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title-15•Title 15 — Uniform Probate Code
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
This act shall be known and may be cited as the uniform probate code.
[I.C., sec. 15-1-101, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) This code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this code are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
(2) to discover and make effective the intent of a decedent in distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.
[I.C., sec. 15-1-102, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 1, p. 319.]
Unless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions.
[I.C., sec. 15-1-103, as added by 1971, ch. 111, sec. 1, p. 233.]
If any provision of this code or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this code which can be given effect without the invalid provision or application, and to this end the provisions of this code are declared to be severable.
[I.C., sec. 15-1-104, as added by 1971, ch. 111, sec. 1, p. 233.]
This code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
[I.C., sec. 15-1-105, as added by 1971, ch. 111, sec. 1, p. 233.]
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within two (2) years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five (5) years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
[I.C., sec. 15-1-106, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 2, p. 319.]
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) 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;
(b) 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;
(c) 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.
[I.C., sec. 15-1-107, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-1-108, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) 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.
(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.
[15-1-109, added 1999, ch. 306, sec. 1, p. 763.]
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:
(1) "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.
(2) "Augmented estate" means the estate described in section 15-2-202, Idaho Code.
(3) "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.
(4) "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.
(5) "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.
(6) "Community property" is as defined in section 32-906, Idaho Code.
(7) "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.
(8) "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.
(9) "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.
(10) "Determination of heirship" shall mean that determination of heirship required by section 15-3-409, Idaho Code, upon a finding of intestacy.
(11) "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.
(12) "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.
(13) "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.
(14) "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.
(15) "Emancipated minor" shall mean any male or female who has been married.
(16) "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.
(17) "Exempt property" means that property of a decedent’s estate which is described in section 15-2-403, Idaho Code.
(18) "Fiduciary" includes personal representative, guardian, conservator and trustee.
(19) "Foreign personal representative" means a personal representative of another jurisdiction.
(20) "Formal proceedings" means those conducted before a judge with notice to interested persons.
(21) "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.
(22) "Heirs" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(23) "Incapacitated person" is as defined in section 15-5-101, Idaho Code.
(24) "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.
(25) "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.
(26) "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.
(27) "Lease" includes an oil, gas, or other mineral lease.
(28) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(29) "Minor" means a male under eighteen (18) years of age or a female under eighteen (18) years of age.
(30) "Mortgage" means any conveyance, agreement or arrangement in which property is used as security.
(31) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(32) "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.
(33) "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.
(34) "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.
(35) "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.
(36) "Petition" means a written request to the court for an order after notice.
(37) "Proceeding" includes action at law and suit in equity.
(38) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(39) "Protected person" is as defined in section 15-5-101, Idaho Code.
(40) "Protective proceeding" is as defined in section 15-5-101, Idaho Code.
(41) "Quasi-community property" is the property defined by section 15-2-201, Idaho Code.
(42) "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.
(43) "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.
General definitions. [effective january 1, 2027]
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:
(1) "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.
(2) "Augmented estate" means the estate described in section 15-2-202, Idaho Code.
(3) "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.
(4) "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.
(5) "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.
(6) "Community property" is as defined in section 32-906, Idaho Code.
(7) "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.
(8) "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.
(9) "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.
(10) "Determination of heirship" shall mean that determination of heirship required by section 15-3-409, Idaho Code, upon a finding of intestacy.
(11) "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.
(12) "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.
(13) "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.
(14) "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.
(15) "Emancipated minor" shall mean any male or female who has been married.
(16) "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.
(17) "Exempt property" means that property of a decedent’s estate which is described in section 15-2-403, Idaho Code.
(18) "Fiduciary" includes personal representative, guardian, conservator and trustee.
(19) "Foreign personal representative" means a personal representative of another jurisdiction.
(20) "Formal proceedings" means those conducted before a judge with notice to interested persons.
(21) "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.
(22) "Heirs" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(23) "Incapacitated person" means any person who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, provided, that the term shall not refer to a person with a developmental disability as defined in section 66-402(4), Idaho Code, and provided further that:
(a) "Incapacity" means a legal, not a medical, disability and shall be measured by function limitations, and it shall be construed to mean or refer to any person who has suffered, is suffering, or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care, or safety or an inability to manage his property or financial affairs;
(b) Inability to provide for personal needs or to manage property shall be evidenced by acts or occurrences, or statements that strongly indicate imminent acts or occurrences. Material evidence of inability shall have occurred within twelve (12) months prior to the filing of the petition for guardianship or conservatorship;
(c) Isolated instances of simple negligence or improvidence, lack of resources, or any act, occurrence, or statement, if that act, occurrence, or statement is the product of an informed judgment, shall not constitute evidence of inability to provide for personal needs or to manage property; and
(d) "Informed judgment" means a choice made by a person who has the ability to make such a choice and who makes it voluntarily after all relevant information necessary to making the decision has been provided and who understands that he is free to choose or refuse any alternative available and who clearly indicates or expresses the outcome of his choice.
(24) "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.
(25) "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.
(26) "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.
(27) "Lease" includes an oil, gas, or other mineral lease.
(28) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(29) "Minor" means a male under eighteen (18) years of age or a female under eighteen (18) years of age.
(30) "Mortgage" means any conveyance, agreement or arrangement in which property is used as security.
(31) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(32) "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.
(33) "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.
(34) "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.
(35) "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.
(36) "Petition" means a written request to the court for an order after notice.
(37) "Proceeding" includes action at law and suit in equity.
(38) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(39) "Protected person" is as defined in section 15-5-101, Idaho Code.
(40) "Protective proceeding" is as defined in section 15-5-101, Idaho Code.
(41) "Quasi-community property" is the property defined by section 15-2-201, Idaho Code.
(42) "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.
(43) "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.
[15-1-201, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1972, ch. 201, sec. 1, p. 510; am. 1973, ch. 167, sec. 3, p. 319; am. 1982, ch. 285, sec. 2, p. 719; am. 1997, ch. 113, sec. 1, p. 275; am. 2001, ch. 294, sec. 1, p. 1036; am. 2002, ch. 233, sec. 1, p. 666; am. 2003, ch. 139, sec. 1, p. 404; am. 2004, ch. 55, sec. 1, p. 253; am. 2006, ch. 163, sec. 1, p. 484; am. 2007, ch. 68, sec. 1, p. 174; am. 2007, ch. 71, sec. 1, p. 189; am. 2026, ch. 79, sec. 10, p. 392.]
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.
[I.C., sec. 15-1-301, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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.
(b) 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 was 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.
(c) 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.
[I.C., sec. 15-1-303, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-1-305, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-1-305A, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-1-306, as added by 1971, ch. 111, sec. 1, p. 233.]
The acts and orders which this code specifies as performable by the registrar will be performed by a magistrate or district judge.
[I.C., sec. 15-1-307, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487.]
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.
[I.C., sec. 15-1-310, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-1-311, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-1-312, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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:
(1) 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;
(2) by delivering a copy thereof to the person being notified personally at least fourteen (14) days before the time set for the hearing; or
(3) 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.
(b) The court for good cause shown may provide for a different method or time of giving notice for any hearing.
(c) 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.
[I.C., sec. 15-1-401, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 4, p. 319.]
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.
[I.C., sec. 15-1-402, as added by 1971, ch. 111, sec. 1, p. 233.]
In judicial proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:
(a) 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.
(b) Persons are bound by orders binding others in the following cases:
(1) 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.
(2) 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.
(3) 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.
(c) Notice is required as follows:
(1) Notice as prescribed by section 15-1-401 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) or b(2) of this section. Notice may be given both to a person and to another who may bind him.
(2) Notice is given to unborn or unascertained persons, who are not represented under subsection b(1) or 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.
(d) 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.
[I.C., sec. 15-1-403, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) A will or trust of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "applicable credit amount," "applicable exclusion amount," "generation-skipping transfer tax exemption," "GST exemption," "marital deduction," "maximum marital deduction" or "unlimited marital deduction," or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010, without regard to whether the decedent’s personal representative or other fiduciary elects not to have the estate tax apply with respect to that estate. This provision shall not apply with respect to a will, trust or other instrument that manifests an intent that a contrary rule shall apply.
(2) The personal representative, trustee, other fiduciary or any affected beneficiary under the will, trust or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section. A proceeding under this section shall be commenced before January 1, 2012. In a proceeding under this section, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust or other instrument. The court shall have the power to modify a provision of the will, trust or other instrument that refers to the federal estate tax or generation-skipping tax laws as described in subsection (1) of this section to:
(a) Conform the terms to the decedent’s intention; or
(b) Achieve the decedent’s tax objectives in a manner that is not contrary to the decedent’s probable intention.
The court may provide that an interpretation or modification pursuant to this section shall be effective as of the decedent’s date of death. A person who commences a proceeding under this section has the burden of proof, by clear and convincing evidence, in establishing the decedent’s intent that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section.
(3) For purposes of this section only, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust or other instrument should be construed in a manner other than as provided in subsection (1) of this section and to conform the terms to the decedent’s intention, without court approval as provided in subsection (2) of this section. As used in the subsection, "interested persons" means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to chapter 8, title 15, Idaho Code. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved.
[15-1-501, added 2010, ch. 68, sec. 1, p. 116; am. 2011, ch. 305, sec. 1, p. 872.]
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.
[I.C., sec. 15-2-101, as added by 1971, ch. 111, sec. 1, p. 233.]
The intestate share of the surviving spouse is as follows:
(a) As to separate property:
(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(2) If there is no surviving issue but the decedent is survived by a parent or parents, one-half (1/2) of the intestate estate;
(3) If there are surviving issue of the deceased spouse, one-half (1/2) of the intestate estate.
(b) As to community property:
(1) The one-half (1/2) of community property which belongs to the decedent passes to the surviving spouse.
[I.C., sec. 15-2-102, as added by 1971, ch. 111, sec. 1, p. 233; am. 2001, ch. 330, sec. 1, p. 1160.]
The part of the intestate estate not passing to the surviving spouse under section 15-2-102 of this part, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) 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;
(b) If there is no surviving issue, to his parent or parents equally;
(c) If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(d) 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.
[I.C., sec. 15-2-103, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 5, p. 319.]
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 of this Part.
[I.C., sec. 15-2-104, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-106, as added by 1971, ch. 111, sec. 1, p. 233.]
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
[I.C., sec. 15-2-107, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-2-108, as added by 1971, ch. 111, sec. 1, p. 233; am. 2005, ch. 123, sec. 1, p. 407.]
If, for purposes of intestate succession, a relationship of parents and child must be established to determine succession by, through, or from a person:
(a) 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.
(b) 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:
(1) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(2) 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.
[I.C., sec. 15-2-109, as added by 1971, ch. 111, sec. 1, p. 233; am. 1978, ch. 350, sec. 4, p. 916.]
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.
[I.C., sec. 15-2-110, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-111, as added by 1971, ch. 111, sec. 1, p. 233.]
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
[I.C., sec. 15-2-112, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-2-114, added 1978, ch. 350, sec. 5, p. 916.]
(a) Upon death of a married person domiciled in this state, one-half (1/2) of the quasi-community property shall belong to the surviving spouse and the other one-half (1/2) 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.
(b) 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.
(c) All quasi-community property is subject to the debts of decedent.
[I.C., sec. 15-2-201, as added by 1972, ch. 201, sec. 4, p. 510.]
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:
(a) The decedent retained, at the time of his death, the possession or enjoyment of or the right to income from the property; or
(b) 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
(c) The decedent held the property at the time of his death with another with the right of survivorship; or
(d) 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.
[15-2-202, added 1972, ch. 201, sec. 4, p. 510; am. 1999, ch. 303, sec. 1, p. 760.]
(a) The right of the surviving spouse in the augmented quasi-community property estate shall be elective and shall be limited to one-half (1/2) 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.
(b) 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.
(c) 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.
[15-2-203, added 1978, ch. 350, sec. 2, p. 914; am. 2016, ch. 262, sec. 1, p. 682.]
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.
[I.C., sec. 15-2-204, as added by 1972, ch. 201, sec. 4, p. 510.]
(a) 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.
(b) 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.
(c) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the court.
(d) 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 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.
(e) 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.
[I.C., sec. 15-2-205, as added by 1972, ch. 201, sec. 4, p. 510; am. 1973, ch. 167, sec. 6, p. 319; am. 1999, ch. 73, sec. 1, p. 196.]
(a) 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.
(b) 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.
[15-2-206, added 1972, ch. 201, sec. 4, p. 510; am. 2016, ch. 262, sec. 2, p. 682.]
(a) 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.
(b) 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.
(c) 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.
[I.C., sec. 15-2-207, as added by 1972, ch. 201, sec. 4, p. 510; am. 1978, ch. 350, sec. 3, p. 915.]
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.
[15-2-208, added 1972, ch. 201, sec. 4, p. 510; am. 2016, ch. 262, sec. 3, p. 682.]
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.
[I.C., sec. 15-2-209, as added by 1972, ch. 201, sec. 4, p. 510.]
(a) 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.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 15-3-902 of this code.
[I.C., sec. 15-2-301, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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:
(1) it appears from the will that the omission was intentional;
(2) 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
(3) 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.
(b) 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.
(c) In satisfying a share provided by this section, the devises made by the will abate as provided in section 15-3-902 of this code.
[I.C., sec. 15-2-302, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 5, p. 510.]
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.
[15-2-401, added 2001, ch. 294, sec. 2, p. 1040; am. 2008, ch. 182, sec. 1, p. 549.]
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:
(a) If there is a surviving spouse of the decedent, the surviving spouse shall be entitled to a homestead allowance.
(b) 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.
[(15-2-402) 15-2-401, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. and redesig. 2001, ch. 294, sec. 3, p. 1040; am. 2004, ch. 123, sec. 1, p. 413; am. 2008, ch. 182, sec. 2, p. 549.]
In addition to any homestead allowance, the decedent’s surviving spouse is entitled from the estate to 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.
[(15-2-403) 15-2-402, as added by 1971, ch. 111, sec. 1, p. 233; am. and redesig. 2001, ch. 294, sec. 4, p. 1041; am. 2003, ch. 63, sec. 1, p. 209; am. 2004, ch. 123, sec. 2, p. 413; am. 2008, ch. 182, sec. 3, p. 550.]
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.
[(15-2-405) 15-2-404, as added by 1971, ch. 111, sec. 1, p. 233; am. and redesig. 2001, ch. 294, sec. 6, p. 1042; am. 2004, ch. 123, sec. 4, p. 414; am. 2008, ch. 182, sec. 5, p. 550.]
The decedent may provide by will that a surviving spouse, and/or adult children, but not minor or disabled children:
(1) Are not entitled to any exempt property or homestead allowance; or
(2) Are entitled to limited exempt property or a limited homestead allowance, as provided in the will; but
(3) 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.
[15-2-406, added 2008, ch. 182, sec. 6, p. 552.]
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.
[I.C., sec. 15-2-501, as added by 1971, ch. 211, sec. 1, p. 233.]
Except as provided for holographic wills, writings within section 15-2-513 of this part, and wills within section 15-2-506 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.
[15-2-502, added 1971, ch. 111, sec. 1, p. 233; am. 2008, ch. 76, sec. 1, p. 202; am. 2017, ch. 192, sec. 8, p. 454.]
A will which does not comply with section 15-2-502 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.
[I.C., sec. 15-2-503, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) 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:
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.
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.
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)
(2) 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:
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.
Subscribed, sworn to and acknowledged before me by………., the testator, and subscribed and sworn to before me by………., and………., witnesses, this….. day of………
(Seal)
(3) 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.
[15-2-504, added 1978, ch. 350, sec. 7, p. 917; am. 2007, ch. 90, sec. 2, p. 247; am. 2008, ch. 76, sec. 2, p. 203; am. 2017, ch. 192, sec. 9, p. 454.]
(a) Any person eighteen (18) or more years of age generally competent to be a witness may act as a witness to a will.
(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
[I.C., sec. 15-2-505, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487.]
A written will is valid if executed in compliance with section 15-2-502 or 15-2-503 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.
[I.C., sec. 15-2-506, as added by 1971, ch. 111, sec. 1, p. 233.]
A will or any part thereof is revoked:
(a) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(b) 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.
(c) The revocation of a will executed in duplicate may be accomplished by revoking one (1) of the duplicates.
[I.C., sec. 15-2-507, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-2-508, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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 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.
(b) 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.
(c) Republication of a revoked will revives such will.
[I.C., sec. 15-2-509, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-510, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) (a) A will may validly devise property to the trustee of a trust established or to be established:
(i) 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
(ii) 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.
(b) 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.
(2) 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.
(3) Unless the testator’s will provides otherwise a revocation or termination of the trust before the testator’s death causes the devise to lapse.
