Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.
ICA 15-2-106: REPRESENTATION-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 1 share and the share of each deceased person being divided among his issue in the same manner.
Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.
ICA 15-3-108: 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, may be commenced more than three (3) years after the decedent's death, except (1) 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; (2) 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 (3) 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. In cases under (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.
Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, courtesy, etc.? If so, summarize. Provide statutory citations.
The surviving spouse is entitled to receive community property held by the husband and wife. ICA 32-906 - All other property acquired after marriage by either the husband or wife is community property.
ICA 15-2-201, et seq, provides for quasi-community property where the surviving spouse is entitled to 1/2 of the quasi-community property. Quasi-community property is all real property situated in the state which has heretofore been acquired or is hereafter acquired by the decedent while domiciled elsewhere and which would have been community property of the decedent and the surviving spouse had the decedent been domiciled in this state at the time of its acquisition.
ICA 15-2-102 relating to the share of the spouse in intestate property as to community property provides that 1/2 of community property belongs to the surviving spouse.
ICA 15-3-101: 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 and family allowances, to renunciation to rights of creditors, elective share of the surviving spouse and to administration.
Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.
Although some say yes, I have never found justification for this tenancy.
Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.
See community property outlined above. Quasi-community property and the augmented estate provides that a surviving spouse can make an election within 6 months after the publication of notice to creditors [ICA 15-2-202,203, election of spouse to take 1/2 of property distributed to another or 1/2 of the proceeds]. Also consideration needs to be made of the homestead election ICA 15-2-401 and the family allowance ICA 15-2-403.
Summarize the steps required for a testate administration. Provide statutory citations.
The Idaho Uniform Probate Code provides for Informal Probate ICA 15-3-301, Formal Probate ICA 15-3-401, and Supervised Probate ICA 15-3-501
Petition for administration and letters ICA 15-3-103. Except as otherwise provided in chapter 4 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.
Petition to admit will to probate, entry of informal order or formal adjudication ICA 15-3-102. Except as provided in section 15-3-1201 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.
Notice to creditors ICA 15-3-801: (a) 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.
Distribution ICA 15-3-902: (a) 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.
Close estate. Statutes provide for informal closing statement or formal order closing estate. ICA 15-3-1001: (a) 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.
ICA 15-3-1003: (a) 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
- 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;
- 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.
Summarize the steps required for an intestate administration. Provide statutory citations.
Same for probate of will except for admission of will to probate.
Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.
It is not uncommon to find an affidavit of heirship being used to avoid probate. Some companies charge a surcharge to insure title through such a document, i.e., three times the normal premium. Typically, we have only used it when it was apparent that the land would have gone to the spouse as community property, disposing of collateral interests in the land, i.e., releases of mortgage, correction deeds, fulfillment deeds, etc. and small estates where the land value is less than $100,000.
ICA 15-3-901: 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.
Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.
Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.
Does your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.
Yes ICA 14-401, et seq. The personal representative may sell as much property as is necessary to pay taxes. The personal representative is liable for distributions of property where the inheritance tax was not collected. The tax appears to be on the estate. The tax return is due at the same time as the federal estate tax filing or an extension. ICA 14-406 provides the details.
ICA 63-3051. Property subject to lien.
If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount of such tax, including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto, shall be a lien in favor of the state of Idaho upon all property and rights to property, whether real or personal, belonging to such person or acquired afterwards and before the lien expires. Such lien shall not be valid as against any mortgagee or other lienholder, pledgee, secured party, purchaser, or judgment lienor until notice thereof has been filed in the office of the recorder of the county in this state within which the property subject to lien is situated.
The notice of lien shall specify the tax period, and the amount of tax, penalty, interest and additional amount due. It shall contain the name and last known address of the taxpayer liable for the amount thereof, an identification number and a statement to the effect that the state tax commission has complied with all the provisions of this act in the determination of the amount required to be paid. Any notarization or acknowledgment of a lien including, but not limited to, a notarization or acknowledgment required in title 55, Idaho Code, may be accomplished by a printed or facsimile reproduction of the signature of the individual authorized by the state tax commission to execute the lien accompanied by a printed or facsimile reproduction of the seal of the state tax commission.
The lien may, within five (5) years from the date of filing for record of notice of lien, be extended by filing for record a new notice of lien in the office of the county recorder of any county, and from the time of such filing the lien shall be extended only to the real property of the taxpayer in such county for five (5) years, unless fully released or otherwise discharged.
Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien?
ICA 14-401 provides that the tax is due upon the sale or distribution of the assets of the estate.
Value is established based upon market value of the assets. Personal representative under the probate code is directed to make an inventory of the assets of the estate.
Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.
ICA 14-409: (1) The tax provided for in this chapter, together with applicable interest and penalties, shall be and remain a lien on the decedent's estate from the time of the death of the decedent until paid. (2) Upon payment of the tax, together with applicable interest and penalties, the commission shall issue to the personal representative a receipt reflecting payment, a certificate of transfer and any other appropriate instruments reflecting payment. (3) In addition to the lien imposed in subsection (1) of this section, a lien is hereby imposed upon the property which is valued according to section 2032A. This additional lien shall be for the amount of tax which would have been due under the provisions of this chapter had the property not been valued according to section 2032A. This lien shall remain upon the property until the recapture period required in section 2032A has expired or until any additional tax imposed in section 14-404A, Idaho Code, has been paid.
Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.
Record letters of administration with a certification of less than 30 days, record personal representative's deed.
Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.
Yes ICA 15-3-715.
When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.
Only in a formal or supervised administration.
Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.
Yes ICA 15-4-101, et seq. File application, certified copies of letters, will, order admitting and other applicable orders or bonds. Clerk reviews and if appropriate issues certified copy of letters which are then recorded in the county. Thereafter the Personal Representative is treated like a local personal representative.