but which he subsequently transferred to his executor in the liquidation of a debt due from the testator to the executor, such machinery was properly omitted from the inventory of the testator’s estate. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

ALR.

COMMENT TO OFFICIAL TEXT

This and the following sections eliminate the practice now required by many probate statutes under which the judge is involved in the selection of appraisers. If the personal representative breaches his duty concerning the inventory, he may be removed. Section 3-611. Or, an interested person seeking to surcharge a personal representative for losses incurred as a result of his administration might be able to take advantage of any breach of duty concerning inventory. The section provides two ways in which a personal representative may handle an inventory. If the personal representative elects to send copies to all interested persons who request it, information concerning the assets of the estate need not become a part of the records of the probate court. The alternative procedure is to file the inventory with the court. This procedure would be indicated in estates with large numbers of interested persons, where the burden of sending copies to all would be substantial. The Court’s role in respect to the second alternative is simply to receive and file the inventory with the file relating to the estate. See 3-204, which permits any interested person to demand notice of any document relating to an estate which may be filed with the Court. In 1975, the Joint Editorial Board recommended elimination of the word “or” that separated the language dealing with the duty to send a copy of the inventory to interested persons requesting it, from the final part of the paragraph dealing with filing of the original. The purpose of the change was to prevent a literal interpretation of the original text that would have permitted a personal representative who filed the original inventory with the Court to avoid compliance with requests for copies from interested persons.

Cross References.

State tax commission,§ 63-101 et seq.

Cross References.

Foreign personal representatives may bring suits,§ 15-4-205.

De Facto Distribution.

The personal representative exercises control over the property of the estate, in a fiduciary capacity, until the close of administration of the estate. Therefore, for purposes of will provision that personal representative would not take under will if she died prior to distribution, neither the act of controlling the estate property in her fiduciary capacity as personal representative nor the act of possessing the estate property as the beneficiary presumptively entitled thereto was sufficient to constitute de facto distribution of the estate. Allen v. Shea, 105 Idaho 31, 665 P.2d 1041 (1983).

Transfer of Assets.

Preliminary transfers to legatee, made before the statutory period for the presentation of creditors’ claims and before estate taxes had been paid, were permissible; however, the assets were subject to recoupment by the personal representatives if required in order to satisfy estate liabilities. Hintze v. Black, 125 Idaho 655, 873 P.2d 909 (Ct. App. 1994). Decisions Under Prior Law

Homestead Entry.

Where heirs make final proof on homestead entered by decedent, and title is conveyed to the heirs of the decedent, title vests directly in the legal heirs and does not inure to the benefit of the estate, and the court has no jurisdiction over such property. Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7 (1909).

Possession of Property of Decedent.

After qualifying as such, an executor is charged with fiduciary duty of collecting, recovering and taking into possession all assets of testator and distribution of same in strict compliance with the law and he is responsible for any loss occasioned by his culpable failure so to do. Felton v. Anderton, 67 Idaho 160, 174 P.2d 212 (1946).

The property of the estate, upon the testator’s death, immediately passes to the possession of the executrix and the executor. Blake v. Blake, 69 Idaho 214, 205 P.2d 495 (1949).

Workmen’s Compensation Award.

Where the beneficiary of workmen’s [now worker’s] compensation died before receiving the entire award for an employee’s death, the exclusive duty of the beneficiary’s administrator was to collect the balance unpaid. State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354 (1932).

ALR.

Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax. 55 A.L.R.3d 785.

Cross References.

Homestead allowance and exempt property,§ 15-2-401.

Decisions Under Prior Law

Delivery of Deed.

In an action by the administrator of deceased’s estate to set aside deceased’s deed on grounds of fraud, the evidence was sufficient to show an irrevocable intent to transfer the property to defendant and sufficient to show constructive delivery, although the deed remained in the deceased’s physical possession until death. Johnson v. Brown, 65 Idaho 359, 144 P.2d 198 (1943).

Fraudulent Conveyance.

Where it is not shown that action was brought on behalf of creditors, administrator cannot recover assets fraudulently conveyed. Berryman v. Dore, 47 Idaho 582, 277 P. 565 (1929).

Executor or administrator of deceased debtor who has fraudulently conveyed his property occupies a double capacity as representative of deceased debtor and of his creditors. Berryman v. Dore, 47 Idaho 582, 277 P. 565 (1929).

Intent of Decedent.

Where it is shown that decedent, in making a conveyance to his daughter, acted in perfect good faith, and it is not claimed that such decedent had any intent to defraud, an action cannot be maintained under former similar section. Brown v. Perrault, 5 Idaho 729, 51 P. 752 (1898). But see Berryman v. Dore, 47 Idaho 582, 277 P. 565 (1929).

To set aside a sale made by a decedent, it must be shown that such sale was made with intent to defraud creditors. Brown v. Perrault, 5 Idaho 729, 51 P. 752 (1898).

De Facto Distribution.

The personal representative exercises control over the property of the estate, in a fiduciary capacity, until the close of administration of the estate. Therefore, for purposes of will provision that personal representative would not take under will if she died prior to distribution, neither the act of controlling the estate property in her fiduciary capacity as personal representative nor the act of possessing the estate property as the beneficiary presumptively entitled thereto was sufficient to constitute de facto distribution of the estate. Allen v. Shea, 105 Idaho 31, 665 P.2d 1041 (1983).

Invocation of Court’s Jurisdiction.

Where an administrator elected to invoke the court’s jurisdiction to resolve the question whether, in the best interests of the estate, one of two bids should be accepted or new bids solicited, the administrator essentially waived his power to accept either bid by petitioning the court for an order therefor. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980).

Solicitation of Bids.

Where an administrator, deeming himself in a somewhat precarious position due to the disparity between the several appraisements and offers, petitioned the magistrate for a resolution of the question how best to dispose of the property, and the magistrate’s resolution of the question was that disposition of the property could best be effected by another solicitation of sealed bids, and order the administrator to do so, but where the order did not, however, require confirmation by the court for completion of the sale, the contemplated disposition, then, was not a judicial sale by the court through the administrator as agent for the court, but rather the solicitation of bids and acceptance of a bid by the administrator. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980).

COMMENT TO OFFICIAL TEXT

The personal representative is given the broadest possible “power over title.” He receives a “ power ,” rather than title, because the power concept eases the succession of assets which are not possessed by the personal representative. Thus, if the power is unexercised prior to its termination, its lapse clears the title of devisees and heirs. Purchasers from devisees or heirs who are “distributees” may be protected also by Section 3-910. The power over title of an absolute owner is conceived to embrace all possible transactions which might result in a conveyance or encumbrance of assets, or in a change of rights of possession. The relationship of the personal representative to the estate is that of a trustee. Hence, personal creditors or successors of a personal representative cannot avail themselves of his title to any greater extent than is true generally of creditors and successors of trustees. Interested persons who are apprehensive of possible misuse of power by a personal representative may secure themselves by use of the devices implicit in the several sections of Parts 1 and 3 of this Article. See especially Sections 3-501, 3-605, 3-607, and 3-611.

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

Personal Representative.

Where the personal representative’s failure to safeguard the property of the estate resulted in the liquidation of an asset and payment to another of the cash proceeds, which rightfully belonged to the estate, and where the enrichment through any interest which could have been accrued from the time of the sale to the time of reimbursement should have been to the estate, not to those who stood to profit from the representative’s mismanagement of the estate, it was proper for the magistrate to order the personal representative to pay interest at the statutory rate on the proceeds of the sale of real estate. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Where the personal representative mismanaged the property of the estate causing the trustee to accrue fees which were beyond those associated with the usual and ordinary duties of a trustee, the personal representative, as a fiduciary, is liable to the interested parties, such as the trustee, for the extraordinary costs incurred by the trustee. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Decisions Under Prior Law

Burden of Proof of Fairness.

Where the administratrix, through the interposition of a third party, purchased the interests of the beneficiaries of the trust, such imposes upon the administratrix the burden of proving the fairness of the transaction; she must disprove any fraud on her part. Gibbins v. McLaughlin, 79 Idaho 410, 319 P.2d 189 (1957).

Consideration Insufficient.

Transfer of interest in estate by heirs to executor is void, where only consideration was part payment in advance by the executor to the various heirs, as such consideration coming from a fiduciary is insufficient for transfer of all of their interest in the estate. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949).

Declaration of Principle.

Office of executor, or administrator, is highly fiduciary, and statute declaring that executor or administrator cannot, directly or indirectly, purchase any property of the estate is a declaration of fundamental principle of trusteeship and prohibits trustee from dealing with any of the subject matter of the trust so as to personally profit. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949).

Fraud.

The finding of the trial court that appellant heirs failed to prove any fraud on respondent administratrix’s part is fully supported by clear and convincing evidence, substantial and competent in nature, there being no attempt to conceal the value of the realty purchased by administratrix and her husband, heirs having full knowledge of its value and potential marketability of the timber located thereon. Gibbins v. McLaughlin, 79 Idaho 410, 319 P.2d 189 (1957).

ALR.

Liability of executor or administrator, or his bond, for loss caused to estate by act or default of his agent or attorney. 28 A.L.R.3d 1191.

Liability of executor, administrator, trustee, or his counsel, for interest, penalty, or extra taxes assessed against estate because of tax law violations. 47 A.L.R.3d 507.

Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax. 55 A.L.R.3d 75.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Decisions Under Prior Law

Acquiescence by Heirs.

Acquiescence by heirs in an agreement with an administrator and his attorney, which was in violation of the fiduciary duties of the administrator and his attorney, did not bar the heirs from subsequently asserting remedies against the administrator and such attorney, where the heirs had no knowledge of their rights until a date subsequent to the consummation of all of the acts relied upon as acquiescence and waiver. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Authority of Attorney.

Fraud.

An attorney, employed by heirs to represent their interests in a corporation to which the heirs had conveyed their interests in mining claims in exchange for stock, had no authority to release the corporation and the administrator of the estate and his attorney from claims of the heirs against such administrator and his attorney, in an action whereby the administrator and his attorney accepted part of stock in settlement of their claims against the estate. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939). Fraud.

An administrator procuring an order for distribution to himself and brothers and sisters, as cousins of decedent, and who obtained a conveyance of the interest of the decedent’s sister for a fraction of the value, is chargeable with fraud. Diamond v. Connolly, 276 F. 87 (9th Cir.), cert. denied, 257 U.S. 656, 42 S. Ct. 169, 66 L. Ed. 420 (1921).

Illegal Lease.

A lease by an executor of the decedent’s property to the executor’s son is illegal. In re Fleshman’s Estate, 51 Idaho 312, 5 P.2d 727 (1931).

Indirect Sales.

Administrator’s wife, who receives a deed from heir before final distribution, must show that it was intended that the property become her separate property, or the transaction will be void. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916).

If executor of an estate persuades heirs to transfer assets in estate to nephew of executor, who in turn transferred assets to executor, such transfer was a sale in which the executor was interested, and one which inured to his personal profit, so that heirs could thereafter impress a trust on the estate of the deceased executor. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949).

Relief.

Where an administrator and his attorney accepted, in settlement of their claims against an estate, certain stock for which they were compelled to account, the heirs were entitled to such relief as would deprive the administrator and said attorney of the “profits” made on the transaction, including excess of money and stock received over the amount of claims against the estate, and possibly, in case of the attorney, necessary expenses in connection with subsequent transactions. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Trusteeship.

Former statute was but a declaration of a fundamental principle of trusteeship inhibiting trustees from dealing with the subject-matter of their trusts in any way which may inure to their personal benefit. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Where an administrator and his attorney accepted for their services shares of stock obtained by heirs in exchange for inherited mining claims, and subsequently exchanged such shares for stock in an Idaho corporation, the heirs were entitled to a decree, under these circumstances, that the administrator and his attorney held the stock as trustees for them and were entitled to an account for the proceeds thereof. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Former statute prohibited attorney for administrator of an estate from dealing with the property of the estate in any way that might inure to his personal benefit. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Voidable Transactions.

Though the purchase by a representative at his own sale is voidable, a deed from him conveying the property to a bona fide purchaser for a valuable consideration will pass title; after such conveyance, the original purchase by the representative at his own sale will not be set aside, since a sale to an innocent purchaser for valuable consideration without notice of any taint of fraud by his grantor will not be set aside. Swinehart v. Turner, 44 Idaho 461, 259 P. 3 (1927).

A purchase by a trustee from his cestui que trust is not void, but is voidable transaction subject to being satisfied on behalf of the beneficiary, provided a want of equity and fair dealing appears and provided the beneficiary acts to avoid the transaction with reasonable promptness. Gibbins v. McLaughlin, 79 Idaho 410, 319 P.2d 189 (1957).

The sale by appellant heirs of their distributive interest in decedent’s real property, and purchase thereof by respondent administratrix and her husband, is not a void transaction as a matter of law. Gibbins v. McLaughlin, 79 Idaho 410, 319 P.2d 189 (1957).

Compiler’s Notes.

The bracketed insertions, twice in the third sentence, were added by the compiler to conform to the statutory citation style.

The term “this code” in the third sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Amendments.

The 2011 amendment, by ch. 69, added subsection (28).

Compiler’s Notes.

The bracketed insertion in the introductory paragraph was added by the compiler to conform to the statutory citation style.

The term “this code” in the introductory paragraph and in subsection (27) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Mismanagement.

Where the personal representative’s failure to safeguard the property of the estate resulted in the liquidation of an asset and payment to another of the cash proceeds, which rightfully belonged to the estate, and where the enrichment through any interest which could have been accrued from the time of the sale to the time of reimbursement should be to the estate, not to those who stood to profit from the representative’s mismanagement of the estate, it was proper for the magistrate to order the personal representative to pay interest at the statutory rate on the proceeds of the sale of real estate. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Solicitation of Bids.

Wrongful Death.

Where an administrator, deeming himself in a somewhat precarious position due to the disparity between the several appraisements and offers, petitioned the magistrate for a resolution of the question how best to dispose of the property, and the magistrate’s resolution of the question was that disposition of the property could best be effected by another solicitation of sealed bids, and ordered the administrator to do so, but where the order did not, however, require confirmation by the court for completion of the sale, the contemplated disposition was not a judicial sale by the court through the administrator as agent for the court, but rather the solicitation of bids and acceptance of a bid by the administrator. Mediterranean Homes, Inc. v. Carnes, 101 Idaho 70, 608 P.2d 873 (1980). Wrongful Death.

Because the decedent’s own cause of action against an underinsured motorist abated upon her death, her personal representative, and heirs, who were not insureds under the policy, were not entitled to payment for wrongful death, pursuant to her underinsured motorist coverage. Farm Bureau Mut. Ins. Co. v. Eisenman, 153 Idaho 549, 286 P.3d 185 (2012).

Decisions Under Prior Law

In General.

Sole resident executor, having management and control of estate by agreement with other executor and the heirs and devisees, was properly considered as qualified to sign a remonstrance to a paving improvement district. Cole v. Lewiston, 50 Idaho 179, 295 P. 430 (1930).

Actions.

An administrator is the proper party to quiet title or to remove a cloud from the title to property belonging to the estate. Cleland v. McLaurin, 40 Idaho 371, 232 P. 571 (1925).

Award of Compensation.

Where an employee’s death occurred after he sustained compensable injury from causes other than the compensable accident, award made under special schedule for fixed definite loss, although determined after employee’s death, was recoverable by the administrator since the right to the award was fixed at the time of the accident. Mahoney v. Payette, 64 Idaho 443, 133 P.2d 927 (1943).

Construction.

The executor’s power to borrow money, to execute a lease, and to continue the testator’s business depends upon the will or statute and must be strictly pursued. In re Fleshman’s Estate, 51 Idaho 312, 5 P.2d 727 (1931).

Continuance of Decedent’s Business.

Upon the death of one partner, the surviving partner may continue the business by and with the consent of the executor or administrator of the estate of the deceased and the approval of the probate court; but, unless by consent of executor or administrator of the estate of the deceased partner, and the approval of the probate court, it is the duty of the surviving partner to settle the affairs of the copartnership as speedily as the best interests of the business of partnership will permit. McElroy v. Whitney, 12 Idaho 512, 88 P. 349 (1906). An administrator is not required to continue the business of the deceased. If he does so, he assumes responsibility for all of the losses incurred and must account for any profits so earned. Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568 (1923).

Where partnership business would have been greatly diminished in value to have shut down on death of one partner, and administratrix knew that surviving partners were operating the business and made no demand that the business cease, the administratrix did not violate former law by her failure to consent to continuance of the business. Varkas v. Varkas, 64 Idaho 297, 130 P.2d 867 (1942).

Conveyances.

No claim against estate for money arises from action of executor in failing and refusing to execute deed in pursuance to testator’s contract. Blake v. Lemp, 32 Idaho 158, 179 P. 737 (1919).

An administrator’s sale of realty will not be set aside to the prejudice of the purchaser without an allegation and proof that the purchaser was a party to the fraud at the sale. Swinehart v. Turner, 38 Idaho 602, 224 P. 74 (1924); Harkness v. Hartwick, 49 Idaho 794, 292 P. 592 (1930).

Expenses of Last Illness.

Under a will directing the executor to pay the expenses of the testator incurred by sickness, the executor is authorized to pay for nursing of the testator during his last illness, notwithstanding the absence of a verified claim therefor. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Leases.

An executor who permitted a tenant to continue in possession of land belonging to the estate at the expiration of a one-year lease in the mistaken belief that the lease was for three years, where such continuance was allowed without a new lease being executed and without approval of the probate judge, under these circumstances, was not chargeable with unlawful renting of the land, especially where it was not shown that the rent collected was inadequate or the estate had suffered by failure to secure execution of a formal lease approved by the probate judge. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Reappraisal.

Where it appeared that a reappraisal of property was proper, the fact that such reappraisal was held on the day of confirmation of the administrator’s sale of realty is insufficient to show anything improper in connection therewith. Harkness v. Hartwick, 49 Idaho 794, 292 P. 592 (1930).