[15-2-511, as added by 1971, ch. 111, sec. 1, p. 233; am. 1999, ch. 304, sec. 1, p. 761; am. 2006, ch. 161, sec. 1, p. 481.]
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.
[I.C., sec. 15-2-512, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-513, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-601, as added by 1971, ch. 111, sec. 1, p. 233.]
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 15-2-201 through 15-2-209, the provisions relating to the exempt property and allowances described in 15-2-401 through 15-2-405 or any other public policy of this state otherwise applicable to the disposition.
[I.C., sec. 15-2-602, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 6, p. 510; am. 2001, ch. 294, sec. 7, p. 1042.]
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.
[I.C., sec. 15-2-603, as added by 1971, ch. 111, sec. 1, p. 233.]
A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.
[I.C., sec. 15-2-604, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-605, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Except as provided in section 15-2-605 of this Part, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(b) Except as provided in section 15-2-605 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.
[I.C., sec. 15-2-606, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the estate at the time of the testator’s death;
(2) 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;
(3) 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
(4) 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.
(b) 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.
[I.C., sec. 15-2-607, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) A specified devisee has the right to the remaining specifically devised property and:
(1) 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;
(2) Any amount of a condemnation award for the taking of the property unpaid at death;
(3) Any proceeds unpaid at death on fire or casualty insurance on the property; and
(4) 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.
(b) 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.
[15-2-608, added 1978, ch. 350, sec. 9, p. 918.]
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.
[I.C., sec. 15-2-609, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-610, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-611, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-612, as added by 1971, ch. 111, sec. 1, p. 233.]
Subject to extension by the provisions of section 15-2-104 and section 15-2-601 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.
(a) 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.
(b) 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 (1/2) as if one had survived and one-half (1/2) 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.
(c) 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.
(d) 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.
(e) 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.
(f) This section may be cited as the "uniform simultaneous death act."
[I.C., sec. 15-2-613, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-2-614, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-2-616, added 1983, ch. 236, sec. 1, p. 642; am. 1989, ch. 193, sec. 1, p. 475; am. 1994, ch. 350, sec. 1, p. 1110; am. 2000, ch. 274, sec. 1, p. 801.]
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.
[I.C., sec. 15-2-701, as added by 1971, ch. 111, sec. 1, p. 233.]
(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.
(b) The instrument shall:
(i) Describe the property or interest renounced;
(ii) Be signed by the person renouncing; and
(iii) Declare the renunciation and the extent thereof.
(c) 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.
(2) Except as provided in subsection (9) of 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.
(3) 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:
(a) Assignment, conveyance, encumbrance, pledge or transfer of property therein or any contract therefor;
(b) Written waiver of the right to renounce; or
(c) 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.
[15-2-801, added 1978, ch. 173, sec. 2, p. 395; am. 2000, ch. 182, sec. 1, p. 451; am. 2011, ch. 106, sec. 1, p. 271; am. 2023, ch. 218, sec. 3, p. 607.]
(a) 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.
(b) For purposes of parts 1, 2, 3 and 4 of this chapter and of section 15-3-203 of this code, a surviving spouse does not include:
(1) 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;
(2) 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
(3) An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
[15-2-802, added 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 7, p. 319; am. 2016, ch. 362, sec. 1, p. 1068.]
(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.
(2) "Decedent" shall mean any person whose life is so taken.
(3) "Property" shall include any real and personal property and any right or interest therein.
(b) 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 following.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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:
(1) 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.
(2) In any case the interest shall not be vested or increased during period of the life expectancy of 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.
(2) 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.
(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 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
[I.C., sec. 15-2-803, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487.]
(a) Definitions. In this section:
(1) "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.
(2) "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.
(3) "Divorced individual" includes an individual whose marriage has been annulled.
(4) "Governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment of his marriage to his former spouse.
(5) "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.
(6) "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.
(b) 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:
(1) Revokes any revocable:
(i) 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;
(ii) 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
(iii) 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
(2) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) Protection of Payors and Other Third Parties.
(1) 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.
(2) 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.
(h) Protection of Bona Fide Purchasers — Personal Liability of Recipient.
(1) 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.
(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.
[15-2-804, added 2016, ch. 362, sec. 2, p. 1069.]
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 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.
[I.C., sec. 15-2-902, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-2-1001, added 2000, ch. 181, sec. 1, p. 450.]
This chapter shall be known and may be cited as the "Uniform Electronic Wills Act."
[15-2-1101, added 2023, ch. 104, sec. 1, p. 308.]
As used in this chapter:
(1) "Communication technology" means an electronic device or process that:
(a) Allows two (2) or more individuals to communicate with each other simultaneously by sight and sound; or
(b) When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.
(2) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3) "Electronic presence" means the relationship of two (2) or more individuals in different locations communicating in real time by means of communication technology.
(4) "Electronic will" means a will executed electronically in compliance with section 15-2-1105(1), Idaho Code.
(5) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(6) "Sign" means, with present intent to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol; or
(b) To affix to or logically associate with the record an electronic symbol or process.
(7) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.
(8) "Tamper-evident" means a feature of an electronic record whereby evidence of any change to the electronic record is preserved. The term includes a digital certificate or similar technology that satisfies the requirements of section 51-120, Idaho Code.
(9) "Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
[15-2-1102, added 2023, ch. 104, sec. 1, p. 308.]
An electronic will is a will for all purposes of the law of this state. The law of this state applicable to wills and principles of equity applies to an electronic will, except as modified by this chapter.
[15-2-1103, added 2023, ch. 104, sec. 1, p. 309.]
A will executed electronically but not in compliance with section 15-2-1105(1), Idaho Code, is an electronic will under this chapter if executed in compliance with the law of the jurisdiction where the testator is:
(1) Physically located when the will is signed; or
(2) Domiciled or resides when the will is signed or when the testator dies.
[15-2-1104, added 2023, ch. 104, sec. 1, p. 309.]
(1) An electronic will must be:
(a) A tamper-evident electronic record that is readable as text at the time of signing under paragraph (b) of this subsection;
(b) Signed by:
(i) The testator; or
(ii) Another individual in the testator’s name, in the testator’s physical presence, and by the testator’s direction; and
(c) Signed in the physical or electronic presence of the testator by at least two (2) individuals, each of whom is a resident of a state at the time of signing, within a reasonable time after witnessing:
(i) The signing of the will under paragraph (b) of this subsection; or
(ii) The testator’s acknowledgment of the signing of the will under paragraph (b) of this subsection or acknowledgment of the will.
(2) Intent of a testator that a record under subsection (1)(a) of this section be the testator’s electronic will, or that a record affixed to or logically associated with an electronic will forms a part thereof, may be established by extrinsic evidence.
(3) A signature affixed to an acknowledgment or affidavit under section 15-2-1108(1), Idaho Code, that is affixed to or logically associated with an electronic will, or a record that would constitute an electronic will but for lack of a signature or signatures described in this sentence, is deemed a signature of the electronic will under subsection (1) of this section.
[15-2-1105, added 2023, ch. 104, sec. 1, p. 309.]
(1) An electronic will may revoke all or part of a previous will.
(2) All or part of an electronic will is revoked by:
(a) A subsequent will that revokes all or part of the electronic will expressly or by inconsistency; or
(b) A physical act, if it is established by a preponderance of the evidence that the testator, with the intent of revoking all or part of the will, performed the act or directed another individual who performed the act in the testator’s physical presence.
[15-2-1107, added 2023, ch. 104, sec. 1, p. 309.]
(1) An electronic will may be simultaneously executed, attested, and made self-proved by acknowledgment of the testator and affidavits of the witnesses, in the same manner as other wills, in accordance with section 15-2-504(1), Idaho Code.
(2) The provisions of section 15-2-504(2), Idaho Code, shall not apply with respect to an electronic will.
(3) The form of the affidavits of the witnesses under subsection (1) of this section, as set forth in section 15-2-504(1), Idaho Code, may be modified by replacing the phrase "presence and hearing" with "physical or electronic presence."
(4) An acknowledgment or affidavit under subsection (1) of this section must be a tamper-evident electronic record and must be affixed to or logically associated with the electronic will to which it refers at the time of or within a reasonable time after execution of the acknowledgment or affidavit.
[15-2-1108, added 2023, ch. 104, sec. 1, p. 310.]
(1) An individual may create a certified paper copy of an electronic will by affirming under penalty of perjury that a paper copy of the electronic will is a complete, true, and accurate copy of the electronic will. The certified paper copy of the will must include all records affixed to or logically associated with the electronic will.
(2) For purposes of sections 15-3-303(a)(5) and 15-3-402, Idaho Code, and any related provisions under Idaho rules for electronic filing and service or other applicable rules, an electronic will transmitted to the registrar or court via electronic filing or other electronic means constitutes the original of the electronic will.
(3) An application or petition for probate of an electronic will filed with the court must state:
(a) That the electronic will filed with the court is a tamper-evident electronic record;
(b) That the petition or application includes all records affixed to or logically associated with the electronic will or an explanation of any omitted items; and
(c) If known, facts regarding the provenance of the electronic will and all records affixed to or logically associated with the electronic will.
[15-2-1109, added 2023, ch. 104, sec. 1, p. 310.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[15-2-1110, added 2023, ch. 104, sec. 1, p. 310.]
The provisions of this chapter apply to the will of a decedent who dies on or after January 1, 2020.
[15-2-1111, added 2023, ch. 104, sec. 1, p. 310.]
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.
[15-3-101, added 1971, ch. 111, sec. 1, p. 233; am. 2014, ch. 134, sec. 1, p. 369.]
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.
[I.C., sec. 15-3-102, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-103, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this code or from a former personal representative individually liable as provided in section 15-3-1005 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.
[I.C., sec. 15-3-104, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-105, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-106, as added by 1971, ch. 111, sec. 1, p. 233.]
Unless supervised administration as described in Part 5, chapter 3, 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.
[I.C., sec. 15-3-107, as added by 1971, ch. 111, sec. 1, p. 233.]
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:
(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 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.
[15-3-108, added 1971, ch. 111, sec. 1, p. 233; am. 2014, ch. 264, sec. 1, p. 659.]
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.
[I.C., sec. 15-3-109, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-3-111, added 1973, ch. 26, sec. 1, p. 50; am. 1995, ch. 168, sec. 1, p. 651.]
(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent’s death is:
(1) In the county where the decedent had his domicile at the time of his death; or
(2) 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.
(b) 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 of this code or subsection (c) of this section.
(c) 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.
(d) 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.
[(15-3-201) added 1971, ch. 111, sec. 1, p. 233; am. 2009, ch. 11, sec. 4, p. 15.]
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.
[I.C., sec. 15-3-202, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent;
(6) forty-five (45) days after the death of the decedent, any creditor;
(7) 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.
(b) 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
(1) 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;
(2) 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.
(c) 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.
(d) 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.
(e) 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.
(f) No person is qualified to serve as a personal representative who is:
(1) under the age of eighteen (18);
(2) a person whom the court finds unsuitable in formal proceedings.
(g) 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.
(h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
(i) A married woman shall have the right to serve as personal representative.
[I.C., sec. 15-3-203, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 8, p. 510.]
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 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.
[I.C., sec. 15-3-204, as added by 1971, ch. 111, sec. 1, p. 233.]
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:
(a) 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:
(1) A statement of the interest of the applicant;
(2) 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;
(3) If the decedent was not domiciled in the state at the time of his death, a statement showing venue;
(4) 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;
(5) 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;
(6) 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;
(7) 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 of this code authorizing tardy probate appointment have occurred.
(b) An application for informal probate of a will shall state the following in addition to the statements required by subsection (a) of this section:
(1) 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;
(2) That the applicant, to the best of his knowledge, believes the will to have been validly executed;
(3) 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.
(c) 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.
(d) An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by subsection (a) of this section:
(1) 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 of this code, or, a statement why any such instrument of which he may be aware is not being probated;
(2) 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 of this code.
(e) 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.
(f) 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 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.
(g) 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.
(h) 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.
[I.C., sec. 15-3-301, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1978, ch. 350, sec. 10, p. 919; am. 1995, ch. 166, sec. 1, p. 648.]
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 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.
[I.C., sec. 15-3-302, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1973, ch. 167, sec. 8, p. 319.]
(a) 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:
(1) The application is complete;
(2) The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) The applicant appears from the application to be an interested person as defined in subsection (25) of section 15-1-201, Idaho Code;
(4) On the basis of the statements in the application, venue is proper;
(5) An original, duly executed and apparently unrevoked will is in the registrar’s possession;
(6) 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;
(7) It appears from the application that the time limit for original probate has not expired; and
(8) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
[15-3-303, added 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1973, ch. 167, sec. 19, p. 319; am. 2020, ch. 82, sec. 3, p. 176.]
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.
[I.C., sec. 15-3-303A, as added by 1972, ch. 201, sec. 9, p. 510; am. 1973, ch. 167, sec. 9, p. 319.]
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.
[15-3-304, added 1971, ch. 111, sec. 1, p. 233; am. 2015, ch. 76, sec. 1, p. 198.]
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 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.
[I.C., sec. 15-3-305, as added by 1971, ch. 111, sec. 1, p. 233.]
The moving party must give notice as described by section 15-1-401 of this code of his application for informal probate (1) to any person demanding it pursuant to section 15-3-204 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.
[I.C., sec. 15-3-306, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 15-3-614 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 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.
(b) 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 of this code, but is not subject to retroactive vacation.
[I.C., sec. 15-3-307, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) In informal appointment proceedings, the registrar must determine whether:
(1) The application for informal appointment of a personal representative is complete;
(2) The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) The applicant appears from the application to be an interested person as defined in subsection (25) of section 15-1-201, Idaho Code;
(4) On the basis of the statements in the application, venue is proper;
(5) 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;
(6) Any notice required by section 15-3-204, Idaho Code, has been given;
(7) From the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
(b) 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.
[15-3-308, added 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 20, p. 319; am. 2020, ch. 82, sec. 4, p. 177.]
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 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.
[I.C., sec. 15-3-309, as added by 1971, ch. 111, sec. 1, p. 233.]
The moving party must give notice as described by section 15-1-401 of this code of his intention to seek an appointment informally: (1) to any person demanding it pursuant to section 15-3-204 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.
[I.C., sec. 15-3-310, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-311, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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 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.
By submitting a petition for formal probate the petitioner subjects himself to jurisdiction of the court in which such instrument is filed. Any action by a person damaged by him, including a creditor of the estate, shall be limited in amount to the assets of the estate less the obligations of the estate paid by him. Notice of any proceedings sought to be maintained against the petitioner pursuant to his submission to jurisdiction shall be delivered to him or mailed to him by ordinary first class mail at his address as it is known to the petitioner, or is listed on any application or petition in probate proceedings previously instituted in the court where the proceeding is brought.
[I.C., sec. 15-3-401, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 11, p. 510.]
(a) 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:
(1) 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;
(2) contains the statements required for informal applications as stated in subsection (a)(1) through (5) of section 15-3-301 of this code, the statements required by subsection (b)(1) and (2) of section 15-3-301 of this code; and
(3) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(b) 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.
(c) 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 (a) and (d) of section 15-3-301 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 of this code may be omitted.
[I.C., sec. 15-3-402, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) 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 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 of this code.
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.
(2) 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:
(a) 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;
(b) By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
(c) 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.
[15-3-403, as added by 1971, ch. 111, sec. 1, p. 233; am. 2008, ch. 75, sec. 1, p. 200.]
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.
[I.C., sec. 15-3-404, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-405, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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.
(b) 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.
[I.C., sec. 15-3-406, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 12, p. 510.]
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.
[I.C., sec. 15-3-407, as added by 1971, ch. 111, sec. 1, p. 233.]
A final order of a court of another state determining testacy, 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.
[I.C., sec. 15-3-408, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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 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.
[I.C., sec. 15-3-409, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this Part.
[I.C., sec. 15-3-410, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-411, as added by 1971, ch. 111, sec. 1, p. 233.]
Subject to appeal and subject to vacation as provided herein and in section 15-3-413 of this part, a formal testacy order under sections 15-3-409 through 15-3-411 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:
(1) 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.
(2) 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.
(3) 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:
(a) 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.
(b) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by section 15-3-108 of this code when it is no longer possible to initiate an original proceeding to probate a will of the decedent.
(c) Twelve (12) months after the entry of the order sought to be vacated.
(4) 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.
(5) 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 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.
[15-3-412, added 1971, ch. 111, sec. 1, p. 233; am. 2008, ch. 75, sec. 2, p. 201.]
For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
[I.C., sec. 15-3-413, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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 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 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.
(b) 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 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 of this code.
[I.C., sec. 15-3-414, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-501, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-502, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) The pendency of a proceeding for supervised administration of a decedent’s estate stays action on any informal application then pending or thereafter filed.
