Chapter 1 General Provisions, Definitions and Probate Jurisdiction of Court
Timeliness of Action.
Where the final accounting and distribution of an estate occurred in November 1975, an action commenced in May 1976 which alleged fraud by the personal representatives was timely filed, even though actual prosecution of the action did not take place until 1978, since the commencement of the action in 1976 was within the two year limitation period contained in this section. Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).
COMMENT TO OFFICIAL TEXT
This is an overriding provision that provides an exception to the procedures and limitations provided in the Code. The remedy of a party wronged by fraud is intended to be supplementary to other protections provided in the Code and can be maintained outside the process of settlement of the estate. Thus, if a will which is known to be forgery is probated informally, and the forgery is not discovered until after the period for contest has run, the defrauded heirs still could bring a fraud action under this section. Or if a will is fraudulently concealed after the testator’s death and its existence not discovered until after the basic three year period (section 3-108) has elapsed, there still may be an action under this section. Similarly, a closing statement normally provides binding protection for the personal representative after six months from filing (section 3-1005). However, if there is fraudulent misrepresentation or concealment in the preparation of the claim, a later suit may be brought under this section against the personal representative for damages; or restitution may be obtained from those distributees who benefit by the fraud. In any case innocent purchasers for value are protected.
Any action under this section is subject to usual rules of res judicata; thus, if a forged will has been informally probated, an heir discovers the forgery, and then there is a formal proceeding under section 3-1001 of which the heir is given notice, followed by an order of complete settlement of the estate, the heir could not bring a subsequent action under section 1-106 but would be bound by the litigation in which the issue could have been raised. The usual rules for securing relief for fraud on a court would govern, however
The final limitation in this section is designed to protect innocent distributees after a reasonable period of time. There is no limit (other than the 2 years from discovery of the fraud) against the wrongdoer. But there ought to be some limit after which innocent persons who have built up expectations in good faith cannot be deprived of the property by a restitution action.
The time of “discovery” of a fraud is a fact question to be determined in the individual case. In some situations persons may not actually know that a fraud has been perpetrated but have such strong suspicion and evidence that a court may conclude there has been a discovery of the fraud at that stage. On the other hand there is no duty to exercise reasonable care to discover fraud; the burden should not be on the heirs and devisees to check on the honesty of the other interested persons or the fiduciary.
§ 15-1-107. Evidence as to death or status.
In proceedings under this code the rules of evidence in courts of general jurisdiction including any relating to simultaneous deaths, are applicable unless specifically displaced by this code. In addition, the following rules relating to determination of death and status are applicable:
- A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent;
- A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;
- A person who is absent for a continuous period of five (5) years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
History.
I.C.,§ 15-1-107, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Subsection (3) [subsection (c) in the above section] is inconsistent with Section 1 of Uniform Absence as Evidence of Death and Absentees’ Property Act (1938). Proceedings to secure protection of property interests of an absent person may be commenced as provided in 5-401 [§ 15-5-401, Idaho Code].
The preliminary paragraph is designed to accommodate the Uniform Simultaneous Death Act, if it is a part of a state’s law.
§ 15-1-108. Acts by holder of general power.
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one (1) in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
History.
I.C.,§ 15-1-108, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The words enclosed in parentheses so appeared in the law as enacted.
COMMENT TO OFFICIAL TEXT
The status of a holder of a general power in estate litigation is dealt with by section 1-403 [§ 15-1-403, Idaho Code].
This section permits the settlor of a revocable trust to excuse the trustee from registering the trust so long as the power of revocation continues.
“General power,” as used in this section, is intended to refer to the common law concept, rather than to tax or other statutory meanings. A general power, as used herein, is one which enables the power holder to draw absolute ownership to himself.
§ 15-1-109. Satisfaction of pecuniary devises or transfers by distribution in kind.
- Whenever a personal representative or a trustee satisfies a pecuniary devise or transfer in trust by a distribution in kind with assets at their value for federal estate tax purposes, such fiduciary, in order to implement such a devise or transfer in trust, must, unless the governing instrument provides otherwise, distribute assets, including cash, fairly representative of appreciation or depreciation in all of the property so available for distribution in satisfaction of such pecuniary devise or transfer.
[(2)](b) Subsection (1) of this section is not intended to imply that the present law of this state, relating to selection of assets by fiduciaries in the circumstances herein described, has been otherwise than as set forth herein, but is a statement of the fiduciary principles applicable to such fiduciaries.
History.
I.C.,§ 15-1-109, as added by 1999, ch. 306, § 1, p. 763.
STATUTORY NOTES
Compiler’s Notes.
The bracketed (2) was inserted by the compiler to be consistent with the designation of subsection (1).
Part 2 Definitions
§ 15-1-201. General definitions.
Subject to additional definitions contained in the subsequent chapters which are applicable to specific chapters or parts, and unless the context otherwise requires, in this code:
- “Application” means a written request to the registrar for an order of informal probate or appointment under part 3 of chapter 3 of this code.
- “Augmented estate” means the estate described in section 15-2-202, Idaho Code.
- “Beneficiary,” as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust.
- “Child” includes any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant.
- “Claims,” in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, other tax obligations arising from activities or transactions of the estate, demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
- “Community property” is as defined in section 32-906, Idaho Code.
- “Conservator” means a person who is appointed by a court to manage the estate of a protected person and includes limited conservators as described by section 15-5-420, Idaho Code.
- “Court” means the court or branch having jurisdiction in matters relating to the affairs of decedents, minors, incapacitated and disabled persons. This court in this state is known as the district court.
- “Determination of heirship of community property” shall mean that determination required by the provisions of section 15-3-303, Idaho Code, upon an application for informal probate not accompanied by presentation of a will.
- “Determination of heirship” shall mean that determination of heirship required by section 15-3-409, Idaho Code, upon a finding of intestacy.
- “Devise,” when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
- “Devisee” means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
- “Disability,” with respect to an individual, means any mental or physical impairment which substantially limits one (1) or more major life activities of the individual including, but not limited to, self-care, manual tasks, walking, seeing, hearing, speaking, learning, or working, or a record of such an impairment, or being regarded as having such an impairment. Disability shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, or substance use disorders, compulsive gambling, kleptomania, or pyromania. Sexual preference or orientation is not considered an impairment or disability. Whether an impairment substantially limits a major life activity shall be determined without consideration of the effect of corrective or mitigating measures used to reduce the effects of the impairment.
- “Distributee” means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purpose of this provision “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
- “Emancipated minor” shall mean any male or female who has been married.
- “Estate” means all property of the decedent, including community property of the surviving spouse subject to administration, property of trusts, and property of any other person whose affairs are subject to this code as it exists from time to time during administration.
- “Exempt property” means that property of a decedent’s estate which is described in section 15-2-403, Idaho Code.
- “Fiduciary” includes personal representative, guardian, conservator and trustee.
- “Foreign personal representative” means a personal representative of another jurisdiction.
- “Formal proceedings” means those conducted before a judge with notice to interested persons.
- “Guardian” means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment and includes limited guardians as described by section 15-5-304, Idaho Code, but excludes one who is merely a guardian ad litem.
- “Heirs” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
- “Incapacitated person” is as defined in section 15-5-101, Idaho Code.
- “Informal proceedings” means those conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.
- “Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent, ward or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding. In a guardianship or conservatorship proceeding, it also includes any governmental agency paying or planning to pay benefits to the ward or protected 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 whom protective orders may be sought and that seeks to participate in the proceedings.
- “Issue” of a person means all his lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this code.
- “Lease” includes an oil, gas, or other mineral lease.
- “Letters” includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
- “Minor” means a male under eighteen (18) years of age or a female under eighteen (18) years of age.
- “Mortgage” means any conveyance, agreement or arrangement in which property is used as security.
- “Nonresident decedent” means a decedent who was domiciled in another jurisdiction at the time of his death.
- “Organization” includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two (2) or more persons having a joint or common interest, or any other legal entity.
- “Parent” includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
- “Person” means an individual, a corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
- “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. “General personal representative” excludes special administrator.
- “Petition” means a written request to the court for an order after notice.
- “Proceeding” includes action at law and suit in equity.
- “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
- “Protected person” is as defined in section 15-5-101, Idaho Code.
- “Protective proceeding” is as defined in section 15-5-101, Idaho Code.
- “Quasi-community property” is the property defined by section 15-2-201, Idaho Code.
- “Registrar” refers to magistrates or judges of the district court who shall perform the functions of registrar as provided in section 15-1-307, Idaho Code.
- “Security” includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing. (44) “Separate property” is as defined in section 32-903, Idaho Code.
(45) “Settlement,” in reference to a decedent’s estate, includes the full process of administration, distribution and closing.
(46) “Settlor” includes grantor, trustor, and words of similar import.
(47) “Special administrator” means a personal representative as described by sections 15-3-614 through 15-3-618, Idaho Code.
(48) “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(49) “Successor personal representative” means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(50) “Successors” means those persons, other than creditors, who are entitled to property of a decedent under his will or this code.
(51) “Supervised administration” refers to the proceedings described in part 5, chapter 3, of this code.
(52) “Testacy proceeding” means a proceeding to establish a will or determine intestacy.
(53) “Trust” includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. “Trust” excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in chapter 6 of this code, custodial arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(54) “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(55) “Ward” is as defined in section 15-5-101, Idaho Code.
(56) “Will” is a testamentary instrument and includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.
History.
I.C.,§ 15-1-201, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. 1972, ch. 201, § 1, p. 510; am. 1973, ch. 167, § 3, p. 319; am. 1982, ch. 285, § 2, p. 719; am. 1997, ch. 113, § 1, p. 274; am. 2001, ch. 294, § 1, p. 1036; am. 2002, ch. 233, § 1, p. 666; am. 2003, ch. 139, § 1, p. 403; am. 2004, ch. 55, § 1, p. 253; am. 2006, ch. 163, § 1, p. 484; am. 2007, ch. 68, § 1, p. 174; am. 2007, ch. 71, § 1, p. 189.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980); Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981); Spencer v. Idaho First Nat’l Bank, 106 Idaho 316, 678 P.2d 108 (Ct. App. 1984); Olson v. Kirkham, 111 Idaho 34, 720 P.2d 217 (Ct. App. 1986); Salfeety v. Seideman, 127 Idaho 817, 907 P.2d 794 (1995); Landis v. DeLaRosa, 137 Idaho 405, 49 P.3d 410 (2002).
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).
COMMENT TO OFFICIAL TEXT
Special definitions for Articles V and VI [Chapters 5 and 6] are contained in 5-101, 6-101, and 6-301. Except as controlled by special definitions applicable to these particular Articles, or applicable to particular sections, the definitions in 1-201 apply to the entire Code.
Part 3 Scope, Jurisdiction and Courts
§ 15-1-301. Territorial application.
Except as otherwise provided in this code, this code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state, (2) the property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state, (3) incapacitated persons and minors in this state, (4) survivorship and related accounts in this state, and (5) trusts subject to administration in this state.
History.
I.C.,§ 15-1-301, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
§ 15-1-302. [Reserved.]
- Where a proceeding under this code could be maintained in more than one (1) place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.
- If proceedings concerning the same estate, protected person, ward or trust are commenced in more than one (1) court of this state, the court in which the proceeding[s] was [were] first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
- If a court finds that in the interest of justice, a proceeding or file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.
History.
I.C.,§ 15-1-303, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-1-304. [Reserved.]
The clerk of court shall keep a single file for each decedent, ward, protected person or trust involved in any document which may be filed with the court under this code, including petitions and applications, demands for notices or bonds, trust registrations, and of any orders or responses relating thereto by the registrar or court, and establish and maintain a system for indexing, filing or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal. Certificates relating to letters must show the date of appointment.
History.
I.C.,§ 15-1-305, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-1-305A. Recording permitted — Effect. — Letters of personal representatives (foreign or domestic), a statement of informal probate, probated will, determination of heirship, order made in a testacy proceeding, or will otherwise admissible in evidence as provided in section 15-3-102[, Idaho Code,] of this code; any deed, assignment, release or other instrument executed by an appointed personal representative of the decedent; an affidavit of a successor in interest to property of a decedent; and a decree in any testacy proceeding in another state, any of which affect title to real property, may be recorded in the office of the county recorder of the county in which the real property affected by any such letters, statement, determination, order, document or decree is located. From the time of filing the same for record, notice is imparted to all persons of the contents thereof.
History.
I.C.,§ 15-1-305A, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-1-306. Jury trial.
If duly demanded, a party is entitled to trial by jury in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.
History.
I.C.,§ 15-1-306, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Jury selection and service,§ 2-201 et seq. and Idaho Civil Procedure Rule 47.
§ 15-1-307. Registrar — Powers.
The acts and orders which this code specifies as performable by the registrar will be performed by a magistrate or district judge.
History.
I.C.,§ 15-1-307, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487.
STATUTORY NOTES
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.
§ 15-1-308, 15-1-309. [Reserved.]
Except as otherwise specifically provided in this code or by rule, every document filed with the court under this code including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification therein.
History.
I.C.,§ 15-1-310, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-1-311. Exercise of powers.
Powers under this act may be exercised by the court at any time, in chambers or in open court, as may be appropriate. Powers conferred upon the registrar of wills by this act may be exercised at any time.
History.
I.C.,§ 15-1-311, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-1-312. Execution of deed.
Should any persons be entitled to a deed from a personal representative and such personal representative be discharged or disqualified or refuse to execute the same, such deed may be executed by the court authorizing such sale or distribution or the clerk of such court and shall entitle the buyer or distributee to his property.
History.
I.C.,§ 15-1-312, as added by 1971, ch. 111, § 1, p. 233.
§ 15-1-303. Venue — Multiple proceedings — Transfer.
§ 15-1-305. Records and certified copies.
§ 15-1-310. Oath or affirmation on filed documents.
Part 4 Notice, Parties and Representation in Estate Litigation and Other Matters
§ 15-1-401. Notice — Method and time of giving.
-
If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice shall be given:
- by mailing a copy thereof at least fourteen (14) days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known;
- by delivering a copy thereof to the person being notified personally at least fourteen (14) days before the time set for the hearing; or
- if the address, or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing at least once a week for three (3) consecutive weeks, a copy thereof in a newspaper having general circulation in the county where the hearing is to be held, the last publication of which is to be at least ten (10) days before the time set for the hearing.
- The court for good cause shown may provide for a different method or time of giving notice for any hearing.
- Proof of the giving of notice shall be made by affidavit or in any other manner permitted by the court at or before the hearing and filed in the proceeding.
History.
I.C.,§ 15-1-401, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 4, p. 319.
STATUTORY NOTES
Cross References.
Commencement of probate proceedings,§§ 15-3-301, 15-3-401.
CASE NOTES
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).
RESEARCH REFERENCES
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.
§ 15-1-403. Pleadings — When parties bound by others — Notice.
In judicial proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:
- Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in other appropriate manner.
-
Persons are bound by orders binding others in the following cases:
- Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one (1) in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
- To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent’s estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent and bind his minor child.
- An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.
-
Notice is required as follows:
- Notice as prescribed by section 15-1-401[, Idaho Code,] of this code shall be given to every interested person or to one who can bind an interested person as described in subsection b(1) [(b)(1)] or b(2) [(b)(2)] of this section. Notice may be given both to a person and to another who may bind him.
- Notice is given to unborn or unascertained persons, who are not represented under subsection b(1) [(b)(1)] or b(2) [(b)(2)] of this section, by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
- At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
History.
I.C.,§ 15-1-403, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The first bracketed insertion in paragraph (c)(1) was added by the compiler to conform to the statutory citation style.
The bracketed insertions near the middle of paragraphs (c)(1) and (c)(2) were added by the compiler to clarify the references.
The words enclosed in parentheses so appeared in the law as enacted.
CASE NOTES
Cited
House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978).
COMMENT TO OFFICIAL TEXT
A general power, as used here and in Section 1-108, is one which enables the power holder to draw absolute ownership to himself. The section assumes a valid general power. If the validity of the power itself were in issue, the power holder could not represent others, as for example, the takers in default.
Part 5 Miscellaneous Provisions
§ 15-1-501. Construction of certain formula clauses.
- A will or trust of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction” or “unlimited marital deduction,” or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010, without regard to whether the decedent’s personal representative or other fiduciary elects not to have the estate tax apply with respect to that estate. This provision shall not apply with respect to a will, trust or other instrument that manifests an intent that a contrary rule shall apply.
-
The personal representative, trustee, other fiduciary or any affected beneficiary under the will, trust or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section. A proceeding under this section shall be commenced before January 1, 2012. In a proceeding under this section, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust or other instrument. The court shall have the power to modify a provision of the will, trust or other instrument that refers to the federal estate tax or generation-skipping tax laws as described in subsection (1) of this section to:
- Conform the terms to the decedent’s intention; or
- Achieve the decedent’s tax objectives in a manner that is not contrary to the decedent’s probable intention.
The court may provide that an interpretation or modification pursuant to this section shall be effective as of the decedent’s date of death. A person who commences a proceeding under this section has the burden of proof, by clear and convincing evidence, in establishing the decedent’s intent that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section.
History.
(3) For purposes of this section only, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section and to conform the terms to the decedent’s intention, without court approval as provided in subsection (2) of this section. As used in the subsection, “interested persons” means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to chapter 8, title 15, Idaho Code. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved. History.
I.C.,§ 15-1-501, as added by 2010, ch. 68, § 1, p. 116; am. 2011, ch. 305, § 1, p. 872.
STATUTORY NOTES
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.
Chapter 2 INTESTATE SUCCESSION — WILLS
Part 1. Intestate Succession
Sec.
Part 2. Succession of Quasi-Community Property — Elective Share of Surviving Spouse
Part 3. Spouse and Children Unprovided for in Wills
Part 4. Exempt Property and Allowances
Part 5. Wills
Part 6. Rules of Construction
Part 7. Contractual Arrangements Relating to Death
Part 8. General Provisions
15-2-804. Revocation of probate and nonprobate transfers by divorce
Part 9. Custody and Deposit of Wills
Part 10. Will Registry
Part 1 Intestate Succession
§ 15-2-101. Intestate estate.
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this code.
History.
I.C.,§ 15-2-101, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
[General comment to §§ 15-2-101 — 15-2-11.]
[]
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:
- A larger share is given to the surviving spouse, if there are issue, and the whole estate if there are no issue or parent.
- 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.
- 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.
- 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.
- 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.
§ 15-2-102. Share of the spouse.
The intestate share of the surviving spouse is as follows:
-
As to separate property:
- If there is no surviving issue or parent of the decedent, the entire intestate estate;
- If there is no surviving issue but the decedent is survived by a parent or parents, one-half (½) of the intestate estate;
- If there are surviving issue of the deceased spouse, one-half (½) of the intestate estate.
-
As to community property:
- The one-half (½) of community property which belongs to the decedent passes to the surviving spouse.
History.
I.C.,§ 15-2-102, as added by 1971, ch. 111, § 1, p. 233; am. 2001, ch. 330, § 1, p. 1160.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section gives the surviving spouse a larger share than most existing statutes on descent and distribution. In doing so, it reflects the desires of most married persons, who almost always leave all of a moderate estate or at least one-half of a larger estate to the surviving spouse when a will is executed. A husband or wife who desires to leave the surviving spouse less than the share provided by this section may do so by executing a will, subject of course to possible election by the surviving spouse to take an elective share of one-third under Part 2 of this Article [Chapter]. Moreover, in the small estate (less than $50,000 after homestead allowance, exempt property, and allowances) the surviving spouse is given the entire estate if there are only children who are issue of both the decedent and the surviving spouse; the result is to avoid protective proceedings as to property otherwise passing to their minor children. [Idaho did not adopt the provisions directing the passing of the first $50,000 before dividing intestate shares.] See Section 2-802 for the definition of spouse which controls for purposes of intestate succession.
§ 15-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under section 15-2-102[, Idaho Code,] of this part, or the entire intestate estate if there is no surviving spouse, passes as follows:
- To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
- If there is no surviving issue, to his parent or parents equally;
- If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
- If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one (1) or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparents on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
History.
I.C.,§ 15-2-103, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 5, p. 319.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978); Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980); Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981); 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
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).
RESEARCH REFERENCES
ALR.
Adopted child, right to inherit from intestate natural grandparent. 60 A.L.R.3d 631.
COMMENT TO OFFICIAL TEXT
This section provides for inheritance by lineal descendants of the decedent, parents and their descendants, and grandparents and collateral relatives descended from grandparents; in line with modern policy, it eliminates more remote relatives tracing through great-grandparents.
In general the principle of representation (which is defined in Section 2-106) is adopted as the pattern which most decedents would prefer. If the pattern of this section is not desired, it may be avoided by a properly executed will or, after the decedent’s death, by renunciation by particular heirs under Section 2-801.
§ 15-2-103A. Limitation upon testamentary ability. [Repealed.]
STATUTORY NOTES
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.
§ 15-2-104. Requirement that heir survive decedent for 120 hours.
Any person who fails to survive the decedent by one hundred twenty (120) hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty (120) hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 15-2-105[, Idaho Code,] of this Part.
History.
I.C.,§ 15-2-104, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section is a limited version of the type of clause frequently found in wills to take care of the common accident situation, in which several members of the same family are injured and die within a few days of each other. The Uniform Simultaneous Death Act provides only a partial solution, since it applies only if there is no proof that the parties died otherwise than simultaneously. This section requires an heir to survive by five days in order to succeed to decedent’s intestate property, for a comparable provision as to wills, see Section 2-601. This section avoids multiple administrations and in some instances prevents the property from passing to persons not desired by the decedent. The five-day period will not hold up administration of a decedent’s estate because sections 3-302 and 3-307 prevent informal probate of a will or informal issuance of letters for a period of five days from death. The last sentence prevents the survivorship requirement from affecting inheritances by the last eligible relative of the intestate who survives him for any period. I.R.C. § 2056(b) (3) makes it clear that an interest passing to a surviving spouse is not made a “terminable interest” and thereby disqualified for inclusion in the marital deduction by its being conditioned on failure of the spouse to survive a period not exceeding six months after the decedent’s death, if the spouse in fact lives for the required period. Thus, the intestate share of a spouse who survives the decedent by five days is available for the marital deduction. To assure a marital deduction in cases where one spouse fails to survive the other by the required period, the decedent must leave a will. The marital deduction is not a problem in the typical intestate estate. The draftsmen and Special Committee concluded that the statute should accommodate the typical estate to which it applies, rather than the unusual case of an unplanned estate involving large sums of money.
§ 15-2-105. No taker. [Repealed.]
STATUTORY NOTES
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.
§ 15-2-106. Representation.
If representation is called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one (1) share and the share of each deceased person in the same degree being divided among his issue in the same manner.
History.
I.C.,§ 15-2-106, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
Under the system of intestate succession in effect in some states, property is directed to be divided “per stirpes” among issue or descendants or identified ancestors. Applying a meaning commonly associated with the quoted words, the estate is first divided into the number indicated by the number of children of the ancestor who survive, or who leave issue, who survive. If, for example, the property, is directed to issue “per stirpes” of the intestate’s parents, the first division would be by the number of children of parents (other than the intestate) who left issue surviving even though no person of this generation survives. Thus, if the survivors are a child and a grandchild of a deceased brother of the intestate and five children of his deceased sister, the brother’s descendants would divide one-half and the five children of the sister would divide the other half. Yet if the parent of the brother’s grandchild also had survived, most statutes would give the seven nephews and nieces equal shares because it is commonly provided that if all surviving kin are in equal degree, they take per capita.
The draft rejects this pattern and keys to a system which assures that the first and principal division of the estate will be with reference to a generation which includes one or more living members.
§ 15-2-107. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
History.
I.C.,§ 15-2-107, as added by 1971, ch. 111, § 1, p. 233.
§ 15-2-108. Afterborn heirs.
Relatives of the decedent conceived by natural or artificial means before his death but born within ten (10) months after the decedent’s date of death, shall inherit as if they had been born in the lifetime of the decedent.
History.
I.C.,§ 15-2-108, as added by 1971, ch. 111, § 1, p. 233; am. 2005, ch. 123, § 1, p. 407.
§ 15-2-109. Meaning of child and related terms.
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
- An adopted person is a child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent and adoption by the spouse of a natural parent has no effect on the relationship between the child and a deceased, undivorced natural parent.
-
In cases not covered by subsection (a) of this section, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
- The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
- The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, except that the paternity established under this subparagraph (2) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.
History.
I.C.,§ 15-2-109, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 350, § 4, p. 914.
CASE NOTES
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.
§ 15-2-110. Advancements.
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter’s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient’s issue, unless the declaration or acknowledgment provides otherwise. If an advancement exceeds the share of the heir, no refund is required.
History.
I.C.,§ 15-2-110, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Ademption by satisfaction,§ 15-2-612.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section alters the common law relating to advancements by requiring written evidence of the intent that an inter vivos gift be an advancement. The statute is phrased in terms of the donee being an “heir” because the transaction is regarded as of decedent’s death; of course, the donee is only a prospective heir at the time of the transfer during lifetime. Most inter vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan. If the donor intends that any transfer during lifetime be deducted from the donee’s share of his estate, the donor may either execute a will so providing or, if he intends to die intestate, charge the gift as an advance by a writing within the present section. The present section applies only when the decedent died intestate and not when he leaves a will. This section applies to advances to collaterals (such as nephews and nieces) as well as to lineal descendants. The statute does not spell out the method of taking account of the advance, since this process is well settled by the common law and is not a source of litigation.
§ 15-2-111. Debts to decedent.
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor’s issue.
History.
I.C.,§ 15-2-111, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Claims against decedent,§ 15-3-104.
Right of retainer,§ 15-3-903.
COMMENT TO OFFICIAL TEXT
This supplements the content of Section 3-903, infra.
§ 15-2-112. Alienage.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
History.
I.C.,§ 15-2-112, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Validity of foreign wills,§ 15-2-506.
COMMENT TO OFFICIAL TEXT
The purpose of this section is to eliminate the ancient rule that an alien cannot acquire or transmit land by descent, a rule based on the feudal notions of the obligations of the tenant to the King. Although there never was a corresponding rule as to personalty, the present section is phrased in light of the basic premise of the Code that distinctions between real and personal property should be abolished.