Reappraisal of property ordered sold by administratrix was properly ordered, it appearing that original appraisal was too high. Harkness v. Hartwick, 49 Idaho 794, 292 P. 592 (1930).

ALR.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

ALR.

COMMENT TO OFFICIAL TEXT

With certain qualifications, this section is designed to compel corepresentatives to agree on all matters relating to administration when circumstances permit. Delegation by one to another representative is a form of concurrence in acts that may result from the delegation. A corepresentative who abdicates his responsibility to co-administer the estate by a blanket delegation breaches his duty to interested persons as described by Section 3-703. Section 3-715(21) authorizes some limited delegations, which are reasonable and for the benefit of interested persons.

Fees and Services.

Where the personal representative for the estate failed to bear her burden of proving her requests for reimbursement, the estate did not benefit from her representation, and the estate had to expend substantial costs in litigation against her, the magistrate properly concluded that the personal representative was not entitled to a fee for serving as representative for the estate. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Decisions Under Prior Law

Fees and Services.

Fee must bear some relation to the value of services rendered. Chapman v. Ada County, 48 Idaho 632, 284 P. 259 (1930).

An executor or administrator must be appointed to take possession of and care for the property of an estate, and whether such appointment turns out to be legal or illegal, such person, whether representing the estate as executor or administrator, de facto or de jure, is equally liable for the care of the estate and is entitled to his lawful expenses and disbursements in connection therewith. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

It was the duty of the executor to collect all debts due to the decedent or to the estate, for which services the former statute fixed his compensation. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

Where the executor and administrator must account for the entire community estate, it would follow that an executor and his attorney were entitled to compensation computed upon the entire community estate accounted for plus the separate estate of the deceased, and not upon the half of the community property belonging to the deceased, plus his separate estate. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

ALR.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation. 96 A.L.R.3d 1102.

Attorney’s Fees.

If the estate itself, as apart from the personal representative of the estate, was to be entitled to an award of attorney fees against the surviving spouse, it would be necessary for the estate to establish that the defense by the surviving spouse to an appeal from the order appointing a personal representative was being maintained frivolously, unreasonably or without foundation. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980).

A personal representative who litigates his own personal interests or bequests is not entitled to attorney fees for such litigation from the estate under this section. Marriage v. Berriochoa, 108 Idaho 474, 700 P.2d 96 (Ct. App. 1985).

In a probate action, a personal representative was not entitled to attorney’s fees; although client’s agreement with his attorney was for a lump sum, the attorney had to provide a memorandum of costs specifying at least the total time provided for his work for a determination of reasonableness under Idaho Civil Procedure Rule 54. In re Estates of Bailey, 153 Idaho 526, 284 P.3d 970 (2012).

Benefit for Estate.

The services rendered by the personal representative, for which he seeks reimbursement, must benefit the estate and cannot be incurred to protect personal interests. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Recoverable Expenses.

Personal representative was entitled to recover attorney’s fees incurred as result of contesting of the widow’s rights to family allowance, homestead and exempt property, as well as attorney’s fees incurred by the personal representative in his efforts to remain the personal representative. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Attorney’s Fees.

An attorney appointed executor or administrator is not entitled to attorney fees either for himself or his law partner, unless a necessity is shown for the employment of legal assistance. Needham v. Needham, 34 Idaho 193, 200 P. 346 (1921).

Fee for attorney’s services is a proper charge against estate when such services are necessary. Executor must make a full and complete disclosure of extent, character, and reasonable value of such services from which court may determine proper amount to be allowed. In re Peterson’s Estate, 38 Idaho 195, 220 P. 1086 (1923).

Executor or administrator will not be allowed counsel fees when incurred by such executor or administrator in prosecuting his own personal claim against the estate. In re Peterson’s Estate, 38 Idaho 195, 220 P. 1086 (1923).

In an action for accounting against an executor, a claim for attorney’s fee was properly denied where it was shown that it was problematical that fee was for services rendered executor. Felton v. Anderton, 67 Idaho 160, 174 P.2d 212 (1946).

Expenses in General.

Executor’s expenses, incurred as a result of an appeal taken by residuary legatee, are a charge against the estate, although sought to be charged against the residuary legatee’s share. Needham v. Needham, 34 Idaho 193, 200 P. 346 (1921).

A determination that a will in favor of executrices had been secured by their undue influence deprived them of the right of reimbursement for expenses and fees incurred in previous suits attempting to sustain the validity of the will, except expenses which must have been incurred by anyone handling the estate. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Executors or administrators must be appointed to care for the property of an estate, and, whether the appointment is legal or illegal, such person is equally liable for the care of the estate and is entitled to his lawful expenses and disbursements in connection therewith. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

ALR.

Amount of attorney’s compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 317.

Liability of estate for legal services of attorney employed by estate attorney without consent of executor or administrator. 83 A.L.R.3d 1160.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate — modern cases. 10 A.L.R.5th 448.

Decisions Under Prior Law

Compensation.

It is the duty of the executor to collect all debts due to decedent or to the estate for which services the statute fixes his compensation, and allowance of an additional fee for extraordinary services in collecting accounts is void in the absence of a showing of any extraordinary services. Davenport v. Simons, 68 Idaho 21, 189 P.2d 90 (1947).

Time Limit.

Where the claim of the administratrix for services rendered to decedent prior to death was not filed until well beyond the allowable four month period, the administratrix’s claim was correctly disallowed since it was untimely filed. In re Estate of Lewis, 97 Idaho 299, 543 P.2d 852 (1975).

Decisions Under Prior Law

Appeal.

Failure to allege and prove the presentation of a claim to the administratrix at the trial cannot be raised for the first time on appeal. Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968).

Property Subject to Claims.

All property of estate constitutes a trust fund for benefit of creditors. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

ALR.

COMMENT TO OFFICIAL TEXT

[General comment to §§ 15-3-801 — 15-3-817.]

[]

The need for uniformity of law regarding creditors’ claims against estates is especially strong. Commercial and consumer credit depends upon efficient collection procedures. The cost of credit is pushed up by the cost of credit life insurance which becomes a practical necessity for lenders unwilling to bear the expense of understanding or using the cumbersome and provincial collection procedures found in 50 codes of probate.

The sections which follow facilitate collection of claims against decedents in several ways. First, a simple written statement mailed to the personal representative is a sufficient “claim.” Allowance of claims is handled by the personal representative and is assumed if a claimant is not advised of disallowance. Also, a personal representative may pay any just claims without presentation and at any time, if he is willing to assume risks which will be minimal in many cases. The period of uncertainty regarding possible claims is only four months from first publication. This should expedite settlement and distribution of estates.

Comment to § 15-3-801.

Section 3-1203, relating to small estates, contains an important qualification on the duty created by this section.

In 1989, the Joint Editorial Board recommended replacement of the word “shall” with “[may] [shall]” in (a) to signal its approval of a choice between mandatory publication and optional publication of notice to creditors to be made by the legislature in an enacting state. Publication of notice to creditors is quite expensive in some populous areas of the country and, if Tulsa Professional Collection Services v. Pope , 108 S. Ct. 1340, 485 U.S. 478 (1988) applies to this code, is useless except to bar unknown creditors. Even if Pope does not apply, personal representatives for estates involving successors willing to assume the risk of unbarred claims should have (and have had under the code as a practical consequence of absence of Court supervision and mandatory closings) the option of failing to publish.

Additional discussion of the impact of Pope on the Code appears in the Comment to Section 3-803, infra.

If a state elects to make publication of notice to creditors a duty for personal representatives, failure to advertise for claims would involve a breach of duty on the part of the personal representative. If, as a result of such breach, a claim is later asserted against a distributee under Section 3-1004, the personal representative may be liable to the distributee for costs related to discharge of the claim and the recovery of contribution from other distributees. The protection afforded personal representatives under Section 3-1003 would not be available, for that section applies only if the personal representative truthfully recites that the time limit for presentation of claims has expired. Putting aside Pope case concerns regarding state action under this code, it might be appropriate, by legislation, to channel publications through the personnel of the probate Court. See Section 1-401. If notices are controlled by a centralized authority, some assurance could be gained against publication in newspapers of small circulation. Also, the form of notices could be made uniform and certain efficiencies could be achieved. For example, it would be compatible with this section for the Court to publish a single notice each day or each week listing the names of personal representatives appointed since the last publication, with addresses and dates of non-claim.

Applicability.

Direction to the district court on remand to consider all applicable laws relating to the issue of timeliness of notice of decedent’s death, where the issue of the applicability of subsection (b) of this section was considered by the supreme court on plaintiff’s first appeal, required the district court to consider the applicability of subsection (b). Trimble v. Engelking, 134 Idaho 195, 998 P.2d 502 (2000).

Decisions Under Prior Law

Claim Barred.

A claim, arising out of contract, which is not presented until after time for presentation has expired is barred; and, after its denial, no action can be maintained thereon. Lundy v. Lemp, 32 Idaho 164, 179 P. 738 (1919).

Claim Not Barred.

Claim, duly filed, for services rendered in caring for testator continuously until his death according to an oral agreement entered into more than four years prior to death was not barred by limitation since limitations were tolled until end of period for which services were rendered. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

ALR.

Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued. 28 A.L.R.3d 1141.

Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tortfeasor in personal injury or death action. 47 A.L.R.3d 179.

Cross References.

State tax commission,§ 63-101 et seq.

Prior Laws.

Former§ 15-3-803, which comprised I.C.,§ 15-3-803, as added by 1971, ch. 111, § 1, p. 233; 1971, ch. 126, § 1, p. 487; 1972, ch. 201, § 13, p. 510; 1973, ch. 167, § 12, p. 319, was repealed by S.L. 1991, ch. 87, § 3, p. 192.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Claim Barred.

Where plaintiff’s amended complaint against the decedent’s estate on his claim for personal injuries was filed nearly one year after the expiration of the two-year statute of limitations, his claim was time-barred unless it related back to the date of filing of the original complaint. Damian v. Estate of Pina, 132 Idaho 447, 974 P.2d 93 (Ct. App. 1999).

Under§ 56-218, the Idaho department of health and welfare could not recover Medicaid benefits paid to a decedent until his spouse died, but its claim for reimbursement was still subject to the deadlines of this section; as the department did not present its claim within two years after the decedent’s death, the claim was untimely. State v. Estate of Kaminsky (In re Estate of Kaminsky), 141 Idaho 436, 111 P.3d 121 (2005), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Interest.

Judgment Creditor’s Claims.

Under this section and§§ 15-3-804 and 15-3-806, the interest on plaintiff hospital’s claim could not begin to accumulate until six months after the personal representative first published his notice to creditors. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000). Judgment Creditor’s Claims.

Shareholder’s estate was entitled to summary judgment dismissing judgment creditor’s claim to pierce the corporate veil where judgment creditor failed to file a claim in shareholder’s estate within four months after the publication of notice to creditors, as provided by subdivision (a)(1) of this section; however, where judgment creditor’s other claim against shareholder’s estate was based on fraudulent transfer of assets, a claim not founded in contract, the trial court should not have dismissed it under subdivision (a)(1) of this section. Magic Valley Radiation v. Kolouch, 123 Idaho 434, 849 P.2d 107 (1993).

Limitation.

While§ 15-3-108 typically requires probate proceedings to be initiated within three years of a decedent’s death,§ 15-3-111 provides a narrow exception, which tolls the three-year period for probating a deceased spouse’s estate until the death of a surviving spouse. However,§ 15-3-111 cannot be construed to extend the timeframe in this section to bring a creditor’s claim against the estate of the first spouse to die. In re Estate of Melton, 163 Idaho 158, 408 P.3d 913 (2018).

Decisions Under Prior Law

Appeals.

Former wife of deceased should not be heard for the first time on matters de novo in the district court or supreme court on issues never presented before the probate court namely, a claim in which deceased having agreed to pay her monthly installments for the rest of her life within the time limited in notice to creditors to apply for or secure order extending time. In re Lincoln’s Estate, 79 Idaho 131, 312 P.2d 113 (1957).

Assignment of Expectancy.

Attorney’s Fee.

Claim arising out of assignment of expectancy under will does not place assignee in privity with testator or give him claim against his estate that is required to be filed with executors. Casady v. Scott, 40 Idaho 137, 237 P. 415 (1924). Attorney’s Fee.

An attorney’s claim which arose in the administration of an estate, as distinguished from claims against decedent, being a lien on real property, was not lost by failure to make presentation and allowance. Miller v. Monroe, 50 Idaho 726, 300 P. 362 (1931).

Claim Arising After Decedent’s Death.

In a wrongful death action brought by a widow on behalf of herself and her surviving children, alleging that the defendant’s negligence caused her husband’s death, wherein the defendant filed a third-party complaint against the estate of the husband for the purpose of seeking indemnity or contribution for the alleged contributory negligence of the husband, neither subsection (a) nor (b) of this section operated as a bar to the defendant’s claim for indemnity or contribution since both subsections only apply to bar claims which arose “before the death of the decedent.” Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984).

Claim Barred.

Where the claim against the personal representative of the decedent claiming a right to additional proceeds under the decedent’s life insurance policy was filed nearly five years after the death of the decedent, the claim was barred by subsection (b) of this section. Witt v. Jones, 111 Idaho 165, 722 P.2d 474 (1986).

Claims Founded on Contract.

Action cannot be maintained on claim arising out of contract, when such claim is not presented within time limited by law. Lundy v. Lemp, 32 Idaho 162, 179 P. 738 (1919).

Where the purchaser of land from the decedent had paid a portion of the purchase-price and, after the grantor died, offered to pay balance to the administrator and the administrator refused to accept the same and vendee then sought a return of the money paid, presentation of the claim was necessary. Lundy v. Lemp, 32 Idaho 162, 179 P. 738 (1919).

Claim arising out of contract is required to be presented in order to entitle it to subject other property of estate to payment of any deficiency remaining after foreclosure and sale of mortgaged property. Devereaux Mtg. Co. v. Huggins, 46 Idaho 74, 266 P. 421 (1928).

A claim by a former ward against the heirs, devisees, and grantees of surety of the deceased guardian for an accounting is not a claim arising upon a contract and failure to file against the surety’s estate does not prevent recovery on the claim. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

Claim by beneficiaries of decedent’s contract to devise and bequeath is not claim against estate since claims within probate act include only obligations enforcible against decedent during his lifetime. Ashbauth v. Davis, 71 Idaho 150, 227 P.2d 954 (1951).

Claims of United States.

Foreign Corporations.

Former section applied to the United States as claimant as well as to an individual, and failure of the United States to present its claim to administrator precluded it from successfully maintaining action thereon. United States v. Hailey, 2 Idaho 22, 3 P. 263 (1882), appeal dismissed, 118 U.S. 233, 6 S. Ct. 1049, 30 L. Ed. 173 (1886). Foreign Corporations.

The published notice to creditors binds a foreign corporation authorized to transact business in Idaho to present its claim within the time limit for such purpose and its failure so to do, within that time, invoked the limitation against it. American Sur. Co. v. Blake, 45 Idaho 159, 261 P. 239 (1927); Penn Mut. Life Ins. Co. v. Beauchamp, 57 Idaho 530, 66 P.2d 1020 (1937).

Liens.

Where plaintiff and her deceased husband borrowed money from a bank, and where the loan was evidenced by a note secured by a deed of trust, the bank, in an effort to recover on the note, was not required to file a claim against plaintiff’s husband’s estate as a trust deed is a form of lien and comes under this section’s exception regarding the enforcement of a mortgage or other lien upon estate property. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Mortgages.

Mortgage may be foreclosed without presenting it as claim against estate. Swinehart v. Turner, 38 Idaho 602, 224 P. 74 (1924); First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925); Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

A mortgagee seeking to establish a lien on the proceeds of an insurance policy need not present his claim to the administratrix before bringing suit. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

Payment of Claims.

An executor or administrator has no authority to pay claims against the estate of which he has charge, except when they are presented within the time and in the manner required by law; if he pays in disregard of the requirements of the law, he may be required to make good to the estate all sums so illegally paid out. Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568 (1923).

Partition.

Owners of undivided two-thirds interest in real estate were not required to file a claim against the estate of deceased owner of an undivided one-third interest in order to secure partition, accounting and to determine moneys due plaintiffs for expenditures in payment of mortgage, taxes, repairs, and improvements. Thurston v. Holden, 45 Idaho 724, 265 P. 697 (1928).

Services.

Where the claim of the administratrix for services rendered to decedent prior to death was submitted well beyond the allowable four month period, the administratrix’ claim was correctly disallowed since it was untimely filed. In re Estate of Lewis, 97 Idaho 299, 543 P.2d 852 (1975).

Trusts.

Action to recover trust fund from administrator of estate is not action upon claim against estate requiring presentation of claim. Martin v. Smith, 33 Idaho 692, 197 P. 823 (1921).

Waiver of Defects.

Oral trust against real estate of decedent does not have to be filed. Ferrell v. McVey, 71 Idaho 339, 232 P.2d 134 (1951). Waiver of Defects.

In action against executor on claim where creditor filed proper, timely claim and later, within the period for filing claims, mailed a “corrected statement” to the executor intending an amendment of the original claim, the failure of the executor to seasonably raise an objection to the form of the “corrected statement” constituted a waiver of the right to rely on the formal defects in rejecting the claim. Lewiston Manor, Inc. v. Smith, 94 Idaho 540, 493 P.2d 699 (1972).

ALR.

Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff. 36 A.L.R.3d 693.

Validity of claims against estate filed prior to publication of notice to creditors. 70 A.L.R.3d 784.

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent’s estate, or limiting time for bringing action thereon. 17 A.L.R.4th 530.

Cross References.

Notice by resident creditor in cases of nonresident decedent,§ 15-4-203.

Failure to Object to Claim.

Interest.