(b) 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 of this code.
(c) 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.
[I.C., sec. 15-3-503, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-504, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-505, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-601, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-602, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-603, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-604, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-605, as added by 1971, ch. 111, sec. 1, p. 233; am. 1974, ch. 199, sec. 2, p. 1516.]
(a) The following requirements and provisions apply to any bond required by this Part:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(b) 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.
[I.C., sec. 15-3-606, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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.
(b) 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.
(c) 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.
[I.C., sec. 15-3-607, as added by 1971, ch. 111, sec. 1, p. 233.]
Termination of appointment of a personal representative occurs as indicated in sections 15-3-609 through 15-3-612, 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.
[I.C., sec. 15-3-608, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-609, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) An appointment of a personal representative terminates as provided in section 15-3-1003 of this code, one (1) year after the filing of a closing statement.
(b) An order closing an estate as provided in section 15-3-1001 or 15-3-1002 of this code terminates an appointment of a personal representative.
(c) 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.
[I.C., sec. 15-3-610, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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 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.
(b) 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.
[I.C., sec. 15-3-611, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-612, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-613, as added by 1971, ch. 111, sec. 1, p. 233.]
A special administrator may be appointed:
(a) 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 of this Part;
(b) 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.
[I.C., sec. 15-3-614, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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.
(b) In other cases, any proper person may be appointed special administrator.
[I.C., sec. 15-3-615, as added by 1971, ch. 111, sec. 1, p. 233.]
A special administrator appointed by the registrar in informal proceedings pursuant to subsection (a) of section 15-3-614 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.
[I.C., sec. 15-3-616, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-617, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this Part.
[I.C., sec. 15-3-618, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-701, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-702, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by section 15-7-302 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.
(b) 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.
(c) 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.
[I.C., sec. 15-3-703, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-704, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-705, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-3-706, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1973, ch. 167, sec. 10, p. 319; am. 2004, ch. 55, sec. 2, p. 257.]
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.
[I.C., sec. 15-3-707, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-708, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 11, p. 319.]
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.
[I.C., sec. 15-3-709, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-710, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-711, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this Part.
[I.C., sec. 15-3-712, as added by 1971, ch. 111, sec. 1, p. 233.]
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:
(a) the will or a contract entered into by the decedent expressly authorized the transaction; or
(b) the transaction is approved by the court after notice to interested persons.
[I.C., sec. 15-3-713, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this code, and without regard to the constructive notice provisions of section 15-1-305A 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.
[I.C., sec. 15-3-714, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this code, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) 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;
(2) Receive assets from fiduciaries, or other sources;
(3) 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:
(a) 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
(b) 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;
(4) 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;
(5) 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;
(6) 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;
(7) Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings;
(8) 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;
(9) 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;
(10) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(11) 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;
(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:
(a) 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;
(b) 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
(c) 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;
(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.
[15-3-715, added 1971, ch. 111, sec. 1, p. 233; am. 2011, ch. 69, sec. 1, p. 144.]
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.
[I.C., sec. 15-3-716, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-717, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-718, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-719, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-720, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-721, as added by 1971, ch. 111, sec. 1, p. 233.]
(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.
(b) 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.
(c) 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.
(d) 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.
[15-3-801, added 1971, ch. 111, sec. 1, p. 233; am. 1991, ch. 87, sec. 1, p. 192; am. 1998, ch. 9, sec. 2, p. 108.]
(a) 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.
(b) 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.
(c) 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.
[I.C., sec. 15-3-802, as added by 1971, ch. 111, sec. 1, p. 233; am. 1978, ch. 350, sec. 12, p. 922; am. 1991, ch. 87, sec. 2, p. 192.]
(a) 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:
(1) three (3) years after the decedent’s death; or
(2) 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.
(b) 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.
(c) 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:
(1) a claim based on a contract with the personal representative, within four (4) months after performance by the personal representative is due;
(2) any other claim, within the later of four (4) months after it arises, or the time specified in subsection (a)(1) of this section.
(d) 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:
(1) three (3) years from the latest of:
(i) the date of the decedent’s death,
(ii) the due date of the return (without regard to extensions), or
(iii) the date the return was filed; or
(2) 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.
(e) Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
(2) 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;
(3) 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
(4) assessment or collection of state taxes arising from activities or transactions of the estate; or
(5) assessment or collection of state taxes if a return has not been filed with the state tax commission.
[15-3-803, added 1991, ch. 87, sec. 4, p. 193; am. 1997, ch. 113, sec. 2, p. 279; am. 2004, ch. 130, sec. 1, p. 449.]
Claims against a decedent’s estate may be presented as follows:
(a) 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.
(b) 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.
(c) 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.
[15-3-804, as added by 1971, ch. 111, sec. 1, p. 233; am. 1992, ch. 240, sec. 1, p. 712; am. 2004, ch. 124, sec. 1, p. 416.]
(a) 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:
(1) costs and expenses of administration;
(2) reasonable funeral expenses;
(3) debts and taxes with preference under federal law;
(4) reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
(5) debts and taxes with preference under other laws of this state;
(6) all other claims.
(b) 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.
[I.C., sec. 15-3-805, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 13, p. 319.]
(a) As to claims presented in the manner described in section 15-3-804(a) of this Part within the time limit prescribed in 15-3-803 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.
(b) 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.
(c) 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.
(d) 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.
[I.C., sec. 15-3-806, as added by 1971, ch. 111, sec. 1, p. 233; am. 1974, ch. 199, sec. 3, p. 1516.]
(a) 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.
(b) 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:
(1) 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
(2) payment was made, due to negligence or wilful fault of the personal representative, in such manner as to deprive the injured claimant of priority.
[I.C., sec. 15-3-807, as added by 1971, ch. 111, sec. 1, p. 233; am. 1991, ch. 87, sec. 5, p. 194.]
(a) 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.
(b) 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.
(c) 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.
(d) 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.
[I.C., sec. 15-3-808, as added by 1971, ch. 111, sec. 1, p. 233.]
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:
(a) 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
(b) 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.
[I.C., sec. 15-3-809, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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.
(b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
(1) if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
(2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.
[I.C., sec. 15-3-810, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-811, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-812, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-813, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-814, as added by 1971, ch. 111, sec. 1, p. 233; am. 1978, ch. 350, sec. 13, p. 922.]
(a) 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.
(b) 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.
(c) 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.
[I.C., sec. 15-3-815, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-816, as added by 1971, ch. 111, sec. 1, p. 233.]
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 and section 15-2-601 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.
[I.C., sec. 15-3-817, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-901, as added by 1971, ch. 111, sec. 1, p. 233.]
(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.
(b) 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.
(c) 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.
(d) 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.
[I.C., sec. 15-3-902, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-903, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-904, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-905, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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:
(1) 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.
(2) Any homestead or devise payable in money may be satisfied by value in kind provided:
(A) The person entitled to the payment has not demanded payment in cash;
(B) The property distributed in kind is valued at fair market value as of the date of its distribution; and
(C) No residuary devisee has requested that the asset in question remain a part of the residue of the estate.
(3) 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.
(4) 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.
(b) 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.
[15-3-906, added 1971, ch. 111, sec. 1, p. 233; am. 2001, ch. 294, sec. 8, p. 1042; am. 2016, ch. 262, sec. 4, p. 683.]
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.
[I.C., sec. 15-3-907, as added by 1971, ch. 111, sec. 1, p. 233.]
(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.
[I.C., sec. 15-3-907A, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-908, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-909, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-910, as added by 1971, ch. 111, sec. 1, p. 233; am. 1978, ch. 350, sec. 14, p. 922.]
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.
[I.C., sec. 15-3-911, as added by 1971, ch. 111, sec. 1, p. 233.]
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 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.
[I.C., sec. 15-3-912, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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 of this code.
(b) 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.
(c) 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.
[I.C., sec. 15-3-913, as added by 1971, ch. 111, sec. 1, p. 233.]
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 and deliver the property in the manner set forth in chapter 5, title 14, Idaho Code.
[15-3-914, added 1971, ch. 111, sec. 1, p. 233; am. 1980, ch. 281, sec. 4, p. 751; am. 1984, ch. 36, sec. 5, p. 63; am. 1992, ch. 21, sec. 8, p. 70; am. 2007, ch. 97, sec. 4, p. 282; am. 2012, ch. 215, sec. 4, p. 587; am. 2024, ch. 27, sec. 5, p. 217.]
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.
[I.C., sec. 15-3-915, as added by 1971, ch. 111, sec. 1, p. 233.]
(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.
(b) 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.
[I.C., sec. 15-3-1001, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this Part.
[I.C., sec. 15-3-1002, as added by 1971, ch. 111, sec. 1, p. 233.]
(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:
(1) determined that the time limitation for presentation of creditors’ claims has expired;
(2) 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
(3) 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.
(b) 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.
[I.C., sec. 15-3-1003, as added by 1971, ch. 111, sec. 1, p. 233; am. 1991, ch. 87, sec. 6, p. 194.]
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.
[15-3-1004, added 1971, ch. 111, sec. 1, p. 233; am. 1978, ch. 350, sec. 15, p. 923; am. 2016, ch. 262, sec. 5, p. 684.]
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.
[I.C., sec. 15-3-1005, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[15-3-1006, added 1971, ch. 111, sec. 1, p. 233; am. 1991, ch. 87, sec. 7, p. 195; am. 1997, ch. 113, sec. 3, p. 280; am. 2014, ch. 134, sec. 2, p. 370.]
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.
[I.C., sec. 15-3-1007, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-1008, as added by 1971, ch. 111, sec. 1, p. 233.]
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.
[I.C., sec. 15-3-1009, as added by 1972, ch. 201, sec. 15, p. 510.]
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.
[I.C., sec. 15-3-1101, as added by 1971, ch. 111, sec. 1, p. 233.]
The procedure for securing court approval of a compromise is as follows:
(a) 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.
(b) 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.
(c) 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.
[I.C., sec. 15-3-1102, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) 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:
(1) 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);
(2) Thirty (30) days have elapsed since the death of the decedent;
(3) 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
(4) The claiming successor is entitled to payment or delivery of the property, including entitlement as a trust pursuant to a will of the decedent.
(b) 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.
(c) 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:
(1) 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.
(2) 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.
[15-3-1201, as added by 1971, ch. 111, sec. 1, p. 233; am. 1993, ch. 253, sec. 1, p. 879; am. 1995, ch. 167, sec. 1, p. 650; am. 1997, ch. 212, sec. 1, p. 631; am. 2002, ch. 216, sec. 1, p. 595; am. 2006, ch. 160, sec. 1, p. 480; am. 2006, ch. 179, sec. 1, p. 553.]
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.
[I.C., sec. 15-3-1202, as added by 1971, ch. 111, sec. 1, p. 233.]
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 of this part.
[15-3-1203, added 1971, ch. 111, sec. 1, p. 233; am. 2014, ch. 134, sec. 3, p. 370.]
(a) 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 of this part by filing with the court, at any time after disbursement and distribution of the estate, a verified statement that:
(1) 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;
(2) The personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto; and
(3) 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.
(b) If no actions or 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.
(c) A closing statement filed under this section has the same effect as one filed under section 15-3-1003 of this code.
[15-3-1204, added 1971, ch. 111, sec. 1, p. 233; am. 2014, ch. 134, sec. 4, p. 370.]
(a) Upon the testate or intestate death of a person leaving a surviving spouse as the sole devisee or beneficiary, the surviving spouse (or any person claiming title to any property through or under such surviving spouse) may file a verified petition setting out marriage and the death of a person leaving a surviving spouse as the sole devisee or heir. If the decedent died testate, the petition must be accompanied by the original of the last will and testament of the decedent. Notice of hearing shall be given pursuant to the provisions of section 15-1-401, Idaho Code.
(b) If it shall appear at such hearing that the decedent and the person claimed to be the surviving spouse were duly married and that the surviving spouse is the sole heir or devisee, a decree shall be made to that effect. This decree shall thereafter have the same effect as a formal decree approving or determining distribution. The petitioner, or the surviving spouse, or both, need not appear in person at such hearing, nor must an attorney for the petitioner spouse appear in person at such hearing. The petitioner or the attorney for the petitioner, or both, may either:
(1) Upon proper motion made by the petitioner, appear telephonically; or
(2) Submit one (1) or more affidavits in advance of the hearing certifying that notice of hearing was given as required by law and that no objection to the entering of the decree has been received by the petitioner or the attorney for the petitioner.
(c) In the event that the surviving spouse (or person claiming through or under the surviving spouse) shall elect to proceed under this section, the surviving spouse shall assume and be liable for any and all indebtedness that might be a claim against the estate of the decedent and there will be no administration of the estate of the decedent.
[15-3-1205, added 1973, ch. 124, sec. 2, p. 234; am. 1974, ch. 199, sec. 4, p. 1516; am. 2003, ch. 60, sec. 1, p. 206; am. 2005, ch. 121, sec. 1, p. 396.]
This part may be cited as the "Uniform Estate Tax Apportionment Act."
[15-3-1301, added 2004, ch. 54, sec. 2, p. 247.]
As used in this part:
(a) "Apportionable estate" means the value of the gross estate as finally determined for purposes of the estate tax to be apportioned reduced by:
(1) Any claim or expense allowable as a deduction for purposes of the tax;
(2) The value of any interest in property that, for purposes of the tax, qualifies for a marital or charitable deduction or otherwise is deductible or is exempt; and
(3) Any amount added to the decedent’s gross estate because of a gift tax on transfers made before death.
(b) "Estate tax" means a federal, state, or foreign tax, however denominated, imposed because of the death of an individual and interest and penalties associated with the tax. The term does not include an inheritance tax, income tax, or generation-skipping transfer tax other than a generation-skipping transfer tax incurred on a direct skip taking effect at death.
(c) "Gross estate" means, with respect to an estate tax, all interests in property subject to the tax.
(d) "Person" has the same meaning set forth in section 15-1-201(34), Idaho Code.
(e) "Ratable" means apportioned or allocated pro rata according to the relative values of interests to which the term is to be applied. "Ratably" has a corresponding meaning.
(f) "Time-limited interest" means an interest in property which terminates on a lapse of time or on the occurrence or nonoccurrence of an event or which is subject to the exercise of discretion that could transfer a beneficial interest to another person. The term does not include a cotenancy unless the cotenancy itself is a time-limited interest.
(g) "Value" means, with respect to an interest in property, fair market value as finally determined for purposes of the estate tax that is to be apportioned, reduced by any outstanding debt secured by the interest without reduction:
(1) For taxes paid or required to be paid; or
(2) For any special valuation adjustment.
[15-3-1302, added 2004, ch. 54, sec. 2, p. 247; am. 2020, ch. 82, sec. 5, p. 177.]
(a) Except as otherwise provided in subsection (c), the following rules apply:
(1) To the extent that a provision of a decedent’s will expressly and unambiguously directs the apportionment of an estate tax, the tax must be apportioned accordingly regardless of whether such will is probated.
(2) Any portion of an estate tax not apportioned pursuant to paragraph (a)(1) of this section must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two (2) or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this paragraph:
(A) A trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and
(B) The date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.
(3) If any portion of an estate tax is not apportioned pursuant to paragraph (a)(1) of this section or paragraph (a)(2) of this section, and a provision in any other dispositive instrument expressly and unambiguously directs that any interest in the property disposed of by the instrument is or is not to be applied to the payment of the estate tax attributable to the interest disposed of by the instrument, the provision controls the apportionment of the tax to that interest.
(b) Subject to subsection (c) of this section, and unless the decedent expressly and unambiguously directs the contrary, the following rules apply:
(1) If an apportionment provision directs that a person receiving an interest in property under an instrument is to be exonerated from the responsibility to pay an estate tax that would otherwise be apportioned to the interest,
(A) The tax attributable to the exonerated interest must be apportioned among the other persons receiving interests passing under the instrument, or
(B) If the values of the other interests are less than the tax attributable to the exonerated interest, the deficiency must be apportioned ratably among the other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax.
(2) If an apportionment provision directs that an estate tax is to be apportioned to an interest in property a portion of which qualifies for a marital or charitable deduction, the estate tax must first be apportioned ratably among the holders of the portion that does not qualify for a marital or charitable deduction and then apportioned ratably among the holders of the deductible portion to the extent that the value of the nondeductible portion is insufficient.
(3) Except as otherwise provided in paragraph (4) of this subsection, if an apportionment provision directs that an estate tax be apportioned to property in which one (1) or more time-limited interests exist, other than interests in specified property under section 15-3-1307, Idaho Code, the tax must be apportioned to the principal of that property, regardless of the deductibility of some of the interests in that property.