This section has broader vitality in light of the recent decision of the United States Supreme Court in Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968) holding unconstitutional a state statute providing for escheat if a nonresident alien cannot meet three requirements: the existence of a reciprocal right of a United States citizen to take property on the same terms as a citizen or inhabitant of the foreign country, the right of United States citizens to receive payment here of funds from estates in the foreign country, and the right of the foreign heirs to receive the proceeds of the local estate without confiscation by the foreign government. The rationale was that such a statute involved the local probate court in matters which essentially involve United States foreign policy, whether or not there is a governing treaty with the foreign country. Hence, the statute is “an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.”
§ 15-2-113. [Reserved.]
A person who is related to the decedent through two (2) lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.
History.
I.C.,§ 15-2-114, as added by 1978, ch. 350, § 5, p. 914.
COMMENT TO OFFICIAL TEXT
This section prevents double inheritance. It has potential application in a case in which a deceased person’s brother or sister marries the spouse of the decedent and adopts a child of the former marriage; if the adopting parent died thereafter leaving the child as a natural and adopted grandchild of its grandparents, this section prevents the child from taking as an heir from the grandparents in both capacities.
§ 15-2-114. Persons related to decedent through two lines.
Part 2 Succession of Quasi-Community Property — Elective Share of Surviving Spouse
§ 15-2-201. Quasi-community property.
- Upon death of a married person domiciled in this state, one-half (½) of the quasi-community property shall belong to the surviving spouse and the other one-half (½) of such property shall be subject to the testamentary disposition of the decedent and, if not devised by the decedent, goes to the surviving spouse.
- Quasi-community property is all personal property, wherever situated, and all real property situated in this state which has heretofore been acquired or is hereafter acquired by the decedent while domiciled elsewhere and which would have been the community property of the decedent and the surviving spouse had the decedent been domiciled in this state at the time of its acquisition plus all personal property, wherever situated, and all real property situated in this state, which has heretofore been acquired or is hereafter acquired in exchange for real or personal property, wherever situated, which would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired, provided that real property does not and personal property does include leasehold interests in real property, provided that quasi-community property shall include real property situated in another state and owned by a domiciliary of this state if the laws of such state permit descent and distribution of such property to be governed by the laws of this state.
- All quasi-community property is subject to the debts of decedent.
History.
I.C.,§ 15-2-201, as added by 1972, ch. 201, § 4, p. 510.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
[General comment to §§ 15-2-201 — 15-2-207.]
[]
[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.]
[]
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].
§ 15-2-202. Augmented estate.
Whenever a married person domiciled in the state has made a transfer of quasi-community property to a person other than the surviving spouse without adequate consideration and without the consent of the surviving spouse, the surviving spouse may require the transferee to restore to the decedent’s estate such property, if the transferee retains such property and, if not, its proceeds or, if none, its value at the time of transfer, if:
- The decedent retained, at the time of his death, the possession or enjoyment of or the right to income from the property; or
- The decedent retained, at the time of his death, a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit; or
- The decedent held the property at the time of his death with another with the right of survivorship; or
- The decedent had transferred such property within two (2) years of his death to the extent that the aggregate transfers to any one (1) donee in either of the years exceeded ten thousand dollars ($10,000) or the amount of the annual exclusion for the federal gift tax set forth at 26 U.S.C. section 2503, whichever is greater.
History.
I.C.,§ 15-2-202, as added by 1972, ch. 201, § 4, p. 510; am. 1999, ch. 303, § 1, p. 760.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
The purpose of the concept of augmenting the probate estate in computing the elective share is twofold: (1) to prevent the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share, and (2) to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death by life insurance, joint tenancy assets and other nonprobate arrangements. Thus essentially two separate groups of property are added to the net probate estate to arrive at the augmented net estate which is the basis for computing the one-third share of the surviving spouse. In the first category are transfers by the decedent during his lifetime which are essentially will substitutes, arrangements which give him continued benefits or controls over the property. However, only transfers during the marriage are included in this category. This makes it possible for a person to provide for children by a prior marriage, as by a revocable living trust, without concern that such provisions will be upset by later marriage. The limitation to transfers during marriage reflects some of the policy underlying community property. What kinds of transfers should be included here is a matter of reasonable difference of opinion. The fine-spun tests of the Federal Estate Tax Law might be utilized, of course. However, the objectives of a tax law are different from those involved here in the Probate Code, and the present section is therefore more limited. It is intended to reach the kinds of transfers readily usable to defeat an elective share in only the probate estate.
In the second category of assets, property of the surviving spouse derived from the decedent and property derived from the decedent which the spouse has, in turn, given away in a transaction that is will-like in effect or purpose, the scope is much broader. Thus, a person can during his lifetime make outright gifts to relatives and they are not included in this first category unless they are made within two years of death (the exception being designed to prevent a person from depleting his estate in contemplation of death). But the time when the surviving spouse derives her wealth from the decedent is immaterial; thus if a husband has purchased a home in the wife’s name and made systematic gifts to the wife over many years, the home and accumulated wealth she owns at his death as a result of such gifts ought to, and under this section do, reduce her share of the augmented estate. Likewise, for policy reasons life insurance is not included in the first category of transfers to other persons, because it is not ordinarily purchased as a way of depleting the probate estate and avoiding the elective share of the spouse; but life insurance proceeds payable to the surviving spouse are included in the second category, because it seems unfair to allow a surviving spouse to disturb the decedent’s estate plan if the spouse has received ample provision from life insurance. In this category no distinction is drawn as to whether the transfers are made before or after marriage. Depending on the circumstances it is obvious that this section will operate in the long run to decrease substantially the number of elections. This is because the statute will encourage and provide a legal base for counseling of testators against schemes to disinherit the spouse, and because the spouse can no longer elect in cases where substantial provision is made by joint tenancy, life insurance, lifetime gifts, living trusts set up by the decedent, and the other numerous nonprobate arrangements by which wealth is today transferred. On the other hand the section should provide realistic protection against disinheritance of the spouse in the rare case where decedent tries to achieve that purpose by depleting his probate estate.
The augmented net estate approach embodied in this section is relatively complex and assumes that litigation may be required in cases in which the right to an elective share is asserted. The proposed scheme should not complicate administration in well-planned or routine cases, however, because the spouse’s rights are freely releasable under Section 2-204 and because of the time limits in Section 2-205. Some legislatures may wish to consider a simpler approach along the lines of the Pennsylvania Estates Act provision reading:
“A conveyance of assets by a person who retains a power of appointment by will, or a power of revocation or consumption over the principal thereof, shall at the election of his surviving spouse, be treated as a testamentary disposition so far as the surviving spouse is concerned to the extent to which the power has been reserved, but the right of the surviving spouse shall be subject to the rights of any income beneficiary vested in enjoyment prior to the death of the conveyor. The provisions of this subsection shall not apply to any contract of life insurance purchased by a decedent, whether payable in trust or otherwise.”
In passing, it is to be noted that a Pennsylvania widow apparently may claim against a revocable trust or will even though she has been amply provided for by life insurance or other means arranged by the decedent. Penn. Stats. Annot. title 20, § 301.11(a).
The New York Estates, Powers and Trusts Law § 5-1.1(b) also may be suggested as a model. It treats as testamentary dispositions all gifts causa mortis, money on deposit by the decedent in trust for another, money deposited in the decedent’s name payable on death to another, joint tenancy property, and transfers by decedent over which he has a power to revoke or invade. The New York law also expressly excludes life insurance, pension plans, and United States savings bonds payable to a designated person. One of the drawbacks of the New York legislation is its complexity, much of which is attributable to the effort to prevent a spouse from taking an elective share when the deceased spouse has followed certain prescribed procedures.
§ 15-2-203. Elective right to quasi-community property and augmented estate.
- The right of the surviving spouse in the augmented quasi-community property estate shall be elective and shall be limited to one-half (½) of the total augmented quasi-community property estate which will include, as a part of the property described in sections 15-2-201 and 15-2-202, Idaho Code, property received from the decedent and owned by the surviving spouse at the decedent’s death, plus the value of such property transferred by the surviving spouse at any time during marriage to any person other than the decedent which would have been in the surviving spouse’s quasi-community property augmented estate if that spouse had predeceased the decedent to the extent that the owner’s transferred property is derived from the decedent by any means other than testate or intestate succession without a full consideration in money or money’s worth. This shall not include any benefits derived from the federal social security system by reason of service performed or disability incurred by the decedent and shall include property transferred from the decedent to the surviving spouse by virtue of joint ownership and through the exercise of a power of appointment also exercisable in favor of others than the surviving spouse and appointed to the surviving spouse.
- The elective share to the quasi-community estate thus computed shall be reduced by an allocable portion of general administration expenses, homestead allowance, exempt property and enforceable claims.
- Property owned by the surviving spouse at the time of the decedent’s death and property transferred by the surviving spouse is presumed to have been derived from the decedent except to the extent that the surviving spouse establishes that it was derived from another source.
History.
I.C.,§ 15-2-203, as added by 1978, ch. 350, § 2, p. 914; am. 2016, ch. 262, § 1, p. 682.
STATUTORY NOTES
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).
§ 15-2-204. Right of election personal.
The right of election of the surviving spouse may be exercised only during his lifetime by him. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his probable life expectancy.
History.
I.C.,§ 15-2-204, as added by 1972, ch. 201, § 4, p. 510.
STATUTORY NOTES
Cross References.
Definition of “protected person,” and “protective proceeding,”§ 15-1-201.
Protective proceedings,§ 15-5-401 et seq.
§ 15-2-205. Proceeding for elective share — Time limit.
- The surviving spouse may elect to take his elective share in the augmented net estate by filing in the court and mailing or delivering to the personal representative a petition for the elective share within nine (9) months after the death of the decedent or six (6) months after the date of filing of the petition for probate, whichever is later. The court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.
- The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented net estate whose interests will be adversely affected by the taking of the elective share.
- The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the court.
- After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the augmented net estate or by contribution as appears appropriate under section 15-2-207[, Idaho Code,] of this code. If it appears that a fund or property included in the augmented net estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
- The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
History.
I.C.,§ 15-2-205, as added by 1972, ch. 201, § 4, p. 510; am. 1973, ch. 167, § 6, p. 319; am. 1999, ch. 73, § 1, p. 196.
STATUTORY NOTES
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.
§ 15-2-206. Effect of election on benefits by will or statute.
- The surviving spouse’s election of his elective share does not affect the share of the surviving spouse under the provisions of the decedent’s will or intestate succession unless the surviving spouse also expressly renounces in the petition for an elective share the benefit of all or any of the provisions. If any provision is so renounced, the property or other benefit which would otherwise have passed to the surviving spouse thereunder is treated, subject to contribution under section 15-2-207(b), Idaho Code, as if the surviving spouse had predeceased the testator.
- A surviving spouse is entitled to homestead allowance and exempt property whether or not he elects to take an elective share and whether or not he renounces the benefits conferred upon him by the will except that, if it clearly appears from the will that a provision therein made for the surviving spouse was intended to be in lieu of these rights, he is not so entitled if he does not renounce the provision so made for him in the will.
History.
I.C.,§ 15-2-206, as added by 1972, ch. 201, § 4, p. 510; am. 2016, ch. 262, § 2, p. 682.
STATUTORY NOTES
Amendments.
The 2016 amendment, by ch. 262, deleted “and family allowance” following “exempt property” near the beginning of subsection (b).
CASE NOTES
Cited
Simmons v. Ewing, 96 Idaho 380, 529 P.2d 776 (1974).
COMMENT TO OFFICIAL TEXT
The election does not result in a loss of benefits under the will (in the absence of renunciation) because those benefits are charged against the elective share under Sections 2-201, 2-202, and 2-207(a).
§ 15-2-207. Liability of others.
- In a proceeding for an elective share, property which passes or has passed to the surviving spouse by testate or intestate succession and property included in the augmented estate which has not been renounced is applied first to satisfy the elective share and to reduce the amount due from other recipients of portions of the augmented estate.
- The remaining amount of the elective share is equitably apportioned among beneficiaries of the will and transferees of the augmented estate in proportion to the value of their interest therein.
- Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time it is considered in computing the augmented estate.
History.
I.C.,§ 15-2-207, as added by 1972, ch. 201, § 4, p. 510; am. 1978, ch. 350, § 3, p. 914.
§ 15-2-208. Waiver.
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance and exempt property, or either of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance and exempt property by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
History.
I.C.,§ 15-2-208, as added by 1972, ch. 201, § 4, p. 510; am. 2016, ch. 262, § 3, p. 682.
STATUTORY NOTES
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.
CASE NOTES
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.
§ 15-2-209. Election of nondomiciliary.
Upon the death of any married person not domiciled in this state who dies leaving a valid will disposing of real property in this state which is not the community property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in such property against the will of the decedent as though the property was situated in the decedent’s domicile at death.
History.
I.C.,§ 15-2-209, as added by 1972, ch. 201, § 4, p. 510.
Part 3 Spouse and Children Unprovided for in Wills
§ 15-2-301. Omitted spouse.
- If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
- In satisfying a share provided by this section, the devises made by the will abate as provided in section 15-3-902[, Idaho Code,] of this code.
History.
I.C.,§ 15-2-301, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of subsection (b) was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Section 2-508 provides that a will is not revoked by a change of circumstances occurring subsequent to its execution other than as described by that section. This section reflects the view that the intestate share of the spouse is what the decedent would want the spouse to have if he had thought about the relationship of his old will to the new situation. The effect of this section should be to reduce the number of instances where a spouse will claim an elective share.
§ 15-2-302. Pretermitted children.
-
If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
- it appears from the will that the omission was intentional;
- when the will was executed the testator had one (1) or more children and devised substantially all his estate to the other parent of the omitted child; or
- the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
- If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
- In satisfying a share provided by this section, the devises made by the will abate as provided in section 15-3-902[, Idaho Code,] of this code.
History.
I.C.,§ 15-2-302, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 5, p. 510.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of subsection (c) was added by the compiler to conform to the statutory citation style.
CASE NOTES
Cited
Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).
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).
RESEARCH REFERENCES
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.
Part 4 Exempt Property and Allowances
§ 15-2-401. Applicable law.
This part applies to the estate of a decedent who dies domiciled in this state. Rights to the homestead allowance and to exempt property for a decedent who dies not domiciled in this state are governed by the law of the decedent’s domicile at death.
History.
I.C.,§ 15-2-401, as added by 2001, ch. 294, § 2, p. 1036]; am. 2008, ch. 182, § 1, p. 549.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
[General comment to §§ 15-2-401 — 15-2-406.]
[]
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.]
[]
Notice that under Section 2-104 a spouse or child claiming under this Part must survive the decedent by 120 hours.
§ 15-2-402. Homestead allowance.
The homestead allowance is exempt from and has priority over all claims against the estate except as hereinafter set forth. The homestead allowance is in addition to any share passing to the surviving spouse or minor or disabled child by the will of the decedent unless otherwise provided in the will, or by intestate succession, or by way of elective share. The amount of the homestead allowance shall be fifty thousand dollars ($50,000). The homestead allowance is not a right to claim ownership of, or succession to, any homestead owned by the decedent at the time of the decedent’s death but is only the right to claim the sum set forth above. The right to a homestead allowance is determined as follows:
- If there is a surviving spouse of the decedent, the surviving spouse shall be entitled to a homestead allowance.
- If there is no surviving spouse, and there are one (1) or more children under the age of twenty-one (21) years whom the decedent was obligated to support or children who were in fact being supported by the decedent and who are disabled, as provided in 42 U.S.C. section 1382c, then each such minor or disabled child is entitled to a portion of the homestead allowance in the amount of the homestead allowance divided by the number of such minor or disabled children entitled to receive the homestead allowance.
History.
I.C.,§ 15-2-401, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. and redesig. 2001, ch. 294, § 3, p. 1036; am. 2004, ch. 123, § 1, p. 412; am. 2008, ch. 182, § 2, p. 549.
STATUTORY NOTES
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.
CASE NOTES
Constitutionality. Prior homestead.
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).
Cited
Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986); Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
See Section 2-802 for the definition of “spouse” which controls in this Part. Also, see Section 2-104. Waiver of homestead is covered by Section 2-204. “Election” between the provision of a will and homestead is covered by Section 2-206.
A set dollar amount for homestead allowance was dictated by the desirability of having a certain level below which administration may be dispensed with or be handled summarily, without regard to the size of allowances under Section 2-402. The “small estate” line is controlled largely, though not entirely, by the size of the homestead allowance. This is because Part 12 of Article III [Chapter 3] dealing with small estates rests on the assumption that the only justification for keeping a decedent’s assets from his creditors is to benefit the decedent’s spouse and children.
Another reason for a set amount is related to the fact that homestead allowance may prefer a decedent’s minor or dependent children over his or her other children. It was felt desirable to minimize the consequence of application of an arbitrary age line among children of the decedent.
§ 15-2-403. Exempt property.
In addition to any homestead allowance, the decedent’s surviving spouse is entitled from the estate to [a] value, not exceeding ten thousand dollars ($10,000) in excess of any security interests therein, in tangible personal property including, but not limited to, household furniture, automobiles, furnishings, appliances, family heirlooms and personal effects, subject to the terms of section 15-2-406, Idaho Code. If there is no surviving spouse, the decedent’s children are entitled jointly to the same tangible personal property, subject to the terms of section 15-2-406, Idaho Code. Rights to exempt property have priority over all claims against the estate. These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided in the will, or by intestate succession, or by way of elective share.
History.
I.C.,§ 15-2-402, as added by 1971, ch. 111, § 1, p. 233; am. and redesig. 2001, ch. 294, § 4, p. 1036; am. 2003, ch. 63, § 1, p. 209; am. 2004, ch. 123, § 2, p. 412; am. 2008, ch. 182, § 3, p. 550.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).
OPINIONS OF ATTORNEY GENERAL
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.
COMMENT TO OFFICIAL TEXT
As originally adopted in 1969, the dollar amount exempted was set at $3,500. To adjust for inflation, the amount was increased to $10,000 in 1990.
Unlike the exempt amount described in Sections 2-402 and 2-404 [repealed], the exempt amount described in this section is available in a case in which the decedent left no spouse but left only adult children. The provision in this section that establishes priorities is required because of possible difference between beneficiaries of the exemptions described in this section and those described in Sections 2-402 and 2-404 [repealed].
Section 2-204 covers waiver of exempt property rights. This section indicates that a decedent’s will may put a spouse to an election with reference to exemptions, but that no election is presumed to be required.
§ 15-2-404. Family allowance. [Repealed.]
STATUTORY NOTES
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.
§ 15-2-405. Source — Determination — Documentation — Miscellaneous provisions.
If the estate is otherwise sufficient, property specifically devised, including the provisions pursuant to section 15-2-513, Idaho Code, may not be used to satisfy rights to the homestead allowance or exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance or exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there is no guardian of a minor child. The personal representative may execute an instrument to establish the homestead allowance or exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief. Despite any language to the contrary in this chapter, the homestead allowance and exempt property are not mandatory or automatic, but rather must be applied for by the surviving spouse and/or children, as appropriate, as set forth in this title. Even though the allowance and the right to apply for exempt property are not claims against estates, the manner of and time period for applying for the allowance or the exempt property shall be the same as set forth in sections 15-3-801, 15-3-803 and 15-3-804, Idaho Code; provided however, that the personal representative shall not be required to give actual notice to a surviving spouse or a minor or disabled child of the right to apply for the homestead allowance or the exempt property, and provided further that any notice actually given by the personal representative does not need to make any additional or special reference to an application by the surviving spouse or minor or disabled or adult children also being barred if not submitted within the time period set forth in the notice. Also, the personal representative shall not be liable to the surviving spouse, minor or disabled or adult child, any creditor, or any other successor to the estate in the same manner as provided in section 15-3-801(c), Idaho Code, as a result of giving or failing to give notice. The homestead allowance and exempt property may not be enforced or applied for on behalf of a surviving spouse or a minor or adult child of the decedent by a creditor of the surviving spouse or a minor or disabled or adult child of the decedent, or by any person or entity claiming by, through, or because of the surviving spouse or minor or disabled or adult child of the decedent. Despite any language to the contrary in other sections of this chapter, the homestead allowance and exempt property do not take precedence over reasonable administrative costs and expenses of the estate of the decedent.
History.
I.C.,§ 15-2-404, as added by 1971, ch. 111, § 1, p. 233; am. and redesig. 2001, ch. 294, § 6, p. 1036; am. 2004, ch. 123, § 4, p. 412; am. 2008, ch. 182, § 5, p. 550.
STATUTORY NOTES
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.
CASE NOTES
Cited
Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).
OPINIONS OF ATTORNEY GENERAL
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.
COMMENT TO OFFICIAL TEXT
See Sections 3-902, 3-906 and 3-907.
§ 15-2-406. Limitations on exempt property and homestead allowance by will.
The decedent may provide by will that a surviving spouse, and/or adult children, but not minor or disabled children:
- Are not entitled to any exempt property or homestead allowance; or
- Are entitled to limited exempt property or a limited homestead allowance, as provided in the will; but
- May not condition such elimination or limitation upon whether the estate of the decedent is subject to a claim for estate recovery for medicaid benefits paid to the decedent or to a spouse of the decedent.
History.
I.C.,§ 15-2-406, as added by 2008, ch. 182, § 6, p. 552.
Part 5 Wills
§ 15-2-501. Who may make a will.
Any emancipated minor or any person eighteen (18) or more years of age who is of sound mind may make a will. A married woman may dispose of her property, whether separate or community, in the same manner as any other person subject to the restrictions imposed by this code.
History.
I.C.,§ 15-2-501, as added by 1971, ch. 211, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
[General comment to §§ 15-2-501 — 15-2-513.]
[]
[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.
§ 15-2-502. Execution.
Except as provided for holographic wills, writings within section 15-2-513[, Idaho Code,] of this part, and wills within section 15-2-506[, Idaho Code,] of this part, or except as provided in section 51-109, Idaho Code, every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two (2) persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.
History.
I.C.,§ 15-2-502, as added by 1971, ch. 111, § 1, p. 233; am. 2008, ch. 76, § 1, p. 202; am. 2017, ch. 192, § 8, p. 440.
STATUTORY NOTES
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.
CASE NOTES
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.
§ 15-2-503. Holographic will.
A will which does not comply with section 15-2-502[, Idaho Code,] of this Part is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
History.
I.C.,§ 15-2-503, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section enables a testator to write his own will in his handwriting. There need be no witnesses. The only requirement is that the signature and the material provisions of the will be in the testator’s handwriting. By requiring only the “material provisions” to be in the testator’s handwriting (rather than requiring, as some existing statutes do, that the will be “entirely” in the testator’s handwriting) a holograph may be valid even though immaterial parts such as date or introductory wording be printed or stamped. A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwritten portion could evidence the testator’s will. For persons unable to obtain legal assistance, the holographic will may be adequate.
§ 15-2-504. Self-proved will.
- Any will may be simultaneously executed, attested, and made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal, in form and content substantially as follows:
- An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in form and content substantially as follows:
- A will may be executed, and made self-proved, in compliance with section 51-109, Idaho Code, and attested as set forth in subsections (1) and (2) of this section.
I, ......., the testator, sign my name to this instrument this ........ day of ........, ..., and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
...............................
Testator
We, ............, ............, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of his knowledge the testator is eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
...............................
Witness
...............................
Witness
The State of ..........
County of .............
Subscribed, sworn to and acknowledged before me by .........., the testator and subscribed and sworn to before me by .........., and .........., witnesses, this ..... day of ..........
(Seal)
(Signed) ...............................
...............................
(Official capacity of officer)
The State of ............
County of ...............
We, .........., ..........., and .........., the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time eighteen (18) years of age or older, of sound mind and under no constraint or undue influence. ...............................
Testator
...............................
Witness
...............................
Witness
Subscribed, sworn to and acknowledged before me by .........., the testator, and subscribed and sworn to before me by .........., and .........., witnesses, this ..... day of .........
(Seal)
(Signed) ...............................
...............................
(Official capacity of officer)
History.
I.C.,§ 15-2-504, as added by 1978, ch. 350, § 7, p. 914; am. 2007, ch. 90, § 2, p. 246; am. 2008, ch. 76, § 2, p. 203; am. 2017, ch. 192, § 9, p. 440.
STATUTORY NOTES
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
Cited
McGurrin v. Scoggin, 113 Idaho 341, 743 P.2d 994 (Ct. App. 1987).
COMMENT TO OFFICIAL TEXT
A self-proved will may be admitted to probate as provided in Sections 3-303, 3-405 and 3-406 without the testimony of any subscribing witness, but otherwise it is treated no differently than a will not self-proved. Thus, a self-proved will may be contested (except in regard to signature requirements), revoked, or amended by a codicil in exactly the same fashion as a will not self-proved. The significance of the procedural advantage for a self-proved will is limited to formal testacy proceedings because Section 3-303 dealing with informal probate dispenses with the necessity of testimony of witnesses even though the instrument is not self-proved under this section.
The original text of this section directed that the officer who assisted the execution of a self-proved will be authorized to act by virtue of the laws of “this State”, thereby restricting this mode of execution to wills offered for probate in the state where they were executed. Also, the original text authorized only the addition to an already signed and witnessed will, of an acknowledgment of the testator and affidavits of the witnesses, thereby requiring testator and witnesses, to sign twice even though the entire execution ceremony occurred in the presence of a notary or other official. In 1975, the Joint Editorial Board recommended the substitution of new text that eliminates these problems.
§ 15-2-505. Who may witness.
- Any person eighteen (18) or more years of age generally competent to be a witness may act as a witness to a will.
- A will or any provision thereof is not invalid because the will is signed by an interested witness.
History.
I.C.,§ 15-2-505, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487.
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).
RESEARCH REFERENCES
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.
§ 15-2-506. Choice of law as to execution.
A written will is valid if executed in compliance with section 15-2-502 or 15-2-503[, Idaho Code,] of this Part or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.
History.