Where a party to an action based upon money owing under a sales contract died after the commencement of the suit, and where the opposing party, in a separate probate proceeding, filed upon decedent’s estate a notice of claim regarding the contract action, the failure of decedent’s estate to object to the claim did not give rise to a default judgment as, pursuant to subdivision (b) of this section, it is unnecessary to present in a probate proceeding a notice of claim with regard to matters claimed in other judicial proceedings against the decedent and pending at the time of his death. Blaser v. Cameron, 116 Idaho 453, 776 P.2d 462 (Ct. App. 1989). Interest.

Under this section and§§ 15-3-803 (four months to file claim) and 15-3-806 (60 days from expiration of time to file claim), the interest on plaintiff hospital’s claim could not begin to accumulate until six months after the personal representative first published his notice to creditors. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Decisions Under Prior Law

Amendment of Claim.

In probate proceedings, if a claim against an estate is not presented to the administrator or executor in substantially the manner prescribed by law, and it is rejected, the claimant cannot, after he has commenced an action on such claim, amend the same to conform to the requirements of the statute relative to the presentation of claims in probate proceedings and, thereby, make it a valid presentation of the claim against the estate. Flynn v. Driscoll, 38 Idaho 545, 223 P. 524 (1924).

Authority of Administrator.

Administrator is without authority to pay claims against estate not presented in form and manner provided by law. Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568 (1923).

Effect of Presentation.

Filing of claim, secured or unsecured, with administrator gives to claimant no right of action, but leaves selling of the property and payment of the debt in the discretion of administrator in the manner prescribed by law. Kendrick State Bank v. Barnum, 31 Idaho 562, 173 P. 1144 (1918).

Procedure.

Sufficiency of Claim.

When an application has been made by a creditor to present a claim against the estate of a decedent, supported by a proper affidavit, an order should be made permitting its presentation. If, when presented, it is rejected, an action may be commenced to establish the claim against the estate, and the executor or administrator may present any defense thereto he may have, including the statute of limitations. Penn Mut. Life Ins. Co. v. Beauchamp, 57 Idaho 530, 66 P.2d 1020 (1937). Sufficiency of Claim.

A claim against an estate need not state all the facts with the precision required in a complaint, but all that is necessary is to indicate the nature and the amount of the demand in a manner permitting the executor to act advisedly thereon. Furst & Thomas v. Elliott, 56 Idaho 491, 56 P.2d 1064 (1936).

A guarantee’s claim against the estate of the guarantor, showing the amount of the principal’s indebtedness and accompanied by a copy of the merchandising agreement, guaranty, and account is sufficient in form. Furst & Thomas v. Elliott, 56 Idaho 491, 56 P.2d 1064 (1936).

Claimant is not required to specify whether his claim against a decedent’s estate is based on an express contract or a quantum meruit. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

The verification of a claim by the bookkeeper of the claimant is sufficient to justify allowance of credit to the executor for having paid the claim, in the absence of a showing that the estate suffered a loss by reason of payment, in spite of other statutory requirements. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

A claim against an estate may be required to be properly made out and presented to the court, so that the judge and all persons interested have notice of the nature of the claim, and so that the legal representative of the estate is furnished sufficient information to enable him to properly investigate the claim before action is taken thereon. Dowd v. Dowd, 62 Idaho 157, 108 P.2d 287 (1940).

Vacation of Allowance.

Where claim against an estate has been allowed by judge, and thereafter objections and exceptions are filed by heir of such estate, judge has power and jurisdiction to set aside his former allowance of such claim and to hear and determine the objections and exceptions filed. Until the issue thus presented is heard, the matter is pending in such court. In re Coryell’s Estate, 16 Idaho 201, 101 P. 723 (1909).

Waiver of Defects.

Where the sufficiency of plaintiff’s claim was not challenged in the court below, and no ground for rejection was stated when rejected by the executors, and where there was no request for clarification, and the formal sufficiency of the claim was not pleaded by the executors in the district court, under such circumstances the formal insufficiency has been waived. Carlson v. Estate of Carlson, 93 Idaho 258, 460 P.2d 393 (1969).

ALR.

COMMENT TO OFFICIAL TEXT

The filing of a claim with the probate court under (2) [(b)] of this section does not serve to initiate a proceeding concerning the claim. Rather, it serves merely to protect the claimant who may anticipate some need for evidence to show that his claim is not barred. The probate court acts simply as a depository of the statement of claim, as is true of its responsibility for an inventory filed with it under Section 3-706. In reading this section it is important to remember that a regular statute of limitation may run to bar a claim before the non-claim provisions run. See Section 3-802.

Creditors.

A judgment against the estate in favor of plaintiff hospital must only be paid in the due course of administering the estate and be subject to priority classification under this section like all other creditor claims. Plaintiff hospital was not entitled to a direct money judgment against the estate to be paid before satisfaction of other debts with superior classification. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Decisions Under Prior Law

Expenses of Last Illness.

Under a will which directed the executor to pay expenses of testator incurred by sickness, the executor was authorized to pay for nursing of testator during his last illness, notwithstanding absence of verified claim. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

In an action to quiet title to realty which had been conveyed by administratrix to the plaintiff, who was a creditor of the estate, at a private sale which had been regularly advertised and confirmed by an order of the court, judgment for the plaintiff, who paid for the land by being allowed credits for expenditures reasonably necessary in connection with the last illness of the decedent, was affirmed by a divided court. Van Gilder v. Warfield’s Unknown Heirs & Devisees, 63 Idaho 328, 120 P.2d 243 (1941).

Mortgage Claims.

Mortgagee can acquire no advantage or preference over other creditors by being allowed to present his claim and to, thereafter, foreclose his mortgage for amount remaining unpaid. First Nat’l Bank v. Glenn, 10 Idaho 224, 77 P. 623 (1904). Where mortgagee presents his claim as unsecured, and administrator inadvertently includes him in a pro rata distribution of assets among creditors, and trial court directs that amount so paid mortgagee be refunded to administrator, mortgagee cannot be deemed to have participated in the general assets of the estate, and his measure of relief in action for foreclosure is limited to the security, all right to a deficiency judgment having been waived. Kendrick State Bank v. Barnum, 31 Idaho 562, 173 P. 1144 (1918).

Idaho Law Review.

Idaho Law Review. — Paying for Long-Term Care in the Gem State, Andrew M. Hyer. 48 Idaho L. Rev. 351 (2012).

Compiler’s Notes.

The bracketed insertions in the first sentence in subsection (a) were added by the compiler to conform to the statutory citation style. CASE NOTES

Hospital and Funeral Expenses.

A judgment against the estate in favor of plaintiff hospital must only be paid in the due course of administering the estate and be subject to priority classification under§ 15-3-805 like all other creditor claims. Plaintiff hospital was not entitled to a direct money judgment against the estate to be paid before satisfaction of other debts with superior classification. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Interest.

Under this section and§§ 15-3-803 (four months to file claim) and 15-3-804 (presentation of claim), the interest on plaintiff hospital’s claim could not begin to accumulate until six months after the personal representative first published his notice to creditors. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Decisions Under Prior Law

Actions on Claims.

If claim of United States is rejected by administratrix, the United States can sue the administratrix in federal district court, even though state statute of limitations has run on the claim, since United States is not bound by state statute of limitations or subject to defense of laches. United States v. Gibson, 101 F. Supp. 225 (D. Idaho 1951), rev’d on other grounds, 225 F.2d 807 (9th Cir. 1955). Judgment rendered against executor or administrator upon a claim for money against the estate of his testator or intestate only establishes claim in the same manner as if it had been allowed by executor or administrator, and judgment must be that executor or administrator pay in due course of administration amount ascertained to be due. McElroy v. Whitney, 24 Idaho 210, 133 P. 118 (1913).

It is not the duty of an administrator of an estate to file with the court claims against the estate which have been rejected by the administrator. Chandler v. Probate Court, 26 Idaho 173, 141 P. 635 (1914).

Refusal of executor to make a conveyance of real property to decedent’s grantee, without the decree of court, does not create a right of action against estate in favor of grantee for money paid by latter on the purchase-price of the property, and a claim therefor is not a valid claim against estate. Blake v. Lemp, 32 Idaho 158, 179 P. 737 (1919).

Where an administrator is adversely claiming property which a creditor alleges belongs to the estate, and the creditor’s claim against the estate has been rejected, the creditor may maintain an action against the administrator to account for such property and to recover judgment on his rejected claim. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920).

In action by cotenant to have money expended by him declared lien against share of his cotenant in property, his rights may be enforced although recourse against other property of his deceased cotenant is not waived in complaint, since lien of advancing tenant is limited to interest of his cotenant in common estate. Thurston v. Holden, 45 Idaho 724, 265 P. 697 (1928).

An action by an executor or administrator on a claim which he has filed against the estate and which has been rejected is against the estate, not against the judge, and hence the estate can appeal from a judgment for an administratrix on her claim. Dowd v. Dowd, 62 Idaho 157, 108 P.2d 287 (1940).

A party claiming an interest in an estate of a deceased person cannot present his claim and establish his status as such claimant in the first instance on appeal to the district court from a decree of a probate court distributing the estate. In re Lincoln’s Estate, 79 Idaho 131, 312 P.2d 113 (1957).

Admissions.

The admissions of an administrator, made in the partial allowance of a claim against the estate, will bind the estate. Meinert v. Snow, 3 Idaho 112, 27 P. 677 (1891).

Aid to Needy Elderly.

Since the statute granting aid to the needy aged does not fall within the constitutional inhibition against giving or loaning the credit of the state, the loan features of the Public Assistance Law authorizing recovery from estates of needy aged persons is not unconstitutional. State ex rel. Nielson v. Lindstrom, 68 Idaho 226, 191 P.2d 1009 (1948).

Amendment of Claim.

Time limitation for bringing of suit held not to apply where administratrix did not reject claim but requested its amendment. Powell-Sanders Co. v. Carssow, 28 Idaho 201, 152 P. 1067 (1915).

Attorney’s Fees.

Claim.

An attorney’s claim arising in the administration of an estate is not lost for the want of presentation and allowance. Miller v. Monroe, 50 Idaho 726, 300 P. 362 (1931). Claim.

“Claim” includes only obligations enforcible against decedent during his lifetime. Ashbauth v. Davis, 71 Idaho 150, 227 P.2d 954 (1949).

Contract to Devise.

Claim by beneficiaries of decedent’s contract to devise and bequeath is not claim against estate such as to be required to be filed with executor or administrator. Thus, executor or administrator is not necessary party unless property concerned is still in his hands. Ashbauth v. Davis, 71 Idaho 150, 227 P.2d 954 (1949).

Counterclaim for Moneys Retained.

In action by surviving vendor, individually and as executrix of her late husband’s estate, to terminate a written real estate contract and to quiet title to the property, purchaser’s counterclaim for moneys retained as liquidated damages was not barred by not having been presented against the deceased husband’s estate, having arisen subsequent to decedent’s death and being an equitable action rather than a “claim.” Nichols v. Knowles, 87 Idaho 550, 394 P.2d 630 (1964).

Effect of Allowance.

Effect of allowance of claim is merely to rank claim among the acknowledged debts of the estate to be paid in due course of administration. In re Coryell’s Estate, 16 Idaho 201, 101 P. 723 (1909).

It was not the intention of the former statute to make ex parte allowance a judgment, concluding the rights of the heirs. It is merely an acknowledgment of such claim against the estate. The heirs must not be denied an opportunity to contest the claim offering proof with reference to such claim. In re Coryell’s Estate, 16 Idaho 201, 101 P. 723 (1909).

Failure to Direct Payments.

Failure of a judgment against an executrix to direct her to pay the amount of the judgment “in due course of administration” of her testator’s estate does not render such judgment defective. Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968).

Hospital and Funeral Expenses.

In an action for death by decedent’s heirs, there can be no recovery on hospital and death disbursements by the heirs where the expenses were paid by another who recovered from the estate, as such claims are properly claims against the decedent’s estate. Hartman v. Gas Dome Oil Co., 50 Idaho 288, 295 P. 998 (1931).

Implied Approval.

Liability of Fiduciary.

A decree of distribution approving a transaction whereby an administrator and his attorney received, in satisfaction of their claims against the estate, shares of stock, conclusively approved the claim of the attorney for services, notwithstanding that the claim was not approved by the judge and filed as required by statute. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939). Liability of Fiduciary.

An administrator or executor who pays debts of claimants in estate prior to paying claims of United States becomes personally liable for debt owed to the United States by virtue of provisions of U.S.C., title 31, §§ 191, 192 [now 31 U.S.C.S. § 3713]. United States v. Gibson, 101 F. Supp. 225 (D. Idaho 1951), rev’d on other grounds, 225 F.2d 807 (9th Cir. 1955).

Mortgage Claims.

Former section did not preclude mortgagee from first presenting his claim for mortgage debt to administrator and afterward foreclosing his mortgage to obtain deficiency remaining after part-payment out of estate. First Nat’l Bank v. Glenn, 10 Idaho 224, 77 P. 623 (1904); Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515 (1925); Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

Where claim has been presented and allowed by administrator and holder still wishes to bring action to foreclose, he must waive recourse against other assets of the estate. First Nat’l Bank v. Glenn, 10 Idaho 224, 77 P. 623 (1904); Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515 (1925).

When a claim upon a mortgage has been presented and rejected, foreclosure can be had without waiver of the right to a deficiency claim against the estate. Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515 (1925).

At the death of a mortgagor, the mortgagee may either waive all recourse to a deficiency judgment and look to the security alone to pay the mortgage or he may present his claim to the executor or administrator and, if rejected, then bring action to foreclose without waiving recourse against other property of the estate for any deficiency. Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

In rejecting a claim filed by a mortgagee, the administrator is but exercising the same right the deceased had in his lifetime, namely, that of requiring the mortgagee to resort first to the security. Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

Mortgagee held not entitled to deficiency decree where foreclosure action was commenced eleven months after notice of rejection of claim by administrator. Devereaux Mtg. Co. v. Huggins, 46 Idaho 74, 266 P. 421 (1928).

The approval of an administrator’s payments of interest on a mortgage indebtedness by the court and an order settling the final account and distributing the property subject to the mortgage, where the order was permitted to become final, was conclusive on the validity of the mortgage and could not be attacked on the ground that the note and mortgage were barred by the statute of limitations. Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943).

Necessity of Compliance Before Suit.

An action upon a rejected claim can be maintained only when the claim has been properly presented, followed by a rejection. Flynn v. Driscoll, 38 Idaho 545, 223 P. 524 (1924).

Party cannot maintain an action on a creditor’s claim in district court unless the claim has first been presented to the executors in substantial compliance with the statute and rejected. Carlson v. Estate of Carlson, 93 Idaho 258, 460 P.2d 393 (1969).

Notice of Rejection.

Notice of rejection of claim must be given to claimant or his agent or attorney personally or by mail. Holt v. Mickelson, 41 Idaho 694, 242 P. 977 (1925). Mere fact that claimant knew informally that claim had been rejected cannot take place of statutory notice necessary to fix rights of parties. Holt v. Mickelson, 41 Idaho 694, 242 P. 977 (1925).

Former statute contemplated notice of rejection served by administratrix upon claimant or his agent or attorney. Devereaux Mtg. Co. v. Huggins, 46 Idaho 74, 266 P. 421 (1928).

In notice of rejection given by attorney for personal representative, it is not necessary that he sign as attorney for such representative. Devereaux Mtg. Co. v. Huggins, 46 Idaho 74, 266 P. 421 (1928).

Giving of notice of rejection is ministerial and not judicial act which may be delegated by representative to attorney. Devereaux Mtg. Co. v. Huggins, 46 Idaho 74, 266 P. 421 (1928).

Rejection of Claim.

Claims allowed by administrator or executor must be presented to probate court for approval, but claims rejected do not require submission to probate court. United States v. Gibson, 101 F. Supp. 225 (D. Idaho 1951), rev’d on other grounds, 225 F.2d 807 (9th Cir. 1955).

An executor cannot waive any provision of the statute affecting the substantial rights of creditors or heirs of an estate, and a claim founded upon a written contract, not accompanied by a copy of the contract, should be rejected. Flynn v. Driscoll, 38 Idaho 545, 223 P. 524 (1924).

Mere failure of executor or administrator to act upon claim within prescribed time does not amount to disallowance of claim. Wormward v. Brown, 50 Idaho 125, 294 P. 331 (1930).

Sufficiency of Claim.

Evidence of claimant failed to show an agreement by deceased to pay a reasonable amount to invent and construct device. Nelson v. Bruce, 51 Idaho 378, 6 P.2d 140 (1931).

Claim was legally sufficient where claim showed it was for wages for a designated period, amount due, and was definite enough to bar any other claim for the same wages. Nagele v. Miller, 72 Idaho 24, 236 P.2d 722 (1951).

A claim in an estate does not have to follow any particular form, as long as it indicates the nature and amount in such a manner as to permit the executor or administrator to pass upon same. Nagele v. Miller, 72 Idaho 24, 236 P.2d 722 (1951).

Trusts.

A cestui que trust is not entitled to a preference lien upon the assets of the estate of the trustee on the ground that the estate was indirectly increased as a result of the dissipation of the trust fund. Martin v. Smith, 33 Idaho 692, 197 P. 823 (1921).

Recovery may be had in an action to recover a trust fund against the administrator of deceased’s estate, although a claim had not been filed with the administrator, since the trust fund was not a part of the deceased’s estate. Kite v. Eckley, 48 Idaho 454, 282 P. 868 (1929).

Cross References.

Power to avoid transfers,§ 15-3-710.

Claims Against Estate.

Claims may be made against an estate for obligations arising from control of the estate by the personal representative during administration; liability for an attorney fee award is such an obligation. Kunzler v. Kunzler, 109 Idaho 350, 707 P.2d 461 (Ct. App. 1985).

ALR.

Liability of estate for torts of executor, administrator, or trustee. 82 A.L.R.3d 892.

Decisions Under Prior Law

Mortgage Lien.

Fact that mortgagee files his claim against decedent’s estate as an unsecured claim does not, ipso facto, operate as waiver of his mortgage lien. Kendrick State Bank v. Barnum, 31 Idaho 562, 173 P. 1144 (1918).