(4) If an apportionment provision directs that an estate tax is to be apportioned to the holders of interests in property in which one (1) or more time-limited interests exist and a charity has an interest that otherwise qualifies for an estate tax charitable deduction, the tax must first be apportioned, to the extent feasible, to interests in property that have not been distributed to the persons entitled to receive the interests.
(c) A provision that apportions an estate tax is ineffective to the extent that it increases the tax apportioned to a person having an interest in the gross estate over which the decedent had no power to transfer immediately before the decedent executed the instrument in which the apportionment direction was made. For purposes of this subsection, a testamentary power of appointment is a power to transfer the property that is subject to the power.
(d) For purposes of this section, a decedent’s will, revocable trust, or other dispositive instrument that contains the applicable phrase(s) set forth in paragraphs (1), (2) or (3) of this subsection (or other substantially similar language in other dispositive instruments not listed in said paragraphs), shall satisfy the part’s requirement for an express and unambiguous direction as to what properties are to bear or not bear the payment of those taxes. Other language may be used to direct the apportionment of the estate tax, but if it is determined by a court that the direction in the will, trust, or other dispositive instrument does not expressly and unambiguously direct the apportionment of all of the estate tax with respect to all property that constitutes the gross estate, the estate tax that is not clearly and unambiguously apportioned shall be apportioned in accordance with the provisions of this part. The portions of said phrase(s) set forth in parentheses indicate suggestions or descriptions of alternate language for the word or phrase immediately preceding the language in parentheses which may be added, deleted, or varied in the instrument. Said phrases are:
(1) In the case of a will, "all taxes arising as a result of my death, whether attributable to assets passing under this will or otherwise, shall be paid out of the residue of my probate estate (or apportioned to other specifically identified assets, probate or otherwise)"; or
(2) In the case of a revocable trust, "all taxes arising as a result of the Grantor’s (Settlor’s or Trustor’s) death, whether attributable to assets passing under this trust instrument or otherwise, shall be paid out of the residue of the trust estate (or apportioned to other specifically identified assets in trust or otherwise)"; or
(3) In the case of a charitable remainder trust as to assets already transferred to or in the trust, "no estate taxes and state death taxes shall be charged or apportioned to and paid from the assets of this charitable remainder trust" or "The (lifetime or term) annuity (unitrust) interest of the Successor Recipient (Beneficiary) will take effect upon the death of the Initial Recipient (Beneficiary) only if the Successor Recipient (Beneficiary) furnishes the funds for payment of any federal estate taxes and state death taxes for which the Trustee may be liable upon the death of the Initial Recipient (Beneficiary). If the funds are not furnished by the Successor Recipient (Beneficiary), the annuity (unitrust) period shall terminate on the death of the Initial Recipient (Beneficiary), notwithstanding any other provision in this instrument to the contrary."
[15-3-1303, added 2004, ch. 54, sec. 2, p. 247.]
To the extent that apportionment of an estate tax is not controlled by an instrument described in section 15-3-1303, Idaho Code, and except as otherwise provided in sections 15-3-1306 and 15-3-1307, Idaho Code, the following rules apply:
(1) Subject to subsections (2), (3) and (4) of this section, the estate tax is apportioned ratably to each person that has an interest in the apportionable estate.
(2) A generation-skipping transfer tax incurred on a direct skip taking effect at death is charged to the person to whom the interest in property is transferred.
(3) If property is included in the decedent’s gross estate because of section 2044 of the Internal Revenue Code of 1986 or any similar estate tax provision, the difference between the total estate tax for which the decedent’s estate is liable and the amount of estate tax for which the decedent’s estate would have been liable if the property had not been included in the decedent’s gross estate is apportioned ratably among the holders of interests in the property. The balance of the tax, if any, is apportioned ratably to each other person having an interest in the apportionable estate.
(4) Except as otherwise provided in section 15-3-1303(b)(4), Idaho Code, and except as to property to which section 15-3-1307, Idaho Code applies, an estate tax apportioned to persons holding interests in property subject to a time-limited interest must be apportioned, without further apportionment, to the principal of that property.
[15-3-1304, added 2004, ch. 54, sec. 2, p. 249.]
Except as otherwise provided in sections 15-3-1306 and 15-3-1307, Idaho Code, the following rules apply to credits and deferrals of estate taxes:
(1) A credit resulting from the payment of gift taxes or from estate taxes paid on property previously taxed inures ratably to the benefit of all persons to which the estate tax is apportioned.
(2) A credit for state or foreign estate taxes inures ratably to the benefit of all persons to which the estate tax is apportioned, except that the amount of a credit for a state or foreign tax paid by a beneficiary of the property on which the state or foreign tax was imposed, directly or by a charge against the property, inures to the benefit of the beneficiary.
(3) If payment of a portion of an estate tax is deferred because of the inclusion in the gross estate of a particular interest in property, the benefit of the deferral inures ratably to the persons to which the estate tax attributable to the interest is apportioned. The burden of any interest charges incurred on a deferral of taxes and the benefit of any tax deduction associated with the accrual or payment of the interest charge is allocated ratably among the persons receiving an interest in the property.
[15-3-1305, added 2004, ch. 54, sec. 2, p. 250.]
(a) In this section:
(1) "Advanced fraction" means a fraction that has as its numerator the amount of the advanced tax and as its denominator the value of the interests in insulated property to which that tax is attributable.
(2) "Advanced tax" means the aggregate amount of estate tax attributable to interests in insulated property which is required to be advanced by uninsulated holders under subsection (c) of this section.
(3) "Insulated property" means property subject to a time-limited interest which is included in the apportionable estate but is unavailable for payment of an estate tax because of impossibility or impracticability.
(4) "Uninsulated holder" means a person who has an interest in uninsulated property.
(5) "Uninsulated property" means property included in the apportionable estate other than insulated property.
(b) If an estate tax is to be advanced pursuant to subsection (c) of this section by persons holding interests in uninsulated property subject to a time-limited interest other than property to which section 15-3-1307, Idaho Code applies, the tax must be advanced, without further apportionment, from the principal of the uninsulated property.
(c) Subject to section 15-3-1309(b) and (d), Idaho Code, an estate tax attributable to interests in insulated property must be advanced ratably by uninsulated holders. If the value of an interest in uninsulated property is less than the amount of estate taxes otherwise required to be advanced by the holder of that interest, the deficiency must be advanced ratably by the persons holding interests in properties that are excluded from the apportionable estate under section 15-3-1302(a)(2), Idaho Code, as if those interests were in uninsulated property.
(d) A court having jurisdiction to determine the apportionment of an estate tax may require a beneficiary of an interest in insulated property to pay all or part of the estate tax otherwise apportioned to the interest if the court finds that it would be substantially more equitable for that beneficiary to bear the tax liability personally than for that part of the tax to be advanced by uninsulated holders.
(e) When a distribution of insulated property is made, each uninsulated holder may recover from the distributee a ratable portion of the advanced fraction of the property distributed. To the extent that undistributed insulated property ceases to be insulated, each uninsulated holder may recover from the property a ratable portion of the advanced fraction of the total undistributed property.
(f) Upon a distribution of insulated property for which, pursuant to subsection (d) of this section, the distributee becomes obligated to make a payment to uninsulated holders, a court may award an uninsulated holder a recordable lien on the distributee’s property to secure the distributee’s obligation to that uninsulated holder.
[15-3-1306, added 2004, ch. 54, sec. 2, p. 250.]
(a) In this section:
(1) "Special elective benefit" means a reduction in an estate tax obtained by an election for:
(A) A reduced valuation of specified property that is included in the gross estate;
(B) A deduction from the gross estate, other than a marital or charitable deduction, allowed for specified property; or
(C) An exclusion from the gross estate of specified property.
(2) "Specified property" means property for which an election has been made for a special elective benefit.
(b) If an election is made for one (1) or more special elective benefits, an initial apportionment of a hypothetical estate tax must be computed as if no election for any of those benefits had been made. The aggregate reduction in estate tax resulting from all elections made must be allocated among holders of interests in the specified property in the proportion that the amount of deduction, reduced valuation, or exclusion attributable to each holder’s interest bears to the aggregate amount of deductions, reduced valuations, and exclusions obtained by the decedent’s estate from the elections. If the estate tax initially apportioned to the holder of an interest in specified property is reduced to zero, any excess amount of reduction reduces ratably the estate tax apportioned to other persons that receive interests in the apportionable estate.
(c) An additional estate tax imposed to recapture all or part of a special elective benefit must be charged to the persons that are liable for the additional tax under the law providing for the recapture.
[15-3-1307, added 2004, ch. 54, sec. 2, p. 251.]
(a) A fiduciary may defer a distribution of property until the fiduciary is satisfied that adequate provision for payment of the estate tax has been made.
(b) A fiduciary may withhold from a distributee an amount equal to the amount of estate tax apportioned to an interest of the distributee.
(c) As a condition to a distribution, a fiduciary may require the distributee to provide a bond or other security for the portion of the estate tax apportioned to the distributee.
[15-3-1308, added 2004, ch. 54, sec. 2, p. 252.]
(a) A fiduciary responsible for payment of an estate tax may collect from any person the tax apportioned to and the tax required to be advanced by the person.
(b) Except as otherwise provided in section 15-3-1306, Idaho Code, any estate tax due from a person that cannot be collected from the person may be collected by the fiduciary from other persons in the following order of priority:
(1) Any person having an interest in the apportionable estate which is not exonerated from the tax;
(2) Any other person having an interest in the apportionable estate;
(3) Any person having an interest in the gross estate.
(c) A domiciliary fiduciary may recover from an ancillary personal representative the estate tax apportioned to the property controlled by the ancillary personal representative.
(d) The total tax collected from a person pursuant to this part may not exceed the value of the person’s interest.
[15-3-1309, added 2004, ch. 54, sec. 2, p. 252.]
(a) A person required under section 15-3-1309, Idaho Code, to pay an estate tax greater than the amount due from the person under section 15-3-1303 or 15-3-1304, Idaho Code, has a right to reimbursement from another person to the extent that the other person has not paid the tax required by section 15-3-1303 or 15-3-1304, Idaho Code, and a right to reimbursement ratably from other persons to the extent that each has not contributed a portion of the amount collected under section 15-3-1309(b), Idaho Code.
(b) A fiduciary may enforce the right of reimbursement under subsection (a) of this section on behalf of the person that is entitled to the reimbursement and shall take reasonable steps to do so if requested by the person.
[15-3-1310, added 2004, ch. 54, sec. 2, p. 252.]
A fiduciary, transferee, or beneficiary of the gross estate may maintain an action including, but not limited to, petitioning for declaratory judgment, to have a court determine and enforce this part or may petition a court pursuant to section 15-3-704 or 15-7-201, Idaho Code, whichever is applicable.
[15-3-1311, added 2004, ch. 54, sec. 2, p. 253.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[15-3-1312, added 2004, ch. 54, sec. 2, p. 253.]
If any provision of this part or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part which can be given effect without the invalid provision or application, and to this end the provisions of this part are severable.
[15-3-1313, added 2004, ch. 54, sec. 2, p. 253.]
(a) Sections 15-3-1303 through 15-3-1307, Idaho Code, do not apply to the estate of a decedent who dies prior to January 1, 2005.
(b) For the estate of a decedent who dies on or after the effective date of this act, but prior to January 1, 2005, and as to which sections 15-3-1303 through 15-3-1307, Idaho Code do not apply, estate taxes must be apportioned pursuant to the law in effect immediately before the effective date of this act.
[15-3-1314, added 2004, ch. 54, sec. 2, p. 253.]
In this chapter (a) "local administration" means administration by a personal representative appointed in this state pursuant to appointment proceedings described in chapter 3.
(b) "Local personal representative" includes any personal representative appointed in this state pursuant to appointment proceedings described in chapter 3 and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to section 15-4-205 of this code.
(c) "Resident creditor" means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.
[I.C., sec. 15-4-101, as added by 1971, ch. 111, sec. 1, p. 233.]
At any time after the expiration of sixty (60) days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:
(a) The date of the death of the nonresident decedent;
(b) That no local administration, or application or petition therefor, is pending in this state;
(c) That the domiciliary foreign personal representative is entitled to payment or delivery.
[I.C., sec. 15-4-201, as added by 1971, ch. 111, sec. 1, p. 233.]
Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
[I.C., sec. 15-4-202, as added by 1971, ch. 111, sec. 1, p. 233.]
Payment or delivery under section 15-4-201 of this Part may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
[I.C., sec. 15-4-203, as added by 1971, ch. 111, sec. 1, p. 233.]
If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of any official bond he has given.
[I.C., sec. 15-4-204, as added by 1971, ch. 111, sec. 1, p. 233.]
A domiciliary foreign personal representative who has complied with section 15-4-204 of this Part may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
[I.C., sec. 15-4-205, as added by 1971, ch. 111, sec. 1, p. 233.]
The power of a domiciliary foreign personal representative under section 15-4-201 or 15-4-205 of this Part shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under section 15-4-205 of this Part, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this state.
[I.C., sec. 15-4-206, as added by 1971, ch. 111, sec. 1, p. 233.]
In respect to a nonresident decedent, the provisions of chapter 3 of this code govern (1) proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributees and others in regard to a local administration.
[I.C., sec. 15-4-207, as added by 1971, ch. 111, sec. 1, p. 233.]
A foreign personal representative submits himself to the jurisdiction of the courts of this state in his capacity as a personal representative of the estate by:
(a) filing authenticated copies of his appointment as provided in section 15-4-204 of this code;
(b) receiving payment of money or taking delivery of personal property under section 15-4-201 of this code; or
(c) doing any act as a personal representative in this state which would have given the state jurisdiction over him as an individual.
Jurisdiction under subsection (b) of this section is limited to the money or value of personal property collected.
[I.C., sec. 15-4-301, as added by 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 16, p. 510.]
In addition to jurisdiction conferred by section 15-4-301 of this Part, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately prior to death.
[I.C., sec. 15-4-302, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or his decedent immediately prior to death.
(b) If service is made upon a foreign personal representative as provided in subsection (a) of this section, he shall be allowed at least thirty (30) days within which to appear or respond.
[I.C., sec. 15-4-303, as added by 1971, ch. 111, sec. 1, p. 233.]
An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.
[I.C., sec. 15-4-401, as added by 1971, ch. 111, sec. 1, p. 233.]
Unless otherwise apparent from the context, in this code:
(a) "Incapacitated person" means any person who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, provided, that the term shall not refer to a developmentally disabled person as defined in section 66-402(5), Idaho Code, and provided further that:
(1) "Incapacity" means a legal, not a medical disability and shall be measured by function limitations and it shall be construed to mean or refer to any person who has suffered, is suffering, or is likely to suffer, substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care, or safety, or an inability to manage his or her property or financial affairs;
(2) Inability to provide for personal needs or to manage property shall be evidenced by acts or occurrences, or statements which strongly indicate imminent acts or occurrences; material evidence of inability must have occurred within twelve (12) months prior to the filing of the petition for guardianship or conservatorship;
(3) Isolated instances of simple negligence or improvidence, lack of resources, or any act, occurrence, or statement, if that act, occurrence, or statement is the product of an informed judgment, shall not constitute evidence of inability to provide for personal needs or to manage property;
(4) "Informed judgment" means a choice made by a person who has the ability to make such a choice, and who makes it voluntarily after all relevant information necessary to making the decision has been provided, and who understands that he is free to choose or refuse any alternative available and who clearly indicates or expresses the outcome of his choice;
(b) A "protective proceeding" is a proceeding under the provisions of section 15-5-401, Idaho Code, to determine that a person cannot effectively manage or apply his estate to necessary ends, either because he lacks the ability or is otherwise inconvenienced, or because he is a minor, and to secure administration of his estate by a conservator or other appropriate relief;
(c) A "protected person" is a minor or other person for whom a conservator has been appointed or other protective order has been made;
(d) A "ward" is a person for whom a guardian has been appointed. A "minor ward" is a minor for whom a guardian has been appointed solely because of minority.
Short title. [EFFECTIVE JANUARY 1, 2027]
This chapter shall be known and may be cited as the "Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act."
[15-5-101, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 59, sec. 2, p. 92; am. 1989, ch. 241, sec. 1, p. 587; am. 1997, ch. 210, sec. 1, p. 628; am. 1999, ch. 293, sec. 3, p. 736; am. 2000, ch. 180, sec. 1, p. 448; repealed and added 2026, ch. 79, sec. 3, p. 329.]
When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
Definitions. [effective january 1, 2027]
As used in this chapter:
(1) "Adult" means an individual at least eighteen (18) years of age or an emancipated individual under eighteen (18) years of age.
(2) "Adult subject to conservatorship" means an adult for whom a conservator has been appointed under this chapter.
(3) "Adult subject to guardianship" means an adult for whom a guardian has been appointed under this chapter.