I.C.,§ 15-2-506, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section permits probate of wills in this state under certain conditions even if they are not executed in accordance with the formalities of Section 2-502 or 2-503. Such wills must be in writing but otherwise are valid if they meet the requirements for execution of the law of the place where the will is executed (when it is executed in another state or country) or the law of testator’s domicile, abode or nationality at either the time of execution or at the time of death. Thus, if testator is domiciled in state 1 and executes a typed will merely by signing it without witnesses in state 2 while on vacation there, the Court of this state would recognize the will as valid if the law of either state 1 or state 2 permits execution by signature alone. Or if a national of Mexico executes a written will in this state which does not meet the requirements of Section 2-502 but meets the requirements of Mexican law, the will would be recognized as validly executed under this section. The purpose of this section is to provide a wide opportunity for validation of expectations of testators. When the Uniform Probate Code is widely adopted, the impact of this section will become minimal. A similar provision relating to choice of law as to revocation was considered but was not included. Revocation by subsequent instruments are covered. Revocations by act, other than partial revocations, do not cause much difficulty in regard to choice of laws.
§ 15-2-507. Revocation by writing or by act.
A will or any part thereof is revoked:
- By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
- By being burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
- The revocation of a will executed in duplicate may be accomplished by revoking one (1) of the duplicates.
History.
I.C.,§ 15-2-507, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
Revocation of a will may be by either a subsequent will or an act done to the document. If revocation is by a subsequent will, it must be properly executed. This section employs the traditional language which has been interpreted by the courts in many cases. It leaves to the Court the determination of whether a subsequent will which has no express revocation clause is inconsistent with the prior will so as to revoke it wholly or partially, and in the case of an act done to the document the determination of whether the act is a sufficient burning, tearing, canceling, obliteration or destruction and was done with the intent and for the purpose of revoking. The latter necessarily involves exploration of extrinsic evidence, including statements of testator as to intent. The section specifically permits partial revocation. Each Court is free to apply its own doctrine of dependent relative revocation.
The section does not affect present law in regard to the case of accidental destruction which is later confirmed by revocatory intention.
§ 15-2-508. Revocation by divorce — No revocation by other changes of circumstances.
If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of subsection (b) of section 15-2-802[, Idaho Code,] of this code. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
History.
I.C.,§ 15-2-508, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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.
COMMENT TO OFFICIAL TEXT
The section deals with what is sometimes called revocation by operation of law. It provides for revocation by a divorce or annulment only. No other change in circumstances operates to revoke the will; this is intended to change the rule in some states that subsequent marriage or marriage plus birth of issue operates to revoke a will. Of course, a specific devise may be adeemed by transfer of the property during the testator’s lifetime except as otherwise provided in this Code; although this is occasionally called revocation, it is not within the present section. The provisions with regard to invalid divorce decrees parallel those in Section 2-802. Neither this section nor 2-802 includes “divorce from bed and board” as an event which affects devises or marital rights on death.
But see Section 2-204 providing that a complete property settlement entered into after or in anticipation of separation or divorce constitutes a renunciation of all benefits under a prior will, unless the settlement provides otherwise.
Although this Section does not provide for revocation of a will by subsequent marriage of the testator, the spouse may be protected by Section 2-301 or an elective share under Section 2-201.
§ 15-2-509. Revival of revoked will.
- If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 15-2-507[, Idaho Code,] of this chapter, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator’s contemporary or subsequent declarations that he intended the first will to take effect as executed.
- If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
- Republication of a revoked will revives such will.
History.
I.C.,§ 15-2-509, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion in subsection (a) was added by the compiler to conform to the statutory citation style.
COMMENT TO OFFICIAL TEXT
This section adopts a limited revival doctrine. If testator executes will no. 1 and later executes will no. 2, revoking will no. 1 and still later revokes will no. 2 by act such as destruction, there is a question as to whether testator intended to die intestate or have will no. 1 revived as his last will. Under this section will no. 1 can be probated as testator’s last will if his intent to that effect can be established. For this purpose testimony as to his statements at the time he revokes will no. 2 or at a later date can be admitted. If will no. 2 is revoked by a third will, will no. 1 would remain revoked except to the extent that will no. 3 showed an intent to have will no. 1 effective.
§ 15-2-510. Incorporation by reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
History.
I.C.,§ 15-2-510, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section codifies the common-law doctrine of incorporation by reference, except that the sometimes troublesome requirement that the will refer to the document as being in existence when the will was executed has been eliminated.
§ 15-2-511. Testamentary additions to trusts.
-
-
A will may validly devise property to the trustee of a trust established or to be established:
(1)(a) A will may validly devise property to the trustee of a trust established or to be established:
- During the testator’s lifetime by the testator or by the testator and some other person or by some other person, including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts; or
- At the testator’s death by the testator’s devise to the trustee if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust.
- The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
-
A will may validly devise property to the trustee of a trust established or to be established:
(1)(a) A will may validly devise property to the trustee of a trust established or to be established:
- Unless the testator’s will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
- Unless the testator’s will provides otherwise a revocation or termination of the trust before the testator’s death causes the devise to lapse.
History.
I.C.,§ 15-2-511, as added by 1971, ch. 111, § 1, p. 233; am. 1999, ch. 304, § 1, p. 761; am. 2006, ch. 161, § 1, p. 481.
STATUTORY NOTES
Amendments.
The 2006 amendment, by ch. 161, inserted “concurrently with” in subsection (1)(a)(ii).
CASE NOTES
Cited
Salfeety v. Seideman, 127 Idaho 817, 907 P.2d 794 (1995).
RESEARCH REFERENCES
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.
§ 15-2-512. Events of independent significance.
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.
History.
I.C.,§ 15-2-512, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-2-513. Separate writing identifying bequest of tangible property.
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.
History.
I.C.,§ 15-2-513, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
Cited
Allison v. Bradley, 107 Idaho 860, 693 P.2d 1062 (Ct. App. 1984).
COMMENT TO OFFICIAL TEXT
As part of the broader policy of effectuating a testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in his will to a separate document disposing of certain tangible personalty. The separate document may be prepared after execution of the will, so would not come within Section 2-510 on incorporation by reference. It may even be altered from time to time. It need only be either in the testator’s handwriting or signed by him. The typical case would be a list of personal effects and the persons whom the testator desired to take specified items.
Part 6 Rules of Construction
§ 15-2-601. Requirement that devisee survive testator by 120 hours.
A devisee who does not survive the testator by one hundred twenty (120) hours is treated as if he predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.
History.
I.C.,§ 15-2-601, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Heir must survive decedent by 120 hours,§ 15-2-104.
Simultaneous deaths,§ 15-2-613.
CASE NOTES
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).
RESEARCH REFERENCES
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.
§ 15-2-602. Choice of law as to meaning and effect of wills.
The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in his instrument unless the application of that law is contrary to the provisions relating to the elective share described in [sections] 15-2-201 through 15-2-209[, Idaho Code], the provisions relating to the exempt property and allowances described in [sections] 15-2-401 through 15-2-405[, Idaho Code,] or any other public policy of this state otherwise applicable to the disposition.
History.
I.C.,§ 15-2-602, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 6, p. 510; am. 2001, ch. 294, § 7, p. 1036.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
New York Estates, Powers & Trusts Law Sec. 3-5.1(h) and Illinois Probate Act Sec. 896(b) direct respect for a testator’s choice of local law with reference to personal and intangible property situated in the enacting state. This provision goes further and enables a testator to select the law of a particular state for purposes of interpreting his will without regard to the location of property covered thereby. So long as local public policy is accommodated, the section should be accepted as necessary and desirable to add to the utility of wills. Choice of law regarding formal validity of a will is in Sec. 2-506. See also Sections 3-202 and 3-408.
In 1975, the Joint Editorial Board recommended the addition of explicit reference to the elective share described in Article II, Part 2, and the exemptions and allowances described in Article II, Part 4, as embodying policies of this state which may not be circumvented by a testator’s choice of applicable law.
§ 15-2-603. Rules of construction and intention.
The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this Part apply unless a contrary intention is indicated by the will.
History.
I.C.,§ 15-2-603, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Choice of law as to execution,§ 15-2-506.
CASE NOTES
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).
Cited
Howard v. Estate of Howard, 112 Idaho 306, 732 P.2d 275 (1987).
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).
RESEARCH REFERENCES
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.
§ 15-2-604. Construction that will passes all property — After-acquired property.
A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.
History.
I.C.,§ 15-2-604, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
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.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section prevents lapse by death of a devisee before the testator if the devisee is a relative and leaves issue who survives the testator. A relative is one related to the testator by kinship and is limited to those who can inherit under Section 2-103 (through grandparents); it does not include persons related by marriage. Issue include adopted persons and illegitimates to the extent they would inherit from the devisee; see Section 1-201 and 2-109. Note that the section is broader than some existing anti-lapse statutes which apply only to devises to children and other descendants, but is narrower than those which apply to devises to any person. The section is expressly applicable to class gifts, thereby eliminating a frequent source of litigation. It also applies to the so-called “void” gift, where the devisee is dead at the time of execution of the will. This, though contrary to some decisions, seems justified. It still seems likely that the testator would want the issue of a person included in a class term but dead when the will is made to be treated like the issue of another member of the class who was alive at the time the will was executed but who died before the testator.
The five day survival requirement stated in Section 2-601 does not require issue who would be substituted for their parent by this section to survive their parent by any set period.
Section 2-106 describes the method of division when a taking by representation is directed by the Code.
§ 15-2-606. Failure of testamentary provision.
- Except as provided in section 15-2-605[, Idaho Code,] of this Part, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
- Except as provided in section 15-2-605[, Idaho Code,] of this Part, if the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
History.
I.C.,§ 15-2-606, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertions in subsections (a) and (b) were added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
If a devise fails by reason of lapse and the conditions of Section 2-605 are met, the latter section governs rather than this section. There is also a special rule for renunciation contained in Section 2-801; a renounced devise may be governed by either Section 2-605 or the present section, depending on the circumstances.
§ 15-2-607. Change in securities — Accessions — Nonademption.
-
If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
- as much of the devised securities as is a part of the estate at the time of the testator’s death;
- any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options;
- securities of another entity owned by the testator as a result of a merger, consolidation, reorganization or other similar action initiated by the entity; and
- any additional securities of the entity owned by the testator as a result of a plan of reinvestment if it is a regulated investment company.
- Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) of this section are not part of the specific devise.
History.
I.C.,§ 15-2-607, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
The Joint Editorial Board considered amending Subsection (a)(2) so as to exclude additional securities of the same entity that were not acquired by testator as a result of his ownership of the devised securities. It concluded that, in context, the present language is clear enough to make the proposed amendment unnecessary.
Subsection (b) is intended to codify existing law to the effect that cash dividends declared and payable as of a record date occurring before the testator’s death do not pass as a part of the specific devise even though paid after death. See Section 4, Revised Uniform Principal and Income Act.
§ 15-2-608. Nonademption of specific devises in certain cases — Unpaid proceeds of sale, condemnation or insurance — Sale by conservator.
-
A specified devisee has the right to the remaining specifically devised property and:
- Any balance of the purchase price (together with any security interest) owing from a purchaser to the testator at death by reason of sale of the property;
- Any amount of a condemnation award for the taking of the property unpaid at death;
- Any proceeds unpaid at death on fire or casualty insurance on the property; and
- Property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
- If specifically devised property is sold by a conservator, or if a condemnation award or insurance proceeds are paid to a conservator as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if subsequent to the sale, condemnation or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one (1) year. The right of the specific devisee, under this subsection is reduced by any right he has under subsection (a) of this section.
History.
I.C.,§ 15-2-608, as added by 1978, ch. 350, § 9, p. 914.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
In 1975, the Joint Editorial Board recommended a re-ordering of the title of this section and a reversal of the original order of the subsections. This recommendation was designed to correct an unintended interpretation of the section to the effect that all of the events described in subsections (a) and (b) had relevance only when the testator was under a conservatorship. The original intent of the section, made more apparent by this re-ordering, was to prevent ademption in all cases involving sale, condemnation or destruction of specifically devised assets where testator’s death occurred before the proceeds of the sale, condemnation or any insurance, had been paid to the testator.
§ 15-2-609. Nonexoneration.
A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
History.
I.C.,§ 15-2-609, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
See Section 3-814 empowering the personal representative to pay an encumbrance under some circumstances; the last sentence of that section makes it clear that such payment does not increase the right of the specific devisee. The present section governs the substantive rights of the devisee. The common law rule of exoneration of the specific devise is abolished by this section, and the contrary rule is adopted.
For the rule as to exempt property, see Section 2-403.
§ 15-2-610. Exercise of power of appointment.
A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
History.
I.C.,§ 15-2-610, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-2-611. Construction of generic terms to accord with relationships as defined for intestate succession.
Half bloods, adopted persons and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.
History.
I.C.,§ 15-2-611, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
The purpose of this section is to facilitate a modern construction of gifts, usually class gifts, in wills.
§ 15-2-612. Ademption by satisfaction.
Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.
History.
I.C.,§ 15-2-612, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Advancements,§ 15-2-110.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section parallels Section 2-110 on advancements and follows the same policy of requiring written evidence that lifetime gifts are to be taken into account in distribution of an estate, whether testate or intestate. Although Courts traditionally call this “ademption by satisfaction” when a will is involved, and “advancement” when the estate is intestate, the difference in terminology is not significant. Some wills expressly provide for lifetime advances by a hotchpot clause. Where the will is silent, the above section would require either the testator to declare in writing that the gift is an advance or satisfaction or the devisee to acknowledge the same in writing. The second sentence on value accords with Section 2-110 and would apply if property such as stock is given. If the devise is specific, a gift of the specific property during lifetime would adeem the devise by extinction rather than by satisfaction, and this section would be inapplicable. If a devisee to whom an advancement is made predeceases the testator and his issue take under 2-605, they take the same devise as their ancestor; if the devise is reduced by reason of this section as to the ancestor, it is automatically reduced as to his issue. In this respect the rule in testacy differs from that in intestacy; see Section 2-110.
§ 15-2-613. Simultaneous death — Disposition of property.
Subject to extension by the provisions of section 15-2-104[, Idaho Code,] and section 15-2-601[, Idaho Code,] of this code, where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be distributed as if he had survived, except as otherwise provided in this section.
- Where two (2) or more beneficiaries are designated to take successively by reason of survivorship under another person’s distribution of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
- Where there is no sufficient evidence that two (2) joint tenants have died otherwise than simultaneously, the property so held shall be distributed one-half (½) as if one had survived and one-half (½) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
- Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
- This section shall not apply in the case of wills, living trusts, deeds, or contracts of insurance, wherein provision has been made for distribution of property different from the provisions of the section.
- This section shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.
- This section may be cited as the “uniform simultaneous death act.”
History.
I.C.,§ 15-2-613, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertions in the introductory paragraph were added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
RESEARCH REFERENCES
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.
§ 15-2-615. Restriction on charitable devises. [Repealed.]
STATUTORY NOTES
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.
§ 15-2-616. Restriction on devises to nursing home or residential or assisted living facility operators.
A devise or bequest involving either real or personal property, directly or indirectly, to any person who owns, operates or is employed at a nursing home, residential or assisted living facility or any home, including the testator’s home, whether or not licensed, in which the testator was a resident within one (1) year of his death shall be presumed to have been the result of undue influence, rebuttable by clear and convincing evidence. This section shall apply to all property passing by testate succession after July 1, 1983, regardless of when the will was written; provided, this section shall in no way limit or affect the rights of a beneficiary who is related to the testator, or who is a charitable or benevolent society or corporation; provided further that the foregoing limitations shall not apply to wills of persons whose death is caused by accidental means and whose wills are executed prior to the accident which results in death.
History.
I.C.,§ 15-2-616, as added by 1983, ch. 236, § 1, p. 642; am. 1989, ch. 193, § 1, p. 475; am. 1994, ch. 350, § 1, p. 1110; am. 2000, ch. 274, § 1, p. 799.
Part 7 Contractual Arrangements Relating to Death
§ 15-2-701. Contracts concerning succession.
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
History.
I.C.,§ 15-2-701, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
It is the purpose of this section to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states; and in many states if two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both.
This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence prove the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence.
Part 8 General Provisions
§ 15-2-801. Renunciation.
-
- A person or the representative of an incapacitated or unascertained person who is an heir, devisee, person succeeding to a renounced interest, donee, beneficiary under a testamentary or nontestamentary instrument, donee of a power of appointment, grantee, surviving joint owner or surviving joint tenant, beneficiary of an insurance contract, person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument, or otherwise the recipient of any benefit under a testamentary or nontestamentary instrument, may renounce in whole or in part, powers, future interests, specific parts, fractional shares or assets thereof by filing a written instrument within the time and at the place hereinafter provided. (1)(a) A person or the representative of an incapacitated or unascertained person who is an heir, devisee, person succeeding to a renounced interest, donee, beneficiary under a testamentary or nontestamentary instrument, donee of a power of appointment, grantee, surviving joint owner or surviving joint tenant, beneficiary of an insurance contract, person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument, or otherwise the recipient of any benefit under a testamentary or nontestamentary instrument, may renounce in whole or in part, powers, future interests, specific parts, fractional shares or assets thereof by filing a written instrument within the time and at the place hereinafter provided.
-
The instrument shall:
- Describe the property or interest renounced;
- Be signed by the person renouncing; and
- Declare the renunciation and the extent thereof.
- The appropriate court may direct or permit a trustee under a testamentary or nontestamentary instrument to renounce or to deviate from any power of administration, management or allocation of benefit upon finding that exercise of such power may defeat or impair the accomplishment of the purposes of the trust whether by the imposition of tax or the allocation of beneficial interest inconsistent with such purposes. Such authority shall be exercised after hearing and upon notice to all known persons beneficially interested in such trust or estate, in the manner pursuant to part 4, chapter 1, title 15, Idaho Code.
- Except as provided in subsection (9) of [the] this section, the writing specified in subsection (1) of this section must be filed within nine (9) months after the transfer or the death of the decedent, or donee of the power, whichever is the later, or, if the taker of the property is not then finally ascertained, not later than nine (9) months after the event that determines that the taker of the property or interest is finally ascertained or his interest indefeasibly vested. The writing must be filed in the court of the county where proceedings concerning the decedent’s estate are pending, or where they would be pending if commenced. If an interest in real estate is renounced, a copy of the writing may also be recorded in the office of the recorder in the county in which said real estate lies. A copy of the writing also shall be delivered in person or mailed by registered or certified mail to the personal representative of the decedent, the trustee of any trust in which the interest renounced exists, and no such personal representative, trustee or person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the renunciation.
-
Unless the decedent or donee of the power has otherwise indicated, the property or interest renounced passes as if the person renouncing had predeceased the decedent, or if the person renouncing is designated to take under a power of appointment as if the person renouncing had predeceased the donee of the power. A future interest that takes effect in possession or enjoyment after the termination of the estate or interest renounced takes effect as if the person renouncing had predeceased the decedent or the donee of the power. In every case the renunciation relates back for all purposes to the date of death of the decedent or the donee, as the case may be.
(4) The right to renounce property or an interest therein is barred by:
- Assignment, conveyance, encumbrance, pledge or transfer of property therein or any contract therefor;
- Written waiver of the right to renounce; or
- Sale or other disposition of property pursuant to judicial process, made before the renunciation is effective.
(5) The right to renounce granted by this section exists irrespective of any limitation on the interest of the person renouncing in the nature of a spendthrift provision or similar restriction.
(6) The renunciation or the written waiver of the right to renounce is binding upon the person renouncing or person waiving and all persons claiming through or under him.
(7) This section does not abridge the right of any person to assign, convey, release or renounce any property or an interest therein arising under any other statute.
(8) In clarification and amplification of subsection (1)(a) of this section, and to make clear the existing terms thereof, a renunciation may be made by an agent appointed under a power of attorney, by a conservator or guardian on behalf of an incapacitated person, or by the personal representative or administrator of a deceased person. The ability to renounce on behalf of the person does not need to be specifically set forth in a power of attorney if the power is general in nature.
(9) The due date for filing a timely disclaimer under subsection (2) of this section, where the decedent died after December 31, 2009, but before December 17, 2010, shall be not earlier than September 19, 2011.
History.
I.C.,§ 15-2-801, as added by 1978, ch. 173, § 2, p. 395; am. 2000, ch. 182, § 1, p. 450; am. 2011, ch. 106, § 1, p. 271.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
§ 15-2-802. Effect of divorce, annulment, and decree of separation.
- An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.
-
For purposes of parts 1, 2, 3 and 4 of this chapter and of section 15-3-203[, Idaho Code,] of this code, a surviving spouse does not include:
- An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or live together as man and wife;
- An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or
- An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
History.
I.C.,§ 15-2-802, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 7, p. 319; am. 2016, ch. 362, § 1, p. 1068.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
§ 15-2-803. Effect of homicide on distribution at death.
-
- “Slayer” shall mean any person who participates, either as principal or as an accessory before the fact, in the wilful and unlawful killing of any other person. (a)(1) “Slayer” shall mean any person who participates, either as principal or as an accessory before the fact, in the wilful and unlawful killing of any other person.
- “Decedent” shall mean any person whose life is so taken.
- “Property” shall include any real and personal property and any right or interest therein.
- No slayer shall in any way acquire any property or receive any benefit as a result of the death of the decedent, but such property shall pass as provided in the sections [subsections] following.
- The slayer shall be deemed to have predeceased the decedent as to property which would have passed from the decedent or his estate to the slayer under the statutes of descent and distribution or have been acquired by statutory right as surviving spouse or under any agreement made with the decedent.
- Property which would have passed to or for the benefit of the slayer by devise or legacy from the decedent shall be distributed as if he had predeceased the decedent.
- Any community property which would have passed to or for the benefit of the slayer by devise, legacy or intestate succession from the decedent shall be distributed as if he had predeceased the decedent.
- Property in which the slayer holds a reversion of vested remainder and would have obtained the right of present possession upon the death of the decedent shall pass to the estate of the decedent during the period of the life expectancy of decedent; if he held the particular estate or if the particular estate is held by a third person it shall remain in his hands for such period.
- Any interest in property whether vested or not, held by the slayer, subject to be divested, diminished in any way or extinguished, if the decedent survives him or lives to a certain age, shall be held by the slayer during his lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately thereafter.
-
As to any contingent remainder or executory or other future interest held by the slayer, subject to become vested in him or increased in any way for him upon the condition of the death of the decedent:
- If the interest would not have become vested or increased if he had predeceased the decedent, he shall be deemed to have so predeceased the decedent.
- In any case the interest shall not be vested or increased during period of the life expectancy of the decedent.
-
- Property appointed by the will of the decedent to or for the benefit of the slayer shall be distributed as if the slayer had predeceased the decedent. (i)(1) Property appointed by the will of the decedent to or for the benefit of the slayer shall be distributed as if the slayer had predeceased the decedent.
- Property held either presently or in remainder by the slayer, subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment shall pass to the estate of the decedent, and property so held by the slayer, subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons, shall pass to such person or persons, or in equal shares to the members of such class of persons, exclusive of the slayer.
-
- Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance on the life of the decedent, or as the survivor of a joint life policy, shall be paid instead to the estate of the decedent, unless the policy or certificate designate [designates] some person other than the slayer or his estate as secondary beneficiary to him and in which case such proceeds shall be paid to such secondary beneficiary in accordance with the applicable terms of the policy. (2) If the decedent is beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer, unless the policy names some person other than the slayer or his estate as secondary beneficiary, or unless the slayer by naming a new beneficiary or assigning the policy performs an act which would have deprived the decedent of his interest in the policy if he had been living. (j)(1) Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance on the life of the decedent, or as the survivor of a joint life policy, shall be paid instead to the estate of the decedent, unless the policy or certificate designate [designates] some person other than the slayer or his estate as secondary beneficiary to him and in which case such proceeds shall be paid to such secondary beneficiary in accordance with the applicable terms of the policy. (2) If the decedent is beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer, unless the policy names some person other than the slayer or his estate as secondary beneficiary, or unless the slayer by naming a new beneficiary or assigning the policy performs an act which would have deprived the decedent of his interest in the policy if he had been living.
- Any insurance company making payment according to the terms of its policy or any bank or other person performing an obligation for the slayer as one of several joint obligees shall not be subjected to additional liability by the terms of this Part if such payment or performance is made without written notice, at its home office or at an individual’s home or business address, of the killing by a slayer.
- The provisions of this Part shall not affect the rights of any person who, before the interests of the slayer have been adjudicated, purchases or has agreed to purchase, from the slayer for value and without notice, property which the slayer would have acquired except for the terms of this Part, but all proceeds received by the slayer from such sale shall be held by him in trust for the persons entitled to the property under the provisions of this Part, and the slayer shall also be liable both for any portion of such proceeds which he may have dissipated and for any difference between the actual value of the property and the amount of such proceeds.
- The record of his conviction of having participated in the wilful and unlawful killing of the decedent shall be admissible in evidence against a claimant of property in any civil action arising under this Part.
- This section shall not be considered penal in nature, but shall be construed broadly in order to effect the policy of this state that no person shall be allowed to profit by his own wrong, wherever committed.
History.
I.C.,§ 15-2-803, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertions in subsections (b) and (j)(1) were added by the compiler to make the sentences more clear.
CASE NOTES
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.
§ 15-2-804. Revocation of probate and nonprobate transfers by divorce — No revocation by other changes of circumstances.
-
Definitions. In this section:
- “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
- “Divorce or annulment” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 15-2-802, Idaho Code. A decree of separation that does not terminate the status of husband and wife is not a divorce for the purposes of this section.
- “Divorced individual” includes an individual whose marriage has been annulled.
- “Governing instrument” means a governing instrument executed by the divorced individual before the divorce or annulment of his marriage to his former spouse.
- “Relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.
- “Revocable,” with respect to a disposition, appointment, provision or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of his former spouse or former spouse’s relative, whether or not the divorced individual was then empowered to designate himself in place of his former spouse or in place of his former spouse’s relative and whether or not the divorced individual then had the capacity to exercise the power.
-
Revocation Upon Divorce. Except as provided by the express terms of a governing instrument, a court order or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment of a marriage:
-
Revokes any revocable:
- Disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse;
- Provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual’s former spouse or on a relative of the divorced individual’s former spouse; and
- Nomination in a governing instrument, nominating a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian; and
- Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship transforming the interests of the former spouses into equal tenancies in common.