ALR.

§ 15-3-810. Claims not due and contingent or unliquidated claims.

1. If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
2. In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
   1. if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
   2. arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

History.

I.C.,§ 15-3-810, as added by 1971, ch. 111, § 1, p. 233.

ALR.

§ 15-3-811. Counterclaims.

In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

History.

I.C.,§ 15-3-811, as added by 1971, ch. 111, § 1, p. 233.

ALR.

§ 15-3-813. Compromise of claims.

When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

History.

I.C.,§ 15-3-813, as added by 1971, ch. 111, § 1, p. 233.

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

The term “this code” near the end of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The bracketed insertions near the middle of this section were added by the compiler to conform to the statutory citation style.

The term “this code” near the middle of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

ALR.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 486.

Decisions Under Prior Law

Effect of Failure to Appeal.

A decree of distribution of probate court becomes conclusive as to the rights of all heirs and claimants to the estate if not appealed from within the time provided by law. Connolly v. Probate Court, 25 Idaho 35, 136 P. 205 (1913).

ALR.

COMMENT TO OFFICIAL TEXT

Unlike the common law, this section provides that a general pecuniary devisee’s right to interest begins one year from the time when administration was commenced, rather than one year from death. The rule provided here is similar to the common law rule in that the right to interest for delayed payment does not depend on whether the estate in fact realized income during the period of delay. The section is consistent with Section 5(b) of the Revised Uniform Principal and Income Act which allocates realized net income of an estate between various categories of successors.

ALR.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary. 3 A.L.R.5th 590.

Amendments.

The 2016 amendment, by ch. 262, deleted “or family allowance” following “homestead” in paragraph (a)(2).

Decisions Under Prior Law

Conveyance by Heir Before Distribution.

An heir may convey his interest in real property of the estate to a third party before a final decree of distribution, and, if such conveyance is uncontested, distribution may be made to the assignee. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

The order of a court ordering distribution of a share of an estate to an heir’s transferee does not adjudicate the validity of title between the heir and the transferee, since the court has no jurisdiction to determine that question. The legal effect of the order is merely to protect the administrator as against a charge of wrongful distribution. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Correction of Decree.

The court may, when obvious mistakes and inconsistencies appearing upon the face of a final decree of distribution are properly called to its attention, reopen the estate to correct such errors. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916).

Rights of Grantee of Heir.

Claimant contending as grantee of heir, being neither heir, devisee, nor creditor, cannot be heard to question procedure of distribution. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916).

If validity of conveyance from heir is disputed, court must distribute as though no conveyance was made. Grantee has his remedy in proper tribunal. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916).

ALR.

COMMENT TO OFFICIAL TEXT

Ordinarily heirs or devisees desiring partition of a decedent’s property will resolve the issue by agreement without resort to the courts. (See Section 3-912). If court determination is necessary, the court with jurisdiction to administer the estate has jurisdiction to partition the property.

Compiler’s Notes.

The bracketed word “decedents’” was inserted into the third sentence by the compiler for clarity.

ALR.

Family settlement of intestate estate. 29 A.L.R.3d 174.

Compiler’s Notes.

The bracketed insertion near the end of subsection (a) was added by the compiler to conform to the statutory citation style.

The term “this code” near the end of subsection (a) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

ALR.

Construction and operation of will or trust provision appointing advisors to trustee or executor. 56 A.L.R.3d 1249.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 317.

Liability of testamentary trustee for failure to assert claim against executor of testator’s estate for mistake resulting in overpayment of taxes. 68 A.L.R.3d 1265.

Exercise by will of trustor’s reserved power to revoke or modify inter vivos trust. 81 A.L.R.3d 959.

Status of testamentary trustees under the Uniform Probate Code.

Under the Uniform Probate Code, the testamentary trustee by construction would be considered a devisee, distributee, and successor to whom title passes at time of the testator’s death even though the will must be probated to prove the transfer. The informally probated will is conclusive until set aside and the personal representative may distribute to the trustee under the informally probated will or settlement agreement and the title of the trustee as distributee represented by the instrument or deed of distribution is conclusive until set aside on showing that it is improper. Should the informally probated will be set aside or the distribution to the trustee be shown to be improper, the trustee as distributee would be liable for value received but purchasers for value from the trustee as distributee under an instrument of distribution would be protected. Section 1-201’s definition of “distributee” limits the distributee liability of the trustee and substitutes that of the trust beneficiaries to the extent of distributions by the trustee.

As a distributee as defined by Section 1-201, the testamentary trustee or beneficiary of a testamentary trust is liable to claimants like other distributees, would have the right of contribution from other distributees of the decedent’s estate and would be protected by the same time limitations as other distributees (Section 3-1006).

Incident to his standing as a distributee of the decedent’s estate, the testamentary trustee would be an interested party who could petition for an order of complete settlement by the personal representative or for an order terminating testate administration. He also could appropriately receive the personal representative’s account and distribution under a closing statement. As distributee he could represent his beneficiaries in compromise settlements in the decedent’s estate which would be binding upon him and his beneficiaries. See Section 3-912.

The general fiduciary responsibilities of the testamentary trustee are not altered by the Uniform Probate Code and the trustee continues to have the duty to collect and reduce to possession within a reasonable time the assets of the trust estate including the enforcement of any claims on behalf of the trust against prior fiduciaries, including the personal representative, and third parties.

Amendments.

The 2007 amendment, by ch. 97, substituted “shall accrue and be transferred to the public school permanent endowment fund created pursuant to section 4, article IX, of the constitution of the state of Idaho” for “shall accrue and be set over to the general account” at the end.

The 2012 amendment by ch. 215, substituted “deliver the property in the manner set forth in section 14-519, Idaho Code” for “proceed to dispose of the property in the manner set forth in the ‘unclaimed property act,’ provided, however, that in the event no person appears to claim such property within one thousand eight hundred twenty-seven (1,827) days, approximately five (5) years, from the date of the appointment of the personal representative, the moneys or property so deposited shall accrue and be transferred to the public school permanent endowment fund created pursuant to section 4, article IX, of the constitution of the state of Idaho”.

Effective Dates.

Section 5 of S.L. 1980, ch. 281 declared an emergency. Approved March 31, 1980.

Section 9 of S.L. 1992, ch. 21 declared an emergency. Approved March 9, 1992.

Compiler’s Notes.

The term “this code” near the end of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

ALR.

Time within which election must be made for incompetent to take under or against will. 3 A.L.R.3d 119.

Who may make election for incompetent to take under or against will. 21 A.L.R.3d 320.

Compiler’s Notes.

This section, which comprised I.C.,§ 15-3-916, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 14, p. 510; am. 1999, ch. 105, § 1, p. 330; am. 2001, ch. 262, § 1, p. 961, was repealed by S.L. 2004, ch. 54, § 1. For present comparable provisions, see§ 15-3-1301 et seq.

Cross References.

Devisee must survive testator by 120 hours,§ 15-2-601.

Heir must survive decedent by 120 hours,§ 15-2-104.

Limitation on presentation of claims,§ 15-3-803.

Failure to Give Notice.

Where the personal representative on an estate, who had been informally appointed by the probate court, attempted to formally close the estate pursuant to this section, his failure to send notice to all interested persons as required by§ 15-1-401 could not be excused by some of those parties having actual or constructive notice, since constructive notice is insufficient under this section and the allegations of actual notice were conjectural in nature. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).

Decisions Under Prior Law

Appeal.

Appeals from orders approving a final account and entering a decree of distribution are not the exclusive remedy; but the court may set aside such orders made on an advanced date of settlement where the date was improperly advanced without notice to interested parties. Simons v. Davenport, 66 Idaho 400, 160 P.2d 464 (1945).

Collateral Attack.

In suit by remainderman to recover proportionate share of proceeds of sale of right of way to state by co-remaindermen based on decree of distribution in estate, the defendants were not misled merely because copy of will was attached to complaint since decree could not be attacked in collateral proceeding. Woodland v. Spillman, 75 Idaho 286, 271 P.2d 819 (1954).

Death of Foreign Legatee.

Decree in Foreign State.

Bequests to residents of France by an Idaho testator (such legatees having died intestate during the pendency of the administration of the testator’s estate) were distributable to the heirs of such deceased legatees under the laws of France. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968). Decree in Foreign State.

Decree in foreign state is conclusive only as to determination of each heir’s share and not as to contracts between heirs or between heirs and third parties. Blake v. Blake, 69 Idaho 214, 205 P.2d 495 (1949).

Duty to Advise as to Heirs.

An administrator or executor has the duty to advise the probate court as to all known heirs of the decedent prior to distribution in the estate. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Effect of Decree.

Decree of distribution is a final judgment and decree to extent of determining that all the interest that the estate had in certain property shall pass and be distributed to the heirs of deceased. It determines who are the heirs and their respective shares and interests in the estate, but it is not a decree affecting or adjudicating title to the property as between the estate or heirs to the estate and any third party. Miller v. Mitcham, 21 Idaho 741, 123 P. 941 (1912); White v. Smith, 43 Idaho 354, 253 P. 849 (1926).

If nothing appears on the face of a decree of distribution to show the lack of jurisdiction, the decree is prima facie evidence of title. Jorgensen v. McAllister, 34 Idaho 186, 202 P. 1059 (1921).

A court order settling the final account of an executor, administrator or guardian is a judgment in rem, final and conclusive against all the world after the time for appeal has expired. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936); Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943).

Heirs Not Joining in Appeal.

A probate court decree approving the administrator’s account and ordering distribution reversed upon appeal by one heir because of error in adjudicating alleged advancements is not binding upon the heirs who did not join in the appeal, but must be retried as to all. Hirning v. Webb, 91 Idaho 229, 419 P.2d 671 (1966).

Invalid Will.

Under a will declared invalid, the retiring executrix may be required to make a final account which should be passed upon by the court. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Under a will subsequently declared invalid, the property possessed by the executrix to be included in the final account may be passed upon by the court. In re Randall’s Estate, 64 Idaho 629, 132 P.2d 763 (1942), rehearing denied, 64 Idaho 651, 135 P.2d 299 (1943).

Jurisdiction of Federal Court.

Jurisdiction of Probate Court.

Federal court did not have jurisdiction to determine heirship under a will and quiet title to property, since proceeding was one for the construction of the will and jurisdiction of such a proceeding was vested exclusively in the probate courts of the state. White v. White, 126 F. Supp. 924 (D. Idaho 1954). Jurisdiction of Probate Court.

The probate court had in its jurisdiction to settle title to realty where question involved was whether property was community between decedent and administratrix or separate and to determine to whom it should descend, no strangers being involved in such matter but only rival claimants to heirship. Lundy v. Lundy, 79 Idaho 185, 312 P.2d 1028 (1957).

ALR.

COMMENT TO OFFICIAL TEXT

Subsection (b) is derived from § 64(b) of the Illinois Probate Act (1967) [S.H.A. ch. 3, § 64(b)]. Section 3-106 specifies that an order is binding as to all who are given notice even though less than all interested persons were notified. This section provides a method of curing an oversight in regard to notice which may come to light before the estate is finally settled. If the person who failed to receive notice of the earlier proceeding succeeds in obtaining entry of a different order from that previously made, others who received notice of the earlier proceeding may be benefitted. Still, they are not entitled to notice of the curative proceeding, nor should they be permitted to appear.

See also, Comment following Section 3-1002.

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

Amendments.

The 2016 amendment, by ch. 262, deleted “or family allowance” following “homestead” in the second sentence.

Decisions Under Prior Law

Action by Ward.

A former ward may maintain an equitable action for an accounting against the heirs, devisees, and donees of the deceased surety of the deceased guardian and to have the property acquired by the defendants from the surety without consideration surcharged with the guardian’s debt. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

Final Resolution of Estate Tax Liability.

Personal representative of estate acted reasonably in negotiating with the IRS and in delaying distribution of the estate until a final resolution of the estate’s tax liability was made. Allen v. Shea, 105 Idaho 31, 665 P.2d 1041 (1983).

Fraud by Personal Representative.

Where the final formal closing of an estate took place in November 1975, an action commenced in May 1976 which alleged fraud by the personal representatives was not barred by the 6-month limitation contained in this section, since this section applies only to informally closed estates and does not apply when fraud, misrepresentation and inadequate disclosure are alleged. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).

Cross References.

State tax commission, art. VII, § 12, Idaho Const. and§ 63-101.

Amendments.

The 2014 amendment, by ch. 134, substituted “three (3) years” for “two (2) years” following “forever barred” near the end of the first sentence.

Compiler’s Notes.

The term “this code” in the last sentence refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Decisions Under Prior Law

Application.

Where certain property belonging to deceased was not administered in probate proceedings, and fact was not discovered until final decree of distribution had been entered, final decree should not for this reason be set aside on application of creditor or party interested. Chandler v. Probate Court, 26 Idaho 173, 141 P. 635 (1914).

Cross References.

Attorney general,§ 67-1401 et seq.

ALR.

Family settlement of intestate estate. 29 A.L.R.3d 174.

Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to other beneficiaries or decedent’s personal representative. 21 A.L.R.4th 275.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

This section was amended by two 2006 acts which appear to be compatible and have been compiled together.

The 2006 amendment, by ch. 160, substituted “one hundred thousand dollars ($100,000)” for “seventy-five thousand dollars ($75,000)” in subsection (a)(1).

The 2006 amendment, by ch. 179, added subsection (c).

[General comment to §§ 15-3-1201 — 15-3-1204.]

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The four sections which follow include two designed to facilitate transfer of small estates without use of a personal representative and two designed to simplify the duties of a personal representative, who is appointed to handle a small estate.

The Flexible System of Administration described by earlier portions of Article III [Chapter 3] lends itself well to situations involving small estates. Letters may be obtained quickly without notice or judicial involvement. Immediately, the personal representative is in a position to distribute to successors whose deeds or transfers will protect purchasers. This route accommodates the need for quick and inexpensive transfers of land of small value as well as other assets. Consequently, it was unnecessary to frame complex provisions extending the affidavit procedures to land.

Indeed, transfers via letters of administration may prove to be less troublesome than use of the affidavit procedure. Still, it seemed desirable to provide a quick collection mechanism which avoids all necessity to visit the probate court. For one thing, unpredictable local variations in probate practice may produce situations where the alternative procedure will be very useful. For another, the provision of alternatives is in line with the overall philosophy of Article III [Chapter 3] to provide maximum flexibility.

Figures gleaned from a 1970 authoritative report of a major survey of probated estates in Cleveland, Ohio, demonstrate that more than one-half of all estates in probate had a gross value of less than $15,000. This means that the principal measure of the relevance of any legislation dealing with probate procedures is to be found in its impact on very small and moderate sized estates. Here is the area where probate affects most people.

[Comment to § 15-3-1201.]

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This section provides for an easy method for collecting the personal property of a decedent by affidavit prior to any formal disposition. Existing legislation generally permits the surviving widow or children to collect wages and other small amounts of liquid funds. Section 3-1201 goes further in that it allows the collection of personal property as well as money and permits any devisee or heir to make the collection. Since the appointment of a personal representative may be obtained easily under the Code, it is unnecessary to make the provisions regarding small estates applicable to realty.

Amendments.

The 2014 amendment, by ch. 134, deleted “family allowance” following “exempt property” near the middle of the section.

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

Amendments.

The 2014 amendment, by ch. 134, deleted “family allowance” following “exempt property” in paragraph (a)(1).

Compiler’s Notes.

The bracketed insertions in the introductory paragraph in subsection (a) and in subsection (c) were added by the compiler to conform to the statutory citation style.

The term “this code” at the end of the section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Prior Laws.

Former section 15-3-1205, comprising S.L. 1972, ch. 122, § 1, p. 241, was repealed by S.L. 1973, ch. 124, § 1, p. 234.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Amendments.

The 2020 amendment, by ch. 82, substituted “section 15-1-201(34), Idaho Code” for “section 15-1-201(33), Idaho Code” at the end of subsection (d).

Official Comment

The starting point for calculating the apportionable estate is the value of the gross estate. Since the properties included and deductions allowed for determining different taxes can differ, the apportionable estate figure may not be the same for different taxes.

Property not included in the apportionable estate for an estate tax typically will not bear any of that tax. However, the donee recipients of such property will bear part of an estate tax to the extent that the available assets of the apportionable estate are insufficient to pay the tax. See Sections 6(c) and 9(b). Since deductible transfers will not generate any estate tax, it is appropriate to insulate those transfers from the allocation of that tax to the extent that properties of the apportionable estate are sufficient. A gift tax paid by the decedent on a gift that was made by the decedent or the decedent’s spouse within three years of the decedent’s death is added back to the decedent’s gross estate for federal estate tax purposes by Internal Revenue Code §2035(b). A State or foreign estate tax may have a similar provision or effect. Subparagraph (1)(C) excludes any such gift tax from the apportionable estate.

The value of the apportionable estate is reduced by claims and expenditures that are allowable estate tax deductions whether or not allowed. For example, administrative expenses that could have been claimed as estate tax deductions, but instead are taken as income tax deductions, will reduce the apportionable estate. When a decedent’s estate includes property in more than one State, the apportionable estate for each State’s estate tax will be reduced by the expenses and claims that are deductible for purposes of that tax. Where an expenditure cannot be identified as pertaining to property in the gross estate of only one State tax, the expenditure is to be apportioned ratably among the taxes of the States in which the relevant properties are located, in accordance with the values of those properties.

A spouse’s elective share of a decedent’s estate is excluded from the apportionable estate to the extent that the spouse’s share qualifies for an estate tax deduction. Other statutory claims against a decedent’s estate that do not qualify for an estate tax deduction (for example, a pretermitted heir) do not reduce the apportionable estate.