(4) "Advance care planning document," "advance directive," "directive," or "health care directive" means a document as defined in section 39-4502(1), Idaho Code.
(5) "Artificial life-sustaining procedures" means any medical procedure or intervention that utilizes mechanical means to sustain or supplant a vital function. Artificial life-sustaining procedures shall not include the administration of medication, and it shall not include the performance of any medical procedure deemed necessary to alleviate pain or any procedure that could be expected to result in the recovery or long-term survival of the patient and his restoration to consciousness.
(6) "Claim" includes a claim against an individual or conservatorship estate, whether arising in contract, tort, or otherwise.
(7) "Conservator" means a person appointed by a court to make decisions with respect to the property or financial affairs of an individual subject to conservatorship. The term includes a co-conservator.
(8) "Conservatorship estate" means the property subject to conservatorship under this chapter.
(9) "De facto custodian" means a person who has either been appointed as the de facto custodian pursuant to section 32-1705, Idaho Code, or if not appointed, has been the primary caregiver for, and primary financial supporter of, a child who, prior to the filing of a petition for guardianship, has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older.
(10) "Developmental disability" is as defined in section 66-402(4), Idaho Code.
(11) "Developmental disability evaluation committee" or "DD evaluation committee" means an interdisciplinary team of at least three (3) individuals designated by the director of the department of health and welfare or his designee to evaluate an individual as required by the provisions of this chapter. Each committee must include a physician licensed to practice medicine in the state of Idaho, a licensed social worker or a licensed professional counselor, and a clinical psychologist or such other individual who has a master’s degree in psychology as designated by the department director. A licensed independent practitioner may be used instead of a physician. Each committee member must be specially qualified by training and experience in the diagnosis and treatment of persons with a developmental disability.
(12) "Full conservatorship" means a conservatorship that grants the conservator all powers available under this chapter.
(13) "Full guardianship" means a guardianship that grants the guardian all powers available under this chapter.
(14) "Guardian" means a person appointed by the court to make decisions with respect to the personal affairs of an individual. The term includes a co-guardian but does not include a guardian ad litem.
(15) "Guardian ad litem" means a person appointed to inform the court about, and to represent, the needs and best interest of an individual.
(16) "Individual subject to conservatorship" means an adult or minor for whom a conservator has been appointed under this chapter.
(17) "Individual subject to guardianship" means an adult or minor for whom a guardian has been appointed under this chapter.
(18) "Less restrictive alternative" means an approach to meeting an individual’s needs that restricts fewer rights of the individual than would the appointment of a guardian or conservator. The term includes supported decision-making, appropriate technological assistance, appointment of a representative payee, and appointment of an agent by the individual, including appointment under a medical directive or power of attorney for finances.
(19) "Letters of office" means a record issued by a court certifying a guardian’s or conservator’s authority to act. The term includes letters of guardianship and letters of conservatorship.
(20) "Licensed independent practitioner" or "LIP" means:
(a) An individual licensed as a physician or physician assistant pursuant to chapter 18, title 54, Idaho Code; or
(b) A person licensed as an advanced practice registered nurse pursuant to chapter 14, title 54, Idaho Code.
(21) "Limited conservatorship" means a conservatorship that grants the conservator less than all powers available under this chapter, grants powers over only certain property, or otherwise restricts the powers of the conservator.
(22) "Limited guardianship" means a guardianship that grants the guardian less than all powers available under this chapter or otherwise restricts the powers of the guardian.
(23) "Manage financial resources" means the actions necessary to obtain, administer, and dispose of real, personal, intangible or business property, benefits, or income.
(24) "Minor" means an unemancipated individual under eighteen (18) years of age.
(25) "Minor subject to conservatorship" means a minor for whom a conservator has been appointed under this chapter.
(26) "Minor subject to guardianship" means a minor for whom a guardian has been appointed under this chapter.
(27) "Parent" does not include an individual whose parental rights have been terminated.
(28) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(29) "Property" includes tangible and intangible property.
(30) "Protective arrangement instead of conservatorship" means a court order entered under section 15-5-503, Idaho Code.
(31) "Protective arrangement instead of guardianship" means a court order entered under section 15-5-502, Idaho Code.
(32) "Protective arrangement under part 5" means a court order entered under section 15-5-502 or 15-5-503, Idaho Code.
(33) "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(34) "Respondent" means an individual for whom appointment of a guardian or conservator is sought or a protective arrangement instead of guardianship or conservatorship is sought.
(35) "Sign" means, with present intent to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol; or
(b) To attach to or logically associate with the record an electronic symbol, sound, or process.
(36) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes federally recognized Indian tribes.
(37) "Supported decision-making" means assistance from one (1) or more persons of an individual’s choosing in understanding the nature and consequences of potential personal and financial decisions, which enables the individual to make the decisions, and in communicating a decision once made if consistent with the individual’s wishes.
[15-5-102, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 3, p. 329.]
Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding ten thousand dollars ($10,000) per annum, by paying or delivering the money or property to, (1) the minor, if he has attained the age of eighteen (18) years or is married; (2) any person having the care and custody of the minor with whom the minor resides; (3) a guardian of the minor; or (4) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor. This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under (4) of this section, receiving money or property for a minor, are obligated to apply the money to the support and education of the minor, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor’s support. Any excess sums shall be preserved for future support of the minor and any balance not so used and any property received for the minor must be turned over to the minor when he attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.
SUPPLEMENTAL PRINCIPLES OF LAW AND EQUITY APPLICABLE. [effective january 1, 2027]
Unless displaced by a particular provision of this chapter, the principles of law and equity supplement its provisions.
[15-5-103, added 1971, ch. 111, sec. 1, p. 233; am. 1989, ch. 79, sec. 1, p. 141; repealed and added 2026, ch. 79, sec. 3, p. 331.]
A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six (6) months, or in the case of military personnel serving beyond the territorial limits of the United States for a period not exceeding twelve (12) months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor or ward including, but not limited to, powers for medical care and educational care of the minor or ward, except the parent’s or guardian’s power to consent to marriage or adoption of a minor or ward. The delegation for a minor to a grandparent of the minor, or to a sibling of the minor, or to a sibling of either parent of the minor, shall continue in effect until the time period, or date, or condition set forth in the power of attorney for automatic expiration of the power of attorney occurs. If the power of attorney does not provide a time period, or date, or condition for automatic expiration of the power, the power of attorney shall continue in effect for a period of three (3) years. The power may be revoked prior to the expiration of the three (3) year period, or prior to the time period, or date, or condition for automatic expiration, in a writing delivered to the grandparent or sibling by the delegating parent or guardian. The power of attorney does not need to be notarized or recorded to be valid. However, if the power is recorded, any revocation of the power by a writing must also be recorded before the revocation is effective.
SUBJECT MATTER JURISDICTION. [effective january 1, 2027]
(1) The district court has jurisdiction over a conservatorship or protective arrangement instead of a conservatorship for a minor domiciled or having property in this state. Except to the extent jurisdiction is precluded by the uniform child custody jurisdiction and enforcement act, chapter 11, title 32, Idaho Code, or the Idaho child protective act, chapter 16, title 16, Idaho Code, the district court has jurisdiction over a guardianship for a minor domiciled or present in this state. Where a minor is within the jurisdiction of a court under the child protective act or where a guardianship proceeding arose in connection with a permanency plan for a minor who was the subject of a proceeding under the child protective act, the court having jurisdiction over the proceeding under the child protective act shall have exclusive jurisdiction and venue over any guardianship proceeding involving such minor unless, in furtherance of the permanency plan, the court declines to exercise such jurisdiction and venue, notwithstanding the provisions of this subsection.
(a) In any action connected to a guardianship pursuant to this subsection, in addition to notice or service upon interested parties, as provided in section 15-5-203, Idaho Code, notice of the following shall be served upon the department of health and welfare in the manner prescribed in Idaho supreme court rules:
(i) Any petition for the appointment of a guardian of a minor;
(ii) Any pleading filed in connection with such guardianship;
(iii) Any proceeding of any nature in such guardianship; and
(iv) The time and place of any hearing in connection with such guardianship.
(b) In any action occurring pursuant to the provisions of this subsection, the department of health and welfare shall have the right to appear and be heard at any hearing and shall have the right to intervene at any stage of the action.
(c) A guardian appointed in an action occurring pursuant to this subsection may not consent to the adoption of the minor without providing prior notice of the action of adoption to the department of health and welfare.
(2) The district court has jurisdiction over a guardianship, conservatorship, or protective arrangement under this chapter for an adult as provided in the uniform adult guardianship and protective proceedings jurisdiction act, chapter 13, title 15, Idaho Code.
(3) After notice is given in a proceeding for a guardianship, conservatorship, or protective arrangement under this chapter and until termination of the proceeding, the court in which the petition is filed has:
(a) Exclusive jurisdiction to determine the need for the guardianship, conservatorship, or protective arrangement;
(b) Exclusive jurisdiction to determine how property of the respondent shall be managed, expended, or distributed to or for the use of the respondent, an individual who is dependent in fact on the respondent, or other claimant;
(c) Nonexclusive jurisdiction to determine the validity of a claim against the respondent or property of the respondent or a question of title concerning the property; and
(d) If a guardian or conservator is appointed, exclusive jurisdiction over issues related to administration of the guardianship or conservatorship.
(4) A court that appoints a guardian or conservator or authorizes a protective arrangement under this chapter has exclusive and continuing jurisdiction over the proceeding until the court terminates the proceeding or the appointment or protective arrangement expires by its terms.
[15-5-104, added 1971, ch. 111, sec. 1, p. 233; am. 1991, ch. 29, sec. 1, p. 58; am. 2003, ch. 64, sec. 1, p. 210; repealed and added 2026, ch. 79, sec. 3, p. 331.]
If benefits derived from the United States through the veteran’s administration are involved in any proceeding under this chapter, a certificate of the administrator or his authorized representative shall be prima facie evidence of the necessity of appointment of a guardian or conservator or both if:
(a) It sets forth the age of the minor involved in the proceeding as shown by the records of the veterans administration and the fact that appointment is a condition precedent to payment of any moneys;
(b) It sets forth the fact that a purportedly incapacitated person involved in the proceeding has been rated incompetent by the veterans administration upon examination pursuant to the laws governing such administration and that appointment of a guardian is a condition precedent to payment of any moneys due such incapacitated person.
Transfer of proceeding. [effective january 1, 2027]
[Reserved]
[15-5-105, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 3, p. 332.]
When a copy of any public record is required by the veterans administration to be used in determining the eligibility of any persons to participate in benefits made available by the veterans administration, the official custodian of such public records shall without charge provide the applicant for such benefits or any person acting on his behalf or the authorized representative of the veterans administration with a certified copy of such record.
Venue. [effective january 1, 2027]
(1) Venue for a guardianship proceeding for a minor shall be in:
(a) The county in which the minor resides or is present at the time the proceeding commences; or
(b) The county in which another proceeding concerning the custody or parental rights of the minor is pending.
(2) Venue for a guardianship proceeding or protective arrangement instead of guardianship for an adult shall be in:
(a) The county in which the respondent resides;
(b) If the respondent has been admitted to an institution by court order, the county in which the court is located; or
(c) If the proceeding is for appointment of an emergency guardian for the respondent, the county in which the respondent is present.
(3) Venue for a conservatorship proceeding or protective arrangement instead of conservatorship shall be in:
(a) The county in which the respondent resides, whether or not a guardian has been appointed in another county or other jurisdiction; or
(b) If the respondent does not reside in this state, in any county in which property of the respondent is located.
(4) If proceedings under this chapter are brought in more than one (1) county, the court of the county in which the first proceeding is brought has the exclusive right to proceed unless the court determines venue is properly in another court or the interest of justice otherwise requires transfer of the proceeding.
[15-5-106, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 3, p. 332.]
Upon the petition of anyone interested in the welfare of the ward, anyone suspected of having concealed, embezzled or conveyed away any of the moneys, goods or effects belonging to the ward or his estate may be ordered by the court to appear and be examined on oath and held to account upon such matters and for such property.
Practice in court. [effective january 1, 2027]
Except as otherwise provided in this chapter, Idaho supreme court rules shall govern a proceeding under this chapter.
[15-5-107, added 1971, ch. 111, sec. 1, p. 233; repealed added 2026, ch. 79, sec. 3, p. 332.]
(1) The court shall issue letters of guardianship to a guardian upon filing by the guardian of an acceptance of appointment.
(2) The court shall issue letters of conservatorship to a conservator upon filing by the conservator of an acceptance of appointment and filing of any required bond or compliance with any other asset-protection arrangement required by the court.
(3) Limitations on the powers of a guardian or conservator or on the property subject to conservatorship shall be stated on the letters of guardianship or conservatorship.
(4) The court at any time may limit the powers conferred on a guardian or conservator. The court shall issue new letters of office to reflect the limitation. The court shall give notice of the limitation to the guardian or conservator, individual subject to guardianship or conservatorship, each parent of a minor subject to guardianship or conservatorship, and any other person as the court determines.
[15-5-108, added 2026, ch. 79, sec. 3, p. 333.]
Upon acceptance of appointment, a guardian or conservator submits to personal jurisdiction of the court in this state in any proceeding relating to the guardianship or conservatorship.
[15-5-109, added 2026, ch. 79, sec. 3, p. 333.]
(1) The court at any time may appoint a co-guardian or co-conservator.
(2) A co-guardian or co-conservator appointed to serve may act when that co-guardian or co-conservator complies with the provisions of section 15-5-108, Idaho Code.
(3) Unless an order of appointment under subsection (1) of this section or subsequent order states otherwise, co-guardians or co-conservators shall make decisions jointly.
[15-5-110, added 2026, ch. 79, sec. 3, p. 333.]
(1) The court at any time may appoint a successor guardian or successor conservator.
(2) A person entitled under section 15-5-202 or 15-5-302, Idaho Code, to petition the court to appoint a guardian may petition the court to appoint a successor guardian. A person entitled under section 15-5-402, Idaho Code, to petition the court to appoint a conservator may petition the court to appoint a successor conservator.
(3) A successor guardian or successor conservator has the predecessor’s powers unless otherwise provided by the court.
[15-5-111, added 2026, ch. 79, sec. 3, p. 333.]
(1) Appointment of a guardian or conservator terminates on the death or removal of the guardian or conservator or when the court under subsection (2) of this section approves a resignation of the guardian or conservator.
(2) A guardian or conservator shall petition the court in order to resign. The petition may include a request that the court appoint a successor. Resignation of a guardian or conservator is effective on the date the resignation is approved by the court.
(3) Death, removal, or resignation of a guardian or conservator does not affect liability for a previous act or the obligation to account for:
(a) An action taken on behalf of the individual subject to guardianship or conservatorship; or
(b) The individual subject to guardianship’s or conservatorship’s funds or other property.
[15-5-112, added 2026, ch. 79, sec. 3, p. 333.]
(1) Except as otherwise provided in sections 15-5-203, 15-5-208, 15-5-303, 15-5-403, and 15-5-505, Idaho Code, if notice of a hearing under this chapter is required, the movant shall give notice of the date, time, and place of the hearing to the person to be notified unless otherwise ordered by the court for good cause. Except as otherwise provided in this chapter, notice shall be given in compliance with the Idaho supreme court rules at least fourteen (14) days before the hearing.
(2) Proof of notice of a hearing under this chapter shall be made before or at the hearing and filed in the proceeding.
(3) Notice of a hearing under this chapter shall be communicated:
(a) In a form and manner that is accessible and understandable by the recipient, through the use of assistive technology if necessary;
(b) In plain language; and
(c) To the extent feasible, in a language in which the recipient is proficient.
[15-5-113, added 2026, ch. 79, sec. 3, p. 334.]
(1) Except as otherwise provided in subsection (2) of this section, a person may waive notice under this chapter in a record signed by the person or the person’s attorney and filed in the proceeding.
(2) A respondent, individual subject to guardianship, individual subject to conservatorship, or individual subject to a protective arrangement under this chapter may not waive notice under this chapter.
[15-5-114, added 2026, ch. 79, sec. 3, p. 334.]
The court at any time may appoint a guardian ad litem for a respondent or individual subject to guardianship or conservatorship if the court determines the respondent’s or individual subject to guardianship or conservatorship’s interest otherwise would not be adequately represented. If no conflict of interest exists, a guardian ad litem may be appointed to represent multiple individuals or interests. The guardian ad litem may not be the same individual as the attorney representing the respondent or individual subject to guardianship or conservatorship. The court shall state the duties of the guardian ad litem and the reasons for the appointment.
[15-5-115, added 2026, ch. 79, sec. 3, p. 334.]