-
Revokes any revocable:
- Effect of Severance. A severance under subsection (b)(2) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property, which records are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
- Effect of Revocation. Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
- Revival. Provisions revoked solely by this section are revived by the divorced individual’s remarriage to the former spouse or by the divorce or annulment being set aside.
- No Revocation for Other Change of Circumstances. No change of circumstances other than as described in this section and in section 15-2-803 effects a revocation.
-
Protection of Payors and Other Third Parties.
- A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
- Written notice of the divorce, annulment or remarriage under paragraph (1) of this subsection must be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
-
Protection of Bona Fide Purchasers — Personal Liability of Recipient.
- A person who purchases property from a former spouse, relative of a former spouse, or any other person for value and without notice, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property or benefit, nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
History.
(2) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. History.
I.C.,§ 15-2-804, as added by 2016, ch. 362, § 2, p. 1068.
COMMENT TO OFFICIAL TEXT
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.
Part 9 Custody and Deposit of Wills
§ 15-2-901. [Reserved.]
After the death of the testator, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and [or,] if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
History.
I.C.,§ 15-2-902, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
§ 15-2-902. Duty of custodian of will — Liability.
Part 10 Will Registry
§ 15-2-1001. Will registry.
The secretary of state shall create and maintain a will registry. The information contained in such registry shall include: the full name of the person making the will; the date the will was made; and sufficient identification of the location of the will at the time of registration. The method of registration shall be on a form required by the secretary of state. The fee for registration shall be ten dollars ($10.00) which shall be deposited by the secretary of state in the general fund. The secretary of state shall not be liable in any way for the accuracy of the information contained in the registry. The existence, or nonexistence, of a registration for a particular will shall not be considered as an evidentiary fact in any proceeding relating to such will. The failure to file information about a will in the registry shall not be a factor in the validity of the will, nor shall the failure to file be considered as malpractice on the part of any attorney as to the will. Only interested persons as defined in section 15-1-201, Idaho Code, or their attorneys may search the records contained herein. The secretary of state shall not be liable for the accuracy of the representation of the interested person or the interested person’s attorney.
History.
I.C.,§ 15-2-1001, as added by 2000, ch. 181, § 1, p. 450.
Chapter 3 PROBATE OF WILLS AND ADMINISTRATION
Part 1. General Provisions
Sec.
Part 2. Venue for Probate and Administration — Priority to Administer — Demand for Notice
Part 3. Informal Probate and Appointment Proceedings
15-3-303A. Notice required.
15-3-303B. In personam jurisdiction. [Repealed.]
Part 4. Formal Testacy and Appointment Proceedings
Part 5. Supervised Administration
Part 6. Personal Representative — Appointment, Control and Termination of Authority
15-3-618. Termination of appointment — Special administrator. Part 7. Duties and Powers of Personal Representatives
Part 8. Creditors’ Claims
Part 9. Special Provisions Relating to Distribution
15-3-907A. Deceased beneficiary as heir.
Part 10. Closing Estates
Part 11. Compromise of Controversies
Part 12. Collection of Personal Property by Affidavit and Summary Administration Procedure for Small Estates
Part 13. Uniform Estate Tax Apportionment
Part 1 General Provisions
§ 15-3-101. Devolution of estate at death — Restrictions.
The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, his separate property devolves to the persons to whom it is devised by his last will, or to those indicated as substitutes for them in cases involving lapse, renunciation or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting the devolution of intestate estates, and upon the death of a husband or wife, the decedent’s share of their community property devolves to the persons to whom it is devised by his last will, or in the absence of testamentary disposition, to the surviving spouse, but all of their community property which is under the management and control of the decedent is subject to his debts and administration, and that portion of their community property which is not under the management and control of the decedent but which is necessary to carry out the provisions of his will is subject to administration; but the devolution of all the above described property is subject to rights to homestead allowance, exempt property, to renunciation to rights of creditors, elective share of the surviving spouse and to administration.
History.
I.C.,§ 15-3-101, as added by 1971, ch. 111, § 1, p. 233; am. 2014, ch. 134, § 1, p. 369.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
[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:
- 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.
- 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.
- 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.
- A five day waiting period from death preventing informal probate or informal appointment of any but a special administrator is required.
- 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.
- 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.
- 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.
- 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.
- 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.
§ 15-3-102. Necessity of order of probate for will.
Except as provided in section 15-3-1201[, Idaho Code,] of this code, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred, and (2) either the devisee or his successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.
History.
I.C.,§ 15-3-102, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
§ 15-3-103. Necessity of appointment for administration.
Except as otherwise provided in chapter 4[, title 5, Idaho Code,] of this code, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters.
History.
I.C.,§ 15-3-103, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section makes it clear that appointment by a public official is required before one can acquire the status of personal representative. “Qualification” is dealt with in Section 3-601. “Letters” are the subject of Section 1-305. Section 3-701 is also related, since it deals with the time of accrual of duties and powers of personal representatives.
See§ 3-108 for the time limit on requests for appointment of personal representatives.
In Article IV [Chapter 4], Sections 4-204 and 4-205 permit a personal representative from another state to obtain the powers of one appointed locally by filing evidence of his authority with a local Court.
§ 15-3-104. Claims against decedent — Necessity of administration.
No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this chapter. After distribution a creditor whose claim has not been barred may recover from the distributees as provided in section 15-3-1004[, Idaho Code,] of this code or from a former personal representative individually liable as provided in section 15-3-1005[, Idaho Code,] of this code. This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.
History.
I.C.,§ 15-3-104, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This and sections of Part 8, Article III [Chapter 3], are designed to force creditors of decedents to assert their claims against duly appointed personal representatives. Creditors of a decedent are interested persons who may seek the appointment of a personal representative (Section 3-301). If no appointment is granted to another within 45 days after the decedent’s death, a creditor may be eligible to be appointed if other persons with priority decline to serve or are ineligible (Section 3-203). But, if a personal representative has been appointed and has closed the estate under circumstances which leave a creditor’s claim unbarred, the creditor is permitted to enforce his claims against distributees, as well as against the personal representative if any duty owed to creditors under 3-807 or 3-1003 has been breached. The methods for closing estates are outlined in Sections 3-1001 through 3-1003. Termination of appointment under Section 3-608 et seq. may occur though the estate is not closed and so may be irrelevant to the question of whether creditors may pursue distributees.
§ 15-3-105. Proceedings affecting devolution and administration — Jurisdiction of subject matter.
Persons interested in decedents’ estates may apply to the registrar for determination in the informal proceedings provided in this chapter, and may petition the court for orders in formal proceedings within the court’s jurisdiction including but not limited to those described in this chapter. The court has exclusive jurisdiction of formal proceedings to determine how decedents’ estates subject to the laws of this state are to be administered, expended and distributed.
History.
I.C.,§ 15-3-105, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
Cited
Olson v. Kirkham, 111 Idaho 34, 720 P.2d 217 (Ct. App. 1986).
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).
COMMENT TO OFFICIAL TEXT
This and other sections of Article III [Chapter 3] contemplate a non-judicial officer who will act on informal application and a judge who will hear and decide formal petitions. See Section 1-307 which permits the judge to perform or delegate the functions of the Registrar. However, the primary purpose of Article III [Chapter 3] is to describe functions to be performed by various public officials, rather than to prescribe how these responsibilities should be assigned within a given state or county. Hence, any of several alternatives to the organizational scheme assumed for purposes of this draft would be acceptable.
For example, a state might assign responsibility for maintenance of probate files and records, and for receiving and acting upon informal applications, to existing, limited power probate offices. Responsibility for hearing and deciding formal petitions would then be assigned to the court of general jurisdiction of each county or district.
If separate courts or offices are not feasible, it may be preferable to concentrate authority for allocating responsibility respecting formal and informal proceedings in the judge. To do so helps fix responsibility for the total operation of the office. This is the assumption of this draft.
It will be up to each adopting state to select the organizational arrangement which best meets its needs.
If the office with jurisdiction to hear and decide formal petitions is the county or district court of general jurisdiction, there will be little basis for objection to the broad statement of concurrent jurisdiction of this section. However, if a more specialized “estates” court is used, there may be pressure to prevent it from hearing negligence and other actions involving jury trials, even though it may be given unlimited power to decide other cases to which a personal representative is a party. A system for certifying matters involving jury trials to the general trial court could be provided, although the alternative of permitting the estates court to empanel juries where necessary might not be unworkable. In any event, the jurisdiction of the “estates” or “probate” Court in regard to negligence litigation would only be concurrent with that of the general trial court. The important point is that the estates court, whatever it is called, should have unlimited power to hear and finally dispose of all matters relevant to determination of the extent of the decedent’s estate and of the claims against it. The jury trial question is peripheral.
See the comment to the next section regarding adjustments which might be made in the Code by a state with a single court of general jurisdiction for each county or district.
§ 15-3-106. Civil litigation — Notice.
Subject to general rules concerning the proper location of civil litigation and jurisdiction of persons, the court may herein determine any other controversy concerning a succession or to which an estate, through a personal representative, may be a party. Persons notified are bound though less than all interested persons may have been given notice.
History.
I.C.,§ 15-3-106, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
§ 15-3-107. Scope of proceedings — Proceedings independent — Exception.
Unless supervised administration as described in Part 5, chapter 3, [title 15, Idaho Code,] of this code is involved, (1) each proceeding before the court or registrar is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of this chapter, no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
History.
I.C.,§ 15-3-107, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section and others in Article III [Chapter 3] describe a system of administration of decedents’ estates which gives interested persons control of whether matters relating to estates will become occasions for judicial orders. Sections 3-501 through 3-505 describe supervised administration, a judicial proceeding which is continuous throughout administration. It corresponds with the theory of administration of decedents’ estates which prevails in many states. See, section 62, Model Probate Code. If supervised administration is not requested, persons interested in an estate may use combinations of the formal proceedings (order by judge after notice to persons concerned with the relief sought), informal proceedings (request for the limited response that non-judicial personnel of the probate court are authorized to make in response to verified application) and filings provided in the remaining Parts of Article III [Chapter 3] to secure authority and protection needed to administer the estate. Nothing except self-interest will compel resort to the judge. When resort to the judge is necessary or desirable to resolve a dispute or to gain protection, the scope of the proceeding if not otherwise prescribed by the Code is framed by the petition. The securing of necessary jurisdiction over interested persons in a formal proceeding is facilitated by Sections 3-106 and 3-602. Section 3-201 locates venue for all proceedings at the place where the first proceeding occurred.
§ 15-3-108. Probate — Testacy and appointment proceedings — Ultimate time limit.
No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator’s domicile and appointment proceedings relating to an estate in which there has been a prior appointment or proceedings under section 15-3-1201, Idaho Code, or section 15-3-1205, Idaho Code, may be commenced more than three (3) years after the decedent’s death, except:
- If a previous proceeding was dismissed because of doubt about the fact of the decedent’s death, appropriate probate, appointment or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent’s death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding;
- Appropriate probate, appointment or testacy proceedings may be maintained in relation to the estate of an absent, disappeared or missing person for whose estate a conservator has been appointed, at any time within three (3) years after the conservator becomes able to establish the death of the protected person; and
- A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of twelve (12) months from the informal probate or three (3) years from the decedent’s death.
These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate or to proceedings under section 15-3-1201, Idaho Code, or section 15-3-1205, Idaho Code. In cases under subsection (1) or (2) of this section, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent’s death for purposes of other limitations provisions of this code which relate to the date of death.
History.
I.C.,§ 15-3-108, as added by 1971, ch. 111, § 1, p. 233; am. 2014, ch. 264, § 1, p. 659.
STATUTORY NOTES
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).
RESEARCH REFERENCES
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.
§ 15-3-109. Statutes of limitation on decedent’s cause of action.
No statute of limitation running on a cause of action belonging to a decedent which had not been barred as of the date of his death, shall apply to bar a cause of action surviving the decedent’s death sooner than four (4) months after death. A cause of action which, but for this section, would have been barred less than four (4) months after death, is barred after four (4) months unless tolled.
History.
I.C.,§ 15-3-109, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-110. Delivery of will. [Repealed.]
STATUTORY NOTES
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.
§ 15-3-111. Joint probate on death of survivor of marriage dissolved by death.
In cases in which a marital community has been dissolved by the death of either spouse at any time, the survivor was then entitled to all of the property of the decedent by will, law, or both, and the survivor died before any proceeding had been commenced for the probate of the estate of the spouse whose death occurred first, the estates of both decedents may be joined for probate in a single proceeding in any court having jurisdiction of the estate of the spouse whose death occurred last. The three (3) year provision of section 15-3-108, Idaho Code, applies only to the death of the spouse whose death occurred last. The initial application or petition filed in any such joint proceeding shall contain a statement of the facts upon which such joint proceeding is based, in addition to all other statements required by this code to be made therein.
History.
1973, ch. 26, § 1, p. 50; am. 1995, ch. 168, § 1, p. 651.
STATUTORY NOTES
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.
CASE NOTES
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).
Part 2 Venue for Probate and Administration — Priority to Administer — Demand for Notice
§ 15-3-201. Venue for first and subsequent estate proceedings — Location of property.
-
Venue for the first informal or formal testacy or appointment proceedings after a decedent’s death is:
- In the county where the decedent had his domicile at the time of his death; or
- If the decedent was not domiciled in this state, in any county where property of the decedent was located at the time of his death.
- Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in section 15-1-303[, Idaho Code,] of this code or subsection (c) of this section.
- If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
- For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
History.
I.C.,§ 15-3-201, as added by 1971, ch. 111, § 1, p. 233; am. 2009, ch. 11, § 4, p. 14.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Sections 1-303 and 3-201 cover the subject of venue for estate proceedings. Sections 3-202, 3-301, 3-303 and 3-309 also may be relevant. Provisions for transfer of venue appear in Section 1-303.
The interplay of these several sections may be illustrated best by examples:
Example 1. A formal probate or appointment proceeding is initiated in A County. Interested persons who believe that venue is in B County rather than A County must raise their question about venue in A County, because 1-303 gives the Court in which the proceeding is first commenced authority to resolve disputes over venue. If the Court in A County erroneously determines that it has venue, the remedy is by appeal.
Example 2. An informal probate or appointment application is filed and granted without notice in A County. If interested persons wish to challenge the registrar’s determination of venue, they may not simply file a formal proceeding in the county of their choice and thus force the proponent in the prior proceeding to debate the question of venue in their county. 3-201(b) locates the venue of any subsequent proceeding where the first proceeding occurred. The function of subsection (b) is obvious when one thinks of subsequent proceedings as those which relate to claims or accounts, or to efforts to control a personal representative. It is less obvious when it seems to locate the forum for squabbles over venue at the place accepting the first informal application. Still, the applicant seeking an informal order must be careful about the statements he makes in his application because he may be charged with perjury under Section 1-310 if he is deliberately inaccurate. Moreover, the registrar must be satisfied that the allegations in the application support a finding of venue. Section 3-201(c) provides a remedy for one who is upset about the venue-locating impact of a prior order in an informal proceeding and who does not wish to engage in full litigation about venue in the forum chosen by the other interested person unless he is forced to do so. Using it, he may succeed in getting the A County Court to transfer the proceedings to the county of his choice. He would be well advised to initiate formal proceedings if he gets the chance, for if he relies on informal proceedings, he, too, may be “bumped” if the judge in B County agrees with some movant that venue was not in B County.
Example 3. If the decedent’s domicile was not in the state, venue is proper under Sections 3-201 and 1-303 in any county where he had assets.
One contemplating starting administration because of the presence of local assets should have several other sections of the Code in mind. First, by use of the recognition provisions in Article IV [Chapter 4], it may be possible to avoid administration in any state other than that in which the decedent was domiciled. Second, Section 3-203 may apply to give priority for local appointment to the representative appointed at domicile. Third, under Section 3-309, informal appointment proceedings in this state will be dismissed if it is known that a personal representative has been previously appointed at domicile.
§ 15-3-202. Appointment or testacy proceedings — Conflicting claim of domicile in another state.
If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this state.
History.
I.C.,§ 15-3-202, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Foreign personal representatives,§ 15-4-201 et seq.
RESEARCH REFERENCES
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.
§ 15-3-203. Priority among persons seeking appointment as personal representative.
-
Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
- the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
- the surviving spouse of the decedent who is a devisee of the decedent;
- other devisees of the decedent;
- the surviving spouse of the decedent;
- other heirs of the decedent;
- forty-five (45) days after the death of the decedent, any creditor;
- if a petition for appointment of a personal representative has been filed and sixty (60) days have elapsed during which no consent to act has been filed by any proper person, the public administrator shall act as personal representative unless and until a proper person consents to act.
-
An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (a) of this section apply except that
- if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
- in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord any suitable person.
- A person entitled to letters under (2) through (5) of subsection (a) of this section may nominate a qualified person to act as personal representative. Any person aged eighteen (18) and over may renounce his right to an appointment by appropriate writing filed with the court. When two (2) or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.
- Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another’s appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
- Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
-
No person is qualified to serve as a personal representative who is:
- under the age of eighteen (18);
- a person whom the court finds unsuitable in formal proceedings.
- A personal representative appointed by a court of the decedent’s domicile has priority over all other persons except where the decedent’s will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
- This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
- A married woman shall have the right to serve as personal representative.
History.
I.C.,§ 15-3-203, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 8, p. 510.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
In re Estate of Mattson, 99 Idaho 24, 576 P.2d 1058 (1978).
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
The priorities applicable to informal proceedings are applicable to formal proceedings. However, if the proceedings are formal, a person with a substantial interest may object to the selection of one having priority other than because of will provisions. The provision for majority approval which is triggered by such a protest can be handled in a formal proceeding since all interested persons will be before the court, and a judge capable of handling discretionary matters, will be involved. In considering this section as it relates to a devise to a trustee for various beneficiaries, it is to be noted that “interested persons” is defined by 1-201(20) [(25)] to include fiduciaries. Also, 1-403(2) [15-1-403(b)] and 3-912 show a purpose to make trustees serve as representatives of all beneficiaries. The provision in subsection (d) is consistent.
If a state’s statutes recognize a public administrator or public trustee as the appropriate agency to seek administration of estates in which the state may have an interest, it would be appropriate to indicate in this section the circumstances under which such an officer may seek administration. If no officer is recognized locally, the state could claim as heir by virtue of Section 2-105.
Subsection (g) was inserted in connection with the decision to abandon the effort to describe ancillary administration in Article IV [Chapter 4]. Other provisions in Article III [Chapter 3] which are relevant to administration of assets in a state other than that of the decedent’s domicile are Section 1-301 (territorial effect), Section 3-201 (venue), Section 3-308 (informal appointment for non-resident decedent delayed 30 days), Section 3-309 (no informal appointment here if a representative has been appointed at domicile), Section 3-815 (duty of personal representative where administration is more than one state) and Sections 4-201 — 4-205 (local recognition of foreign personal representatives).
The meaning of “spouse” is determined by Section 2-802.
§ 15-3-204. Demand for notice of order or filing concerning decedent’s estate.
Any person desiring notice of any order or filing pertaining to a decedent’s estate in which he has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in section 15-1-401[, Idaho Code,] of this code to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.
History.
I.C.,§ 15-3-204, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
Cited
Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981); State, Dept. of Health & Welfare v. Estate of Elliott (In re Estate of Elliott), 141 Idaho 177, 108 P.3d 324 (2005).
COMMENT TO OFFICIAL TEXT
The notice required as the result of demand under this section is regulated as far as time and manner requirements are concerned by Section 1-401.
This section would apply to any order which might be made in a supervised administration proceeding.
Part 3 Informal Probate and Appointment Proceedings
§ 15-3-301. Informal probate or appointment proceedings — Application — Contents.
Applications for informal probate, informal statement of intestacy where the estate is community and there is a surviving spouse, or informal appointment shall be directed to the registrar, and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the following information:
-
Every application for informal probate of a will, informal statement of intestacy where the estate is community and there is a surviving spouse, or for informal appointment of a personal representative, other than a special, ancillary or successor representative, shall contain the following:
- A statement of the interest of the applicant;
- The name, and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;
- If the decedent was not domiciled in the state at the time of his death, a statement showing venue;
- A statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated;
- A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere;
- If the application is for an informal statement of intestacy of a community estate where there is a surviving spouse, an affidavit of the surviving spouse or someone acting on behalf of the surviving spouse that there is no will, that the decedent’s estate consists solely of community property of the decedent and surviving spouse, that he or she is the surviving spouse, and a request for a statement that there is no will, that all assets are community and that the surviving spouse is the sole heir;
- That the time limit for informal probate or appointment as provided in this article has not expired either because three (3) years or less have passed since the decedent’s death, or, if more than three (3) years from death have passed, that circumstances as described by section 15-3-108[, Idaho Code,] of this code authorizing tardy probate appointment have occurred.
-
An application for informal probate of a will shall state the following in addition to the statements required by subsection (a) of this section:
- That the original of the decedent’s last will is in the possession of the court, or accompanies the application, or that a certified copy of a will probated in another jurisdiction accompanies the application;
- That the applicant, to the best of his knowledge, believes the will to have been validly executed;
- That after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent’s last will.
- An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address and priority for appointment of the person whose appointment is sought.
-
An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by subsection (a) of this section:
- That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under section 15-1-301[, Idaho Code,] of this code, or, a statement why any such instrument of which he may be aware is not being probated;
- The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under section 15-3-203[, Idaho Code,] of this code.
- An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.
- An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in subsection (c) of section 15-3-610[, Idaho Code,] of this code, or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
- By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against him.
- Any statement entered upon an application for informal statement of intestacy where the estate is community and there is a surviving spouse shall contain a statement of heirship setting out the heirs of the decedent and shall have the same effect as entry of a statement of informal probate of a will and be subject to the limitation periods set out in section 15-3-108, Idaho Code, notwithstanding the exception provided in that section for determining heirs of an intestate.
History.
I.C.,§ 15-3-301, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. 1978, ch. 350, § 10, p. 914; am. 1995, ch. 166, § 1, p. 648.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Forcing one who seeks informal probate or informal appointment to make oath before a public official concerning the details required of applications should deter persons who might otherwise misuse the no-notice feature of informal proceedings. The application is available as a part of the public record. If deliberately false representation is made, remedies for fraud will be available to injured persons without specified time limit (see Article I [Chapter 1]). The section is believed to provide important safeguards that may extend well beyond those presently available under supervised administration for persons damaged by deliberate wrongdoing.
Section 1-310 deals with verification.
In 1975, the Joint Editorial Board recommended the addition of subsection (b) [(g)] to reflect an improvement accomplished in the first enactment in Idaho. The addition, which is a form of long-arm provision that affects everyone who acts as an applicant in informal proceedings, in conjunction with Section 1-106 provides a remedy in the Court against anyone who might make known misstatements in an application. The addition is not needed in the case of an applicant who becomes a personal representative as a result of his application for the implied consent provided in Section 3-602 would cover the matter. Also, the requirement that the applicant state that time limits on informal probate and appointment have not run, formerly appearing as (iv) [(4)] under paragraph (2) [(b)] was expanded to refer to informal appointment and moved into (1) [(a)]. Correcting an oversight in the original text, this change coordinates the statements required in an application with the limitations provisions of Section 3-108.
§ 15-3-302. Informal probate — Duty of registrar — Effect of informal probate.
Upon receipt of an application requesting informal probate of a will or informal statement of intestacy, the registrar, upon making the findings required by section 15-3-303[, Idaho Code,] of this chapter shall issue a written statement of informal probate if at least five (5) days have elapsed since the decedent’s death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.
History.
I.C.,§ 15-3-302, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. 1973, ch. 167, § 8, p. 319.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.
CASE NOTES
Cited
Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).
COMMENT TO OFFICIAL TEXT
Model Probate Code Sections 68 and 70 contemplate probate by judicial order as the only method of validating a will. This “umbrella” section and the sections it refers to describe an alternative procedure called “informal probate.” It is a statement of probate by the Registrar. A succeeding section describes cases in which informal probate is to be denied. “Informal probate” is subjected to safeguards which seem appropriate to a transaction which has the effect of making a will operative and which may be the only official reaction concerning its validity. “Informal probate,” it is hoped, will serve to keep the simple will which generates no controversy from becoming involved in truly judicial proceedings. The procedure is very much like “probate in common form” as it is known in England and some states.
§ 15-3-303. Informal probate — Proof and findings required.
-
In an informal proceeding for original probate of a will or informal statement of intestacy where the estate is community and there is a surviving spouse, the registrar shall determine whether:
- The application is complete;
- The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
- The applicant appears from the application to be an interested person as defined in subsection (25) of section 15-1-201, Idaho Code;
- On the basis of the statements in the application, venue is proper;
- An original, duly executed and apparently unrevoked will is in the registrar’s possession;
- Any notice required by section 15-3-204, Idaho Code, has been given and that the application is not within section 15-3-304, Idaho Code;
- It appears from the application that the time limit for original probate has not expired; and
- If the application is for a statement of intestacy of a community estate with a surviving spouse, on the basis of statements in the application and affidavit: 1. the decedent left no will, 2. the decedent’s estate consists solely of community property of the decedent and the surviving spouse, and 3. the decedent left a surviving spouse. In addition to this, the registrar shall set out the name of the surviving spouse.
- The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or, except as provided in subsection (d) of this section, if it appears that this or another will of the decedent has been the subject of a previous probate order.
- A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under section 15-2-502, 15-2-503 or 15-2-506, Idaho Code, have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
- Informal probate of a will that has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
- A will from a place that does not provide for probate of a will after death, and that is not eligible for probate under subsection (a) of this section, may be probated in this state upon receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
History.
I.C.,§ 15-3-303, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. 1973, ch. 167, § 19, p. 319; am. 2020, ch. 82, § 3, p. 174. STATUTORY NOTES
Amendments.
The 2020 amendment, by ch. 82, in subsection (a), substituted “subsection (25) of section 15-1-201, Idaho Code” for “subsection (25) of section 15-1-201 of this code” in paragraph (3), in paragraph (6), substituted “section 15-3-204, Idaho Code” for “section 15-3-204 of this code” near the beginning and substituted “section 15-3-304, Idaho Code” for “section 15-3-304 of this part, and” at the end; and substituted “Idaho Code” for “of this code” near the end of the first sentence in subsection (c).