The term “estate tax” is defined in the Act to include all estate taxes and certain generation-skipping taxes arising because of an individual’s death. The term estate tax does not include any inheritance taxes, income taxes, gift taxes, or generation-skipping taxes incurred because of a taxable termination, a taxable distribution, or an inter vivos direct skip. A generation-skipping tax that is incurred because of a direct skip that takes place because of the decedent’s death is included in the term “estate tax.”

Currently, no United States income tax is imposed on the unrealized appreciation of a decedent’s assets at the time of death. While Canada and some other foreign countries impose an income tax at death, those income taxes are not apportioned by the Act.

Some States impose an inheritance tax on recipients of property from a decedent. This Act does not apportion those taxes.

This Act does not provide for the apportionment of the income tax payable on the receipt of Income in Respect of a Decedent (IRD). If a decedent held an installment obligation the payment on which is accelerated by the decedent’s death, the income tax incurred thereby is not apportioned by the Act.

If a donor pays a gift tax during the donor’s life, the amount paid will not be part of the donor’s assets when the donor dies; and so the gift tax will not be subject to apportionment among the persons interested in the donor’s gross estate. This consequence is consistent with the typical donor’s wish that the gifts made during life pass to the donee free of any transfer tax. If all or part of a gift tax was not paid at the time of the donor’s death and is subsequently paid by the donor’s personal representative, the burden of the gift tax should lie with the same persons who would have borne it if the donor had paid it during life, typically, the residuary beneficiaries. A gift tax liability is not apportioned by this Act, but is treated the same as any other debt of the estate. A gift tax deficiency that becomes due after the decedent’s death also is treated as a debt of the decedent’s estate. The kinds of death benefits included in a gross estate depend upon the particular estate tax to be apportioned and may not be the same for each tax. For example, some State death taxes will have an exemption for a homestead; some will exclude life insurance proceeds and pensions. In determining the gross estate for such taxes, the property excluded from the tax will also be excluded from the gross estate for that tax. Property that is deductible under an estate tax, such as property that qualifies for a marital or charitable deduction, is nevertheless “subject to” that tax and included in the gross estate. Once the value of the gross estate for an estate tax is determined, the reductions described in Paragraph (1) are applied to ascertain the apportionable estate.

A “time-limited interest” includes a term of years, a life interest, a life income interest, an annuity interest, an interest that is subject to a power of transfer, a unitrust interest, and similar interests, whether present or future, and whether held alone or in cotenancy. The fact that an interest that otherwise is not a time-limited interest is held in cotenancy does not make it a time-limited interest.

If a debt is secured by more than one interest in property, the value of each such interest is the fair market value of that interest less a ratable portion of the debt that it secures.

If the beneficiary of an interest in property is required by the terms of the transfer to make a payment to a third party or to pay a liability of the transferor, that obligation constitutes an encumbrance on the property, but does not necessarily reduce the value of the apportionable estate. If the obligation is to make a transfer or payment to a third party, other than an obligation to satisfy a debt of the decedent based on money or money worth’s consideration, the right of the third person constitutes an interest in the apportionable estate and so is subject to apportionment.

A decedent’s direction by will or other dispositive instrument that property controlled by that instrument is to be used to pay a debt secured by an interest in property is an additional bequest to the person who is to receive the interest securing the debt.

Taxes imposed on the transfer or receipt of property, regardless of whether a lien on the property or payable by the recipient of the property, do not reduce the value of the property for purposes of apportioning estate taxes by this Act.

The date on which gross estate property is to be valued for federal estate tax purposes (and for some other estate tax purposes) is either the date of the decedent’s death or an alternate valuation date elected by the decedent’s personal representative pursuant to the estate tax law. An estate tax value that is determined on the alternate valuation date is not, as such, a “special valuation adjustment.” A “special valuation adjustment” refers to a reduction of the valuation of an item included in the gross estate pursuant to a provision of the estate tax law. See the Comment to Section 7.

If a person has a right by contract or by the decedent’s will or other dispositive instrument to purchase gross estate property at a price below its estate tax value, the estate tax value of the property is the amount included in the value of the decedent’s gross estate. The difference or discount between the purchase price and the estate tax value of the property can be viewed as an interest which the decedent passed to that person. If the right to purchase is exercised, the amount of the discount is the value of that person’s interest in the apportionable estate.

The value of a person’s interest in the apportionable estate can depend upon the value of the apportionable estate. So, the value of a residuary interest in a decedent’s estate will reflect the amount of allowable deductions which, under this Act, reduce the apportionable estate, but will not be reduced by expenditures that are not allowable deductions for that estate tax. The formula for allocating estate taxes in Section 4(1) utilizes a fraction of which the numerator is the value of a person’s interest in the apportionable estate rather than the value of the person’s interest in the net estate or in the taxable estate. Since the denominator of the fraction is the value of the apportionable estate, the sum of the numerators of all persons having an interest in the apportionable estate will equal the denominator, and so 100% of the estate taxes will be apportioned. Consider the following example. Ex. D died leaving a gross estate with a value of $10,150,000 and made no provision for apportionment of taxes. D’s will made pecuniary devises totaling $1,000,000, and gave the residue to A and B equally. There are no claims against the estate and no marital or charitable deductions are allowable. The funeral expenses are $10,000, and the estate incurred administrative expenses of $240,000 of which, while all were allowed as administrative expenses by the State probate court, $100,000 was disallowed by the Service for a federal estate tax deduction on the ground that $100,000 of the expenses was not necessary for the administration of the estate. See Rev. Rul. 77-461 and TAM 7912006. The personal representative elected to deduct the remaining $140,000 of administrative expenses as a federal estate tax deduction. For federal estate tax purposes, the apportionable estate is equal to the difference between the gross estate ($10,150,000) and the allowable deductions of $150,000 ($140,000 deductible administrative expenses and $10,000 deductible funeral expenses); and so the apportionable estate is $10,000,000. The value of the two residuary beneficiaries’ interests in the apportionable estate is equal to the difference between the entire apportionable estate of $10,000,000 and the $1,000,000 that was devised to the pecuniary beneficiaries. While the residuary beneficiaries will not receive any part of the $100,000 of administrative expenses for which no federal estate tax deduction is allowable, that expense does not reduce the gross estate in determining the apportionable estate, and so does not affect the value of their residuary interests for the purpose of apportioning the federal estate tax. So, for purposes of apportioning the federal estate taxes, each residuary beneficiary has an interest in the apportionable estate valued at $4,500,000, which constitutes 45% of the apportionable estate of $10,000,000. Forty-five percent of the federal estate taxes is apportioned each to A and B, and 10% of the federal estate taxes is apportioned to the pecuniary beneficiaries.

Compiler’s Notes.

The bracketed insertion in the first sentence in subsection (d) was added by the compiler to correct the syntax of the reference. The words enclosed in parentheses so appeared in the law as enacted.

Official Comment

A decedent’s direction will not control the apportionment of taxes unless it explicitly refers to the payment of an estate tax and is specific and unambiguous as to the direction it makes for that payment. For example, a testamentary direction that “all debts and expenses of and claims against me or my estate are to be paid out of the residuary of my probate estate” is not an express direction for the payment of estate taxes and will not control apportionment. While an estate tax is a claim against the estate, a will’s direction for payment of claims that does not explicitly mention estate taxes is likely to be a boiler plate that was written with no intention of controlling tax apportionment. To protect against an inadvertent inclusion of estate tax payment in a general provision of that nature, the Act requires that the direction explicitly mention estate taxes.

On the other hand, a direction in a will that “all taxes arising as a result of my death, whether attributable to assets passing under this will or otherwise, be paid out of the residue of my probate estate” satisfies the Act’s requirement for an explicit mention of estate taxes and is specific and unambiguous as to what properties are to bear the payment of those taxes.

Whether other directions of a decedent that explicitly mention estate taxes comply with the Act’s requirement that they be specific and unambiguous is a matter for judicial construction. For example, there is a split among judicial decisions as to whether a direction such as “all estate taxes be paid out of the residue of my estate” is ambiguous because it is unclear whether it is intended to apply to taxes attributable to nonprobate assets. To the extent that it is determined that a decedent failed to apportion an estate tax, then the Act will apply to apportion that amount of the tax.

If an amendment is made to a revocable trust instrument, and if the amendment itself contains an express and unambiguous provision apportioning an estate tax, the date of the amendment is the date of the revocable trust instrument. However, if an amendment to a revocable trust instrument does not contain an express and unambiguous provision apportioning an estate tax, the date of the revocable trust instrument is the date on which it was executed or the date of the most recent amendment containing an express and unambiguous provision apportioning an estate tax. An express and unambiguous provision apportioning an estate tax includes a provision directing that payment of an estate tax be made from specified property.

The statutory apportionment rules of the Act are default rules applicable to the extent that the decedent does not make a valid provision as to how estate taxes are to be apportioned. The decedent has the power to determine which recipients of decedent’s property will bear the estate taxes and in what proportion. If provisions conflict, it is necessary to determine which prevails. A possible choice would permit the directions in each of decedent’s instruments determine the extent to which property controlled by that instrument bears a share of estate taxes, but having the provisions for an allocation scheme scattered among a number of documents would make decedent’s personal representative search multiple instruments to ascertain the decedent’s directions. Instead, the Act provides an order of priority for a decedent’s provisions for estate tax allocations. To the extent that a decedent makes an express and unambiguous provision by will, that provision will trump any competing provision in another instrument. To the extent that the will does not expressly and unambiguously provide for the allocation of some estate taxes, an express and unambiguous provision in a revocable trust instrument will control. If the decedent executed more than one revocable trust instrument, the express provisions in the instrument that was executed most recently will control. In determining which revocable trust instrument was executed most recently, the date of any amendment containing an express and unambiguous apportionment provision will be taken into account. In the event that the allocation of estate taxes is not fully provided for by the decedent’s will or revocable trust instrument, an express and unambiguous provision in other instruments executed by the decedent controls to the extent that the provision applies to the property disposed of in that instrument. An example of a provision in an instrument disposing of property, other than a will or revocable trust instrument, is a provision in a designation of a beneficiary of life insurance proceeds either that the proceeds will or will not be used to pay a portion of estate taxes. A designation of that form will be honored if there is no conflicting valid provision in a will or revocable trust instrument. A provision in decedent’s will, revocable trust, or other instrument will not be honored to the extent that it would contravene subsection (c).

The exclusivity of the provisions of this section apply only to apportionment rules; they do not prevent a dispositive instrument from making additional gifts; nor do they prevent a governing instrument of an entity from rearranging the internal division of the assets of that entity.

Ex.(1). On D’s death, her will apportioned $100,000 of estate taxes to the holders of interests in the D Family Trust, an irrevocable trust created by D during her life. The D Family Trust is divided into two separate shares: the William Share, and the Franklin Share, each of which is for a different child of D. The William Share is for the benefit of William, and the Franklin Share is for the benefit of Franklin. The trust instrument provides that any taxes apportioned to the holders of interests in the trust or to any share of the trust are to be paid from the William Share. The effect of that trust provision is to require that taxes reduce the size of the William Share and do not reduce the Franklin Share. The apportionment provision in D’s will established the amount of estate tax that the trust must bear; the amount apportioned to the D Family Trust makes all of the assets of that trust liable for that amount. Since the decedent’s will did not direct how the trust’s burden should be allocated between the two shares of the trust, the direction in the trust instrument is not inconsistent with the will provision and so can control the allocation of taxes between properties disposed of in the trust instrument under subsection (c). Even if the direction in the trust instrument were deemed not to be permitted by subsection (c), the direction would be effective as a disposition of trust assets as explained in Example (2).

Ex. (2). The same facts as those stated in Ex. (1) except that D’s will apportioned the $100,000 of estate taxes to the Franklin Share of the D Family Trust. The trust provision placing the burden of the tax on the William Share cannot qualify as an apportionment direction since it is in conflict with the will provision allocating all of the trust’s share of the estate tax to the Franklin Share. But the settlor has the power to direct trust assets to whomever the settlor pleases. The direction in the trust instrument that assets of the William Share are to be used to pay any taxes apportioned to the Franklin Share is a gift to Franklin of assets from the William Share. The direction is valid as a provision shifting trust assets from the William Share to the Franklin Share, which is a permissible disposition of a trust instrument.

The federal estate tax laws enable a decedent’s personal representative to collect a portion of the decedent’s federal estate tax from the recipients of certain nonprobate property that is included in the decedent’s gross estate. See e.g., §§2206 to 2207B of the Internal Revenue Code. There is a conflict among the courts as to whether those federal provisions preempt a State law apportionment provision. Choosing the position that there is no federal preemption, the Act apportions taxes without regard to the federal provisions. The federal provisions are not apportionment statutes; rather, they simply empower the personal representative to collect a portion of the estate tax that is attributable to the property included in the decedent’s gross estate and do not direct use of the collected amounts by the personal representative. The rights granted to the personal representative by federal law for the collection of assets from nonprobate beneficiaries do not conflict either with the apportionment of taxes by State law or with other rights of collection granted by State law. Since there is no conflict, this Act does not include a direction as to whether federal or State law takes priority. The Act does not permit anyone other than the decedent to override the allocation provisions of the Act. For example, if X created a QTIP trust for Y, the value of the trust assets will be included in Y’s gross estate for federal estate tax purposes on Y’s death. See §2044 of the Internal Revenue Code of 1986. If X’s QTIP trust provided that the trust is not to bear any of the estate taxes imposed at Y’s death, the direction would be ineffective under the Act because only Y can direct apportionment of taxes on Y’s estate. In this regard, it is noteworthy that the right granted to a decedent’s estate by §2207A of the Internal Revenue Code to collect a share of the federal estate tax from a QTIP included in the decedent’s gross estate can be waived only by direction of the decedent in a will or revocable trust instrument. Y is in the best position to determine the optimum allocation of Y’s estate taxes among the various assets that comprise Y’s gross estate. If Y fails to make an allocation, the default provisions of the Act are more likely to reflect Y’s intentions than would a direction of a third person.

If an instrument transferring property that may be included in the taxable estate of someone other than the transferor directs payment from the transferred property of any part of the estate taxes of the other person, the direction affects the size of the gift, and so is a dispositive rather than an apportionment provision, and is not subject to this Act.

If a decedent makes a valid direction that a person receiving property under a particular disposition is exonerated from payment of an estate tax, the tax that would have been borne by that person will, instead, be borne by other persons receiving interests under the instrument directing the exoneration. Thus, if several assets are disposed of by a governing instrument, which exonerates one or more of those assets from bearing an estate tax, the exoneration will not reduce the amount of estate tax to be allocated to all of the assets disposed of by that instrument, including the exonerated assets. For example, if decedent’s will directs that all federal estate taxes attributable to decedent’s probate estate be paid from the residuary of his estate, the exoneration of the pre-residuary devises will not affect the total amount of federal estate tax apportioned to the beneficiaries of the probate estate, all of which tax will be borne by the residuary beneficiaries if the residuary is sufficient. If the value of the other interests is insufficient to pay the estate taxes, the difference will be payable by other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax.

If a decedent directs that estate taxes be paid from properties, some of which qualify for a marital or charitable deduction, the provision making that direction may designate the extent to which the charitable or marital interests will or will not bear a portion of the tax. If the decedent makes no provision as to whether the marital or charitable interests bear a portion of the tax, the Act provides a default rule that exempts the marital or charitable interests from payment of the tax to the extent that it is feasible to do so. An example of when this circumstance arises is when the decedent’s will makes a residuary devise, a portion of which qualifies for a marital or charitable deduction and a portion of which does not. If the decedent provides that estate taxes are to be paid from the residuary, unless directed otherwise, the default provision of the Act will require the payment to be made first from the nondeductible interests in the residuary. The default rule does not apply to an allocation of tax to a holder of an interest in property in which there is a time-limited interest; the tax allocated to any interest in that property is to be paid from the principal of the property unless the decedent expressly directed otherwise or unless Section 7 applies to the property. If a decedent created a trust during life the value of which is included in the decedent’s gross estate at death, if immediately after decedent’s death, there were one or more time-limited interests in the trust that did not qualify for an estate tax deduction, and if one or more charities held a remainder interest in the trust that otherwise qualified for an estate tax charitable deduction, the charitable deduction for the remainder interests may be lost if the estate taxes generated by the nondeductible time-limited interests are to be paid from assets in the trust. See Rev. Rul. 82-128, Rev. Proc. 90-30 (§§ 4 and 5), and Rev. Proc. 90-31 (§§ 5 and 6). It is possible that if the payment of an estate tax is made from funds that, while directed to be added to the trust’s assets, had not been distributed to the trust before payment of the estate tax, the payment will not disqualify the charitable deduction. There are numerous instances in which estate taxes are required to be paid from a charitable remainder trust that was created inter vivos. Subsection (b)(4) is an attempt to protect the deduction in such cases by establishing a rule of construction requiring that funds directed to be added to the trust be used to pay any required estate tax before assets already in the trust itself are used. It seems unlikely that a decedent would wish to negate this construction of decedent’s direction, but the decedent has the power to do so by including an express statement to that effect in a will or revocable trust instrument.

If a decedent had made an irrevocable transfer during his life, over which the decedent did not retain a power to make a subsequent transfer, and if that transfer is included in the decedent’s gross estate for estate tax purposes, a portion of the estate tax will be apportioned to the transferee unless the decedent effectively provides otherwise in a will, revocable trust or other instrument. While, by an express provision in the appropriate instrument, a decedent can reduce the amount of tax apportioned to such inter vivos transfers, the decedent is not permitted to increase the amount of tax apportioned to such a transferee. If a decedent attempts to do so, whether directly by apportioning more estate tax to the inter vivos transfer or indirectly by insulating some person interested in the gross estate from all or part of that person’s share of the estate tax, the amount of estate tax that is apportioned to the transferee of an irrevocable inter vivos transfer will not be greater than the amount that would have been apportioned to that transferee if the decedent had made no provision for apportionment in another instrument.