(1) A person may file with the court a request for notice under this chapter if the person is:
(a) Not otherwise entitled to notice; and
(b) Interested in the welfare of a respondent, individual subject to guardianship or conservatorship, or individual subject to a protective arrangement under this chapter.
(2) A request under subsection (1) of this section shall include a statement showing the interest of the person making the request and the address of the person or an attorney for the person to whom notice is to be given.
(3) If the court approves a request under subsection (1) of this section, the court shall give notice of the approval to the guardian or conservator, if one has been appointed, or the respondent if no guardian or conservator has been appointed.
[15-5-116, added 2026, ch. 79, sec. 3, p. 334.]
(1) Subject to the provisions of section 56-1004A, Idaho Code [chapter 27, title 56, Idaho Code], none of the following persons shall be appointed as a guardian of a respondent unless the court finds by clear and convincing evidence that such appointment is in the best interest of the respondent:
(a) A convicted felon; or
(b) A person whose residence is the respondent’s proposed residence or who will be frequented by the respondent and is frequented by a convicted felon.
(2) No individual shall be appointed as guardian of an adult respondent unless all of the following first occurs:
(a) The proposed guardian has submitted to and paid for a criminal history and background check conducted pursuant to section 56-1004A(2) and (3), Idaho Code [chapter 27, title 56, Idaho Code];
(b) Pursuant to an order of the court so requiring, any individual who resides in the respondent’s proposed residence has submitted, at the proposed guardian’s expense, to a criminal history and background check conducted pursuant to section 56-1004A(2) and (3), Idaho Code [chapter 27, title 56, Idaho Code];
(c) The findings of such criminal history and background checks have been made available to the visitor, DD evaluation committee, guardian ad litem, and any other person entitled to the findings by the department of health and welfare; and
(d) The proposed guardian provided a report of his civil judgments and bankruptcies to the visitor, the guardian ad litem, and all others entitled to notice of the guardianship proceeding.
(3) A guardian or conservator that engages or anticipates engaging an agent the guardian or conservator knows has been convicted of a felony, a crime involving dishonesty, neglect, violence, or use of physical force, or other crime relevant to the functions the agent is being engaged to perform promptly shall disclose that knowledge to the court.
(4) If a conservator engages or anticipates engaging an agent to manage finances of the individual subject to conservatorship and knows the agent is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding, the conservator promptly shall disclose that knowledge to the court.
[15-5-117, added 2026, ch. 79, sec. 3, p. 334.]
If a respondent or other person makes more than one (1) nomination of a guardian or conservator, the latest in time governs.
[15-5-118, added 2026, ch. 79, sec. 3, p. 335.]
(1) Unless otherwise compensated or reimbursed, an attorney for a respondent in a proceeding under this chapter is entitled to reasonable compensation for services and reimbursement of reasonable expenses from the property of the respondent.
(2) Unless otherwise compensated or reimbursed, an attorney or other person whose services resulted in an order beneficial to an individual subject to guardianship or conservatorship or for whom a protective arrangement under this chapter was ordered is entitled to reasonable compensation for services and reimbursement of reasonable expenses and, if appropriate, reasonable attorney’s fees and costs from the property of the individual subject to guardianship or conservatorship.
(3) Upon the petition of any interested person, the court may review compensation and expenses payable under this section and determine whether, or to what extent, such compensation and expenses are approved.
(4) If the court dismisses a petition under this chapter and determines the petition was filed in bad faith, the court may assess attorney’s fees and costs and the cost of any court-ordered professional evaluation or visitor, DD evaluation committee, or guardian ad litem against the petitioner.
(5) If any person brings or defends any conservatorship proceeding in good faith, whether successful or not, the person is entitled to receive from the estate the person’s necessary expenses and disbursements, including reasonable attorney’s fees incurred in such proceeding.
(6) If the estate is inadequate to bear any of the reasonable compensation, fees, or costs referenced in this section, the court may apportion the reasonable compensation, fees, or costs to any party, or among the parties, as the court deems reasonable.
(7) The court may not apportion any reasonable compensation, fees, or costs to the county in which proceedings pursuant to this chapter were held.
[15-5-119, added 2026, ch. 79, sec. 3, p. 335.]
(1) Subject to court approval, a guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, clothing, and other appropriate expenses advanced for the benefit of the individual subject to guardianship. If a conservator, other than the guardian or a person affiliated with the guardian, is appointed for the individual subject to conservatorship, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without court approval.
(2) Subject to court approval, a conservator is entitled to reasonable compensation for services and reimbursement for appropriate expenses from the property of the individual subject to conservatorship.
(3) In determining reasonable compensation for a guardian or conservator, the court, or a conservator in determining reasonable compensation for a guardian as provided in subsection (1) of this section, shall consider:
(a) The necessity and quality of the services provided;
(b) The experience, training, professional standing, and skills of the guardian or conservator;
(c) The difficulty of the services performed, including the degree of skill and care required;
(d) The conditions and circumstances under which a service was performed, including whether the service was provided outside regular business hours or under dangerous or extraordinary conditions;
(e) The effect of the services on the individual subject to guardianship or conservatorship;
(f) The extent to which the services provided were or were not consistent with the guardian’s plan under section 15-5-316, Idaho Code, or conservator’s plan under section 15-5-419, Idaho Code; and
(g) The fees customarily paid to a person that performs a like service in the community.
(4) A guardian or conservator need not use personal funds for the expenses of the individual subject to guardianship or conservatorship.
(5) If an individual subject to guardianship or conservatorship seeks to modify or terminate the guardianship or conservatorship or remove the guardian or conservator, the court may order compensation to the guardian or conservator for time spent opposing modification, termination, or removal only to the extent the court determines the opposition was reasonably necessary to protect the interest of the individual subject to guardianship or conservatorship.
(6) If the estate is inadequate to bear any of the reasonable compensation, fees, or costs referenced in this section, the court may apportion the reasonable compensation, fees, or costs to any party, or among the parties, as the court deems reasonable.
[15-5-120, added 2026, ch. 79, sec. 3, p. 336.]
A guardian or conservator is not personally liable to another person solely because of the guardianship or conservatorship for an act or omission of the individual subject to guardianship or conservatorship.
[15-5-121, added 2026, ch. 79, sec. 3, p. 336.]
(1) A guardian or conservator may petition the court for instruction concerning fiduciary responsibility or ratification of a particular act related to the guardianship or conservatorship.
(2) Upon notice of and hearing on a petition under subsection (1) of this section, the court may give an instruction and issue an appropriate order.
[15-5-122, added 2026, ch. 79, sec. 3, p. 336.]
(1) A person shall not recognize the authority of a guardian or conservator to act on behalf of an individual subject to guardianship or conservatorship if:
(a) The person has actual knowledge or a reasonable belief that the letters of office of the guardian or conservator are invalid or the conservator or guardian is exceeding or improperly exercising authority granted by the court; or
(b) The person has actual knowledge that the individual subject to guardianship or conservatorship is subject to physical or financial abuse, neglect, exploitation, or abandonment by the guardian or conservator or a person acting for or with the guardian or conservator.
(2) A person may refuse to recognize the authority of a guardian or conservator to act on behalf of an individual subject to guardianship or conservatorship if:
(a) The guardian’s or conservator’s proposed action would be inconsistent with the provisions of this chapter; or
(b) The person makes, or has actual knowledge that another person has made, a report to the government agency providing protective services to adults or children stating a good faith belief that the individual subject to guardianship or conservatorship is subject to physical or financial abuse, neglect, exploitation, or abandonment by the guardian or conservator or a person acting for or with the guardian or conservator.
(3) A person that refuses to accept the authority of a guardian or conservator in accordance with subsection (2) of this section may report the refusal and the reason for refusal to the court. The court upon receiving the report shall consider whether removal of the guardian or conservator or other action is appropriate.
(4) A guardian or conservator may petition the court to require a third party to accept a decision made by the guardian or conservator on behalf of the individual subject to guardianship or conservatorship.
[15-5-123, added 2026, ch. 79, sec. 3, p. 337.]
(1) Except as otherwise provided in subsection (3) of this section, a guardian or conservator may delegate a power to an agent that a prudent guardian or conservator of comparable skills could delegate prudently under the circumstances if the delegation is consistent with the guardian’s or conservator’s fiduciary duties and the guardian’s plan under section 15-5-316, Idaho Code, or conservator’s plan under section 15-5-419, Idaho Code.
(2) In delegating a power under subsection (1) of this section, the guardian or conservator shall exercise reasonable care, skill, and caution in:
(a) Selecting the agent;
(b) Establishing the scope and terms of the agent’s work in accordance with the guardian’s plan under section 15-5-316, Idaho Code, or conservator’s plan under section 15-5-419, Idaho Code;
(c) Monitoring the agent’s performance and compliance with the delegation; and
(d) Redressing an act or omission of the agent that would constitute a breach of the guardian’s or conservator’s duties if done by the guardian or conservator.
(3) A guardian or conservator may not delegate all powers to an agent.
(4) In performing a power delegated under this section, an agent shall:
(a) Exercise reasonable care to comply with the terms of the delegation and use reasonable care in the performance of the power; and
(b) If the guardian or conservator has delegated to the agent the power to make a decision on behalf of the individual subject to guardianship or conservatorship, use the same decision-making standard the guardian or conservator would be required to use.
(5) By accepting a delegation of a power under subsection (1) of this section from a guardian or conservator, an agent submits to the personal jurisdiction of the courts of this state in an action involving the agent’s performance as agent.
(6) A guardian or conservator that delegates and monitors a power in compliance with this section is not liable for the decision, act, or omission of the agent.
[15-5-124, added 2026, ch. 79, sec. 3, p. 337.]
(1) The court may appoint a temporary substitute guardian for an individual subject to guardianship for a period not exceeding six (6) months if:
(a) A proceeding to remove a guardian for the individual subject to guardianship is pending; or
(b) The court finds a guardian is not effectively performing the guardian’s duties and the welfare of the individual subject to guardianship requires immediate action.
(2) The court may appoint a temporary substitute conservator for an individual subject to conservatorship for a period not exceeding six (6) months if:
(a) A proceeding to remove a conservator for the individual subject to conservatorship is pending; or
(b) The court finds that a conservator for the individual subject to conservatorship is not effectively performing the conservator’s duties and the welfare of the individual subject to conservatorship or the conservatorship estate requires immediate action.
(3) Except as otherwise ordered by the court, a temporary substitute guardian or temporary substitute conservator appointed under this section has the powers stated in the order of appointment of the guardian or conservator. The authority of the existing guardian or conservator is suspended for as long as the temporary substitute guardian or conservator has authority.
(4) The court shall give notice of appointment of a temporary substitute guardian or temporary substitute conservator, not later than seven (7) days after the appointment, to:
(a) The individual subject to guardianship or conservatorship;
(b) The affected guardian or conservator; and
(c) In the case of a minor, each parent of the minor and any person currently having care or custody of the minor.
(5) The court may remove a temporary substitute guardian or temporary substitute conservator at any time. The temporary substitute guardian or temporary substitute conservator shall make any report the court requires.
[15-5-125, added 2026, ch. 79, sec. 3, p. 338.]
(1) If a guardian has been appointed in another state for an individual, and a petition for guardianship for the individual is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court, may register the guardianship order in this state by filing as a foreign judgment, in a court of an appropriate county of this state, certified copies of the order and letters of guardianship.
(2) If a conservator has been appointed in another state for an individual, and a petition for conservatorship for the individual is not pending in this state, the conservator appointed for the individual in the other state, after giving notice to the appointing court, may register the conservatorship in this state by filing as a foreign judgment, in a court of a county in which property belonging to the individual subject to conservatorship is located, certified copies of the order of conservatorship, letters of conservatorship, and any bond or other asset-protection arrangement required by the court.
(3) Upon registration under this section of a guardianship or conservatorship order from another state, the guardian or conservator may exercise in this state all powers authorized in the order except as prohibited by this chapter and law of this state other than this chapter. If the guardian or conservator is not a resident of this state, the guardian or conservator may maintain an action or proceeding in this state subject to any condition imposed by this state on an action or proceeding by a nonresident party.
(4) The court may grant any relief available under this chapter and law of this state other than this chapter to enforce an order registered under this section.
[15-5-126, added 2026, ch. 79, sec. 3, p. 338.]
(1) An individual who is subject to guardianship or conservatorship, or a person interested in the welfare of an individual subject to guardianship or conservatorship, that reasonably believes the guardian or conservator is breaching the guardian’s or conservator’s fiduciary duty or otherwise acting in a manner inconsistent with this chapter may file a grievance in a record with the court.
(2) Subject to subsection (3) of this section, after receiving a grievance under subsection (1) of this section, the court:
(a) Shall review the grievance and, if necessary to determine the appropriate response, court records related to the guardianship or conservatorship;
(b) Shall schedule a hearing if the individual subject to guardianship or conservatorship is an adult and the grievance supports a reasonable belief that:
(i) Removal of the guardian and appointment of a successor may be appropriate under section 15-5-318, Idaho Code;
(ii) Termination or modification of the guardianship may be appropriate under section 15-5-319, Idaho Code;
(iii) Removal of the conservator and appointment of a successor may be appropriate under section 15-5-430, Idaho Code; or
(iv) Termination or modification of the conservatorship may be appropriate under section 15-5-431, Idaho Code; and
(c) May take any action supported by the evidence, including:
(i) Ordering the guardian or conservator to provide the court a report, accounting, inventory, updated plan, or other information;
(ii) Appointing a guardian ad litem;
(iii) Appointing an attorney for the individual subject to guardianship or conservatorship; or
(iv) Holding a hearing.
(3) The court may decline to act under subsection (2) of this section if a similar grievance was filed within the six (6) months preceding the filing of the current grievance and the court followed the procedures of subsection (2) in considering the earlier grievance.
[15-5-127, added 2026, ch. 79, sec. 3, p. 339.]
A parent of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six (6) months, or in the case of military personnel serving beyond the territorial limits of the United States for a period not exceeding twelve (12) months, any of the parent’s powers regarding care, custody, or property of the minor, including but not limited to powers for medical care and educational care of the minor, except the parent’s power to consent to marriage or adoption of a minor. The delegation for a minor to a grandparent of the minor, or to a sibling of the minor, or to a sibling of either parent of the minor, shall continue in effect until the time period, date, or condition set forth in the power of attorney for automatic expiration of the power of attorney occurs. If the power of attorney does not provide a time period, date, or condition for automatic expiration of the power, the power of attorney shall continue in effect for a period of three (3) years. The power may be revoked prior to the expiration of the three (3) year period, or prior to the time period, date, or condition for automatic expiration, in a writing delivered to the grandparent or sibling by the delegating parent. The power of attorney does not need to be notarized or recorded to be valid. However, if the power is recorded, any revocation of the power by a writing shall also be recorded before the revocation is effective.
[15-5-128, added 2026, ch. 79, sec. 3, p. 339.]
If benefits derived from the United States through the veterans administration are involved in any proceeding under this chapter, a certificate of the administrator or his authorized representative shall be prima facie evidence of the necessity of appointment of a guardian or conservator or both if:
(1) It sets forth the age of the minor involved in the proceeding as shown by the records of the veterans administration and the fact that appointment is a condition precedent to payment of any moneys; or
(2) It sets forth the fact that a purportedly incapacitated person involved in the proceeding has been rated incompetent by the veterans administration upon examination pursuant to the laws governing such administration and that appointment of a guardian is a condition precedent to payment of any moneys due such incapacitated person.
[15-5-129, added 2026, ch. 79, sec. 3, p. 340.]
When a copy of any public record is required by the veterans administration to be used in determining the eligibility of any persons to participate in benefits made available by the veterans administration, the official custodian of such public records shall without charge provide the applicant for such benefits or any person acting on his behalf or the authorized representative of the veterans administration with a certified copy of such record.
[15-5-130, added 2026, ch. 79, sec. 3, p. 340.]
A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.
Basis for Appointment of Guardian for MINOR. [Effective January 1, 2027]
(1) Testamentary appointment of guardian of minor. A parent of a minor may appoint a guardian of an unmarried minor by will, subject to the right of the minor to object to the appointment. The termination of parental rights of a parent as to the minor shall also terminate the right of that parent to appoint a guardian for the minor. A testamentary appointment becomes effective upon the filing of the guardian’s acceptance in the court in which the will is probated, if, at the decedent’s death, no parent of the minor was alive who had a right to appoint a guardian for the minor. This state recognizes a testamentary appointment effected by the guardian’s acceptance under a will probated in another state that is the testator’s domicile. Written notice of acceptance of the appointment shall be given by the guardian to the minor and to the person having his custody, or if none, to the person having his care, or if none, to his nearest adult relation immediately upon acceptance of appointment. The parent may appoint by will one (1) or more alternate guardians, in order of priority. If a guardian appointed by will fails to accept guardianship within thirty (30) days after the will is probated, or files a notice of declination to accept appointment prior to the running of the thirty (30) day period, or is deceased, or ceases to act after acceptance, then the alternate guardian next in priority becomes the appointed guardian and may file a written notice of acceptance in the court in which the will is probated.