CASE NOTES
Cited
Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).
COMMENT TO OFFICIAL TEXT
The purpose of this section is to permit informal probate of a will which, from a simple attestation clause, appears to have been executed properly. It is not necessary that the will be notarized as is the case with “pre-proved” wills in some states. If a will is “pre-proved” as provided in Article II [Chapter 2], it will, of course, “appear” to be well executed and include the recital necessary for easy probate here. If the instrument does not contain a proper recital by attesting witnesses, it may be probated informally on the strength of an affidavit by a person who can say what occurred at the time of execution.
Except where probate or its equivalent has occurred previously in another state, informal probate is available only where an original will exists and is available to be filed. Lost or destroyed wills must be established in formal proceedings. See Section 3-402. Under Section 3-401, pendency of formal probate proceedings blocks informal probate or appointment proceedings.
§ 15-3-303A. Notice required. — Upon issuance of a statement of informal probate if no letters are issued to a personal representative or determination of heirship of community property, the applicant must give notice to all heirs and devisees of the admission of the will to probate or the determination of heirship of community property. This information shall be sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. The applicant shall be responsible to any heir or devisee damaged by failure of the applicant to give proper notice under this section.
History.
I.C.,§ 15-3-303A, as added by 1972, ch. 201, § 9, p. 510; am. 1973, ch. 167, § 9, p. 319.
CASE NOTES
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).
§ 15-3-303B. In personam jurisdiction. [Repealed.]
STATUTORY NOTES
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.
§ 15-3-304. Informal probate — Unavailable in certain cases.
Applications for informal probate which relate to one (1) or more of a known series of testamentary instruments (other than a will and one (1) or more codicils thereto), the latest of which does not expressly revoke the earlier, shall be declined.
History.
I.C.,§ 15-3-304, as added by 1971, ch. 111, § 1, p. 233; am. 2015, ch. 76, § 1, p. 198.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
The Registrar handles the informal proceeding, but is required to decline applications in certain cases where circumstances suggest that formal probate would provide desirable safeguards.
§ 15-3-305. Informal probate — Registrar not satisfied.
If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of sections 15-3-303 and 15-3-304[, Idaho Code,] of this Part or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
History.
I.C.,§ 15-3-305, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.
CASE NOTES
Cited
Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).
COMMENT TO OFFICIAL TEXT
The purpose of this section is to recognize that the Registrar should have some authority to deny probate to an instrument even though all stated statutory requirements may be said to have been met. Denial of an application for informal probate cannot be appealed. Rather, the proponent may initiate a formal proceeding so that the matter may be brought before the judge in the normal way for contested matters.
§ 15-3-306. Informal probate — Notice requirements.
The moving party must give notice as described by section 15-1-401[, Idaho Code,] of this code of his application for informal probate (1) to any person demanding it pursuant to section 15-3-204[, Idaho Code,] of this code; and (2) to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.
History.
I.C.,§ 15-3-306, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
Cited
Cahoon v. Seaton, 102 Idaho 542, 633 P.2d 607 (1981).
COMMENT TO OFFICIAL TEXT
This provision assumes that there will be a single office within each county or other area of jurisdiction of the probate court which can be checked for demands for notice relating to estates in that area. If there are or may be several registrars within a given area, provision would need to be made so that information concerning demands for notice might be obtained from the chief registrar’s place of business.
§ 15-3-307. Informal appointment proceedings — Delay in order — Duty of registrar — Effect of appointment.
- Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 15-3-614[, Idaho Code,] of this code, if at least one hundred twenty (120) hours have elapsed since the decedent’s death, the registrar, after making the findings required by section 15-3-308[, Idaho Code,] of this chapter, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a nonresident, the registrar shall delay the order of appointment until thirty (30) days have elapsed since death unless the personal representative appointed at the decedent’s domicile is the applicant, or unless the decedent’s will directs that his estate be subject to the laws of this state.
- The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in sections 15-3-608 through 15-3-612[, Idaho Code,] of this code, but is not subject to retroactive vacation.
History.
I.C.,§ 15-3-307, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
Section 3-703 describes the duty of a personal representative and the protection available to one who acts under letters issued in informal proceedings. The provision requiring a delay of 30 days from death before appointment of a personal representative for a nonresident decedent is new. It is designed to permit the first appointment to be at the decedent’s domicile. See Section 3-203.
§ 15-3-308. Informal appointment proceedings — Proof and findings required.
-
In informal appointment proceedings, the registrar must determine whether:
- The application for informal appointment of a personal representative is complete;
- The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
- The applicant appears from the application to be an interested person as defined in subsection (25) of section 15-1-201, Idaho Code;
- On the basis of the statements in the application, venue is proper;
- Any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
- Any notice required by section 15-3-204, Idaho Code, has been given;
- From the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
- Unless section 15-3-612, Idaho Code, controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in subsection (c) of section 15-3-610, Idaho Code, has been appointed in this or another county of this state, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this state, and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
History.
I.C.,§ 15-3-308, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 20, p. 319; am. 2020, ch. 82, § 4, p. 174.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
Sections 3-614 and 3-615 make it clear that a special administrator may be appointed to conserve the estate during any period of delay in probate of a will. Even though the will has not been approved, Section 3-614 gives priority for appointment as special administrator to the person nominated by the will which has been offered for probate. Section 3-203 governs priorities for appointment. Under it, one or more of the same class may receive priority through agreement of the others. The last sentence of the section is designed to prevent informal appointment of a personal representative in this state when a personal representative has been previously appointed at the decedent’s domicile. Sections 4-204 and 4-205 may make local appointment unnecessary. Appointment in formal proceedings is possible, however.
§ 15-3-309. Informal appointment proceedings — Registrar not satisfied.
If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of sections 15-3-307 and 15-3-308[, Idaho Code,] of this Part, or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
History.
I.C.,§ 15-3-309, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.
COMMENT TO OFFICIAL TEXT
Authority to decline an application for appointment is conferred on the Registrar. Appointment of a personal representative confers broad powers over the assets of a decedent’s estate. The process of declining a requested appointment for unclassified reasons should be one which a registrar can use quickly and informally.
§ 15-3-310. Informal appointment proceedings — Notice requirements.
The moving party must give notice as described by section 15-1-401[, Idaho Code,] of this code of his intention to seek an appointment informally: (1) to any person demanding it pursuant to section 15-3-204[, Idaho Code,] of this code; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required.
History.
I.C.,§ 15-3-310, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-3-311. Informal appointment unavailable in certain cases.
If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the registrar shall decline the application.
History.
I.C.,§ 15-3-311, as added by 1971, ch. 111, § 1, p. 233.
Part 4 Formal Testacy and Appointment Proceedings
§ 15-3-401. Formal testacy proceedings — Nature — When commenced.
A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in subsection (a) of section 15-3-402[, Idaho Code,] of this Part in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or to set aside a determination that the entire estate is community and there is a surviving spouse, or a petition in accordance with subsection (c) of section 15-3-402[, Idaho Code,] of this Part for an order that the decedent died intestate.
A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
History.
I.C.,§ 15-3-401, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 11, p. 510.
STATUTORY NOTES
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.
RESEARCH REFERENCES
ALR.
Right to probate subsequent discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.
COMMENT TO OFFICIAL TEXT
The word “testacy” is used to refer to the general status of a decedent in regard to wills. Thus, it embraces the possibility that he left no will, any question of which of several instruments is his valid will, and the possibility that he died intestate as to a part of his estate, and testate as to the balance. See Section 1-201 (44) [§ 15-1-201(52)].
The formal proceedings described by this section may be: (i) an original proceeding to secure “solemn form” probate of a will; (ii) a proceeding to secure “solemn form” probate to corroborate a previous informal probate; (iii) a proceeding to block a pending application for informal probate, or to prevent an informal application from occurring thereafter; (iv) a proceeding to contradict a previous order of informal probate; (v) a proceeding to secure a declaratory judgment of intestacy and a determination of heirs in a case where no will has been offered. If a pending informal application for probate is blocked by a formal proceeding, the applicant may withdraw his application and avoid the obligation of going forward with prima facie proof of due execution. See Section 3-407. The petitioner in the formal proceedings may be content to let matters stop there, or he can frame his petition, or amend, so that he may secure an adjudication of intestacy which would prevent further activity concerning the will.
If a personal representative has been appointed prior to the commencement of a formal testacy proceeding, the petitioner must request confirmation of the appointment to indicate that he does not want the testacy proceeding to have any effect on the duties of the personal representative, or refrain from seeking confirmation, in which case, the proceeding suspends the distributive power of the previously appointed representative. If nothing else is requested or decided in respect to the personal representative, his distributive powers are restored at the completion of the proceeding, with Section 3-703 directing him to abide by the will. “Distribute” and “distribution” do not include payment of claims. See Sections 1-201(10) [§ 15-1-201(12)], 3-807 and 3-902.
§ 15-3-402. Formal testacy or appointment proceedings — Petition — Contents.
-
Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing and contain further statements as indicated in this section. A petition for formal probate of a will:
- requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
- contains the statements required for informal applications as stated in subsection (a)(1) through (5) of section 15-3-301[, Idaho Code,] of this code, the statements required by subsection (b)(1) and (2) of section 15-3-301[, Idaho Code,] of this code; and
- states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
- If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
- A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by subsection[s] (a) and (d) of section 15-3-301[, Idaho Code,] of this code and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subsection (d)(2) of section 15-3-301[, Idaho Code,] of this code may be omitted.
History.
I.C.,§ 15-3-402, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
ALR.
Probate of copy of lost will as precluding later contest of will under doctrine of res judicata. 55 A.L.R.3d 755.
COMMENT TO OFFICIAL TEXT
If a petitioner seeks an adjudication that a decedent died intestate, he is required also to obtain a finding of heirship. A formal proceeding which is to be effective on all interested persons must follow reasonable notice to such persons. It seems desirable to force the proceedings through a formal determination of heirship because the finding will bolster the order, as well as preclude later questions that might arise at the time of the distribution.
Unless an order of supervised administration is sought, there will be little occasion for a formal order concerning appointment of a personal representative which does not also adjudicate the testacy status of the decedent. If a formal order of appointment is sought because of disagreement over who should serve, Section 3-414 describes the appropriate procedure.
The words “otherwise unavailable” in subsection (b) are not intended to be read restrictively.
Section 1-310 expresses the verification requirement which applies to all documents filed with the Courts.
§ 15-3-403. Formal testacy proceeding — Notice of hearing on petition.
- Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by section 15-1-401[, Idaho Code,] of this code by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under section 15-3-204[, Idaho Code] of this code.
-
If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on said petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
- By inserting in one (1) or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
- By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
- By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
Notice shall be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons.
History.
I.C.,§ 15-3-403, as added by 1971, ch. 111, § 1, p. 233; am. 2008, ch. 75, § 1, p. 200.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
§ 15-3-404. Formal testacy proceedings — Written objections to probate.
Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.
History.
I.C.,§ 15-3-404, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
Model Probate Code section 72 requires a contestant to file written objections to any will he would oppose. The provision prevents potential confusion as to who must file what pleading that can arise from the notion that the probate of a will is in rem. The petition for probate of a revoking will is sufficient warning to proponents of the revoked will.
§ 15-3-405. Formal testacy proceedings — Uncontested cases — Hearings and proof.
If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of section 15-3-409[, Idaho Code,] of this Part have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one (1) of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
History.
I.C.,§ 15-3-405, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
For various reasons, attorneys handling estates may want interested persons to be gathered for a hearing before the Court on the formal allowance of the will. The Court is not required to conduct a hearing, however.
If no hearing is required, uncontested formal probates can be completed on the strength of the pleadings. There is no good reason for summoning attestors when no interested person wants to force the production of evidence on a formal probate. Moreover, there seems to be no valid distinction between litigation to establish a will, and other civil litigation, in respect to whether the court may enter judgment on the pleadings.
§ 15-3-406. Formal testacy proceedings — Contested cases — Testimony of attesting witnesses.
- If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one (1) of the attesting witnesses, if within the state competent and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.
- If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery.
History.
I.C.,§ 15-3-406, as added by 1971, ch. 111, § 1, p. 233; am. 1972, ch. 201, § 12, p. 510.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
Model Probate Code section 76, combined with section 77, substantially unchanged. The self-proved will is described in Article II [Chapter 2]. See Section 2-504. The “conclusive presumption” described here would foreclose questions such as whether the witnesses signed in the presence of the testator. It would not preclude proof of undue influence, lack of testamentary capacity, revocation or any relevant proof that the testator was unaware of the contents of the document. The balance of the section is derived from Model Probate Code sections 76 and 77.
§ 15-3-407. Formal testacy proceedings — Burdens in contested cases.
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
History.
I.C.,§ 15-3-407, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section is designed to clarify the law by stating what is believed to be a fairly standard approach to questions concerning burdens of going forward with evidence in will contest cases.
§ 15-3-408. Formal testacy proceedings — Will construction — Effect of final order in another jurisdiction.
A final order of a court of another state determining testacy, [or] the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
History.
I.C.,§ 15-3-408, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the beginning of the section was added by the compiler to make the section more readable.
COMMENT TO OFFICIAL TEXT
This section is designed to extend the effect of final orders of another jurisdiction of the United States. It should not be read to restrict the obligation of the local court to respect the judgment of another court when parties who were personally before the other court also are personally before the local court. An “authenticated copy” includes copies properly certified under the full faith and credit statute. If conflicting claims of domicile are made in proceedings which are commenced in different jurisdictions, Section 3-202 applies. This section is framed to apply where a formal proceeding elsewhere has been previously concluded. Hence, if a local proceeding is concluded before formal proceedings at domicile are concluded, local law will control.
Informal proceedings by which a will is probated or a personal representative is appointed are not proceedings which must be respected by a local court under either Section 3-202 or this section.
Nothing in this section bears on questions of what assets are included in a decedent’s estate.
This section adds nothing to existing law as applied to cases where the parties before the local court were also personally before the foreign court, or where the property involved was subject to the power of the foreign court. It extends present law so that, for some purposes, the law of another state may become binding in regard to due execution or revocation of wills controlling local land, and to questions concerning the meaning of ambiguous words in wills involving local land. But, choice of law rules frequently produce a similar result. See § 240 Restatement of the Law, Second: Conflict of Laws, p. 73, Proposed Official Draft III, 1969.
This section may be easier to justify than familiar choice of law rules, for its application is limited to instances where the protesting party has had notice of, and an opportunity to participate in, previous litigation resolving the question he now seeks to raise.
§ 15-3-409. Formal testacy proceedings — Order — Foreign will — Lost will.
After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper and that the proceeding was commenced within the limitation prescribed by section 15-3-108[, Idaho Code,] of this code, it shall determine the decedent’s domicile at death, his heirs and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by section 15-3-612[, Idaho Code,] of this code. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death, may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place. When a lost will is established, the provisions thereof must be found by the court and the findings filed and recorded as other wills are filed and recorded.
History.
I.C.,§ 15-3-409, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Model Probate Code section 80(a), slightly changed. If the court is not satisfied that the alleged decedent is dead, it may permit amendment of the proceeding so that it would become a proceeding to protect the estate of a missing and therefore “disabled” person. See Article V [Chapter 5] of this Code.
§ 15-3-410. Formal testacy proceedings — Probate of more than one instrument.
If two (2) or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one (1) instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one (1) instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of section 15-3-412[, Idaho Code,] of this Part.
History.
I.C.,§ 15-3-410, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.
RESEARCH REFERENCES
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.
§ 15-3-411. Formal testacy proceedings — Partial intestacy.
If it becomes evident in the course of a formal testacy proceeding that though one (1) or more instruments are entitled to be probated, the decedent’s estate is or may be partially intestate, the court shall enter an order to that effect.
History.
I.C.,§ 15-3-411, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-412. Formal testacy proceedings — Effect of order — Vacation.
Subject to appeal and subject to vacation as provided herein and in section 15-3-413[, Idaho Code,] of this part, a formal testacy order under sections 15-3-409 through 15-3-411[, Idaho Code,] of this part, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent’s estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
- The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication.
- If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one (1) or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his death or were given no notice of any proceeding concerning his estate, except by publication.
-
A petition for vacation under either subsection (1) or (2) of this section must be filed prior to the earlier of the following time limits:
- If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six (6) months after the filing of the closing statement.
- Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by section 15-3-108[, Idaho Code,] of this code when it is no longer possible to initiate an original proceeding to probate a will of the decedent.
- Twelve (12) months after the entry of the order sought to be vacated.
- The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs.
- The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under subsection (2) of section 15-3-403[, Idaho Code,] of this part was made.
If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.
History.
I.C.,§ 15-3-412, as added by 1971, ch. 111, § 1, p. 233; am. 2008, ch. 75, § 2, p. 201.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
The provisions barring proof of late-discovered wills is derived in part from section 81 of Model Probate Code. The same section is the source of the provisions of (5) above. The provisions permitting vacation of an order determining heirs on certain conditions reflect the effort to offer parallel possibilities for adjudications in testate and intestate estates. See Section 3-401. An objective is to make it possible to handle an intestate estate exactly as a testate estate may be handled. If this is achieved, some of the pressure on persons to make wills may be relieved. If an alleged decedent turns out to have been alive, heirs and distributees are liable to restore the “estate or its proceeds.” If neither can be identified through the normal process of tracing assets, their liability depends upon the circumstances. The liability of distributees to claimants whose claims have not been barred, or to persons shown to be entitled to distribution when a formal proceeding changes a previous assumption informally established which guided an earlier distribution, is different. See Sections 3-909 and 3-1004.
§ 15-3-413. Formal testacy proceedings — Vacation of order for other cause.
For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
History.
I.C.,§ 15-3-413, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-414. Formal proceedings concerning appointment of personal representative.
- A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by section 15-3-402[, Idaho Code,] of this Part, as well as by this section. In other cases, the petition shall contain or adopt the statements required by subsection (a) of section 15-3-301[, Idaho Code,] of this code and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.
- After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under section 15-3-203[Idaho Code,] of this code, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under section 15-3-611[, Idaho Code,] of this code.
History.
I.C.,§ 15-3-414, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
A petition raising a controversy concerning the priority or qualifications of a personal representative may be combined with a petition in a formal testacy proceeding. However, it is not necessary to petition formally for the appointment of a personal representative as a part of a formal testacy proceeding. A personal representative may be appointed on informal application either before or after formal proceedings which establish whether the decedent died testate or intestate or no appointment may be desired. See Sections 3-107, 3-301(a)(3) [§ 15-3-301(c)] and 3-307. Furthermore, procedures for securing the appointment of a new personal representative after a previous assumption as to testacy has been changed are provided by Section 3-612. These may be informal, or related to pending formal proceedings concerning testacy. A formal order relating to appointment may be desired when there is a dispute concerning priority or qualification to serve but no dispute concerning testacy. It is important to distinguish formal proceedings concerning appointment from “supervised administration.” The former includes any proceeding after notice involving a request for an appointment. The latter originates in a “formal proceeding” and may be requested in addition to a ruling concerning testacy or priority or qualifications of a personal representative, but is descriptive of a special proceeding with a different scope and purpose than those concerned merely with establishing the bases for an administration. In other words, a personal representative appointed in a “formal” proceeding may or may not be “supervised.” Another point should be noted. The Court may not immediately issue letters even though a formal proceeding seeking appointment is involved and results in an order authorizing appointment. Rather, Section 3-601 et seq. control the subject of qualification. Section 1-305 deals with letters.
Part 5 Supervised Administration
§ 15-3-501. Supervised administration — Nature of proceeding.
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent’s estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this Part, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.
History.
I.C.,§ 15-3-501, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
Cited
In re Estate of Irwin, 99 Idaho 543, 585 P.2d 953 (1978); Spencer v. Idaho First Nat’l Bank, 106 Idaho 316, 678 P.2d 108 (Ct. App. 1984); Kunzler v. First Interstate Bank, 108 Idaho 374, 699 P.2d 1388 (1985).
COMMENT TO OFFICIAL TEXT
This and the following sections of this Part describe an optional procedure for settling an estate in one continuous proceeding in the Court. The proceeding is characterized as “in rem” to align it with the concepts described by the Model Probate Code. See Section 62, M.P.C. In cases where supervised administration is not requested or ordered, no compulsion other than self-interest exists to compel use of a formal testacy proceeding to secure an adjudication of a will or no will, because informal probate or appointment of an administrator in intestacy may be used. Similarly, unless administration is supervised, there is no compulsion other than self-interest to use a formal closing proceeding. Thus, even though an estate administration may be begun by use of a formal testacy proceeding which may involve an order concerning who is to be appointed personal representative, the proceeding is over when the order concerning testacy and appointment is entered. See Section 3-107. Supervised administration, therefore, is appropriate when an interested person desires assurance that the essential steps regarding opening and closing of an estate will be adjudicated. See the Comment following the next section.
§ 15-3-502. Supervised administration — Petition — Order.
A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. After notice to interested persons, the court shall order supervised administration of a decedent’s estate: (1) if the decedent’s will directs supervised administration, it shall be ordered unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration; (2) if the decedent’s will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that supervised administration is necessary under the circumstances.
History.
I.C.,§ 15-3-502, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
The expressed wishes of a testator regarding supervised administration should bear upon, but not control, the question of whether supervised administration will be ordered. This section is designed to achieve a fair balance between the wishes of the decedent, and the interests of successors in regard to supervised administration.
Since supervised administration normally will result in an adjudicated distribution of the estate, the issue of will or no will must be adjudicated. This section achieves this by forcing a petition for supervised administration to include matters necessary to put the issue of testacy before the Court. It is possible, however, that supervised administration will be requested because administrative complexities warranting it develop after the issue of will or no will has been resolved in a previously concluded formal testacy proceeding.
It should be noted that supervised administration, though it compels a judicial settlement of an estate, is not the only route to obtaining judicial review and settlement at the close of an administration. The procedures described in Sections 3-1101 and 3-1102 are available for use by or against personal representatives who are not supervised. Also efficient remedies for breach of duty by a personal representative who is not supervised are available under Part 6 of this Article [Chapter]. Finally, each personal representative consents to jurisdiction of the Court as invoked by mailed notice of any proceeding relating to the estate which may be initiated by an interested person. Also, persons interested in the estate may be subjected to orders of the Court following mailed notices made in proceedings initiated by the personal representative. In combination, these possibilities mean that supervised administration will be valuable principally to persons who see some advantage in a single judicial proceeding which will produce adjudications on all major points involved in an estate settlement.
§ 15-3-503. Supervised administration — Effect on other proceedings.
- The pendency of a proceeding for supervised administration of a decedent’s estate stays action on any informal application then pending or thereafter filed.
- If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by section 15-3-401[, Idaho Code,] of this code.
- After he has received notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.
History.
I.C.,§ 15-3-503, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
The duties and powers of personal representative are described in Part 7 of this Article [Chapter]. The ability of a personal representative to create a good title in a purchaser of estate assets is not hampered by the fact that the personal representative may breach a duty created by statute, court order or other circumstances in making the sale. See Section 3-715. However, formal proceedings against a personal representative may involve requests for qualification of the power normally possessed by personal representatives which, if granted, would subject the personal representative to the penalties for contempt of Court if he disregarded the restriction. See Section 3-607. If a proceeding also involved a demand that particular real estate be kept in the estate pending determination of a petitioner’s claim thereto, notice of the pendency of the proceeding could be recorded as is usual under the jurisdiction’s system for the lis pendens concept.
The word “restricts” in the last sentence is intended to negate the idea that a judicial order specially qualifying the powers and duties of a personal representative is a restraining order in the usual sense. The section means simply that some supervised personal representatives may receive the same powers and duties as ordinary personal representatives, except that they must obtain a Court order before paying claimants or distributing, while others may receive a more restricted set of powers. Section 3-607 governs petitions which seek to limit the power of a personal representative.
§ 15-3-504. Supervised administration — Powers of personal representative.
Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this code, but he shall not exercise his power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be indorsed on his letters of appointment and, unless so indorsed, is ineffective as to persons dealing in good faith with the personal representative.
History.
I.C.,§ 15-3-504, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section provides authority to issue letters showing restrictions of power of supervised administrators. In general, persons dealing with personal representatives are not bound to inquire concerning the authority of a personal representative, and are not affected by provisions in a will or judicial order unless they know of it. But, it is expected that persons dealing with personal representatives will want to see the personal representative’s letters, and this section has the practical effect of requiring them to do so. No provision is made for noting restrictions in letters except in the case of supervised representatives. See Section 3-715.
§ 15-3-505. Supervised administration — Interim orders — Distribution and closing orders.
Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices and contents of orders prescribed for proceedings under section 15-3-1001[, Idaho Code,] of this code. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person.
History.
I.C.,§ 15-3-505, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
Since supervised administration is a single proceeding, the notice requirement contained in Section 3-106 relates to the notice of institution of the proceedings which is described with particularity by Section 3-502. The above section makes it clear that an additional notice is required for a closing order. It was discussed whether provision for notice of interim orders should be included. It was decided to leave the point to be covered by court order or rule. There was a suggestion for a rule as follows: “Unless otherwise required by order, notice of interim orders in supervised administration need be given only to interested persons who request notice of all orders entered in the proceeding.” Section 1-402 permits any person to waive notice by a writing filed in the proceeding.
A demand for notice under Section 3-204 would entitle any interested person to notice of any interim order which might be made in the course of supervised administration.
Part 6 Personal Representative — Appointment, Control and Termination of Authority
§ 15-3-601. Qualification.
Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office. In his statement of acceptance, the personal representative shall subscribe an oath to the effect that he will perform the duties of his office according to the law.
History.
I.C.,§ 15-3-601, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Time of accrual of powers and duties,§ 15-3-701.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This and related sections of this Part describe details and conditions of appointment which apply to all personal representatives without regard to whether the appointment proceeding involved is formal or informal, or whether the personal representative is supervised. Section 1-305 authorizes issuance of copies of letters and prescribes their content. The section should be read with Section 3-504 which directs endorsement on letters of any restrictions of power of a supervised administrator.
§ 15-3-602. Acceptance of appointment — Consent to jurisdiction.
By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to him by ordinary first class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
History.