Subsection (c) does not apply to a decedent’s provision that no estate tax be apportioned to the recipient of an interest who would be excluded from apportionment by this Act in the absence of a contrary direction by the decedent. For example, a decedent’s provision that no estate tax be apportioned to the recipient of property that qualifies for a marital or charitable deduction is not subject to subsection (c).

If a decedent transferred property to a revocable trust prior to executing a will that directs the apportionment of taxes to that trust, the apportionment direction will be valid even if the decedent subsequently released the power of revocation so that the trust became irrevocable prior to the decedent’s death. In such a case, Subsection (c) does not invalidate the will’s direction.

If, immediately before the decedent’s death, the decedent had a power of appointment, whether inter vivos or testamentary, the decedent had the power to transfer the property interest within the meaning of this provision.

Federal References.

Section 2044 of the Internal Revenue Code of 1986, referred to near the beginning of subsection (3), is codified as 26 U.S.C.S. § 2044.

Official Comment

The value of an interest in the apportionable estate is determined in accordance with Section 2(7) of the Act.

Property values subtracted from the decedent’s gross estate in determining the apportionable estate under Section 2(1) are excluded from the apportionable estate, and beneficiaries of those properties do not have any estate tax apportioned to them because of their interest in those properties. This treatment is consistent with the Restatement (Third) of Property: Wills and Other Donative Transfers §1.1, comment g (1998). The Act adopts a method of equitable apportionment of estate taxes, but does not follow the Restatement method which allocates taxes apportioned to probate assets first to the residuary beneficiaries and invites preferential treatment for beneficiaries of specific and pecuniary gifts by will over beneficiaries of gifts by various non-probate transfer methods. A “direct skip” is defined in §§ 2612(c) and 2613 of the Internal Revenue Code. Section 2603(b) of the Internal Revenue Code states that, unless directed otherwise in the governing instrument, the tax on a generation-skipping transfer is charged to the property constituting the transfer. Section 2603(a)(3) of the Internal Revenue Code imposes the duty of paying the tax on a direct skip on the transferor of the property. Under paragraph (2), the decedent’s personal representative will pay the generation-skipping tax on a direct skip out of the transferred property (or the proceeds from a sale of all or some of that property). To the extent that it is not feasible or practical to pay the tax from the transferred property, the transferees are to pay their proportionate share of the shortfall. Paragraph (2) is consistent with the treatment provided by federal law.

The property to which paragraph (3) applies is sometimes referred to as “QTIP property” since § 2044 of the Internal Revenue Code of 1986 deals with “qualified terminable interest property.” See §§ 2044(b)(1), 2056(b)(7), and 2523(f) of the Internal Revenue Code of 1986. Although the general rule of apportionment in the Act is to apportion estate taxes on the basis of the average rate of tax, the tax apportioned to the holders of interests in QTIP property by the Act is based on the marginal rate of tax. Note that federal estate tax law grants the decedent’s fiduciary the power to collect from the holders of the QTIP property the estate tax generated by that property at the marginal estate tax rate of the decedent’s estate. The Act tracks the federal law in this respect.

It would be harsh to collect the estate tax from persons holding discretionary or contingent interests in property since they may not obtain possession for many years, if at all. Hence, when the tax is apportioned to persons holding interests in property in which there are time-limited interests, paragraph (4) requires the tax to be paid from principal. This provision does not apply to property for which a special elective benefit (as described in Section 7) has been elected.

An estate tax that is apportioned to an interest in property that cannot be reached because of legal or practical obstacles but is not subject to a time-limited interest is to be collected from the interest holder to the extent feasible. In that circumstance, since there is no time-limited interest, the tax will not be apportioned to a person who may not receive property for many years if at all.

When some of the interests in property qualify for a charitable or marital deduction and some do not, requiring the tax to be paid from the principal of the property may reduce the amount of marital or charitable deduction that is allowable. Although the likely intent of a decedent would be to maximize the marital and charitable deductions available for the estate, paragraph (4) provides that the estate tax is to be paid from the principal of the property, a choice that avoids administrative complexity.

Compiler’s Notes.

The phrase “this uniform act” means the Uniform Estate Tax Apportionment Act, codified as§§ 15-3-1301 to 15-3-1314 by S.L. 2004, Chapter 54.

Compiler’s Notes.

The phrase “effective date of this act”, referred to twice in subsection (b), means July 1, 2004, the effective date of S.L. 2004, Chapter 54.

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

The term “this code” at the end of subsection (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

[General comment to §§ 15-4-101 — 15-4-401.]

[]

This Article [Chapter] concerns the law applicable in estate problems which involve more than a single state. It covers the powers and responsibilities in the adopting state of personal representatives appointed in other states.

Some provisions of the code covering local appointment of personal representatives for non-residents appear in Article III [Chapter 3]. These include the following: Sections 3-201 (venue), 3-202 (resolution of conflicting claims regarding domicile), 3-203 (priority as personal representative of representative previously appointed at domicile), 3-307(a) (30 days delay required before appointment of a local representative for a non-resident), 3-803(a) (claims barred by non-claim at domicile before local administration commenced are barred locally) and 3-815 (duty of personal representative in regard to claims where estate is being administered in more than one state). See also Sections 3-308, 3-611(a) and 3-816. Also, see Section 4-207. The recognition provisions contained in Article IV [Chapter 4] and the various provisions of Article III [Chapter 3] which relate to administration of estates of non-residents are designed to coerce respect for domiciliary procedures and administrative acts to the extent possible.

The first part of Article IV [Chapter 4] contains some definitions of particular relevance to estates located in two or more states.

The second part of Article IV [Chapter 4] deals with the powers of foreign personal representatives in a jurisdiction adopting the Uniform Probate Code. There are different types of power which may be exercised. First, a foreign personal representative has the power under Section 4-201 to receive payments of debts owed to the decedent or to accept delivery of property belonging to the decedent. The foreign personal representative provides an affidavit indicating the date of death of the nonresident decedent, that no local administration has been commenced and that the foreign personal representative is entitled to payment or delivery. Payment under this provision can be made any time more than 60 days after the death of the decedent. When made in good faith the payment operates as a discharge of the debtor. A protection for local creditors of the decedent is provided in Section 4-203, under which local debtors of the non-resident decedent can be notified of the claims which local creditors have against the estate. This notification will prevent payment under this provision.

A second type of power is provided in Sections 4-204 to 4-206. Under these provisions a foreign personal representative can file with the appropriate court a copy of his appointment and official bond if he has one. Upon so filing, the foreign personal representative has all of the powers of a personal representative appointed by the local court. This would be all of the powers provided for in an unsupervised administration as provided in Article III [Chapter 3] of the Code.

The third type of power which may be obtained by a foreign personal representative is conferred by the priority the domiciliary personal representative enjoys in respect to local appointment. This is covered by Section 3-203. Also, see Section 3-611(b).

Part 3 provides for power in the local court over foreign personal representatives who act locally. If a local or ancillary administration has been started, provisions in Article III [Chapter 3] subject the appointee to the power of the court. See Section 3-602. In Part 3 of this Article [Chapter], it is provided that a foreign personal representative submits himself to the jurisdiction of the local court by filing a copy of his appointment to get the powers provided in Section 4-205 or by doing any act which would give the state jurisdiction over him as an individual. In addition, the collection of funds as provided in Section 4-201 gives the court quasi-in-rem jurisdiction over the foreign personal representative to the extent of the funds collected.

Finally, Section4-303 [4-302] provides that the foreign personal representative is subject to the jurisdiction of the local court “to the same extent that his decedent was subject to jurisdiction immediately prior to death.” This is similar to the typical non-resident motorist provision that provides for jurisdiction over the personal representative of a deceased non-resident motorist, see Note, 44 Iowa L. Rev. 384 (1959). It is, however, a much broader provision. Section 4-304 [4-303] provides for the mechanical steps to be taken in serving the foreign personal representatives.

[Comment to § 15-4-101.]

Part 4 of the Article [Chapter] deals with the res judicata effect to be given adjudications for or against a foreign personal representative. Any such adjudication is to be conclusive on a local personal representative “unless it resulted from fraud or collusion . . . to the prejudice of the estate.” This provision must be read with Section 3-408 which deals with certain out-of-state findings concerning a decedent’s estate. [Comment to§ 15-4-101.]

Section 1-201 includes definitions of “foreign personal representatives,” “personal representative” and “non-resident decedent.”

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions in the first and second sentences were added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

The term “this code” near the beginning of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Compiler’s Notes.

The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.

The term “this code” in subsections (a) and (b) refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

ALR.

COMMENT TO OFFICIAL TEXT

The words “courts of this state” are sufficient under federal legislation to include a federal court having jurisdiction in the adopting state.

A foreign personal representative appointed at the decedent’s domicile has priority for appointment in any local administration proceeding. See Section 3-203(g). Once appointed, a local personal representative remains subject to the jurisdiction of the appointing court under Section 3-602.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

Incapacity.

A judicial finding of incapacity and the appointment of a guardian must be supported by evidence of multiple events that demonstrate the individual’s inability to care for his basic needs, property, and financial affairs, such that appointment of a guardian who is capable of making those decisions in his stead is justified. Rogers v. Household Life Ins. Co., 150 Idaho 735, 250 P.3d 786 (2011).

ALR.

Guardian’s position as joint tenant of or successor to property in ward’s estate as raising conflict of interest. 69 A.L.R.3d 1198.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator or trustee of mentally or physically incompetent testator. 84 A.L.R.4th 462.

[General comment to §§ 15-5-101 — 15-5-502.]

[]

Cross References.

“Court” defined,§ 15-1-201.

Guardianship proceedings,§ 15-5-201 et seq.

Protective proceedings,§ 15-5-401 et seq.

Cross References.

“Child” defined,§ 16-1602.

Guardians of minors,§ 15-5-201 et seq.

“Minor” defined,§ 32-101.

Cross References.

Guardians of incapacitated persons,§ 15-5-301 et seq.

Guardians of minors,§ 15-5-201 et seq.

Powers of attorney,§ 15-12-101 et seq.

Effective Dates.

Section 2 of S.L. 1991, ch. 29, declared an emergency. Approved March 7, 1991.

Visitation.

Father deployed to Iraq could delegate his right to visitation with his daughter to his parents. Webb v. Webb, 143 Idaho 521, 148 P.3d 1267 (2006).

Appointment of paternal grandparents as co-guardians of children whose parents had been killed in an auto accident was improper where the purpose of the appointment was to ensure the paternal grandparents could make medical decisions and travel internationally with the children while the children were visiting them. The testamentary guardian had full authority to delegate these powers to the paternal grandparents as necessary. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Idaho Law Review.

Idaho Law Review. — Idaho Custody Determinations: Limits on Standing, Comment. 50 Idaho L. Rev. 141 (2013).

Cross References.

Examination of alleged embezzler by public administrator,§ 14-109.

Cross References.

“Minor” defined,§ 32-101.

Persons who may give consent to care for others,§ 39-4504.

Appointment of Grandparents.

The magistrate’s order appointing the grandparents coguardians of two minor children was a binding adjudication that the best interests of the minor children would be served by the requested appointment. Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979).

Testamentary Appointment.

When two minor children were orphaned when their parents were killed in a car accident, maternal grandmother was their testamentary guardian in accordance with the terms of the parents’ will. When paternal grandparents petitioned for guardianship,§ 15-5-204 did not permit the court to appoint them as co-guardians unless testamentary guardianship had been terminated. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Decisions Under Prior Law

Abandonment of Right.

A father who, after a divorce in which custody of his children was given to his wife and after the wife’s remarriage and removal to the state of Connecticut, failed to make substantial payments for their support, to visit them, or to make sufficient inquiry to learn of their whereabouts was deemed to have abandoned such children and was not entitled to their custody after the death of their mother. Clark v. Jelinek, 90 Idaho 592, 414 P.2d 892 (1966).

Nonsupport does not necessarily, of itself, constitute abandonment and, where a father’s failure to contribute to the support of his child after a divorce was with the consent of the mother and where the father maintained a continuous and abiding interest in the child, manifested by visitation and by seeking his custody immediately upon the death of the mother, the court did not err in failing to find that he had abandoned the child. Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800 (1966).

Parent’s Right.

In a proceeding to determine custody of a child between parent and third party, the court should consider the following factors: (1) interest of the parents, (2) interest of third party caring for the child, and (3) interest of the child. In re Altmiller, 76 Idaho 521, 285 P.2d 1064 (1955).

In a proceeding of habeas corpus filed by father to obtain custody of child who was in the home of the grandmother, a determination in favor of the father based on ground that he was a fit person to take care of his child even though he had not supported child for five years due to sickness and insufficient funds, was set aside by the Supreme Court on the ground that father was not in a position to adequately care for the child whereas the grandmother had given the child a comfortable home to which the child was much attached. Application of Altmiller, 76 Idaho 521, 285 P.2d 1064 (1955).

If the parent is competent to transact his or her own business and is not otherwise unsuitable, the custody of the child is not to be given to another, even though such other may be a more suitable person. Spaulding v. Children’s Home Finding & Aid Soc’y, 89 Idaho 10, 402 P.2d 52 (1965).

Cross References.

Testamentary appointment of guardian for incapacitated person,§ 15-5-301.

Amendments.

The 2006 amendment, by ch. 183, rewrote this section, which formerly read: “The parent of a minor may appoint by will a guardian of an unmarried minor. Subject to the right of the minor under section 15-5-203, Idaho Code, a testamentary appointment becomes effective upon filing the guardian’s acceptance in the court in which the will is probated, if before acceptance, both parents are dead. If both parents are dead, an effective appointment by the parent who died later has priority. This state recognizes a testamentary appointment effected by filing the guardian’s acceptance under a will probated in another state which is the testator’s domicile. Written notice of acceptance of the appointment must be given by the guardian to the minor and to the person having his care or to his nearest adult relation immediately upon acceptance of appointment.” The 2014 amendment, by ch. 287, substituted “his custody, or if none, his care, or if none, to his nearest adult relation” for “his care or to his nearest relation” in the fifth sentence and added the last two sentences.

Appointment of Co-guardian Improper.

Where the testamentary guardian of two minor children whose parents were killed in an auto accident was a fit and proper person to discharge her duties as guardian, and her guardianship had not been terminated, petition of paternal grandparents for guardianship could not be granted, and the appointment of the paternal grandparents as co-guardians was improper. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Unknown Parent.

Guardians failed to demonstrate that the father of the children was dead or had been adjudged incapacitated; argument that a person was incapacitated simply by being unknown was not supported by the probate code. Landis v. DeLaRosa, 137 Idaho 405, 49 P.3d 410 (2002).

Decisions Under Prior Law

Qualification of Guardian.

For a testamentary guardian to “qualify,” the appointment under the will must be approved and confirmed by the proper court. Rotter v. Rotter, 93 Idaho 462, 463 P.2d 928 (1970).

Waiver of Mother’s Consent.

Appointment of testamentary guardian under will of father requires written consent of mother, and such consent may be waived by mother expressly consenting to the appointment of another person as guardian, and such waiver extends only to the specific party in such consent to appointment. Rotter v. Rotter, 93 Idaho 462, 463 P.2d 928 (1970).

Amendments.

The 2014 amendment, by ch. 287, inserted “years” in the section heading and inserted the present third sentence.

ALR.

§ 15-5-204. Court appointment of guardian of minor — Conditions for appointment.

1. The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated by prior court order or upon a finding that the child has been neglected, abused, or abandoned or whose parents are unable to provide a stable home environment. “Abandoned” means the failure of the parent to maintain a normal parental relationship with the child including, but not limited to, reasonable support or regular contact. Failure to maintain a normal parental relationship with the child without just cause for a period of six (6) months shall constitute prima facie evidence of abandonment. Except in those circumstances described in subsections (2) and (3) of this section and where a temporary guardianship has been created at the request of a parent on active duty in or deployment with the United States armed forces, the court shall consider the best interests of the child as the primary factor in the determination whether to appoint, and whom to appoint, as a guardian for such child. In determining the choice of a guardian for an unmarried minor, the advanced age or disability of a potential guardian shall not, in and of itself, be used as a criterion of the suitability of the potential guardian as long as the potential guardian is otherwise suitable. A guardian appointed by will as provided in section 15-5-202, Idaho Code, whose appointment has not been prevented or nullified under section 15-5-203, Idaho Code, has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment nonetheless upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty (30) days after notice of the guardianship proceeding.
2. The extended absence of a parent due to active duty in or deployment with the United States armed forces shall not by itself constitute neglect, abuse, abandonment, or failure to provide a stable home environment.
3. Any guardianship granted at the request of or required by the United States armed forces or at the request of a parent while on active duty in or deployment with the United States armed forces, which duty or deployment does not constitute neglect, abuse, abandonment, or failure to provide a stable home environment, shall be terminated immediately upon the conclusion of the original circumstances necessitating the creation of the temporary guardianship or the filing of a termination report by the parent indicating the parent’s intent to resume all care, custody, and control of the minor.

History.

I.C.,§ 15-5-204, as added by 1971, ch. 111, § 1, p. 233; am. 1999, ch. 123, § 1, p. 360; am. 2002, ch. 233, § 3, p. 666; am. 2020, ch. 235, § 1, p. 691. STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 235, added the subsection “(1)” designator to the existing text; in subsection (1), substituted “abused, or abandoned or whose parents” for “abused, abandoned, or whose parents” near the end of the first sentence, substituted “Except in those circumstances described in subsections (2) and (3) of this section and where a temporary guardianship has been created at the request of a parent on active duty in or deployment with the United States armed forces” for “In all cases” at the beginning of the fourth sentence, and substituted “guardian as long” for “guardian so long” near the end of the fifth sentence; and added subsections (2) and (3).

Effective Dates.

Section 2 of S.L. 2020, ch. 235 declared an emergency. Approved March 24, 2020.

Co-Guardians.

Idaho guardianship statutes do not authorize the appointment of part-time co-guardians and do not authorize the appointment of more than one guardian or of co-guardians. Multiple guardians cannot each have the powers and responsibilities of a sole parent. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016) (see 2017 amendment of§ 15-5-207).