(2) Objection by minor twelve (12) years of age or older. A minor twelve (12) years of age or older may prevent an appointment of his testamentary guardian from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within thirty (30) days after notice of its acceptance. An objection may be withdrawn. In the event of such objection, the alternate guardian next in priority named in the will may accept appointment, and the minor shall have the same right of objection. An objection does not preclude appointment by the court in a proper proceeding by the testamentary nominee or any other suitable person.
(3) Testamentary appointment of guardian for incapacitated person or developmentally disabled person.
(a) The parent of an incapacitated person or developmentally disabled person may by will appoint a guardian of the incapacitated person or developmentally disabled person. A testamentary appointment by a parent becomes effective when, after having given seven (7) days’ prior written notice of his intention to do so to the incapacitated person or developmentally disabled person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if prior thereto both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.
(b) The spouse of a married incapacitated person or developmentally disabled person may by will appoint a guardian of the incapacitated person or developmentally disabled person. The appointment becomes effective when, after having given seven (7) days’ prior written notice of his intention to do so to the incapacitated person or developmentally disabled person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(c) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator’s domicile in another state.
(d) Upon the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this part.
(e) If the appointment by will is for a developmentally disabled person and there is an existing guardianship proceeding under chapter 4, title 66, Idaho Code, or under this chapter, in which the decedent was the sole guardian, the guardian appointed by will shall also give seven (7) days’ written notice of his intention to file an acceptance of appointment to any then-serving guardian ad litem for the developmentally disabled person in such proceeding and to the department of health and welfare for the region in which the proceeding was brought.
(4) Court appointment of guardian of minor and conditions for appointment.
(a) The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated by prior court order or upon a finding that the child has been neglected, abused, or abandoned or that the child’s parents are unable to provide a stable home environment. As used in this subsection, "abandoned," "abused," and "neglected" shall have the same meaning as provided in section 16-1602, Idaho Code. Failure to maintain a normal parental relationship with the child without just cause for a period of six (6) months shall constitute prima facie evidence of abandonment. Except in those circumstances described in subsections (2) and (3) of this section and where a temporary guardianship has been created at the request of a parent on active duty in or deployment with the United States armed forces, the court shall consider the best interest of the child as the primary factor in the determination whether to appoint, and whom to appoint as, a guardian for such child. In determining the choice of a guardian for an unmarried minor, the advanced age or disability of a potential guardian shall not, in and of itself, be used as a criterion of the suitability of the potential guardian as long as the potential guardian is otherwise suitable. A guardian appointed by will, as provided in subsection (1) of this section, whose appointment has not been prevented or nullified, as provided in subsection (2) of this section, has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment nonetheless upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty (30) days after notice of the guardianship proceeding.
(b) The extended absence of a parent due to active duty in or deployment with the United States armed forces shall not by itself constitute neglect, abuse, abandonment, or failure to provide a stable home environment.
(c) Any guardianship granted at the request of or required by the United States armed forces or at the request of a parent while on active duty in or deployment with the United States armed forces, which duty or deployment does not constitute neglect, abuse, abandonment, or failure to provide a stable home environment, shall be terminated immediately upon the conclusion of the original circumstances necessitating the creation of the temporary guardianship or the filing of a termination report by the parent indicating the parent’s intent to resume all care, custody, and control of the minor.
[15-5-201, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 4, p. 340.]
A parent of a minor may appoint a guardian of an unmarried minor by will, subject to the right of the minor under section 15-5-203, Idaho Code. The termination of parental rights of a parent as to the minor shall also terminate the right of that parent to appoint a guardian for the minor. A testamentary appointment becomes effective upon the filing of the guardian’s acceptance in the court in which the will is probated, if, at the decedent’s death, no parent of the minor was alive who had a right to appoint a guardian for the minor. This state recognizes a testamentary appointment effected by the guardian’s acceptance under a will probated in another state which is the testator’s domicile. Written notice of acceptance of the appointment must be given by the guardian to the minor and to the person having his custody, or if none, his care, or if none, to his nearest adult relation immediately upon acceptance of appointment. The parent may appoint by will one (1) or more alternate guardians, in order of priority. If a guardian appointed by will fails to accept guardianship within thirty (30) days after the will is probated, or files a notice of declination to accept appointment prior to the running of the thirty (30) day period, or is deceased, or ceases to act after acceptance, then the alternate guardian next in priority becomes the appointed guardian and may file a written notice of acceptance in the court in which the will is probated.
Petition for Appointment of Guardian for MINOR. [Effective January 1, 2027]
(1) A person interested in the welfare of a minor, including the minor, may petition for appointment of a guardian for the minor.
(2) A petition under subsection (1) of this section shall state the petitioner’s name, principal residence, current street address, email address, phone number, relationship to the minor, interest in the appointment, and, if known, the name, address, email address, and phone number of any attorney representing the petitioner, and, to the extent known, the following:
(a) The minor’s name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed the minor will reside if the appointment is made;
(b) The name, current street address, email address, and phone number, if known, of the minor’s parents;
(c) The name, address, email address, and phone number, if known, of each person that had primary care or custody of the minor for at least sixty (60) days during the two (2) years immediately before the filing of the petition or for at least seven hundred thirty (730) days during the five (5) years immediately before the filing of the petition;
(d) The name, address, email address, and phone number of any attorney for the minor and any attorney for each parent of the minor;
(e) The reason guardianship is sought and would be in the best interest of the minor;
(f) The name, address, email address, and phone number, if known, of any proposed guardian and the reason the proposed guardian should be selected;
(g) If the minor has property other than personal effects, a general statement of the minor’s property with an estimate of its value;
(h) Whether the minor needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings;
(i) Whether any parent of the minor needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings; and
(j) Whether any other proceeding concerning the care or custody of the minor is pending in any court in this state or another jurisdiction.
[15-5-202, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 17, p. 510; am. 2002, ch. 233, sec. 2, p. 670; am. 2006, ch. 183, sec. 1, p. 582; am. 2014, ch. 287, sec. 1, p. 728; repealed and added 2026, ch. 79, sec. 4, p. 342.]
A minor of fourteen (14) or more years may prevent an appointment of his testamentary guardian from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within thirty (30) days after notice of its acceptance. An objection may be withdrawn. In the event of such objection, the alternate guardian next in priority named in the will may accept appointment as set forth in section 15-5-202, Idaho Code, and the minor shall have the same right of objection. An objection does not preclude appointment by the court in a proper proceeding of the testamentary nominee, or any other suitable person.
Notice of Hearing for Appointment of Guardian for MINOR. [Effective January 1, 2027]
(1) If a petition is filed under section 15-5-202, Idaho Code, the court shall schedule a hearing and the petitioner shall:
(a) Serve notice of the date, time, and place of the hearing, together with a copy of the petition, personally on each of the following that is not the petitioner:
(i) The minor, if the minor will be twelve (12) years of age or older at the time of the hearing;
(ii) Each parent of the minor or, if there is none, the adult nearest in kinship who can be found with reasonable diligence;
(iii) Any adult with whom the minor resides;
(iv) Each person that had primary care or custody of the minor for at least sixty (60) days during the two (2) years immediately before the filing of the petition or for at least seven hundred thirty (730) days during the five (5) years immediately before the filing of the petition; and
(v) Any other person the court determines should receive personal service of notice; and
(b) Give notice under section 15-5-113, Idaho Code, of the date, time, and place of the hearing, together with a copy of the petition, to:
(i) Any person nominated as guardian by the minor, if the minor is twelve (12) years of age or older;
(ii) Any nominee of a parent;
(iii) Each grandparent and adult sibling of the minor;
(iv) Any guardian or conservator acting for the minor in any jurisdiction; and
(v) Any other person as the court determines.
(2) Notice required by subsection (1) of this section shall include a statement of the right to request appointment of an attorney for the minor or to object to appointment of a guardian and a description of the nature, purpose, and consequences of appointment of a guardian.
(3) The court may not grant a petition for guardianship of a minor if notice substantially complying with subsection (1)(a) of this section is not served on:
(a) The minor, if the minor is twelve (12) years of age or older; and
(b) Each parent of the minor, unless the court finds by clear and convincing evidence that the parent cannot with due diligence be located and served or the parent waived, in a record, the right to notice.
(4) If a petitioner is unable to serve notice under subsection (1)(a) of this section on a parent of a minor or alleges that the parent waived, in a record, the right to notice under this section, the court shall appoint a visitor who shall:
(a) Interview the petitioner and the minor;
(b) If the petitioner alleges the parent cannot be located, ascertain whether the parent cannot be located with due diligence; and
(c) Investigate any other matter relating to the petition as the court directs.
[15-5-203, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 18, p. 510; am. 2014, ch. 287, sec. 2, p. 728; repealed and added 2026, ch. 79, sec. 4, p. 343.]
(1) The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated by prior court order or upon a finding that the child has been neglected, abused, or abandoned or whose parents are unable to provide a stable home environment. "Abandoned" means the failure of the parent to maintain a normal parental relationship with the child including, but not limited to, reasonable support or regular contact. Failure to maintain a normal parental relationship with the child without just cause for a period of six (6) months shall constitute prima facie evidence of abandonment. Except in those circumstances described in subsections (2) and (3) of this section and where a temporary guardianship has been created at the request of a parent on active duty in or deployment with the United States armed forces, the court shall consider the best interests of the child as the primary factor in the determination whether to appoint, and whom to appoint, as a guardian for such child. In determining the choice of a guardian for an unmarried minor, the advanced age or disability of a potential guardian shall not, in and of itself, be used as a criterion of the suitability of the potential guardian as long as the potential guardian is otherwise suitable. A guardian appointed by will as provided in section 15-5-202, Idaho Code, whose appointment has not been prevented or nullified under section 15-5-203, Idaho Code, has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment nonetheless upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty (30) days after notice of the guardianship proceeding.
(2) The extended absence of a parent due to active duty in or deployment with the United States armed forces shall not by itself constitute neglect, abuse, abandonment, or failure to provide a stable home environment.
(3) Any guardianship granted at the request of or required by the United States armed forces or at the request of a parent while on active duty in or deployment with the United States armed forces, which duty or deployment does not constitute neglect, abuse, abandonment, or failure to provide a stable home environment, shall be terminated immediately upon the conclusion of the original circumstances necessitating the creation of the temporary guardianship or the filing of a termination report by the parent indicating the parent’s intent to resume all care, custody, and control of the minor.
ATTORNEY FOR MINOR OR PARENT. [effective January 1, 2027]
(1) The court may, in the discretion of the court, appoint an attorney to represent a minor who is the subject of a proceeding under section 15-5-202, Idaho Code, if:
(a) Requested by the minor and the minor is twelve (12) years of age or older;
(b) Recommended by a guardian ad litem; or
(c) The court determines the minor needs representation.
(2) An attorney appointed under subsection (1) of this section shall:
(a) Make a reasonable effort to ascertain the minor’s wishes;
(b) Advocate for the minor’s wishes to the extent reasonably ascertainable; and
(c) If the minor’s wishes are not reasonably ascertainable, advocate for the minor’s best interest.
(3) A minor who is the subject of a proceeding under section 15-5-202, Idaho Code, may retain an attorney to represent the minor in the proceeding.
(4) A parent of a minor who is the subject of a proceeding under section 15-5-202, Idaho Code, may retain an attorney to represent the parent in the proceeding.
(5) The court may, in the discretion of the court, appoint an attorney to represent a parent of a minor who is the subject of a proceeding under section 15-5-202, Idaho Code, if:
(a) The parent objects to appointment of a guardian for the minor;
(b) The court determines that counsel is needed to ensure that consent to appointment of a guardian is informed; or
(c) The court otherwise determines the parent needs representation.
[15-5-204, added 1971, ch. 111, sec. 1, p. 233; am. 1999, ch. 123, sec. 1, p. 360; am. 2002, ch. 233, sec. 3, p. 671; am. 2020, ch. 235, sec. 1, p. 691; repealed and added 2026, ch. 79, sec. 4, p. 344.]
The venue for guardianship proceedings for a minor is in the place where the minor resides or is present.
ATTENDANCE AND PARTICIPATION AT HEARING FOR APPOINTMENT OF GUARDIAN FOR MINOR. [effective January 1, 2027]
(1) The court shall require a minor who is the subject of a hearing under section 15-5-203, Idaho Code, to attend the hearing and allow the minor to participate in the hearing unless the court determines, by clear and convincing evidence presented at the hearing or a separate hearing, that:
(a) The minor consistently and repeatedly refused to attend the hearing after being fully informed of the right to attend and, if the minor is twelve (12) years of age or older, the potential consequences of failing to attend;
(b) There is no practicable way for the minor to attend the hearing;
(c) The minor lacks the ability or maturity to participate meaningfully in the hearing; or
(d) Attendance would be harmful to the minor.
(2) Unless excused by the court for good cause, the person proposed to be appointed as guardian for a minor shall attend a hearing under section 15-5-203, Idaho Code.
(3) Each parent of a minor who is the subject of a hearing under section 15-5-203, Idaho Code, has the right to attend the hearing.
(4) A person may request permission to participate in a hearing under section 15-5-203, Idaho Code. The court may grant the request, with or without hearing, upon determining that it is in the best interest of the minor who is the subject of the hearing. The court may impose appropriate conditions on the person’s participation.
[15-5-205, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 4, p. 344.]
The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is fourteen (14) years of age or older, unless the court finds the appointment contrary to the best interests of the minor.
ORDER OF APPOINTMENT — PRIORITY OF NOMINEE — LIMITED GUARDIANSHIP FOR MINOR. [effective January 1, 2027]
(1) After a hearing under section 15-5-203, Idaho Code, the court may appoint a guardian for a minor, if appointment is proper under section 15-5-201, Idaho Code, dismiss the proceeding, or take other appropriate action consistent with this chapter or law of this state other than this chapter.
(2) In appointing a guardian under subsection (1) of this section, the following rules apply:
(a) The court shall appoint a person nominated as guardian by a parent of the minor in a will or other record as provided in section 15-5-201(1), Idaho Code, unless the court finds the appointment is contrary to the best interest of the minor.
(b) If multiple parents have nominated different persons to serve as guardian, the court shall appoint the nominee whose appointment is in the best interest of the minor, unless the court finds that appointment of none of the nominees is in the best interest of the minor.
(c) If a guardian is not appointed under paragraph (a) or (b) of this subsection, the court shall appoint the person nominated by the minor if the minor is twelve (12) years of age or older unless the court finds that appointment is contrary to the best interest of the minor. In that case, the court shall appoint as guardian a person whose appointment is in the best interest of the minor.
(3) In the interest of maintaining or encouraging involvement by a minor’s parent in the minor’s life, developing self-reliance of the minor, or for other good cause, the court, at the time of appointment of a guardian for the minor or later, on its own or on motion of the minor or other interested person, may create a limited guardianship by limiting the powers otherwise granted by this part to the guardian. Following the same procedure, the court may grant additional powers or withdraw powers previously granted.
(4) The court, as part of an order appointing a guardian for a minor, shall state rights retained by any parent of the minor that may include contact or visitation with the minor, decision-making regarding the minor’s health care, education, or other matter, or access to a record regarding the minor.
(5) An order granting a guardianship for a minor shall state that each parent of the minor is entitled to notice that:
(a) The guardian has delegated custody of the minor subject to guardianship;
(b) The court has modified or limited the powers of the guardian; or
(c) The court has removed the guardian.
(6) An order granting a guardianship for a minor shall identify any person in addition to a parent of the minor who is entitled to notice of the events listed in subsection (5) of this section.
[15-5-206, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 4, p. 345.]
(1) Proceedings for the appointment of a guardian or co-guardians may be initiated by the following persons:
(a) Any relative of the minor;
(b) The minor if he is fourteen (14) or more years of age;
(c) Any person who comes within section 15-5-213(1), Idaho Code; or
(d) Any person interested in the welfare of the minor.
(2) Notice of the time and place of hearing of a petition under this section is to be given by the petitioner in the manner prescribed by section 15-1-401, Idaho Code, to:
(a) The minor, if he is fourteen (14) or more years of age;
(b) The person who has had the principal care and custody of the minor during the sixty (60) days preceding the date of the petition;
(c) Any person who comes within section 15-5-213(1), Idaho Code; and
(d) Any living parent of the minor; provided however, that the court may waive notice to a living parent of the minor who is, or is alleged to be, the father of the minor if:
(i) The father was never married to the mother of the minor and has failed to register his paternity as provided in section 16-1504(5), Idaho Code; or
(ii) 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.