I.C.,§ 15-3-602, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
Except for personal representatives appointed pursuant to Section 3-502, appointees are not deemed to be “officers” of the appointing court or to be parties in one continuous judicial proceeding that extends until final settlement. See Section 3-107. Yet, it is desirable to continue present patterns which prevent a personal representative who might make himself unavailable to service within the state from affecting the power of the appointing court to enter valid orders affecting him. See Michigan Trust Co. v. Ferry, 33 S. Ct. 550, 228 U.S. 346, 57 L. Ed. 867 (1912). The concept employed to accomplish this is that of requiring each appointee to consent in advance to the personal jurisdiction of the Court in any proceeding relating to the estate that may be instituted against him. The section requires that he be given notice of any such proceeding, which, when considered in the light of the responsibility he has undertaken, should make the procedure sufficient to meet the requirements of due process.
§ 15-3-603. Bond not required without court order — Exceptions.
No bond is required of a personal representative appointed in informal proceedings, except (1) upon the appointment of a special administrator; (2) when an executor or other personal representative is appointed to administer an estate under a will containing an express requirement of bond or (3) when bond is required under section 15-3-605[, Idaho Code,] of this chapter. Bond may be required by court order at the time of appointment of a personal representative appointed in any formal proceeding except that bond is not required of a personal representative appointed in formal proceedings if the will relieves the personal representative of bond, unless bond has been requested by an interested party and the court is satisfied that it is desirable. Bond required by any will may be dispensed with in formal proceedings upon determination by the court that it is not necessary. No bond is required of any personal representative who, pursuant to statute, has deposited cash or collateral with an agency of this state to secure performance of his duties. No bond will be required of any domestic bank or trust company.
History.
I.C.,§ 15-3-603, as added by 1971, ch. 111, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section must be read with the next three sections. The purpose of these provisions is to move away from the idea that bond always should be required of a probate fiduciary, or required unless a will excuses it. Also, it is designed to keep the registrar acting pursuant to applications in informal proceedings, from passing judgment in each case on the need for bond. The point is that the court and registrar are not responsible for seeing that personal representatives perform as they are supposed to perform. Rather, performance is coerced by the remedies available to interested persons. Interested persons are protected by their ability to demand prior notice of informal proceedings (Section 3-204), to contest a requested appointment by use of a formal testacy proceeding or by use of a formal proceeding seeking the appointment of another person. Section 3-105 gives general authority to the court in a formal proceeding to make appropriate orders as desirable incident to estate administration. This should be sufficient to make it clear that an informal application may be blocked by a formal petition which disputes the matters stated in the petition. Furthermore, an interested person has the remedies provided in Sections 3-605 and 3-607. Finally, interested persons have assurance under this Code that their rights in respect to the values of a decedent’s estate cannot be terminated without a judicial order after notice or before the passage of three years from the decedent’s death. It is believed that the total package of protection thus afforded may represent more real protection than a blanket requirement of bond. Surely, it permits a reduction in the procedures which must occur in uncomplicated estates where interested persons are perfectly willing to trust each other and the fiduciary.
§ 15-3-604. Bond amount — Security — Procedure — Reduction.
If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the registrar indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and he shall execute and file a bond with the registrar, or give other suitable security, in an amount not less than the estimate. The registrar shall determine that the bond is duly executed by a corporate surety, or one (1) or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property or other adequate security. The registrar may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in section 15-6-101[, Idaho Code,] of this code) in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.
History.
I.C.,§ 15-3-604, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section permits estimates of value needed to fix the amount of required bond to be filed when it becomes necessary. A consequence of this procedure is that estimates of value of estates no longer need appear in the petitions and applications which will attend every administered estate. Hence, a measure of privacy that is not possible under most existing procedures may be achieved. A co-signature arrangement might constitute adequate security within the meaning of this section.
§ 15-3-605. Demand for bond by interested person.
Any person apparently having an interest in the estate worth in excess of one thousand dollars ($1,000), or any creditor having a claim in excess of one thousand dollars ($1,000), may make a written demand that a personal representative give bond. The demand must be filed with the clerk of the court and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate, or if bond is excused as provided in section 15-3-603 or 15-3-604 [, Idaho Code,] of this Part. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty (30) days after receipt of notice is cause for his removal and appointment of a successor personal representative.
History.
I.C.,§ 15-3-605, as added by 1971, ch. 111, § 1, p. 233; am. 1974, ch. 199, § 2, p. 1516.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
The demand for bond described in this section may be made in a petition or application for appointment of a personal representative, or may be made after a personal representative has been appointed. The mechanism for compelling bond is designed to function without unnecessary judicial involvement. If demand for bond is made in a formal proceeding, the judge can determine the amount of bond to be required with due consideration for all circumstances. If demand is not made in formal proceedings, methods for computing the amount of bond are provided by statute so that the demand can be complied with without resort to judicial proceedings. The information which a personal representative is required by Section 3-705 to give each beneficiary includes a statement concerning whether bond has been required.
§ 15-3-606. Terms and conditions of bonds.
-
The following requirements and provisions apply to any bond required by this Part:
- Bonds shall name the state of Idaho as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.
- Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
- By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.
- On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
- The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
- No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
History.
I.C.,§ 15-3-606, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-3-607. Order restraining personal representative.
- On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
- The matter shall be set for hearing within ten (10) days unless the parties otherwise agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.
- If any person is suspected of having concealed, embezzled, or smuggled, laid away or disposed of any moneys, goods, or chattels of the decedent or to have in his possession or subject to his knowledge, any deeds, conveyances, bonds, contracts, or other writings, or any personal estate, or any other claim or demand or any last will of the decedent, such person may be ordered to appear, examined on oath and held to account upon such matters.
History.
I.C.,§ 15-3-607, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
Cf. Section 3-401 which provides for a restraining order against a previously appointed personal representative incident to a formal testacy proceeding. The above section describes a remedy which is available for any cause against a previously appointed personal representative, whether appointed formally or informally.
This remedy, in combination with the safeguards relating to the process for appointment of a personal representative, permit “control” of a personal representative that is believed to be equal, if not superior to, that presently available with respect to “supervised” personal representatives appointed by inferior courts. The request for a restraining order may mark the beginning of a new proceeding but the personal representative, by the consent provided in Section 3-602, is practically in the position of one who, on motion, may be cited to appear before a judge.
§ 15-3-608. Termination of appointment — General.
Termination of appointment of a personal representative occurs as indicated in sections 15-3-609 through 15-3-612[, Idaho Code], inclusive, of this Part. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.
History.
I.C.,§ 15-3-608, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
“Termination,” as defined by this and succeeding provisions, provides definiteness respecting when the powers of a personal representative (who may or may not be discharged by court order) terminate. It is to be noted that this section does not relate to jurisdiction over the estate in proceedings which may have been commenced against the personal representative prior to termination. In such cases, a substitution of successor or special representative should occur if the plaintiff desires to maintain his action against the estate.
It is important to note that “termination” is not “discharge.” However, an order of the Court entered under 3-1001 or 3-1002 both terminates the appointment of, and discharges, a personal representative.
§ 15-3-609. Termination of appointment — Death or disability.
The death of a personal representative or the appointment of a conservator for the estate of a personal representative, terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.
History.
I.C.,§ 15-3-609, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
See Section 3-718, which establishes the rule that a surviving co-executor may exercise all powers incident to the office unless the will provides otherwise. Read together, this section and Section 3-718 mean that the representative of a deceased co-representative would not have any duty or authority in relation to the office held by his decedent.
§ 15-3-610. Termination of appointment — Voluntary.
- An appointment of a personal representative terminates as provided in section 15-3-1003[, Idaho Code,] of this code, one (1) year after the filing of a closing statement.
- An order closing an estate as provided in section 15-3-1001 or 15-3-1002[, Idaho Code,] of this code terminates an appointment of a personal representative.
- A personal representative may resign his position by filing a written statement of resignation with the registrar after he has given at least fifteen (15) days’ written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him.
History.
I.C.,§ 15-3-610, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
Subparagraph (c) above provides a procedure for resignation by a personal representative which may occur without judicial assistance.
§ 15-3-611. Termination of appointment by removal — Cause — Procedure.
- A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in section 15-3-607[, Idaho Code,] of this Part, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
- Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent’s will directs otherwise, a personal representative appointed at the decedent’s domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.
History.
I.C.,§ 15-3-611, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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.
§ 15-3-612. Termination of appointment — Change of testacy status.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in section 15-3-401[, Idaho Code,] of this code. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty (30) days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.
History.
I.C.,§ 15-3-612, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section and Section 3-401 describe the relationship between formal or informal proceedings which change a previous assumption concerning the testacy of the decedent, and a previously appointed personal representative. The basic assumption of both sections is that an appointment, with attendant powers of management, is separable from the basis of appointment; i.e., intestate or testate?; what will is the last will? Hence, a previously appointed personal representative continues to serve in spite of formal or informal proceedings that may give another a prior right to serve as personal representative. But, if the testacy status is changed in formal proceedings, the petitioner also may request appointment of the person who would be entitled to serve if his assumption concerning the decedent’s will prevails. Provision is made for a situation where all interested persons are content to allow a previously appointed personal representative to continue to serve even though another has a prior right because of a change relating to the decedent’s will. It is not necessary for the continuing representative to seek reappointment under the new assumption for Section 3-703 is broad enough to require him to administer the estate as intestate, or under a later probated will, if either status is established after he was appointed. Under Section 3-403, notice of a formal testacy proceeding is required to be given to any previously appointed personal representative. Hence, the testacy status cannot be changed without notice to a previously appointed personal representative.
§ 15-3-613. Successor personal representative.
Parts 3 and 4 of this chapter govern proceedings for appointment of a personal representative to succeed one (1) whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.
History.
I.C.,§ 15-3-613, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Powers of personal representative,§ 15-3-711.
§ 15-3-614. Special administrator — Appointment.
A special administrator may be appointed:
- Informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in section 15-3-609[, Idaho Code,] of this Part;
- In a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.
History.
I.C.,§ 15-3-614, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of subsection (a) was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
The appointment of a special administrator other than one appointed pending original appointment of a general personal representative must be handled by the Court. Appointment of a special administrator would enable the estate to participate in a transaction which the general personal representative could not, or should not, handle because of conflict of interest. If a need arises because of temporary absence or anticipated incapacity for delegation of the authority of a personal representative, the problem may be handled without judicial intervention by use of the delegation powers granted to personal representatives by Section 3-715(21).
§ 15-3-615. Special administrator — Who may be appointed.
- If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available, and qualified.
- In other cases, any proper person may be appointed special administrator.
History.
I.C.,§ 15-3-615, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
In some areas of the country, particularly where wills cannot be probated without full notice and hearing, appointment of special administrators pending probate is sought almost routinely. The provisions of this Code concerning informal probate should reduce the number of cases in which a fiduciary will need to be appointed pending probate of a will. Nonetheless, there will be instances where contests begin before probate and where it may be necessary to appoint a special administrator. The objective of this section is to reduce the likelihood that contestants will be encouraged to file contests as early as possible simply to gain some advantage via having a person who is sympathetic to their cause appointed special administrator. Most will contests are not successful. Hence, it seems reasonable to prefer the named executor as special administrator where he is otherwise qualified.
§ 15-3-616. Special administrator — Appointed informally — Powers and duties.
A special administrator appointed by the registrar in informal proceedings pursuant to subsection (a) of section 15-3-614[, Idaho Code,] of this Part has the duty to collect and manage the assets of the estate, to preserve them, to account therefor and to deliver them to the general personal representative upon his qualification. The special administrator has the power of a personal representative under this code necessary to perform his duties.
History.
I.C.,§ 15-3-616, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-3-617. Special administrator — Formal proceedings — Powers and duties.
A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts or on other terms as the court may direct.
History.
I.C.,§ 15-3-617, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
§ 15-3-618. Termination of appointment — Special administrator.
The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in sections 15-3-608 through 15-3-611[, Idaho Code,] of this Part.
History.
I.C.,§ 15-3-618, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
Part 7 Duties and Powers of Personal Representatives
§ 15-3-701. Time of accrual of duties and powers.
Duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
History.
I.C.,§ 15-3-701, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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].
§ 15-3-702. Priority among different letters.
A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
History.
I.C.,§ 15-3-702, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
The qualification relating to “modification” of an appointment is intended to refer to the change that may occur in respect to the exclusive authority of one with letters upon later appointment of a co-representative or of a special administrator. The sentence concerning erroneous dual appointment is derived from recent New York legislation. See Section 704, Surrogate’s Court Procedure Act [McKinney’s SCPA 704].
Erroneous appointment of a second personal representative is possible if formal proceedings after notice are employed. It might be desirable for a state to promulgate a system whereby a notation of letters issued by each county probate office would be relayed to a central record keeping office which, in turn, could indicate to any other office whether letters for a particular decedent, perhaps identified by social security number, had been issued previously. The problem can arise even though notice to known interested persons and by publication is involved.
§ 15-3-703. General duties — Relation and liability to persons interested in estate — Standing to sue.
- A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by section 15-7-302[, Idaho Code,] of this code. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this code, the terms of the will, if any, and any order in proceedings to which he is party for the best interests of successors to the estate.
- A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children and any pretermitted child of the decedent as described elsewhere in this code.
- Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at his death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as his decedent had immediately prior to death.
History.
I.C.,§ 15-3-703, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This and the next section are especially important sections for they state the basic theory underlying the duties and powers of personal representatives. Whether or not a personal representative is supervised, this section applies to describe the relationship he bears to interested parties. If a supervised representative is appointed, or if supervision of a previously appointed personal representative is ordered, an additional obligation to the court is created. See Section 3-501.
Pursuant to subsection (a), a personal representative has a duty to settle and distribute the estate as expeditiously and efficiently as is consistent with the best interests of the estate. While this duty includes an obligation to ascertain the beneficiaries of the estate, it does not require the personal representative to delay distribution pending the possible birth of a posthumously conceived child. A delay is appropriate only if the personal representative has (1) received notice or has knowledge that there is an intention to use the decedent’s genetic material to create a child and (2) the birth of the child could have an effect on distribution of the decedent’s estate. Should the personal representative properly distribute the estate and a posthumously conceived child is later born, any remedy the child might have is against the other beneficiaries, and not the personal representative. See Sections 3-909, 3-1005.
The fundamental responsibility of a personal representative is that of a trustee. Unlike many trustees, a personal representative’s authority is derived from appointment by the public agency known as the Court. But, the Code also makes it clear that the personal representative, in spite of the source of his authority, is to proceed with the administration, settlement and distribution of the estate by use of statutory powers and in accordance with statutory directions. See Sections 3-107 and 3-704. Subsection (b) is particularly important, for it ties the question of personal liability for administrative or distributive acts to the question of whether the act was “authorized at the time.” Thus, a personal representative may rely upon and be protected by a will which has been probated without adjudication or an order appointing him to administer which is issued in no-notice proceedings even though proceedings occurring later may change the assumption as to whether the decedent died testate or intestate. See Section 3-302 concerning the status of a will probated without notice and Section 3-102 concerning the ineffectiveness of an unprobated will. However, it does not follow from the fact that the personal representative distributed under authority that the distributees may not be liable to restore the property or values received if the assumption concerning testacy is later changed. See Sections 3-909 and 3-1004. Thus, a distribution may be “authorized at the time” within the meaning of this section, but be “improper” under the latter section.
Paragraph (c) is designed to reduce or eliminate differences in the amenability to suit of personal representatives appointed under this Code and under traditional assumptions. Also, the subsection states that so far as the law of the appointing forum is concerned, personal representatives are subject to suit in other jurisdictions. It, together with various provisions of Article IV [Chapter 4], are designed to eliminate many of the present reasons for ancillary administrations.
§ 15-3-704. Personal representative to proceed without court order — Exception.
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but he may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate or its administration.
History.
I.C.,§ 15-3-704, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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
This section is intended to confer authority on the personal representative to initiate a proceeding at any time when it is necessary to resolve a question relating to administration. Section 3-105 grants broad subject matter jurisdiction to the probate court which covers a proceeding initiated for any purpose other than those covered by more explicit provisions dealing with testacy proceedings, proceedings for supervised administration, proceedings concerning disputed claims and proceedings to close estates.
§ 15-3-705. Duty of personal representative — Information to heirs and devisees.
Not later than thirty (30) days after his appointment every personal representative, except any special administrator, shall give information of his appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The personal representative’s failure to give this information is a breach of his duty to the persons concerned but does not affect the validity of his appointment, his powers or other duties. A personal representative may inform other persons of his appointment by delivery or ordinary first class mail.
History.
I.C.,§ 15-3-705, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section requires the personal representative to inform persons who appear to have an interest in the estate as it is being administered, of his appointment. Also, it requires the personal representative to give notice to persons who appear to be disinherited by the assumption concerning testacy under which the personal representative was appointed. The communication involved is not to be confused with the notice requirements relating to litigation. The duty applies even though there may have been a prior testacy proceeding after notice, except that persons who have been adjudicated to be without interest in the estate are excluded. The rights, if any, of persons in regard to estates cannot be cut off completely except by the running of the three year statute of limitations provided in Section 3-108, or by a formal judicial proceeding which will include full notice to all interested persons. The interests of some persons may be shifted from rights to specific property of the decedent to the proceeds from sale thereof, or to rights to values received by distributees. However, such a shift of protected interest from one thing to another, or to funds or obligations, is not new in relation to trust beneficiaries. A personal representative may initiate formal proceedings to determine whether persons, other than those appearing to have interests, may be interested in the estate, under Section 3-401 or, in connection with a formal closing, as provided by Section 3-1001. No information or notice is required by this section if no personal representative is appointed.
In any circumstance in which a fiduciary accounting is to be prepared, preparation of an accounting in conformity with the Uniform Principles and Model Account Formats promulgated by the National Fiduciary Accounting Project shall be considered as an appropriate manner of presenting a fiduciary account. See ALIABA Monograph, Whitman, Brown and Kramer, Fiduciary Accounting Guide (2nd edition 1990).
§ 15-3-706. Duty of personal representative — Inventory and appraisement.
Within three (3) months after his appointment, a personal representative, except for a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.
The personal representative shall send a copy of the inventory to interested persons who request it, and he may file the original of the inventory with the court.
History.
I.C.,§ 15-3-706, as added by 1971, ch. 111, § 1, p. 233; am. 1971, ch. 126, § 1, p. 487; am. 1973, ch. 167, § 10, p. 319; am. 2004, ch. 55, § 2, p. 253.
CASE NOTES
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).
RESEARCH REFERENCES
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.
§ 15-3-707. Employment of appraisers.
The personal representative may employ a qualified and disinterested appraiser to assist him in ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.
History.
I.C.,§ 15-3-707, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-708. Duty of personal representative — Supplementary inventory.
If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent’s death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or send copies thereof to the state tax commission and to all interested persons to whom copies of the original inventory were sent pursuant to section 15-3-706, Idaho Code.
History.
I.C.,§ 15-3-708, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 11, p. 319.
STATUTORY NOTES
Cross References.
State tax commission,§ 63-101 et seq.
§ 15-3-709. Duty of personal representative — Possession of estate.
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
History.
I.C.,§ 15-3-709, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Foreign personal representatives may bring suits,§ 15-4-205.
CASE NOTES
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).
RESEARCH REFERENCES
ALR.
Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax. 55 A.L.R.3d 785.
COMMENT TO OFFICIAL TEXT
Section 3-101 provides for the devolution of title on death. Section 3-711 defines the status of the personal representative with reference to “title” and “power” in a way that should make it unnecessary to discuss the “title” to decedent’s assets which his personal representative acquires. This section deals with the personal representative’s duty and right to possess assets. It proceeds from the assumption that it is desirable whenever possible to avoid disruption of possession of the decedent’s assets by his devisees or heirs. But, if the personal representative decides that possession of an asset is necessary or desirable for purposes of administration, his judgment is made conclusive in any action for possession that he may need to institute against an heir or devisee. It may be possible for an heir or devisee to question the judgment of the personal representative in later action for surcharge for breach of fiduciary duty, but this possibility should not interfere with the personal representative’s administrative authority as it relates to possession of the estate. This code follows the Model Probate Code in regard to partnership interests. In the introduction to the Model Probate Code, the following appears at p. 22:
“No provisions for the administration of partnership estates when a partner dies have been included. Several states have statutes providing that unless the surviving partner files a bond with the probate court, the personal representative of the deceased partner may administer the partnership estate upon giving an additional bond. Kan. Gen. Stat. (Supp. 1943)§§ 59-1001 to 59-1005; Mo. Rev. Stat. Ann. (1942) §§ 81 to 93 [V.A.M.S. §§ 473.220 to 473.230]. In these states the administration of partnership estates upon the death of a partner is brought more or less completely under the jurisdiction of the probate court. While the provisions afford security to parties in interest, they have caused complications in the settlement of partnership estates and have produced much litigation. Woener, Administration (3rd ed., 1923) §§ 128 to 130; annotation, 121 A.L.R. 860. These statutes have been held to be inconsistent with section 37 of the Uniform Partnership Act providing for winding up by the surviving partner. Davis v. Hutchinson (C.C.A. 9th, 1929) 36 F.(2d) 309. Hence the Model Probate Code contains no provision regarding partnership property except for inclusion in the inventory of the decedent’s proportionate share of any partnership. See Model Probate Code (1946) Section 120. However, it is suggested that the Uniform Partnership Act should be included in the statutes of the states which have not already enacted it.”
§ 15-3-710. Power to avoid transfers.
The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative. The personal representative is not required to institute such an action unless requested by creditors who must pay or secure the cost and expenses of litigation.
History.
I.C.,§ 15-3-710, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Cross References.
Homestead allowance and exempt property,§ 15-2-401.
CASE NOTES
Cited
Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981).
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).
COMMENT TO OFFICIAL TEXT
Model Probate Code section 125, with additions. See, also, Section 6-201, which saves creditors’ rights in regard to nontestamentary transfers effective at death.
§ 15-3-711. Powers of personal representatives — In general.
Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
History.
I.C.,§ 15-3-711, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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.
§ 15-3-712. Improper exercise of power — Breach of fiduciary duty.
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in sections 15-3-713 and 15-3-714[, Idaho Code,] of this Part.
History.
I.C.,§ 15-3-712, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.
CASE NOTES
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).
Cited
Allen v. Shea, 105 Idaho 31, 665 P.2d 1041 (1983).
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
An interested person has two principal remedies to forestall a personal representative from committing a breach of fiduciary duty.
- Under Section 3-607 he may apply to the Court for an order restraining the personal representative from performing any specified act or from exercising any power in the course of administration. (2) Under Section 3-611 he may petition the Court for an order removing the personal representative.
Evidence of a proceeding, or order, restraining a personal representative from selling, leasing, encumbering or otherwise affecting title to real property subject to administration, if properly recorded under the laws of this state, would be effective to prevent a purchaser from acquiring a marketable title under the usual rules relating to recordation of real property titles.
In addition, Sections 1-302 and 3-105 authorize joinder of third persons who may be involved in contemplated transactions with a personal representative in proceedings to restrain a personal representative under Section 3-607.
§ 15-3-713. Sale, encumbrance or transaction involving conflict of interest — Voidable — Exceptions.
Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one (1) who has consented after fair disclosure, unless:
- the will or a contract entered into by the decedent expressly authorized the transaction; or
- the transaction is approved by the court after notice to interested persons.
History.
I.C.,§ 15-3-713, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
If a personal representative violates the duty against self-dealing described by this section, a voidable title to assets sold results. Other breaches of duty relating to sales of assets will not cloud titles except as to purchasers with actual knowledge of the breach. See Section 3-714. The principles of bona fide purchase would protect a purchaser for value without notice of defect in the seller’s title arising from conflict of interest.
§ 15-3-714. Persons dealing with personal representative — Protection.
A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in section 15-3-504[, Idaho Code,] of this code, and without regard to the constructive notice provisions of section 15-1-305A[, Idaho Code,] of this code, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
History.
I.C.,§ 15-3-714, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
Cited
AgAmerica v. Westgate, 129 Idaho 621, 931 P.2d 1 (Ct. App. 1997).
COMMENT TO OFFICIAL TEXT
This section qualifies the effect of a provision in a will which purports to prohibit sale of property by a personal representative. The provisions of a will may prescribe the duties of a personal representative and subject him to surcharge or other remedies of interested persons if he disregards them. See Section 3-703. But, the will’s prohibition is not relevant to the rights of a purchaser unless he had actual knowledge of its terms. Interested persons who want to prevent a personal representative from having the power described here must use the procedures described in Sections 3-501 to 3-505. Each state will need to identify the relation between this section and other statutory provisions creating liens on estate assets for inheritance and other taxes. The section cannot control whether a purchaser takes free of the lien of unpaid federal estate taxes. Hence, purchasers from personal representatives appointed pursuant to this Code will have to satisfy themselves concerning whether estate taxes are paid, and if not paid, whether the tax lien follows the property they are acquiring. See Section 6234, Internal Revenue Code [26 U.S.C.S. § 6324]. The impact of formal recording systems beyond the usual probate procedure depends upon the particular statute. In states in which the recording system provides for recording wills as muniments of title, statutory adaptation should be made to provide that recording of wills should be postponed until the validity has been established by probate or limitation. Statutory limitation to this effect should be added to statutes which do not so provide to avoid conflict with power of the personal representative during administration. The purpose of the Code is to make the deed or instrument of distribution the usual muniment of title. See sections 3-907, 3-908, and 3-910. However, this is not available when no administration has occurred and in that event reliance upon general recording statutes must be had.
If a state continues to permit wills to be recorded as muniments of title, the above section would need to be qualified to give effect to the notice from recording.
§ 15-3-715. Transactions authorized for personal representatives — Exceptions.
Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in section 15-3-902[, Idaho Code,] of this code, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
- Retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
- Receive assets from fiduciaries, or other sources;
-
Exercise the same power as the decedent in performance, compromise or refusal to perform the decedent’s contracts which continue as obligations of the decedent’s estate. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action may:
- Execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser’s note for the sum remaining due secured by a mortgage or deed of trust on the land; or
- Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;
- Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
- If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;
- Acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
- Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings;
- Subdivide, develop or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; or adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;
- Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;
- Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
-
Abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate;
(12) Vote stocks or other securities in person or by general or limited proxy;
- In the same business form for a period of not more than four (4) months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will;
- In the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or
- Throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;
(13) Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
(14) Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
(15) Insure the assets of the estate against damage, loss and liability and himself against liability as to third persons;
(16) Borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate;
(17) Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
(18) Pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(19) Sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(20) Allocate items of income or expense to either estate income or principal, as permitted or provided by law;
(21) Employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one (1) or more agents to perform any act of administration, whether or not discretionary;
(22) Prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;
(23) Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
(24) Continue any unincorporated business or venture in which the decedent was engaged at the time of his death:
(25) Incorporate any business or venture in which the decedent was engaged at the time of his death;
(26) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate; (27) Satisfy and settle claims and distribute the estate as provided in this code;
(28) Take control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e-mail service website.
History.
I.C.,§ 15-3-715, as added by 1971, ch. 111, § 1, p. 233; am. 2011, ch. 69, § 1, p. 144.
STATUTORY NOTES
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.
CASE NOTES
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).
RESEARCH REFERENCES
ALR.
Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.
COMMENT TO OFFICIAL TEXT
This section accepts the assumption of the Uniform Trustee’s Powers Act that it is desirable to equip fiduciaries with the authority required for the prudent handling of assets and extends it to personal representatives. The section requires that a personal representative act reasonably and for the benefit of the interested person. Subject to this and to the other qualifications described by the preliminary statement, the enumerated transactions are made authorized transactions for personal representatives. Sub-paragraphs (27) and (18) support the other provisions of the Code, particularly Section 3-704, which contemplates that personal representatives will proceed with all of the business of administration without court orders.
In part, sub-paragraph (4) involves a substantive question of whether noncontractual charitable pledges of a decedent can be honored by his personal representative. It is believed, however, that it is not desirable from a practical standpoint to make much turn on whether a charitable pledge is, or is not, contractual. Pledges are rarely made the subject of claims. The effect of sub-paragraph (4) is to permit the personal representative to discharge pledges where he believes the decedent would have wanted him to do so without exposing himself to surcharge. The holder of a contractual pledge may, of course, pursue the remedies of a creditor. If a pledge provides that the obligation ceases on the death of the pledgor, no personal representative would be safe in assuming that the decedent would want the pledge completed under the circumstances.
Subsection (3) is not intended to affect the right to performance or to damages of any person who contracted with the decedent. To do so would constitute an unreasonable interference with private rights. The intention of the subsection is simply to give a personal representative who is obligated to carry out a decedent’s contracts the same alternatives in regard to the contractual duties which the decedent had prior to his death.
§ 15-3-716. Powers and duties of successor personal representative.
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
History.
I.C.,§ 15-3-716, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-717. Corepresentatives — When joint action required.
If two (2) or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of a majority is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a corepresentative has been delegated to act for the others. Persons dealing with a corepresentative if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.
History.
I.C.,§ 15-3-717, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-3-718. Powers of surviving personal representative.
Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one (1) or more remaining after the appointment of one (1) or more is terminated, and if one (1) of two (2) or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.
History.
I.C.,§ 15-3-718, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
Source, Model Probate Code section 102. This section applies where one of two or more co-representatives dies, becomes disabled or is removed. In regard to co-executors, it is based on the assumption that the decedent would not consider the powers of his fiduciaries to be personal, or to be suspended if one or more could not function. In regard to co-administrators in intestacy, it is based on the idea that the reason for appointing more than one ceases on the death or disability of either of them.
§ 15-3-719. Compensation of personal representative.
A personal representative is entitled to reasonable compensation for his services. If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, he may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative may also renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court.
History.
I.C.,§ 15-3-719, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
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 section has no bearing on the question of whether a personal representative who also serves as attorney for the estate may receive compensation in both capacities. If a will provision concerning a fee is framed as a condition on the nomination as personal representative, it could not be renounced.
§ 15-3-720. Expenses in estate litigation.
If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorney’s fees incurred.
History.
I.C.,§ 15-3-720, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
Cited
Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
Litigation prosecuted by a personal representative for the primary purpose of enhancing his prospects for compensation would not be in good faith.
A personal representative is a fiduciary for successors of the estate (Section 3-703). Though the will naming him may not yet be probated, the priority for appointment conferred by Section 3-203 on one named executor in a probated will means that the person named has an interest, as a fiduciary, in seeking the probate of the will. Hence, he is an interested person within the meaning of sections 3-301 and 3-401. Section 3-912 gives the successors of an estate control over the executor, provided all are competent adults. So, if all persons possibly interested in the probate of a will, including trustees of any trusts created thereby, concur in directing the named executor to refrain from efforts to probate the instrument, he would lose standing to proceed. All of these observations apply with equal force to the case where the named executor of one instrument seeks to contest the probate of another instrument. Thus, the Code changes the idea followed in some jurisdictions that an executor lacks standing to contest other wills which, if valid, would supersede the will naming him, and standing to oppose other contests that may be mounted against the instrument nominating him.
§ 15-3-721. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
After notice to all interested persons or on petition of an interested person or on appropriate motion if administration is supervised, the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for his own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
History.
I.C.,§ 15-3-721, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
In view of the broad jurisdiction conferred on the probate court by Section 3-105, description of the special proceeding authorized by this section might be unnecessary. But, the Code’s theory that personal representatives may fix their own fees and those of estate attorneys marks an important departure from much existing practice under which fees are determined by the court in the first instance. Hence, it seemed wise to emphasize that any interested person can get judicial review of fees if he desires it. Also, if excessive fees have been paid, this section provides a quick and efficient remedy.
Part 8 Creditors’ Claims
§ 15-3-801. Notice to creditors.
- Unless notice has already been given under this section, a personal representative upon his appointment may publish a notice to creditors once a week for three (3) successive weeks in a newspaper of general circulation in the county announcing his appointment and address and notifying creditors of the estate to present their claims within four (4) months after the date of the first publication of the notice or be forever barred.
- A personal representative may give written notice by mail or other delivery to any creditor, notifying the creditor to present his claim within four (4) months after the published notice if given as provided in subsection (a) of this section or within sixty (60) days after the mailing or delivery of the notice, whichever is later, or be forever barred. Written notice must be the notice described in subsection (a) of this section or a similar notice.
- The personal representative is not liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section.
- If medical assistance was paid on behalf of the decedent when the decedent was fifty-five (55) years of age or older, the personal representative shall provide written notice as required by section 56-218(5), Idaho Code.
History.
I.C.,§ 15-3-801, as added by 1971, ch. 111, § 1, p. 233; am. 1991, ch. 87, § 1, p. 192; am. 1998, ch. 9, § 2, p. 106.
CASE NOTES
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).
Cited
Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).
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).
RESEARCH REFERENCES
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.
§ 15-3-802. Statutes of limitations.
- Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim barred by a statute of limitations at the time of the decedent’s death may be allowed or paid.
- The running of a statute of limitations measured from an event other than death or the giving of notice to creditors is suspended during the four (4) months following the decedent’s death but resumes thereafter as to claims not barred pursuant to the sections which follow.
- For purposes of a statute of limitations, the proper presentation of a claim under section 15-3-804, Idaho Code, is equivalent to commencement of a proceeding on the claim.
History.
I.C.,§ 15-3-802, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 350, § 12, p. 914; am. 1991, ch. 87, § 2, p. 192.
CASE NOTES
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section means that four months is added to the normal period of limitations by reason of a debtor’s death before a debt is barred. It implies also that after the expiration of four months from death, the normal statute of limitations may run and bar a claim even though the non-claim provisions of Section 3-803 have not been triggered. Hence, the non-claim and limitation provisions of Section 3-803 are not mutually exclusive.
It should be noted that under Sections 3-803 and 3-804 it is possible for a claim to be barred by the process of claim, disallowance and failure by the creditor to commence a proceeding to enforce his claim prior to the end of the four month suspension period. Thus, the regular statute of limitations applicable during the debtor’s lifetime, the non-claim provisions of Sections 3-803 and 3-804, and the three-year limitation of Section 3-803 all have potential application to a claim. The first of the three to accomplish a bar controls.
In 1975, the Joint Editorial Board recommended a change that makes it clear that only those successors who would be affected thereby, must agree to a waiver of a defense of limitations available to an estate. As the original text stood, the section appeared to require the consent of “all successors,” even though this would include some who, under the rules of abatement, could not possibly be affected by allowance and payment of the claim in question.
In 1989, in connection with other amendments recommended in sequel to Tulsa Professional Collection Services v. Pope , 108 S. Ct. 1340, 485 U.S. 478 (1988), the Joint Editorial Board recommended the splitting out, into Subsections (b) and (c), of the last two sentences of what formerly was a four-sentence section. The first two sentences now appear as Subsection (a). The rearrangement aids understanding that the section deals with three separable ideas. No other change in language is involved, and the timing of the changes to coincide with Pope case amendments is purely coincidental.
§ 15-3-803. Limitations on presentation of claims.
-
All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state and any subdivision thereof (except claims for state taxes), whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:
- three (3) years after the decedent’s death; or
- within the time provided in section 15-3-801(b), Idaho Code, for creditors who are given actual notice, and within the time provided in section 15-3-801(a), Idaho Code, for all creditors barred by publication.
- All claims described in subsection (a) of this section barred by the nonclaim statute of the decedent’s domicile before the giving of notice to creditors in this state are also barred in this state.
-
All claims against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof (except claims for state taxes), whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
- a claim based on a contract with the personal representative, within four (4) months after performance by the personal representative is due;
- any other claim, within the later of four (4) months after it arises, or the time specified in subsection (a)(1) of this section.
-
Claims relating to state taxes, whether due or to become due, absolute or contingent, liquidated or unliquidated, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:
-
three (3) years from the latest of:
- the date of the decedent’s death,
- the due date of the return (without regard to extensions), or
- the date the return was filed; or
- The court has been shown to its satisfaction circumstances that would allow the entry of an order of termination of parental rights pursuant to section 16-2005, Idaho Code, even though termination of parental rights is not being sought as to such father.
- within the time provided in section 63-3068(e) or 63-3633(e), Idaho Code, if the state tax commission has been given written notice in accordance with the provisions of those sections.
-
three (3) years from the latest of:
-
Nothing in this section affects or prevents:
- any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
- to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance;
- collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate; or
- assessment or collection of state taxes arising from activities or transactions of the estate; or
- assessment or collection of state taxes if a return has not been filed with the state tax commission.
History.
I.C.,§ 15-3-803, as added by 1991, ch. 87, § 4, p. 192; am. 1997, ch. 113, § 2, p. 274; am. 2004, ch. 130, § 1, p. 448.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
Trimble v. Engelking, 134 Idaho 195, 998 P.2d 502 (2000).
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).
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
There was some disagreement among the Reporters over whether a short period of limitations, or of non-claim, should be provided for claims arising at or after death. Subparagraph (b) was finally inserted because most felt it was desirable to accelerate the time when unadjudicated distributions would be final. The time limits stated would not, of course, affect any personal liability in contract, tort, or by statute, of the personal representative. Under Section 3-808 a personal representative is not liable on transactions entered into on behalf of the estate unless he agrees to be personally liable or unless he breaches a duty by making the contract. Creditors of the estate and not of the personal representative thus face a special limitation that runs four months after performance is due from the personal representative. Tort claims normally will involve casualty insurance of the decedent or of the personal representative, and so will fall within the exception of subparagraph (d) [(e)]. If a personal representative is personally at fault in respect to a tort claim arising after the decedent’s death, his personal liability would not be affected by the running of the special short period provided here.
In 1989, the Joint Editorial Board recommended amendments to Subsection (a). The change in (1) shortens the ultimate limitations period on claims against a decedent from 3 years after death to 1 year after death. Corresponding amendments were recommended for Sections 3-1003(a)(1) and 3-1006. The new one-year from death limitation (which applies without regard to whether or when an estate is opened for administration) is designed to prevent concerns stemming from the possible applicability to this Code of Tulsa Professional Collection Services v. Pope , 108 S. Ct. 1340, 485 U.S. 478 (1988) from unduly prolonging estate settlements and closings.
Subsection (a)(2), by reference to Sections 3-801(a) and 3-801(b), adds an additional method of barring a prospective claimant of whom the personal representative is aware. The new bar is available when it is appropriate, under all of the circumstances, to send a mailed warning to one or more known claimants who have not presented claims that the recipient’s claim will be barred if not presented within 60 days from the notice. This optional, mailed notice, described in accompanying new text in Section 3-801(b), is designed to enhance the ability of personal representatives to protect distributees against pass-through liability (under Section 3-1004) to possibly unbarred claimants. Personal representatives acting in the best interests of successors to the estate (see Section 3-703(a) and the definition of “successors” in Section 1-201(42) [(50)]) may determine that successors are willing to assume risks (i) that Pope , supra, will be held to apply to this Code in spite of absence of any significant contact between an agency of the state and the acts of a personal representative operating independently of Court supervision; and (ii) that a possibly unbarred claim is valid and will be pursued by its owner against estate distributees in time to avoid bar via the earliest to run of its own limitation period (which, under Section 3-802(b), resumes running four months after death), or the one-year [three-years] from death limitation now provided by§ 3-803(a)(1). If publication of notice as provided in Section 3-801 has occurred and if Pope either is inapplicable to this Code or is applicable but the late-arising claim in question is judged to have been unknown to the personal representative and unlikely to have been discovered by reasonable effort, an earlier, four months from first publication bar will apply.
The Joint Editorial Board recognized that the new bar running one year after death [not adopted in Idaho] may be used by some sets of successors to avoid payment of claims against their decedents of which they are aware. Successors who are willing to delay receipt and enjoyment of inheritances may consider waiting out the non-claim period running from death simply to avoid any public record of an administration that might alert known and unknown creditors to pursue their claims. The scenario was deemed to be unlikely, however, for unpaid creditors of a decedent are interested persons (Section 1-201(20) [(25)]) who are qualified to force the opening of an estate for purposes of presenting and enforcing claims. Further, successors who delay opening an administration will suffer from lack of proof of title to estate assets and attendant inability to enjoy their inheritances. Finally, the odds that holders of important claims against the decedent will need help in learning of the death and proper place of administration is rather small. Any benefit to such claimants of additional procedures designed to compel administrations and to locate and warn claimants of an impending non-claim bar, is quite likely to be heavily outweighed by the costs such procedures would impose on all estates, the vast majority of which are routinely applied to quick payment of the decedents’ bills and distributed without any creditor controversy.
Note that the new bar [not adopted in Idaho] described by Section 3-801(b) and Section 3-803(a)(2) is the earlier of one year from death or the period described by reference to§ 3-801(b) and§ 3-801(a) in§ 3-803(a)(2). If publication of notice is made under§ 3-801(a), and the personal representative thereafter gives actual notice to a known creditor, when is the creditor barred? If the actual notice is given less than 60 days prior to the expiration of the four months from first publication period, the claim will not be barred four months after first publication because the actual notice given by§ 3-801(b) advises the creditor that it has no less than 60 days to present the claim. It is as if the personal representative gave the claimant a written waiver of any benefit the estate may have had by reason of the four month bar following published notice. (c.f., the ability of a personal representative, under§ 3-802 to change claims from allowed to disallowed, and vice versa, and the 60 day period given by§ 3-806(a) within which a claimant may contest a disallowance). The period ending with the running of 60 days from actual notice replaces the four month from publication period as the “time for original presentation” referred to in Section 3-806(a). Note, too, that if there is no publication of notice as provided in Section 3-801(a), the giving of actual notice to known creditors establishes separate, 60 days from time of notice, non-claim periods for those so notified. The failure to publish also means that no general non-claim period, other than the one year [three-year] period running from death, will be working for the estate. If an actual notice to a creditor is given before notice by publication is given, a question arises as to whether the 60 day period from actual notice, or the longer, four-month from publication applies. Subsections 3-801(a) and (b), which are pulled into Section 3-803(a)(2) by reference, make no distinction between actual notices given before publication and those given after publication. Hence, it would seem that the later time bar would control in either case. This reading also fits more satisfactorily with Section 3-806(a) and other code language referring in various contexts to “the time limit prescribed in §§ 3-803.”
The proviso, formerly appended to 3-803(a)(1), regarding the effect in this state of the prior running of a non-claim statute of the decedent’s domicile, has been restated as 3-803(b), and former subsections (b) and (c) have been redesignated as (c) and (d) [(e)]. The relocation of the proviso was made to improve the style of the section. No change of meaning is intended.
The second paragraph of the original comment has been deleted because of inconsistency with amended§ 3-803(a).
The 1989 changes recommended by the Joint Editorial Board relating to former§ 3-803(b) now designated as 3-803(c) are unrelated to the Pope case problem. The original text failed to describe a satisfactory non-claim period for claims arising at or after the decedent’s death other than claims based on contract. The four months “after [any other claim] arises” period worked unjustly as to tort claims stemming from accidents causing the decedent’s death by snuffing out claims too quickly, sometimes before an estate had been opened. The language added by the 1989 amendment assures such claimants against any bar working prior to the later of one year [three years] after death or four months from the time the claim arises.
The other change affecting what is now§ 3-803(d) [(e)] is the addition of a third class of items which are not barred by any time bar running from death, publication of notice to creditors, or any actual notice given to an estate creditor. The addition resembles a modification to the Code as enacted in Arizona.
§ 15-3-804. Manner of presentation of claims.
Claims against a decedent’s estate may be presented as follows:
- The claimant shall deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on the last to occur of: (1) delivery or mailing of the written statement of claim to the personal representative; or, (2) the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
- The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death.
- If a claim is presented under subsection (a) of this section, no proceeding thereon may be commenced more than sixty (60) days after the personal representative has mailed a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty (60) day period, or to avoid injustice the court, on petition, may order an extension of the sixty (60) day period, but in no event shall the extension run beyond the applicable statute of limitations.
History.
I.C.,§ 15-3-804, as added by 1971, ch. 111, § 1, p. 233; am. 1992, ch. 240, § 1, p. 712; am. 2004, ch. 124, § 1, p. 415.
STATUTORY NOTES
Cross References.
Notice by resident creditor in cases of nonresident decedent,§ 15-4-203.
CASE NOTES
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).
Cited
In re Reichert, 95 Idaho 647, 516 P.2d 704 (1973); State, Dept. of Health & Welfare v. Estate of Elliott (In re Estate of Elliott), 141 Idaho 177, 108 P.3d 324 (2005).
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).
RESEARCH REFERENCES
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.
§ 15-3-805. Classification of claims.
-
If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
- costs and expenses of administration;
- reasonable funeral expenses;
- debts and taxes with preference under federal law;
- reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
- debts and taxes with preference under other laws of this state;
- all other claims.
- No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
History.
I.C.,§ 15-3-805, as added by 1971, ch. 111, § 1, p. 233; am. 1973, ch. 167, § 13, p. 319.
CASE NOTES
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).
RESEARCH REFERENCES
Idaho Law Review.
Idaho Law Review. — Paying for Long-Term Care in the Gem State, Andrew M. Hyer. 48 Idaho L. Rev. 351 (2012).
COMMENT TO OFFICIAL TEXT
In 1975, the Joint Editorial Board recommended the separation of funeral expenses from the items now accorded fourth priority. Under federal law, funeral expenses, but not debts incurred by the decedent can be given priority over claims of the United States.
§ 15-3-806. Allowance of claims.
- As to claims presented in the manner described in section 15-3-804(a)[, Idaho Code,] of this Part within the time limit prescribed in 15-3-803[, Idaho Code,] of this Part, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty (60) days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on his claim for sixty (60) days after the time for original presentation of the claim has expired has the effect of a notice of allowance.
- Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the clerk of the court in due time and not barred by subsection (a) of this section. Notice in this proceeding shall be given to the claimant, the personal representative and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced.
- A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent’s estate is an allowance of the claim.
- Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty (60) days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.
History.
I.C.,§ 15-3-806, as added by 1971, ch. 111, § 1, p. 233; am. 1974, ch. 199, § 3, p. 1516.
STATUTORY NOTES
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).
§ 15-3-807. Payment of claims.
- Upon the expiration of the earlier of the time limitations provided in section 15-3-803, Idaho Code, for the presentation of claims, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family and support allowances, for claims already presented that have not yet been allowed or whose allowance has been appealed, and for unbarred claims that may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been duly allowed but not paid may secure an order directing the personal representative to pay the claim to the extent funds of the estate are available to pay it.
-
The personal representative at any time may pay any just claim that has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by its payment if:
- payment was made before the expiration of the time limit stated in subsection (a) of this section and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
- payment was made, due to negligence or wilful fault of the personal representative, in such manner as to deprive the injured claimant of priority.
History.
I.C.,§ 15-3-807, as added by 1971, ch. 111, § 1, p. 233; am. 1991, ch. 87, § 5, p. 192.
STATUTORY NOTES
Cross References.
Power to avoid transfers,§ 15-3-710.
COMMENT TO OFFICIAL TEXT
As recommended for amendment in 1989 by the Joint Editorial Board, the section directs the personal representative to pay allowed claims at the earlier of one year [three years] from death or the expiration of 4 months from first publication. This interpretation reflects that distribution need not be delayed further on account of creditors’ claims once a time bar running from death or publication has run, for known creditors who have failed to present claims by such time may have received an actual notice leading to a bar 60 days thereafter and in any event can and should be the occasion for withholding or the making of other provision by the personal representative to cover the possibility of later presentation and allowance of such claims. Distribution would also be appropriate whenever competent and solvent distributees expressly agree to indemnify the estate for any claims remaining unbarred and undischarged after the distribution.
§ 15-3-808. Individual liability of personal representative.
- Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
- A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
- Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
- Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding.
History.
I.C.,§ 15-3-808, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
ALR.
Liability of estate for torts of executor, administrator, or trustee. 82 A.L.R.3d 892.
COMMENT TO OFFICIAL TEXT
In the absence of statute an executor, administrator or a trustee is personally liable on contracts entered into in his fiduciary capacity unless he expressly excludes personal liability in the contract. He is commonly personally liable for obligations stemming from ownership or possession of the property (e. g., taxes) and for torts committed by servants employed in the management of the property. The claimant ordinarily can reach the estate only after exhausting his remedies against the fiduciary as an individual and then only to the extent that the fiduciary is entitled to indemnity from the property. This and the following sections are designed to make the estate a quasi-corporation for purposes of such liabilities. The personal representative would be personally liable only if an agent for a corporation would be under the same circumstances, and the claimant has a direct remedy against the quasi-corporate property.
§ 15-3-809. Secured claims.
Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise payment is upon the basis of one of the following:
- If the creditor exhausts his security before receiving payment, unless precluded by other law upon the amount of the claim allowed less the fair value of the security; or
- If the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise or litigation.
History.
I.C.,§ 15-3-809, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
RESEARCH REFERENCES
ALR.
§ 15-3-810. Claims not due and contingent or unliquidated claims.
- 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.
-
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:
- if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
- 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.
RESEARCH REFERENCES
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.
§ 15-3-812. Execution and levies prohibited.
No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges or liens upon real or personal property in an appropriate proceeding.
History.
I.C.,§ 15-3-812, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-3-814. Encumbered assets.
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
History.
I.C.,§ 15-3-814, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 350, § 13, p. 914.
COMMENT TO OFFICIAL TEXT
Section 2-609 establishes a rule of construction against exoneration. Thus, unless the will indicates to the contrary, a specific devisee of mortgaged property takes subject to the lien without right to have other assets applied to discharge the secured obligation.
In 1975, the Joint Editorial Board recommended substitution of the word “presented”, in the first sentence, for the word “filed” in the original text. The change aligns this section with Section 3-804, which describes several methods, including mailing or delivery to the personal representative, as methods of protecting a claim against non-claim provisions of the Code.
§ 15-3-815. Administration in more than one state — Duty of personal representative.
- All assets of estates being administered in this state are subject to all claims, allowances and charges existing or established against the personal representative wherever appointed.
- If the estate either in this state or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent’s domicile, prior charges and claims, after satisfaction of the exemptions, allowances and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.
- In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent’s last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.
History.
I.C.,§ 15-3-815, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
Under Section 3-803(a) (1), if a local (property only) administration is commenced and proceeds to advertisement for claims before non-claim statutes have run at domicile, claimants may prove claims in the local administration at any time before the local non-claim period expires. Section 3-815 has the effect of subjecting all assets of the decedent, wherever they may be located and administered, to claims properly presented in any local administration. It is necessary, however, that the personal representative of any portion of the estate be aware of other administrations in order for him to become responsible for claims and charges established against other administrations.
§ 15-3-816. Final distribution to domiciliary representative.
The estate of a non-resident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent’s domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless (1) by virtue of the decedent’s will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent’s domicile; (2) the personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under section 15-3-1001[, Idaho Code,] of this code or incident to the closing of a supervised administration. In other cases, distribution of the estate of a decedent shall be made in accordance with the other Parts of this chapter.
History.
I.C.,§ 15-3-816, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
§ 15-3-817. Community estates.
If a community estate is administered as if each decedent survived the other because of application of the simultaneous death act, section 15-2-104[, Idaho Code,] and section 15-2-601[, Idaho Code,] of this code, or the provisions of a will, community debts will be charged ratably to each half of the community estate and separate debts to the estate of the decedent by whom they were incurred.
History.
I.C.,§ 15-3-817, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
Part 9 Special Provisions Relating to Distribution
§ 15-3-901. Successors’ rights if no administration.
In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent’s ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
History.
I.C.,§ 15-3-901, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
ALR.
Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 486.
COMMENT TO OFFICIAL TEXT
Title to a decedent’s property passes to his heirs and devisees at the time of his death. See Section 3-101. This section adds little to Section 3-101 except to indicate how successors may establish record title in the absence of administration.
§ 15-3-902. Distribution — Order in which assets appropriated — Abatement.
- Except as provided in subsection (b) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
- If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
- If an estate of a decedent consists partly of separate property and partly of community property, community debts shall be charged to community property and separate debts to separate property. Expenses of administration shall be apportioned and charged against the different kinds of property in proportion to the relative value thereof, except that none of such expenses shall be apportioned or charged to the survivor’s share of the community property.
- If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
History.