Minor’s Nomination.

All of the criteria set forth in this section and§ 15-5-207 must be satisfied before granting any application for appointment of a guardian; the mere fact that the application is coupled with the minor’s nomination does not obviate the need to comply with these statutes. Diamond v. Diamond, 109 Idaho 409, 707 P.2d 520 (Ct. App. 1985).

Non-parent Custody.

The Idaho supreme court’s decision in Stockwell v. Stockwell , 116 Idaho 297, 775 P.2d 611 (1989) is not a key to the courthouse for non-parents seeking custody of minor children. Nor has the Idaho legislature, as of June 2017, adopted a statutory framework that would enable the unmarried partner of a biological mother to seek custody or visitation of an artificially conceived child. Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017).

Testamentary Guardian.

No authority to appoint a guardian for a minor exists if a testamentary guardian has accepted an effective appointment by will. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009). Where the testamentary guardian of two minor children whose parents were killed in an auto accident was a fit and proper person to discharge her duties as guardian, and her guardianship had not been terminated, petition of paternal grandparents for guardianship could not be granted under this section. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Decisions Under Prior Law

Jurisdiction.

The courts of this state have jurisdiction to appoint a guardian for minors domiciled in the state, and, after having made such appointment, the courts retain jurisdiction for all purposes in connection therewith until the guardian’s accounts are rendered and he is legally discharged. In re Brady, 10 Idaho 366, 79 P. 75 (1904).

Parental Rights.

While parent being competent and not unsuitable is absolutely entitled to the guardianship of minor child, yet the right of parent may be abandoned or forfeited by act or conduct on his part and, if his right is not clear, the best interest of the child will govern decision of the court. Andrino v. Yates, 12 Idaho 618, 87 P. 787 (1906).

It is only where the legal right of the parent to custody of his child is not clear that child can be committed to the custody of another on ground of welfare. If parent is competent to transact his or her own business and is not otherwise unsuitable, custody of the child is not to be given to another, even though such other may be a more suitable person. In re Crocheron’s Estate, 16 Idaho 441, 101 P. 741 (1909); Jain v. Priest, 30 Idaho 273, 164 P. 364 (1917); McChesney v. Geiger, 35 Idaho 69, 204 P. 658 (1922); Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

A finding that a father is a man of intemperate habits and lacking in integrity is not sufficient to deprive him of guardianship of his minor children. In re Crocheron’s Estate, 16 Idaho 441, 101 P. 741 (1909).

Parents, when suitable, are absolutely entitled to guardianship of their minor children and surrender of such right may be made only in the manner provided by law. Ex parte Martin, 29 Idaho 716, 161 P. 573 (1916).

As between parent and grandparent mere finding that appointment of latter is for best interest of child is insufficient. There must be finding that parent is unfit to have control. Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919); Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

Fact of parentage having been established, it devolves upon contestants to show forfeiture of right of guardianship or at least that parent is unsuitable person. Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

Suspension of Parental Rights.

The magistrate has authority under this section to consider, as an alternative to formal termination of parental rights, whether suspension of parental rights may exist because of special circumstances. Diamond v. Diamond, 109 Idaho 409, 707 P.2d 520 (Ct. App. 1985). “Suspended by circumstances” must contemplate some set of circumstances which deprives a parent of the ability to accept the rights and responsibilities of parenthood. Irwin v. Celeya, 124 Idaho 888, 865 P.2d 979 (1993).

While there may have been evidence to support the magistrate’s finding that the natural mother’s parental rights were temporarily suspended by circumstances, those circumstances no longer existed at a permanent guardianship hearing where the natural mother made it clear that she no longer desired to leave her children with the non-relative guardians and that she was willing and capable of caring for them; therefore, the magistrate erred in concluding that natural mother’s parental rights were still suspended by circumstances and in proceeding with the permanent guardianship. Irwin v. Celeya, 124 Idaho 888, 865 P.2d 979 (1993).

ALR.

Who is minor’s next of kin for guardianship purposes. 63 A.L.R.3d 813.

Cross References.

Venue for guardianship proceedings for incapacitated persons,§ 15-5-302.

Decisions Under Prior Law

In General.

In tableau of habeas corpus, parties are in foreground and children in background; but in tableau of guardianship, arrangement is reversed — child is principal figure and applicants and caveators are secondary and subordinate. Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

Best Interests of Minor.

Where child has resided with its aunt from the time it was two and one-half years old until it was nearly twelve years of age, without having seen its mother during that time, and conditions are such, in view of the conduct of the mother and absence of parental care on her part during that period, that the custody cannot be changed without endangering the happiness and welfare of the child, the mother will be deemed “unsuitable” to have the custody of the child and the child will be left with its aunt, notwithstanding an application of the mother for its custody. Andrino v. Yates, 12 Idaho 618, 87 P. 787 (1906).

While best interests of child is of paramount importance, it is not wholly controlling and not the only matter to be considered in determining custody of child either in guardianship or habeas corpus proceedings. Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

ALR.

COMMENT TO OFFICIAL TEXT

Rather than provide for priorities among various classes of relatives, it was felt that the only priority should be for the person nominated by the minor. The important point is to locate someone whose appointment will be in the best interests of the minor. If there is contention among relatives over who should be named, it is not likely that a statutory priority keyed to degrees of kinship would help resolve the matter. For example, if the argument involved a squabble between relatives of the child’s father and relatives of its mother, priority in terms of degrees of kinship would be useless.

Guardianships under this Code are not likely to be attractive positions for persons who are more interested in handling a minor’s estate than in his personal well being. An order of a court having equity power is necessary if the guardian is to receive payment for services where there is no conservator for the minor’s estate. Also, the powers of management of a ward’s estate conferred on a guardian are restricted so that if a substantial estate is involved, a conservator will be needed to handle the financial matters.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2006 amendment, by ch. 180, redesignated the subsections; added the proviso at the end of introductory paragraph of present subsection (2)(d); and added present subsections (2)(d)(i) and (ii).

The 2010 amendment, by ch. 236, in the introductory language in subsection (1), added “the following persons”; added the paragraph (1)(a), (1)(b) and (1)(d) designations and paragraph (1)(c); in paragraph (1)(b), inserted “or more” and deleted “a de facto custodian of a minor” from the end; rewrote paragraph (2)(c), which read: “The de facto custodian of the minor, if any”; and in subsection (3), substituted “Idaho Code” for “of this part.”

The 2017 amendment, by ch. 261, rewrote the section to the extent that a detailed comparison is impracticable.

This section was amended by two 2020 acts which appear to be compatible and have been compiled together.

The 2020 amendment, by ch. 123, substituted “fourteen (14) days” for “ten (10) days” in the third sentence in paragraph (5)(c) and in the last sentence in paragraph (6)(c).

The 2020 amendment, by ch. 330, substituted “section 16-1504(5), Idaho Code” for “section 16-1504(4), Idaho Code” near the end of paragraph (2)(d)(i).

Appointment of Grandparents.

The magistrate’s order appointing the grandparents coguardians of two minor children was a binding adjudication that the best interests of the minor children would be served by the requested appointment. Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979).

Court’s Authority.

The court has the authority to appoint the guardian and to remove the guardian, but not to manage how the guardian exercises his or her powers and responsibilities. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016) (see 2017 amendment). Magistrate court abused its discretion in a guardianship proceeding for a minor child by failing to conduct a hearing to determine whether the child had the maturity level to direct the child’s own attorney and by summarily denying the request for an attorney without providing an explanation for doing so. In the Interest of Doe, 164 Idaho 84, 425 P.3d 285 (2018).

Minor’s Nomination.

All of the criteria set forth in this section and§ 15-5-204 must be satisfied before granting any application for appointment of a guardian; the mere fact that the application is coupled with the minor’s nomination does not obviate the need to comply with these statutes. Diamond v. Diamond, 109 Idaho 409, 707 P.2d 520 (Ct. App. 1985).

Parental Rights.

While there may have been evidence to support the magistrate’s finding that the natural mother’s parental rights were temporarily suspended by circumstances, those circumstances no longer existed at a permanent guardianship hearing where the natural mother made it clear that she no longer desired to leave her children with the non-relative guardians and that she was willing and capable of caring for them; therefore, the magistrate erred in concluding that natural mother’s parental rights were still suspended by circumstances and in proceeding with the permanent guardianship. Irwin v. Celeya, 124 Idaho 888, 865 P.2d 979 (1993) (decided prior to 1999 amendment of§ 15-5-204).

Role of Attorney.

Magistrate court erred in a guardianship proceeding for a minor child by checking two boxes on the form order appointing an attorney, because one box appointed the attorney as the attorney for the minor child and the other box appointed the attorney as the child’s guardian ad litem. An attorney may not fill both roles in the same proceeding. In the Interest of Doe, 164 Idaho 84, 425 P.3d 285 (2018).

Cross References.

Acceptance of appointment and consent to jurisdiction by guardian of incapacitated person,§ 15-5-305.

Personal Jurisdiction of Magistrate.

By accepting the appointment as conservator of her father’s estate, daughter submitted personally to the jurisdiction of the court in any proceeding relating to the estate that might have been instituted by any interested person. The magistrate also had personal jurisdiction over the daughter by virtue of her acceptance of the appointment as guardian. East v. West One Bank, 120 Idaho 226, 815 P.2d 35 (Ct. App. 1991), cert. denied, 504 U.S. 976, 112 S. Ct. 2948, 119 L. Ed. 2d 571 (1992).

Cross References.

Powers and duties of guardian of incapacitated person,§ 15-5-312.

Amendments.

The 2014 amendment, by ch. 164, redesignated former subsections (a) through (d) as present subsections (1) through (4) and rewrote subsection (4), which formerly read: “A guardian must report the condition of his ward and of the ward’s estate which has been subject to his possession or control, as ordered by court on petition of any person interested in the minor’s welfare or as required by court rule”. CASE NOTES

Co-Guardians.

The guardianship statutes do not authorize the appointment of more than one guardian or of co-guardians. There can be but one guardian appointed, and that guardian is to have all of the powers and responsibilities of a sole parent. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016) (see 2017 amendment of§ 15-5-207).

Costs.

Because the power of a court in a guardianship proceeding is fixed and determined by statute, the magistrate court had no authority to order that paternal grandparents would bear and pay all expenses for the child while he was in their care. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016).

Court’s Authority.

The court has the authority to appoint the guardian and to remove the guardian, but not to manage how the guardian exercises his or her powers and responsibilities. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016).

Custody of Ward.

Unless it is otherwise indicated in the order of guardianship, a court appointed guardian of a minor child is entitled to the custody of the ward. Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979).

Grandparents.

Grandparents’ appeal from an order denying them grandparent custody, under§ 32-717(3), was moot because (1) the grandparents were appointed as their grandson’s guardians; (2) as guardians, the grandparents had custody of their grandson; (3) until the guardianship was terminated, a guardian’s right to custody of a minor was superior to that of the minor’s parent, under this section; and (4) granting the grandparents custody under§ 32-717(3) would not have given them any greater rights with respect to their grandson than they already had as his guardians. Doe v. Doe (In re Doe), 145 Idaho 337, 179 P.3d 300 (2008).

Guardian’s Rights.

Cited

Guardian has the rights and responsibilities of a parent upon being appointed, and a guardian in his or her discretion has the authority to have the custody of the ward and to determine with whom and under what conditions the ward can visit with others. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016). Cited Diamond v. Diamond, 109 Idaho 409, 707 P.2d 520 (Ct. App. 1985); Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Decisions Under Prior Law

Adoption Agency.

Where the custody of a child had never been legally surrendered to Children’s Home Society, such society was without authority to exercise any right or control over child, or to act as its guardian and consent to child’s adoption. Ex parte Martin, 29 Idaho 716, 161 P. 573 (1916).

Application.

Whether statute allowing guardian to sell property of the ward is limited to cases where income is insufficient to maintain and educate the ward, as specified by the statute, depends upon the intent of the legislature. Willard v. First Sec. Bank, 69 Idaho 265, 206 P.2d 770 (1949).

Best Interest of Ward.

Where guardian was notified by corporation in which ward had stock that capitalization was to be increased, and there was not sufficient income in the estate to purchase the new stock sale by guardian of stock held by the ward in the corporation was authorized, though there was no showing that income in estate was not sufficient to maintain ward, since legislature did not intend to limit power of sale of guardian, but to grant power of sale, where it was to the best interest of the ward to sell the stock. Willard v. First Sec. Bank, 69 Idaho 265, 206 P.2d 770 (1949).

Grant of Power.

Legislature by passing statute providing that guardians may sell property of the ward, if income is insufficient to maintain and educate ward, did not intend to limit sales by guardians, but simply intended a grant of power. Willard v. First Sec. Bank, 69 Idaho 265, 206 P.2d 770 (1949).

Sale of Unproductive Assets.

The guardian’s sale of real estate was justified by the court’s finding that the operation of the property was causing an invasion of the principal rather than showing a profit to the ward’s estate. Knudson v. Bank of Idaho, 91 Idaho 923, 435 P.2d 348 (1967).

Testamentary Guardian.

A testamentary guardian, who applied to be and was appointed as the general guardian of the persons and estates of the minor children of decedent, had authority to conduct litigation over the probate of decedent’s will and to incur expenses in connection therewith even though he failed to establish its validity, where the will appeared to be legal and fair on its face. In re Brady, 10 Idaho 366, 79 P. 75 (1904).

ALR.

Propriety of surgically invading incompetent or minor for benefit of third party. 4 A.L.R.5th 1000.

Cross References.

Termination of guardianship for incapacitated person,§ 15-5-306.

Amendments.

The 2016 amendment, by ch. 148, inserted “termination of the guardianship” in the first sentence and inserted “without the appointment of a successor guardian” in the second sentence.

Best Interests Standard.

Parents are not entitled to a presumption of custody that precludes consideration of the best interest of the children, even where it is shown that the circumstances leading to a guardianship have ended. Parents’ petition to terminate guardianship constituted a petition for removal under this section. Doe v. Doe (In re Doe), 150 Idaho 432, 247 P.3d 659 (2011).

Commencement of Running of Statute of Limitations.

Duty to Account.

The guardian-ward relationship is subject to the same rule with regard to the statute of limitations as is the trustee-beneficiary relationship, and the statute does not begin to run against the ward so long as the fiduciary relationship is acknowledged, or until the guardian accounts and is discharged, or in some way repudiates the trust. Harbaugh v. Myron Harbaugh Motor, Inc., 100 Idaho 295, 597 P.2d 18 (1979). Duty to Account.

Although a guardian may no longer be responsible for his ward after the ward reaches the age of majority, the guardian’s statutory duty to account for the ward’s property continues. Harbaugh v. Myron Harbaugh Motor, Inc., 100 Idaho 295, 597 P.2d 18 (1979).

Cross References.

Venue in proceedings subsequent to appointment of guardian for incapacitated person,§ 15-5-313.

Amendments.

The 2006 amendment, by ch. 182, substituted “if in this state” for “in this or another state” in the first sentence and added the last sentence in subsection (b).

Habeas Corpus Proceeding.

Where the two minor children resided in Bonneville County at the time a habeas corpus proceeding was commenced in November, 1977, the magistrate division of the district court in Bonneville County was the only court with jurisdiction over any matters relating to the guardianship, and the district court should have denied the mother’s petition for writ of habeas corpus on the basis that the magistrate’s order appointing the grandparents coguardians of the two minors gave the custody of the persons of said minors, and that the order could not be collaterally attacked in the habeas corpus proceeding. Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979).

Cross References.

Resignation or removal of guardian of incapacitated person,§ 15-5-307.

Amendments.

The 2016 amendment, by ch. 148, substituted “or removal, modification or termination” for “or removal” in the section heading; redesignated former subsections (a) through (c) as subsections (1) through (3); and, in the first sentence of subsection (1), inserted “or for modification or termination of the guardianship” and substituted “that such removal, modification or termination” for “that removal”.

Best Interests Standard.

Parents are not entitled to a presumption of custody that precludes consideration of the best interest of the children, even where it is shown that the circumstances leading to a guardianship have ended. Doe v. Doe (In re Doe), 150 Idaho 432, 247 P.3d 659 (2011).

Court’s Authority.

The court has the authority to appoint the guardian and to remove the guardian, but not to manage how the guardian exercises his or her powers and responsibilities. Doe v. Doe, 160 Idaho 311, 372 P.3d 366 (2016).

Grounds for Termination.

Where the testamentary guardian of two minor children whose parents were killed in an auto accident was a fit and proper person to discharge her duties as guardian, and her guardianship had not been terminated, petition of paternal grandparents for guardianship could not be granted, and the appointment of the paternal grandparents as co-guardians was improper. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Cross References.

Child protective act,§ 16-1601 et seq.

Department of health and welfare,§ 56-1001 et seq.

Compiler’s Notes.

The bracketed insertion at the end of subsection (2) was added by the compiler to account for the 2016 revision of the Idaho Rules of Civil Procedure.

Termination.

To terminate a guardianship under the child protection act, there must first be a motion. Next, the movant must show by clear and convincing evidence that (1) there has been a substantial and material change in circumstances since the appointment of the guardian and (2) termination of the guardianship would be in the best interests of the minor. Finally, the department of health and welfare must be given notice and the right to appear and be heard on the issue. Idaho Dep’t of Health & Welfare v. Doe (In re Doe), 163 Idaho 565, 416 P.3d 937 (2018).

Amendments.

The 2010 amendment, by ch. 236, in subsection (1), inserted “either been appointed the de facto custodian pursuant to section 32-1705, Idaho Code, or if not so appointed, has”; in paragraph (2)(a), substituted “such standing” for “recognition as a de facto custodian”; and in paragraph (2)(b), substituted “such standing” for “de facto custodian status.”

Idaho Law Review.

Idaho Law Review. — Idaho Custody Determinations: Limits on Standing, Comment. 50 Idaho L. Rev. 141 (2013).

Cross References.

Disabled person, proceedings for appointment of guardians and conservators,§§ 66-404, 66-405.