I.C.,§ 15-3-902, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
A testator may determine the order in which the assets of his estate are applied to the payment of his debts. If he does not, then the provisions of this section express rules which may be regarded as approximating what testators generally want. The statutory order of abatement is designed to aid in resolving doubts concerning the intention of a particular testator, rather than to defeat his purpose. Hence, subsection (b) directs that consideration be given to the purpose of a testator. This may be revealed in many ways. Thus, it is commonly held that, even in the absence of statute, general legacies to a wife, or to persons with respect to which the testator is in loco parentis, are to be preferred to other legacies in the same class because this accords with the probable purpose of the legacies.
§ 15-3-903. Right of retainer.
The amount of a non-contingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor’s interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.
History.
I.C.,§ 15-3-903, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-904. Interest on general pecuniary devise.
General pecuniary devises bear interest at the legal rate beginning one (1) year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.
History.
I.C.,§ 15-3-904, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-3-905. Penalty clause for contest.
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
History.
I.C.,§ 15-3-905, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
ALR.
What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary. 3 A.L.R.5th 590.
§ 15-3-906. Distribution in kind — Valuation — Method.
-
Unless a contrary intention is indicated by the will, the distributable assets of a decedent’s estate shall be distributed in kind to the extent possible through application of the following provisions:
- A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in section 15-2-403, Idaho Code, shall receive the items selected.
-
Any homestead or devise payable in money may be satisfied by value in kind provided:
- The person entitled to the payment has not demanded payment in cash;
- The property distributed in kind is valued at fair market value as of the date of its distribution; and
- No residuary devisee has requested that the asset in question remain a part of the residue of the estate.
- For the purpose of valuation under paragraph (2), securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets that do not have readily ascertainable values, a valuation as of a date not more than thirty (30) days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.
- The residuary estate shall be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. In other cases, residuary property may be converted into cash for distribution.
- After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty (30) days after mailing or delivery of the proposal.
History.
I.C.,§ 15-3-906, as added by 1971, ch. 111, § 1, p. 233; am. 2001, ch. 294, § 8, p. 1036; am. 2016, ch. 262, § 4, p. 682.
STATUTORY NOTES
Amendments.
The 2016 amendment, by ch. 262, deleted “or family allowance” following “homestead” in paragraph (a)(2).
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section establishes a preference for distribution in kind. It directs a personal representative to make distribution in kind whenever feasible and to convert assets to cash only where there is a special reason for doing so. It provides a reasonable means for determining value of assets distributed in kind. It is implicit in Sections 3-101, 3-901 and this section that each residuary beneficiary’s basic right is to his proportionate share of each asset constituting the residue.
§ 15-3-907. Distribution in kind — Evidence.
If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring or releasing the assets to the distributee as evidence of the distributee’s title to the property.
History.
I.C.,§ 15-3-907, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
This and sections following should be read with Section 3-709 which permits the personal representative to leave certain assets of a decedent’s estate in the possession of the person presumptively entitled thereto. The “release” contemplated by this section would be used as evidence that the personal representative had determined that he would not need to disturb the possession of an heir or devisee for purposes of administration.
Under Section 3-711, a personal representative’s relationship to assets of the estate is described as the “same power over the title to property of the estate as an absolute owner would have.” A personal representative may, however, acquire a full title to estate assets, as in the case where particular items are conveyed to the personal representative by sellers, transfer agents or others. The language of Section 3-907 is designed to cover instances where the instrument of distribution operates as a transfer, as well as those in which its operation is more like a release.
§ 15-3-907A. Deceased beneficiary as heir. — (a) If the decedent has left a surviving child or children or issue of children among the persons who are by law entitled to succeed to his estate, and any of them, before the close of administration, has died before reaching the age of eighteen (18) and not having married, no administration of such deceased issue’s estate is necessary, but all the estate which such deceased issue is entitled to receive by inheritance must, without administration, be distributed to the heirs at law of the deceased issue.
(b) If any other heir, legatee, or devisee shall die after the decedent’s death and before distribution, property to which he might be entitled shall be distributed to the representative of his estate or directly to his heirs, legatees or devisees or the persons entitled thereto.
History.
I.C.,§ 15-3-907A, as added by 1971, ch. 111, § 1, p. 233.
§ 15-3-908. Distribution — Right or title of distributee.
Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.
History.
I.C.,§ 15-3-908, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
The purpose of this section is to channel controversies which may arise among successors of a decedent because of improper distributions through the personal representative who made the distribution, or a successor personal representative. Section 3-108 does not bar appointment proceedings initiated to secure appointment of a personal representative to correct an erroneous distribution made by a prior representative. But see Section 3-1006.
§ 15-3-909. Improper distribution — Liability of distributee.
Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.
History.
I.C.,§ 15-3-909, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
The term “improperly” as used in this section must be read in light of Section 3-703 and the manifest purpose of this and other sections of the Code to shift questions concerning the propriety of various distributions from the fiduciary to the distributees in order to prevent every administration from becoming an adjudicated matter. Thus, a distribution may be “authorized at the time” as contemplated by Section 3-703, and still be “improper” under this section. Section 3-703 is designed to permit a personal representative to distribute without risk in some cases, even though there has been no adjudication. When an unadjudicated distribution has occurred, the rights of persons to show that the basis for the distribution (e. g., an informally probated will, or informally issued letters of administration) is incorrect, or that the basis was improperly applied (erroneous interpretation, for example) is preserved against distributees by this section.
The definition of “distributee” to include the trustee and beneficiary of a testamentary trust in 1-201(10) [(14)] is important in allocating liabilities that may arise under Sections 3-909 and 3-910 on improper distribution by the personal representative under an informally probated will. The provisions of Sections 3-909 and 3-910 are based on the theory that liability follows the property and the fiduciary is absolved from liability by reliance upon the informally probated will.
§ 15-3-910. Purchasers from distributees protected.
If property distributed in kind or a security interest therein is acquired for value by a purchaser from, or lender to, a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order and whether or not the authority of the personal representative was terminated prior to execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated prior to the distribution. Any recorded instrument described in this section shall be prima facie evidence that such transfer was made for value.
History.
I.C.,§ 15-3-910, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 350, § 14, p. 914.
COMMENT TO OFFICIAL TEXT
The words “instrument or deed of distribution” are explained in Section 3-907. The effect of this section may be to make an instrument or deed of distribution a very desirable link in a chain of title involving succession of land. Cf. Section 3-901.
In 1975, the Joint Editorial Board recommended additions that strengthen the protection extended by this section to bona fide purchasers from distributees. The additional language was derived from recommendations evolved with respect to the Colorado version of the Code by probate and title authorities who agreed on language to relieve title assurers of doubts they had identified in relation to some cases.
§ 15-3-911. Partition for purpose of distribution.
When two (2) or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one (1) or more of the heirs or devisees may petition the court prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party.
History.
I.C.,§ 15-3-911, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
Cited
Kunzler v. First Interstate Bank, 108 Idaho 374, 699 P.2d 1388 (1985).
RESEARCH REFERENCES
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.
§ 15-3-912. Private agreements among successors to decedent binding on personal representative.
Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedent’s [decedents’] estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.
History.
I.C.,§ 15-3-912, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed word “decedents’” was inserted into the third sentence by the compiler for clarity.
RESEARCH REFERENCES
ALR.
Family settlement of intestate estate. 29 A.L.R.3d 174.
COMMENT TO OFFICIAL TEXT
It may be asserted that this section is only a restatement of the obvious and should be omitted. Its purpose, however, is to make it clear that the successors to an estate have residual control over the way it is to be distributed. Hence, they may compel a personal representative to administer and distribute as they may agree and direct. Successors should compare the consequences and possible advantages of careful use of the power to renounce as described by Section 2-801 with the effect of agreement under this section. The most obvious difference is that an agreement among successors under this section would involve transfers by some participants to the extent it changed the pattern of distribution from that otherwise applicable. Differing from a pattern that is familiar in many states, this Code does not subject testamentary trusts and trustees to special statutory provisions, or supervisory jurisdiction. A testamentary trustee is treated as a devisee with special duties which are of no particular concern to the personal representative. Article VII [Chapter 7] contains optional procedures extending the safeguards available to personal representatives to trustees of both inter vivos and testamentary trusts.
§ 15-3-913. Distributions to trustee.
- Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in section 15-7-303[, Idaho Code,] of this code.
- If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted.
- No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (a) and (b) of this section.
History.
I.C.,§ 15-3-913, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
This section is concerned with the fiduciary responsibility of the executor to beneficiaries of trusts to which he may deliver. Normally, the trustee represents beneficiaries in matters involving third persons, including prior fiduciaries. Yet, the executor may apprehend that delivery to the trustee may involve risks for the safety of the fund and for him. For example, he may be anxious to see that there is no equivocation about the devisee’s willingness to accept the trust, and no problem of preserving evidence of the acceptance. He may have doubts about the integrity of the trustee, or about his ability to function satisfactorily. The testator’s selection of the trustee may have been based on facts which are still current, or which are of doubtful relevance at the time of distribution. If the risks relate to the question of the trustee’s intention to handle the fund without profit for himself, a conflict of interest problem is involved. If the risk relates to the ability of the trustee to manage prudently, a more troublesome question is posed for the executor. Is he, as executor, not bound to act in the best interests of the beneficiaries? In many instances involving doubts of this sort, the executor probably will want the protection of a Court order. Sections 3-1001 and 3-1002 provide ample authority for an appropriate proceeding in the Court which issued the executor’s letters.
In other cases, however, the executor may believe that he may be adequately protected if the acceptance of the trust by the devisee is unequivocal, or if the trustee is bonded. The purpose of this section is to make it clear that it is proper for the executor to require the trustee to register the trust and to notify beneficiaries before receiving distribution. Also, the section complements Section 7-304 by providing that the personal representative may petition an appropriate court to require that the trustee be bonded.
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.
§ 15-3-914. Disposition of unclaimed assets.
If an heir, devisee or claimant cannot be found, the personal representative shall distribute the share of the missing person to his trustee if one has been appointed or, if no trustee has been appointed, shall file the report of abandoned property required by section 14-517, Idaho Code, and deliver the property in the manner set forth in section 14-519, Idaho Code.
History.
I.C.,§ 15-3-914, as added by 1971, ch. 111, § 1, p. 233; am. 1980, ch. 281, § 4, p. 730; am. 1984, ch. 36, § 5, p. 60; am. 1992, ch. 21, § 8, p. 67; am. 2007, ch. 97, § 4, p. 280; am. 2012, ch. 215, § 4, p. 584.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section applies when it is believed that a claimant, heir or distributee exists but he cannot be located. See§ 2-105.
§ 15-3-915. Distribution to person under disability.
A personal representative may discharge his obligation to distribute to any person under legal disability by distributing to his conservator, or any other person authorized by this code or otherwise to give a valid receipt and discharge for the distribution.
History.
I.C.,§ 15-3-915, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
RESEARCH REFERENCES
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.
COMMENT TO OFFICIAL TEXT
Section 5-103 is especially important as a possible source of authority for a valid discharge for payment or distribution made on behalf of a minor.
§ 15-3-916. Apportionment of estate taxes. [Repealed.]
STATUTORY NOTES
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.
Part 10 Closing Estates
§ 15-3-1001. Formal proceedings terminating administration — Testate or intestate — Order of general protection.
- A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one (1) year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.
- If one (1) or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.
History.
I.C.,§ 15-3-1001, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
Cited
In re Estate of Irwin, 99 Idaho 543, 585 P.2d 953 (1978); Spencer v. Idaho First Nat’l Bank, 106 Idaho 316, 678 P.2d 108 (Ct. App. 1984).
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).
RESEARCH REFERENCES
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.
§ 15-3-1002. Formal proceedings terminating testate administration — Order construing will without adjudicating testacy.
A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one (1) year, from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those he represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of section 15-3-1001[, Idaho Code,] of this Part.
History.
I.C.,§ 15-3-1002, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
Compiler’s Notes.
The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.
COMMENT TO OFFICIAL TEXT
Section 3-1002 permits a final determination of the rights between each other and against the personal representative of the devisees under a will when there has been no formal proceeding in regard to testacy. Hence, the heirs in intestacy need not be made parties. Section 3-1001 permits a final determination of the rights between each other and against the personal representative of all persons interested in an estate. If supervised administration is used, Section 3-505 directs that the estate be closed by use of procedures like those described in 3-1001. Of course, testacy will have been adjudicated before time for the closing proceeding if supervised administration is used.
§ 15-3-1003. Closing estates — By sworn statement of personal representative.
-
Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court no earlier than six (6) months after the date of original appointment of a general personal representative for the estate, a verified statement stating that he, or a previous personal representative whom he has succeeded, has or have:
- determined that the time limitation for presentation of creditors’ claims has expired;
- fully administered the estate of the decedent by making payment, settlement or other disposition of all claims that were presented, expenses of administration and estate, inheritance and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement must state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or state in detail other arrangements that have been made to accommodate outstanding liabilities; and
- sent a copy thereof to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected thereby.
- If no proceedings involving the personal representative are pending in the court one (1) year after the closing statement is filed, the appointment of the personal representative terminates.
History.
I.C.,§ 15-3-1003, as added by 1971, ch. 111, § 1, p. 233; am. 1991, ch. 87, § 6, p. 192.
COMMENT TO OFFICIAL TEXT
The Code uses “termination” to refer to events which end a personal representative’s authority. See Sections 3-608, et seq. The word “closing” refers to circumstances which support the conclusions that the affairs of the estate either are, or have been alleged to have been, wound up. If the affairs of the personal representative are reviewed and adjudicated under either Sections 3-1001 or 3-1002, the judicial conclusion that the estate is wound up serves also to terminate the personal representative’s authority. See Section 3-610(b). On the other hand, a “closing” statement under Section 3-1003 is only an affirmation by the personal representative that he believes the affairs of the estate to be completed. The statement is significant because it reflects that assets have been distributed. Any creditor whose claim has not been barred and who has not been paid is permitted by Section 3-1004 to assert his claim against distributees. The personal representative is also still fully subject to suit under Sections 3-602 and 3-608, for his authority is not “terminated” under Section 3-610(a) until one year after a closing statement is filed. Even if his authority is “terminated,” he remains liable to suit unless protected by limitation or unless an adjudication settling his accounts is the reason for “termination”. See Sections 3-1005 and 3-608. From a slightly different viewpoint, a personal representative may obtain a complete discharge of his fiduciary obligations through a judicial proceeding after notice. Sections 3-1001 and 3-1002 describe two proceedings which enable a personal representative to gain protection from all persons or from devisees only. A personal representative who neither obtains a judicial order of protection nor files a closing statement, is protected by Section 3-703 in regard to acts or distributions which were authorized when done but which become doubtful thereafter because of a change in testacy status. On the other questions, the personal representative who does not take any of the steps described by the Code to gain more protection has no protection against later claims of breach of his fiduciary obligation other than any arising from consent or waiver of individual distributees who may have bound themselves by receipts given to the personal representative.
This section increases the prospects of full discharge of a personal representative who uses the closing statement route over those of a personal representative who relies on receipts. Full protection follows from the running of the six months limitations period described in Section 3-1005. But, 3-1005’s protection does not prevent distributees from claiming lack of full disclosure. Hence, it offers little more protection than a receipt. Still, it may be useful to decrease the likelihood of later claim of non-disclosure. Its more significant function, however, is to provide a means for terminating the office of personal representative in a way that will be obvious to third persons.
In 1989 the Joint Editorial Board recommended changing subparagraph (a)(1) to make the time reference correspond to changes recommended for Section 3-803.
§ 15-3-1004. Liability of distributees to claimants.
After assets of an estate have been distributed and subject to section 15-3-1006, Idaho Code, an undischarged claim not barred may be prosecuted in a proceeding against one (1) or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or homestead, or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.
History.
I.C.,§ 15-3-1004, as added by 1971, ch. 111, § 1, p. 233; am. 1978, ch. 350, § 15, p. 914; am. 2016, ch. 262, § 5, p. 682.
STATUTORY NOTES
Amendments.
The 2016 amendment, by ch. 262, deleted “or family allowance” following “homestead” in the second sentence.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section creates a ceiling on the liability of a distributee of “the value of his distribution” as of the time of distribution. The section indicates that each distributee is liable for all that a claimant may prove to be due, provided the claim does not exceed the value of the defendant’s distribution from the estate. But, each distributee may preserve a right of contribution against other distributees. The risk of insolvency of one or more, but less than all distributees, is on the distributee rather than on the claimant. In 1975, the Joint Editorial Board recommended the addition, after “claimants for amounts” in the second sentence, of “received as exempt property, homestead or family allowances, or for amounts . . .” The purpose of the addition was to prevent unpaid creditors of a decedent from attempting to enforce their claims against a spouse or child who had received a distribution of exempt values.
§ 15-3-1005. Limitations on proceedings against personal representative.
Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six (6) months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent’s estate.
History.
I.C.,§ 15-3-1005, as added by 1971, ch. 111, § 1, p. 233.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This and the preceding section make it clear that a claimant whose claim has not been barred may have alternative remedies when an estate has been distributed subject to his claim. Under this section, he has six months to prosecute an action against the personal representative if the latter breached any duty to the claimant. For example, the personal representative may be liable to a creditor if he violated the provisions of Section 3-807. The preceding section describes the fundamental liability of the distributees to unbarred claimants to the extent of the value received. The last sentence emphasizes that a personal representative who fails to disclose matters relevant to his liability in his closing statement and in the account of administration he furnished to distributees, gains no protection from the period described here. A personal representative may, however, use Section 3-1001, or, where appropriate, Section 3-1002 to secure greater protection.
§ 15-3-1006. Limitations on actions and proceedings against distributees.
Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred at the later of (i) three (3) years after the decedent’s death; or (ii) one (1) year after the time of distribution thereof, except if the claim is by a creditor of the decedent, it is forever barred three (3) years after the decedent’s death. This section does not bar an action to recover property or value received as the result of fraud, or an action commenced by the state tax commission to collect state taxes.
History.
I.C.,§ 15-3-1006, as added by 1971, ch. 111, § 1, p. 233; am. 1991, ch. 87, § 7, p. 192; am. 1997, ch. 113, § 3, p. 274; am. 2014, ch. 134, § 2, p. 369.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section describes an ultimate time limit for recovery by creditors, heirs and devisees of a decedent from distributees. It is to be noted:
- Section 3-108 imposes a general limit of three years from death on one who must set aside an informal probate in order to establish his rights, or who must secure probate of a late-discovered will after an estate has been administered as intestate. Hence the time limit of Section 3-108 may bar one who would claim as an heir or devisee sooner than this section, although it would never cause a bar prior to three years from the decedent’s death.
- This section would not bar recovery by a supposed decedent whose estate has been probated. See Section 3-412.
- The limitation of this section ends the possibility of appointment of a personal representative to correct an erroneous distribution as mentioned in Sections 3-1005 and 3-1008. If there have been no adjudications under Section 3-409, or possibly 3-1001 or 3-1002, estate of the decedent which is discovered after administration has been closed may be the subject of different distribution than that attending the estate originally administered. The last sentence excepting actions or suits to recover property kept from one by the fraud of another may be unnecessary in view of the blanket provision concerning fraud in Article I [Chapter 1]. See Section 1-106.
In 1989, the Joint Editorial Board recommended changing the section so as to separate proceedings involving claims by claimants barred one year after decedent’s death by Section 3-803(a)(1), and other proceedings by unbarred claimants or by omitted heirs or devisees.
§ 15-3-1007. Certificate discharging liens securing fiduciary performance.
After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the registrar that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.
History.
I.C.,§ 15-3-1007, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
This section does not affect the liability of the personal representative, or of any surety, but merely permits a release of security given by a personal representative, or his surety, when, from the passage of time and other conditions, it seems highly unlikely that there will be any liability remaining undischarged. See Section 3-607.
§ 15-3-1008. Subsequent administration.
If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one (1) year after a closing statement has been filed, the court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the court orders otherwise, the provisions of this code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
History.
I.C.,§ 15-3-1008, as added by 1971, ch. 111, § 1, p. 233.
STATUTORY NOTES
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.
CASE NOTES
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).
COMMENT TO OFFICIAL TEXT
This section is consistent with Section 3-108 which provides a general period of limitations of three years from death for appointment proceedings, but makes appropriate exception for subsequent administrations.
§ 15-3-1009. Decree of distribution to attorney general.
Whenever any estate involves, or may involve, a charitable trust, the court shall at the time of distribution of said estate forward to the attorney general of the state of Idaho a certified copy of said decree of distribution of the estate which involves or may involve said charitable trust.
History.
I.C.,§ 15-3-1009, as added by 1972, ch. 201, § 15, p. 510.
STATUTORY NOTES
Cross References.
Attorney general,§ 67-1401 et seq.
Part 11 Compromise of Controversies
§ 15-3-1101. Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons.
A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent, of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto including those unborn, unascertained or who could not be located. An approved compromise is binding even though it may effect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it.
History.
I.C.,§ 15-3-1101, as added by 1971, ch. 111, § 1, p. 233.
RESEARCH REFERENCES
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.
§ 15-3-1102. Procedure for securing court approval of compromise.
The procedure for securing court approval of a compromise is as follows:
- The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
- Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
- After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
History.
I.C.,§ 15-3-1102, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
This section and the one preceding it outline a procedure which may be initiated by competent parties having beneficial interests in a decedent’s estate as a means of resolving controversy concerning the estate. If all competent persons with beneficial interests or claims which might be affected by the proposal and parents properly representing interests of their children concur, a settlement scheme differing from that otherwise governing the devolution may be substituted. The procedure for securing representation of minors and unknown or missing persons with interests must be followed. See Section 1-403. The ultimate control of the question of whether the substitute proposal shall be accepted is with the court which must find: “that the contest or controversy is in good faith and that the effect of the agreement upon the interests of parties represented by fiduciaries is just and reasonable.”
The thrust of the procedure is to put the authority for initiating settlement proposals with the persons who have beneficial interests in the estate, and to prevent executors and testamentary trustees from vetoing any such proposal. The only reason for approving a scheme of devolution which differs from that framed by the testator or the statutes governing intestacy is to prevent dissipation of the estate in wasteful litigation. Because executors and trustees may have an interest in fees and commissions which they might earn through efforts to carry out testator’s intention, the judgment of the court is substituted for that of such fiduciaries in appropriate cases. A controversy which the court may find to be in good faith, as well as concurrence of all beneficially interested and competent persons and parent-representatives provide prerequisites which should prevent the procedure from being abused. Thus, the procedure does not threaten the planning of a testator who plans and drafts with sufficient clarity and completeness to eliminate the possibility of good faith controversy concerning the meaning and legality of his plan. See Section 1-403 for rules governing representatives and appointment of guardians ad litem.
These sections are modeled after Section 93 of the Model Probate Code. Comparable legislative provisions have proved quite useful in Michigan. See M.C.L.A. §§ 702.45 to 702.49.
Part 12 Collection of Personal Property by Affidavit and Summary Administration Procedure for Small Estates
§ 15-3-1201. Collection of personal property by affidavit.
-
Thirty (30) days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person or entity claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
- The fair market value of the entire estate of the decedent which is subject to probate, wherever located, less liens and encumbrances, does not exceed one hundred thousand dollars ($100,000);
- Thirty (30) days have elapsed since the death of the decedent;
- No application or petition for the appointment of a personal representative or for summary administration is pending or has been granted in any jurisdiction; and
- The claiming successor is entitled to payment or delivery of the property, including entitlement as a trust pursuant to a will of the decedent.
- A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a) of this section.
-
For the purposes of this section, for the recovery of medical assistance, the department of health and welfare shall be deemed a successor to the estate provided:
- Prior to the presentation of the affidavit, the department shall give notice, by regular mail, to any person known to the department to be an heir, successor or creditor of the estate, and the department shall certify such notice in writing to the person described in subsection (a) of this section.
- Within sixty (60) days of mailing the notice, any person who claims the right to reimbursement for priority estate expenses, as permitted by section 15-3-805(a)(1) through (4), Idaho Code, may submit a written demand for payment of such expenses, together with any documentation of the expenses, to the department. Upon receipt of the funds, and up to the amount received, the department shall pay priority claims which it determines would be allowed in a probate proceeding, if any. The department shall notify each claimant of the disposition of his claim. The provisions of chapter 52, title 67, Idaho Code, shall apply to determinations made by the department under this section.
History.
I.C.,§ 15-3-1201, as added by 1971, ch. 111, § 1, p. 233; am. 1993, ch. 253, § 1, p. 878; am. 1995, ch. 167, § 1, p. 650; am. 1997, ch. 212, § 1, p. 631; am. 2002, ch. 216, § 1, p. 594; am. 2006, ch. 160, § 1, p. 334; am. 2006, ch. 179, § 1, p. 553.
STATUTORY NOTES
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).
COMMENT TO OFFICIAL TEXT
[General comment to §§ 15-3-1201 — 15-3-1204.]
[]
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.]
[]
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.
§ 15-3-1202. Effect of affidavit.
The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
History.
I.C.,§ 15-3-1202, as added by 1971, ch. 111, § 1, p. 233.
COMMENT TO OFFICIAL TEXT
Sections 3-1201 and 3-1202 apply to any personal property located in this state whether or not the decedent died domiciled in this state, to any successor to personal property located in this state whether or not a resident of this state, and, to the extent that the laws of this state may control the succession to personal property, to personal property wherever located of a decedent who died domiciled in this state.
§ 15-3-1203. Small estates — Summary administrative procedure.
If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 15-3-1204[, Idaho Code,] of this part.
History.
I.C.,§ 15-3-1203, as added by 1971, ch. 111, § 1, p. 233; am. 2014, ch. 134, § 3, p. 369.
STATUTORY NOTES
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.
COMMENT TO OFFICIAL TEXT
This section makes it possible for the personal representative to make a summary distribution of a small estate without the necessity of giving notice to creditors. Since the probate estate of many decedents will not exceed the amount specified in the statute, this section will prove useful in many estates.
§ 15-3-1204. Small estates — Closing by sworn statement of personal representative.
-
Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 15-3-1203[, Idaho Code,] of this part by filing with the court, at any time after disbursement and distribution of the estate, a verified statement that:
- To the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed homestead allowance, exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable, necessary medical and hospital expenses of the last illness of the decedent;
- The personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto; and
- The personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected. <