“Incapacitated person” defined,§ 15-5-101.

Testamentary appointment of guardian of a minor,§ 15-5-202.

Amendments.

The 2009 amendment, by ch. 86, in the section catchline and throughout subsections (a) and (b), inserted “or developmentally disabled person” and added subsections (e) and (f).

Cross References.

Venue in guardianship proceedings for a minor,§ 15-5-205.

Cross References.

Guardians ad litem as parties to action,§ 5-306.

Amendments.

The 2017 amendment, by ch. 261, in subsection (a), inserted “or co-guardians” near the end of the first sentence

Capacity to Contract.

The appointment of a guardian with full powers represents a judicial finding that the ward lacks the capacity to contract as a matter of law. Rogers v. Household Life Ins. Co., 150 Idaho 735, 250 P.3d 786 (2011).

ALR.

COMMENT TO OFFICIAL TEXT

The procedure here is similar to, but not precisely the same as, protective proceedings for certain disabled persons. It is not required that the visitor be a lawyer. In urban areas, the visitor may be a social worker capable of determining the needs of the person for whom the appointment is sought.

Capacity to Contract.

The appointment of a guardian with full powers represents a judicial finding that the ward lacks the capacity to contract as a matter of law. Rogers v. Household Life Ins. Co., 150 Idaho 735, 250 P.3d 786 (2011).

Cross References.

Consent to service by acceptance of appointment as guardian of minor,§ 15-5-208.

Cross References.

Termination of appointment as guardian of minor,§ 15-5-210.

Amendments.

The 2006 amendment, by ch. 181, added the subsection (1) designation; added “Subject to subsection (2) of this section” to the beginning of subsection (1); and added subsection (2).

Compiler’s Notes.

The bracketed insertions in subsections (1) and (2) were added by the compiler to conform to the statutory citation style.

Cross References.

Resignation or removal proceedings for guardian of minor,§ 15-5-212.

Decisions Under Prior Law

Adjudication of Restoration to Sanity.

The court has jurisdiction to adjudicate a restoration to sanity or competency. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

Cross References.

Visitor reports, Idaho Court Administrative Rule 54.4.

Amendments.

The 2008 amendment, by ch. 74, in subsection (1), inserted “a statement as to whether a convicted felon resides in or frequents the incapacitated person’s proposed residence”; and added subsection (4).

The 2013 amendment, by ch. 262, rewrote subsection (4), which formerly read: “The visitor shall have the discretionary authority to conduct a criminal background check on a proposed guardian, conservator or a person who resides in or frequents the incapacitated person’s proposed residence” and added subsection (5).

The 2017 amendment, by ch. 261, rewrote the section to the extent that a detailed comparison is impracticable.

Amendments.

This section was amended by two 2007 acts which appear to be compatible and have been compiled together.

The 2007 amendment, by ch. 70, changed the designations in the section to match the scheme used generally in the Idaho Code; and, in subsection (2), deleted the former second sentence, which read: “Notices to other persons as required by this section shall be served personally if the person to be notified can be found within the state,” and in the third sentence, substituted “confirmed by the visitor or guardian ad litem” for “confirmed in an interview with the visitor.”

The 2007 amendment, by ch. 71, changed the designations in the section to match the scheme generally used in the Idaho Code; and, in subsection (3), deleted the former last sentence, which read: “Any governmental agency paying or planning to pay benefits to the alleged incapacitated person, or any public or charitable agency that regularly concerns itself with methods for preventing unnecessary and overly intrusive court intervention in the affairs of persons for who guardians may be sought and that seeks to participate in the proceedings, as an interested person in a guardianship proceeding.” COMMENT TO OFFICIAL TEXT

The persons entitled to notice in guardianship proceeding are usually fewer in number than those in a protective proceeding. Cf. Section 5-405. Required notice shall be given in accordance with the general notice provision of the Code. See Section 1-401.

Amendments.

The 2017 amendment, by ch. 261, rewrote the section to the extent that a detailed comparison is impracticable.

The 2020 amendment, by ch. 123, substituted “fourteen (14) days” for “ten (10) days” near the end of paragraph (c)(2). COMMENT TO OFFICIAL TEXT

The temporary guardian is analogous to a special administrator under Sections 3-614 through 3-618. His appointment would be obtained in emergency situations or as a protective device against default by a guardian. The temporary guardian has all the powers of a guardian, except as the order appointing him may provide otherwise.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Priorities for appointment as conservator,§ 15-5-410.

Amendments.

The 2008 amendment, by ch. 74, redesignated subsections; added paragraph (3)(b); and in subsection (4), inserted “or person whose residence is the incapacitated person’s proposed residence or will be frequented by the incapacitated person and is frequented by a convicted felon.”

The 2013 amendment, by ch. 262, added subsections (5), (6), and (7).

ALR.

§ 15-5-312. General powers and duties of guardian.

1. A guardian of an incapacitated person has the powers and responsibilities of a parent who has not been deprived of custody of his unemancipated minor child except that a guardian is not legally obligated to provide from his own funds for the ward and is not liable to third persons for acts of the ward, and except as hereinafter limited. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court when the guardianship is limited:
   1. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, he is entitled to custody of the person of his ward and may establish the ward’s place of abode within or without this state. The guardian shall take reasonable measures to ensure that a convicted felon does not reside with, care for or visit the ward without court approval.
   2. If entitled to custody of his ward he shall make provision for the care, comfort and maintenance of his ward, and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward’s person, he shall take reasonable care of his ward’s clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
   3. A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service. A guardian shall be automatically entitled to any information governed by the health insurance portability and accountability act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164, and the appointment of such guardian shall be deemed to grant such release authority.
   4. If no conservator for the estate of the ward has been appointed, the guardian may institute proceedings to appoint a conservator. In no circumstances shall the guardian exercise any of the powers of a conservator.
   5. A guardian shall be required to report to the court at least annually on the status of the ward. All reports shall be under oath or affirmation and shall comply with Idaho supreme court rules.
   6. If a conservator has been appointed, all of the ward’s estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided pursuant to this chapter, and the guardian must account to the conservator for funds expended.
2. Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward’s estate by payment to third persons or institutions for the ward’s care and maintenance.
3. A guardian may delegate certain of his responsibilities for decisions affecting the ward’s well-being to the ward when reasonable under all of the circumstances.

History.

I.C.,§ 15-5-312, as added by 1971, ch. 111, § 1, p. 233; am. 1982, ch. 285, § 7, p. 719; am. 1989, ch. 241, § 2, p. 587; am. 2004, ch. 53, § 2, p. 243; am. 2008, ch. 74, § 3, p. 196; am. 2014, ch. 164, § 2, p. 460.

Cross References.

Powers and duties of guardian of minor,§ 15-5-209.

Amendments.

The 2008 amendment, by ch. 74, redesignated subsections; and added the last sentence in paragraph (1)(a).

The 2014 amendment, by ch. 164, rewrote paragraph (1)(e), which formerly read: “A guardian shall be required to report as provided in section 15-5-419, Idaho Code” and substituted “pursuant to this chapter” for “in the code” in paragraph (1)(f).

Guardian of Incapacitated Person.

A guardian of an incapacitated person must make provision for the ward’s care, comfort, and maintenance. If no conservator has been appointed, the guardian may receive money and property deliverable to the ward and apply them to the ward’s care, but the guardian must exercise care to conserve any excess for the ward’s needs. East v. West One Bank, 120 Idaho 226, 815 P.2d 35 (Ct. App. 1991), cert. denied, 504 U.S. 976, 112 S. Ct. 2948, 119 L. Ed. 2d 571 (1992).

ALR.

Time within which election must be made for incompetent to take under or against will. 3 A.L.R.3d 119.

Who may make election for incompetent to take under or against will. 21 A.L.R.3d 320.

Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward. 24 A.L.R.3d 863.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without approval by court. 63 A.L.R.3d 780.

Propriety of surgically invading incompetent or minor for benefit of third party. 4 A.L.R.5th 1000.

Power of incompetent spouse’s guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit. 32 A.L.R.5th 673.

COMMENT TO OFFICIAL TEXT

The guardian is responsible for the care of the person of his ward. This section gives him the powers necessary to carry out this responsibility. Where there are no protective proceedings, the guardian also has limited authority over the property of the ward. Where the ward has substantial property, it may be desirable to have protective proceedings to handle his property problems. The same person, of course, may serve as guardian and conservator. Section 5-408 authorizes the Court to make preliminary orders protecting the estate once a petition for appointment of a conservator is filed.

Cross References.

Venue in proceedings subsequent to appointment of guardian of minor,§ 15-5-211.

Amendments.

The 2006 amendment, by ch. 182, in subsection (b), substituted “if in this state” for “in this or another state” in the first sentence and added the last sentence.

Legislative Intent.

Section 1 of S.L. 1982, ch. 285 read: “It is hereby declared by the legislature of the state of Idaho that disabled, aged or otherwise vulnerable adult citizens should be protected from exploitation, abuse and neglect through the availability of guardians and conservators having flexible powers and through the availability of volunteers to act as guardians or conservators where no other person is available to so serve.”

Cross References.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2014 amendment, by ch. 164, added the subsection (1) designation and added subsection (2).

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2008 amendment, by ch. 74, added subsection (5).

The 2013 amendment, by ch. 262, rewrote subsection (5), which formerly read: “The guardian ad litem shall have the discretionary authority to conduct a criminal background check on a proposed guardian, conservator or person who resides in or frequents the ward’s proposed residence.”

The 2015 amendment, by ch. 246, deleted the subsection (1) designation from the first paragraph and redesignated former subsections (2) through (5) as subsections (1) through (4); and substituted “following rights and powers to fulfill the duties set forth in section 15-5-315, Idaho Code” for “rights and powers set forth in this section” near the beginning of the introductory paragraph.

Amendments.

The 2010 amendment, by ch. 235, substituted “mental disability” for “mental deficiency” in subsection (b).

ALR.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation. 96 A.L.R.3d 1102.

COMMENT TO OFFICIAL TEXT

This is the basic section of this part providing for protective proceedings for minors and disabled persons. “Protective proceedings” is a generic term used to describe proceedings to establish conservatorships and obtain protective orders. “Disabled persons” is used in this section to include a broad category of persons who, for a variety of different reasons, may be unable to manage their own property.

Since the problems of property management are generally the same for minors and disabled persons, it was thought undesirable to treat these problems in two separate parts. Where there are differences, these have been separately treated in specific sections.

The Comment to Section 5-304, supra, points up the different meanings of incapacity (warranting guardianship), and disability.

Cross References.

Venue in guardianship proceedings,§§ 15-5-205, 15-5-302.

Cross References.

Conservator reports, Idaho Court Administrative Rule 54.3.

Amendments.

The 2009 amendment, by ch. 78, added the last sentence in subsection (c).

Amendments.

This section was amended by two 2007 acts which appear to be compatible and have been compiled together.

The 2007 amendment, by ch. 70, rewrote the section, revising the notice provisions of a petition for appointment of a conservator or other protective order.

The 2007 amendment, by ch. 71, changed the designations in the section to match the scheme used generally in the Idaho Code; and in the first sentence in subsection (1), deleted “and any government agency paying benefits to the person sought to be protected (if the person seeking the appointment has knowledge of the existence of these benefits)” following “guardian or conservator.” However, the changes by S.L. 2007, ch. 71, § 3 could not be given effect because of the revision of the section by S.L. 2007, ch. 70, § 5.

The 2008 amendment, by ch. 27, deleted data from the beginning of the section that was inadvertently left there by the 2007 amendments of the section.

Amendments.

The 2007 amendment, by ch. 71, deleted the former last sentence, which read: “Any government agency paying or planning to pay benefits to the alleged disabled person, and any public or charitable agency that regularly concerns itself with methods for preventing unnecessary or overly intrusive court intervention in the affairs of persons for who protective orders may be sought and that seeks to participate in the proceedings, is an interested person in a protective proceeding under this part.”

Amendments.

The 2010 amendment, by ch. 235, substituted “mental disability” for “mental deficiency” in the second sentence in the second paragraph in subsection (b).

ALR.

COMMENT TO OFFICIAL TEXT

The section establishes a framework within which professionals, including the judge, attorney and physician, if any, may be expected to exercise good judgment in regard to the minor or disabled person who is the subject of the proceeding. The National Conference accepts that it is desirable to rely on professionals rather than to attempt to draft detailed standards or conditions for appointment.

Cross References.

Visitor reports, Idaho Court Administrative Rule 54.4.

Amendments.

The 2020 amendment, by ch. 123, substituted “seventy-two (72) hours” for “five (5) days” in subsection (h); and substituted “fourteen (14) days” for “five (5) days” near the middle of the first sentence in subsection (i).

ALR.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without approval by court. 63 A.L.R.3d 780.

Compiler’s Notes.

The bracketed insertions in subsections (a), (b), and (d) were added by the compiler to conform to the statutory citation style.

Amendments.

The 2016 amendment, by ch. 238, deleted “disputed” following “compromise of” in the section heading; and rewrote the section, which formerly read: “When a minor shall have a disputed claim for money against a third person, the father or mother or both with whom the minor resides and who has the care and custody of such minor shall have the right to compromise such claim, but before the compromise shall be valid or of any effect the same shall be approved by the court of the county where the minor resides upon a verified petition in writing, regularly filed with said court. If the court approves such compromise he may direct the money paid to the father or mother of said minor subject to the provisions of section 15-5-103, Idaho Code, or he, or any other court of competent jurisdiction, may direct the money be paid subject to the provisions of an appropriate protective order which he, or any other court of competent jurisdiction, may issue, or he may require that the money be paid to a conservator appointed pursuant to chapter 5, part 4, of this code; or he may approve the compromise under the provisions of chapter 14, title 68, Idaho Code. No filing fee shall be charged for the filing of any petition for leave to compromise as provided herein”.

ALR.

Priority and preference in appointment of conservator or guardian for an incompetent. 65 A.L.R.3d 991.

Decisions Under Prior Law

Actions Against Sureties.

Where a guardian has died without settlement of accounts in the ward’s estate, the surety may be sued directly for an accounting and judgment. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

Coverage of Bond.

A guardian’s general bond covers and secures all moneys received from any source which would include a sale of any of the real and personal property of the ward. Hill v. Federal Land Bank, 59 Idaho 136, 80 P.2d 789 (1938).

Compiler’s Notes.

The bracketed insertion in the introductory paragraph in subsection (a) was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Actions on Bond.

The surety of a guardian who has died before settlement of accounts in ward’s estate may be sued directly for accounting and judgment. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

The settlement of an account with a ward or with the court is essential to maintenance of an action on a guardian’s bond. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936). A former ward was entitled to maintain an action for an accounting against the heirs, devisees and donees of the deceased surety of the deceased guardian and to have any property acquired by defendants from said surety without consideration surcharged with the guardian’s debt. Madison v. Buhl, 51 Idaho 564, 8 P.2d 271 (1932).

Excuse of Surety.

A failure on the part of the guardian to account for the proceeds of the sale of real estate will not excuse or absolve his sureties on his original or general guardian’s bond. Hill v. Federal Land Bank, 59 Idaho 136, 80 P.2d 789 (1938).

Notice to Surety.

The surety on a guardian’s bond contracts to be bound by all orders of the court within its jurisdiction decreeing any liability of the guardian, and appearance of guardian is the appearance of the surety for all purposes of fixing liability, and surety is chargeable with notice of all proceedings had touching the liability of his principal. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936).

Res Judicata.

Where a ward sued his guardian’s surety for the amount the court had adjudged the guardian owed the ward, the fact that the complaint contained allegations on which the judgment in court was based did not change the cause of action or waive the right to rely on estoppel by judgment. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936).

Judgment holding a guardian liable for unauthorized removal of his ward’s funds, being appealable, and order having become final without appeal, the order was res judicata as to the amount due the ward as regards liability of the guardian’s surety. Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936).

Cross References.

Acceptance of appointment as guardian as consent to jurisdiction,§§ 15-5-208, 15-5-305.

Personal Jurisdiction of Magistrate.

By accepting the appointment as conservator of her father’s estate, daughter submitted personally to the jurisdiction of the court in any proceeding relating to the estate that might have been instituted by any interested person. The magistrate also had personal jurisdiction over the daughter by virtue of her acceptance of the appointment as guardian. East v. West One Bank, 120 Idaho 226, 815 P.2d 35 (Ct. App. 1991), cert. denied, 504 U.S. 976, 112 S. Ct. 2948, 119 L. Ed. 2d 571 (1992).

Decisions Under Prior Law

Basis of Compensation.

Compensation of guardian is not to be determined on basis of fees and commissions, but is to be in such amount as court deems just and reasonable. Luke v. Kettenbach, 32 Idaho 191, 181 P. 705 (1919).

ALR.

§ 15-5-415. Death, resignation or removal of conservator.

The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of his predecessor.

History.

I.C.,§ 15-5-415, as added by 1971, ch. 111, § 1, p. 233.

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

The term “this code” near the end of this section refers to the Uniform Probate Code, as adopted by S.L. 1971, ch. 111, § 1 and generally compiled in chapters 1 through 7 of this title.

Liability for Loss.

A coconservator was not absolutely liable for another conservator’s conversion of insurance proceeds; rather, he was liable for that loss only if he breached his fiduciary duties and that breach had some causal connection with the loss. Brixey v. Hoffman, 101 Idaho 215, 611 P.2d 1000 (1979).

Standards of Trustee.

Under the Uniform Probate Code, the duties and liabilities of a conservator are much the same as those of a trustee. Brixey v. Hoffman, 101 Idaho 215, 611 P.2d 1000 (1979).

A conservator acts as a fiduciary and must observe the standards of care applicable to trustees. East v. West One Bank, 120 Idaho 226, 815 P.2d 35 (Ct. App. 1991), cert. denied, 504 U.S. 976, 112 S. Ct. 2948, 119 L. Ed. 2d 571 (1992).