(3)(a) As an alternative to appointing one (1) guardian for a minor, the court may appoint no more than two (2) persons as co-guardians for a minor if the court finds:
(i) The appointment of co-guardians will best serve the interests of the minor; and
(ii) The persons to be appointed as co-guardians will work together cooperatively to serve the best interests of the minor.
(b) If the court appoints co-guardians, the court shall also determine whether the guardians:
(i) May act independently;
(ii) May act independently but must act jointly in specified matters; or
(iii) Must act jointly.
This determination by the court must be stated in the order of appointment and in the letters of guardianship.
(4) If the court finds, upon hearing, that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of section 15-5-204, Idaho Code, have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings, or make any other disposition of the matter that will best serve the interests of the minor.
(5) Prior to the appointment of a guardian:
(a) The court may appoint a temporary guardian for the minor if it finds by a preponderance of evidence that:
(i) A petition for guardianship under this section has been filed, but a guardian has not yet been appointed;
(ii) The appointment is necessary to protect the minor’s health, safety or welfare until the petition can be heard; and
(iii) No other person appears to have the ability, authority and willingness to act.
(b) A temporary guardian may be appointed without notice or hearing if the minor is in the physical custody of the petitioner or proposed temporary guardian and the court finds from a statement made under oath that the minor may be immediately and substantially harmed before notice can be given or a hearing held.
(c) Notice of the appointment of a temporary guardian must be given to those designated in subsection (2) of this section within seventy-two (72) hours after the appointment. The notice must inform interested persons of the right to request a hearing. The court must hold a hearing on the appropriateness of the appointment within fourteen (14) days after request by an interested person. In all cases, either a hearing on the temporary guardianship or on the petition for guardianship itself must be held within ninety (90) days of the filing of any petition for guardianship of a minor.
(d) The temporary guardian’s authority may not exceed six (6) months unless extended for good cause. Only one (1) such extension may be made, and the extension period must not last longer than six (6) additional months. The powers of the temporary guardian shall be limited to those necessary to protect the immediate health, safety or welfare of the minor until a hearing may be held and must include the care and custody of the minor.
(e) A temporary guardian must make reports as the court requires.
(6) When a minor is under guardianship:
(a) The court may appoint a temporary guardian if it finds:
(i) Substantial evidence that the previously appointed guardian is not performing the guardian’s duties; and
(ii) The appointment of a temporary guardian is necessary to protect the minor’s health, safety or welfare.
(b) A temporary guardian may be appointed without notice or hearing if the court finds from a statement made under oath that the minor may be immediately and substantially harmed before notice can be given or a hearing held.
(c) Notice of the appointment of a temporary guardian must be given to those designated in subsection (2) of this section within seventy-two (72) hours after the appointment. The notice must inform interested persons of the right to request a hearing. The court shall hold a hearing on the appropriateness of the appointment within fourteen (14) days after request by an interested person.
(d) The authority of a previously appointed guardian is suspended as long as a temporary guardian has authority. The court must hold a hearing before the expiration of the temporary guardian’s authority and may enter any appropriate order. The temporary guardian’s authority may not exceed six (6) months unless extended for good cause as provided in subsection (5)(d) of this section. Prior to the end of an extension period, the court must appoint a guardian other than a temporary guardian or take other appropriate action, but in no event may a temporary guardianship last longer than twelve (12) months in total.
(e) A temporary guardian must make reports as the court requires.
(7) The court shall appoint an attorney to represent the minor if the court determines that the minor possesses sufficient maturity to direct the attorney. If the court finds that the minor is not mature enough to direct an attorney, the court shall appoint a guardian ad litem for the minor. The court may decline to appoint an attorney or guardian ad litem if it finds in writing that such appointment is not necessary to serve the best interests of the minor or if the Idaho department of health and welfare has legal custody of the child.
(8) Letters of guardianship must indicate whether the guardian was appointed by will or by court order.
DE FACTO CUSTODIAN. [effective January 1, 2027]
If a court determines by clear and convincing evidence that a person meets the definition of a de facto custodian and that recognition of the de facto custodian is in the best interest of the child, the court shall give the person the same standing that is given to each parent in proceedings for appointment of a guardian of a minor. In determining whether recognition of a de facto custodian is in the child’s best interest, the court shall consider:
(1) Whether the child is currently residing with the person seeking such standing; and
(2) If the child is not currently residing with the person seeking such standing, the length of time since the person served as the child’s primary caregiver and primary financial supporter.
[15-5-207, added 1971, ch. 111, sec. 1, p. 233; am. 2004, ch. 145, sec. 1, p. 475; am. 2005, ch. 113, sec. 1, p. 364; am. 2006, ch. 180, sec. 1, p. 559; am. 2010, ch. 236, sec. 2, p. 611; am. 2017, ch. 261, sec. 1, p. 643; am. 2020, ch. 123, sec. 1, p. 379; am. 2020, ch. 330, sec. 3, p. 955; am. 2021, ch. 187, sec. 1, p. 512; repealed and added 2026, ch. 79, sec. 4, p. 345.]
By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian, or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.
EMERGENCY GUARDIAN FOR MINOR. [effective January 1, 2027]
(1) On its own, or on petition by a person interested in a minor’s welfare, the court may appoint an emergency guardian for the minor if the court finds:
(a) Appointment of an emergency guardian is likely to prevent substantial harm to the minor’s health, safety, or welfare; and
(b) No other person appears to have authority and willingness to act in the circumstances.
(2) The duration of authority of an emergency guardian for a minor may not exceed ninety (90) days, and the emergency guardian may exercise only the powers specified in the order of appointment. The emergency guardian’s authority may be extended once for not more than ninety (90) days if the court finds that the conditions for appointment of an emergency guardian in subsection (1) of this section continue.
(3) Except as otherwise provided in subsection (4) of this section, reasonable notice of the date, time, and place of a hearing on a petition for appointment of an emergency guardian for a minor shall be given to:
(a) The minor, if the minor is twelve (12) years of age or older;
(b) Any attorney appointed under section 15-5-204, Idaho Code;
(c) Each parent of the minor;
(d) Any person, other than a parent, having care or custody of the minor; and
(e) Any other person as the court determines.
(4) The court may appoint an emergency guardian for a minor without notice under subsection (3) of this section and without a hearing only if the court finds from an affidavit or testimony that the minor’s health, safety, or welfare will be substantially harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency guardian without notice to an unrepresented minor or the attorney for a represented minor, notice of the appointment shall be given not later than forty-eight (48) hours after the appointment to the individuals listed in subsection (3) of this section. Not later than seven (7) days after the appointment, the court shall hold a hearing on the appropriateness of the appointment.
(5) Appointment of an emergency guardian under this section, with or without notice, is not a determination that a basis exists for appointment of a guardian under section 15-5-201, Idaho Code.
(6) The court may remove an emergency guardian appointed under this section at any time. The emergency guardian shall make any report the court requires.
[15-5-208, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 4, p. 346.]
A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his minor and unemancipated child, except that a guardian is not legally obligated to provide from his own funds for the ward and is not liable to third persons by reason of the parental relationship for acts of the ward. In particular, and without qualifying the foregoing, a guardian has the following powers and duties:
(1) He must take reasonable care of his ward’s personal effects and commence protective proceedings if necessary to protect other property of the ward.
(2) He may receive money payable for the support of the ward to the ward’s parent, guardian or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship or custodianship. He also may receive money or property of the ward paid or delivered by virtue of section 15-5-103, Idaho Code. Any sums so received shall be applied to the ward’s current needs for support, care and education. He must exercise due care to conserve any excess for the ward’s future needs unless a conservator has been appointed for the estate of the ward, in which case the excess shall be paid over at least annually to the conservator. Sums so received by the guardian are not to be used for compensation for his services except as approved by order of the court or as determined by a duly appointed conservator other than the guardian. A guardian may institute proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward.
(3) The guardian is empowered to facilitate the ward’s education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented. A guardian may consent to the marriage or adoption of his ward.
(4) A guardian shall report to the court at least annually on the status of the ward and the ward’s estate which has been subject to his possession or control. All reports shall be under oath or affirmation and shall comply with the Idaho supreme court rules.
DUTIES OF GUARDIAN FOR MINOR. [effective January 1, 2027]
(1) A guardian for a minor is a fiduciary. Except as otherwise limited by the court, a guardian for a minor has the duties and responsibilities of a parent regarding the minor’s support, care, education, health, safety, visitation, and welfare. A guardian shall act in the minor’s best interest and exercise reasonable care, diligence, and prudence.
(2) A guardian for a minor shall:
(a) Be personally acquainted with the minor and maintain sufficient contact with the minor to know the minor’s abilities, limitations, needs, opportunities, and physical and mental health;
(b) Provide opportunities for visitation and, absent a court order, arrange for visitation;
(c) Take reasonable care of the minor’s personal effects and bring a proceeding for a conservatorship or protective arrangement instead of conservatorship if necessary to protect other property of the minor;
(d) Expend funds of the minor that have been received by the guardian for the minor’s current needs for support, care, education, health, safety, and welfare;
(e) Conserve any funds of the minor not expended under paragraph (d) of this subsection for the minor’s future needs, but if a conservator is appointed for the minor, pay the funds at least quarterly to the conservator to be conserved for the minor’s future needs;
(f) Report the condition of the minor and account for funds and other property of the minor in the guardian’s possession or subject to the guardian’s control, as required by court rule or ordered by the court on application of a person interested in the minor’s welfare;
(g) Inform the court of any change in the minor’s dwelling or address; and
(h) In determining what is in the minor’s best interest, take into account the minor’s preferences, to the extent actually known or reasonably ascertainable by the guardian.
[15-5-209, added 1971, ch. 111, sec. 1, p. 233; am. 2014, ch. 164, sec. 1, p. 460; repealed and added 2026, ch. 79, sec. 4, p. 346.]
A guardian’s authority and responsibility terminates upon the death, resignation or removal of the guardian, termination of the guardianship or upon the minor’s death, adoption, marriage or attainment of majority, but termination does not affect his liability for prior acts, nor his obligation to account for funds and assets of his ward. Resignation of a guardian without the appointment of a successor guardian does not terminate the guardianship until it has been approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.
POWERS OF GUARDIAN FOR MINOR. [effective January 1, 2027]
(1) Except as otherwise limited by court order, a guardian of a minor has the powers a parent otherwise would have regarding the minor’s support, care, education, health, safety, visitation, and welfare.
(2) Except as otherwise limited by court order, a guardian for a minor may:
(a) Apply for and receive funds and benefits otherwise payable for the support of the minor to the minor’s parent, guardian, or custodian under a statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship;
(b) Unless inconsistent with a court order entitled to recognition in this state, take custody of the minor and establish the minor’s place of dwelling and, on authorization of the court, establish or move the minor’s dwelling outside this state;
(c) If the minor is not subject to conservatorship, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the minor or make a payment for the benefit of the minor;
(d) Consent to health or other care, treatment, or service for the minor; or
(e) To the extent reasonable, delegate to the minor responsibility for a decision affecting the minor’s well-being.
(3) The court may authorize a guardian for a minor to consent to the adoption of the minor if the minor does not have a parent.
(4) A guardian for a minor may consent to the marriage of the minor if authorized by the court.
[15-5-210, added 1971, ch. 111, sec. 1, p. 233; am. 2016, ch. 148, sec. 1, p. 416; repealed and added 2026, ch. 79, sec. 4, p. 347.]
(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship.
(b) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, if in this state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed. If the court in which acceptance of appointment is filed is in another state, the court in this state shall proceed in accordance with chapters 9, 10 and/or 11, title 15, Idaho Code, as appropriate.
REMOVAL OF GUARDIAN FOR MINOR — TERMINATION OF GUARDIANSHIP — APPOINTMENT OF SUCCESSOR. [effective January 1, 2027]
(1) Guardianship under this chapter for a minor terminates:
(a) Upon the minor’s death, adoption, emancipation, or attainment of majority; or
(b) When the court finds that the standard in section 15-5-201, Idaho Code, for appointment of a guardian is not satisfied, unless the court finds that:
(i) Termination of the guardianship would be harmful to the minor; and
(ii) The minor’s interest in the continuation of the guardianship outweighs the interest of any parent of the minor in restoration of the parent’s right to make decisions for the minor.
(2) A minor subject to guardianship or a person interested in the welfare of the minor may petition the court to terminate the guardianship, modify the guardianship, remove the guardian, and appoint a successor guardian.
(3) A petitioner under subsection (2) of this section shall give notice of the hearing on the petition to the minor, if the minor is twelve (12) years of age or older and is not the petitioner, to the guardian, to each parent of the minor, and to any other person as the court determines.
(4) Not later than thirty (30) days after appointment of a successor guardian for a minor, the successor guardian shall give notice of the appointment to the minor subject to guardianship, if the minor is twelve (12) years of age or older, each parent of the minor, and any other person as the court determines.
(5) When terminating a guardianship for a minor under this section, the court may issue an order providing for transitional arrangements that will assist the minor with a transition of custody and is in the best interest of the minor.
(6) A guardian for a minor that is removed shall cooperate with a successor guardian to facilitate transition of the guardian’s responsibilities and protect the best interest of the minor.
[15-5-211, added 1971, ch. 111, sec. 1, p. 233; am. 2006, ch. 182, sec. 1, p. 565; repealed and added 2026, ch. 79, sec. 4, p. 347.]
(1) Any person interested in the welfare of a ward, or the ward if fourteen (14) or more years of age, may petition for removal of a guardian, or for modification or termination of the guardianship, on the ground that such removal, modification or termination would be in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.
(2) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.
(3) If, at any time in the proceeding, the court determines that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen (14) or more years of age.
[15-5-212, added 1971, ch. 111, sec. 1, p. 233; am. 2016, ch. 148, sec. 2, p. 416.]
Where a minor is within the jurisdiction of a court under the child protective act, or where a guardianship proceeding arose in connection with a permanency plan for a minor who was the subject of a proceeding under the child protective act:
(1) The court having jurisdiction over the proceeding under the child protective act shall have exclusive jurisdiction and venue over any guardianship proceeding involving such minor unless, in furtherance of the permanency plan, the court declines to exercise such jurisdiction and venue, notwithstanding sections 15-5-205 and 15-5-211, Idaho Code.
(2) In any action connected to a guardianship governed by this section, in addition to notice or service upon interested parties pursuant to section 15-1-401, Idaho Code, notice of the following shall be served upon the department of health and welfare in the manner prescribed in Idaho rule of civil procedure 4(d)(5):
(a) Any petition for the appointment of a guardian of a minor;
(b) Any pleading filed in connection with such guardianship;
(c) Any proceeding of any nature in such guardianship; or
(d) The time and place of any hearing in connection with such guardianship.
(3) In any action governed by this section, the department of health and welfare shall have the right to appear and be heard at any hearing, and shall have the right to intervene at any stage of the action.
(4) A guardian appointed in an action governed by this section may not consent to the adoption of the minor without providing prior notice of the action of adoption to the department of health and welfare in a manner prescribed in section 15-1-401, Idaho Code.
(5) Any person who moves to terminate a guardianship governed by this section has the burden of proving, by clear and convincing evidence, that:
(a) There has been a substantial and material change in the circumstances of the parent or the minor since the establishment of the guardianship; and
(b) Termination of the guardianship would be in the best interests of the minor.
(6) In any action governed by this section, any person who moves to remove a guardian or modify a guardianship has the burden of proving, by clear and convincing evidence, that:
(a) There has been a substantial and material change in the circumstances of the parent or the minor since the establishment of the guardianship; and
(b) Removal of the guardian or modification of the guardianship would be in the best interests of the minor.
[15-5-212A, added 2007, ch. 72, sec. 1, p. 195.]
(1) "De facto custodian" means a person who has either been appointed the de facto custodian pursuant to section 32-1705, Idaho Code, or if not so appointed, has been the primary caregiver for, and primary financial supporter of, a child who, prior to the filing of a petition for guardianship, has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older.
(2) If a court determines by clear and convincing evidence that a person meets the definition of a de facto custodian, and that recognition of the de facto custodian is in the best interests of the child, the court shall give the person the same standing that is given to each parent in proceedings for appointment of a guardian of a minor. In determining whether recognition of a de facto custodian is in the child’s best interests, the court shall consider:
(a) Whether the child is currently residing with the person seeking such standing; and
(b) If the child is not currently residing with the person seeking such standing, the length of time since the person served as the child’s primary caregiver and primary financial supporter.
[15-5-213, added 2004, ch. 145, sec. 2, p. 476; am. 2005, ch. 113, sec. 2, p. 365; am. 2010, ch. 236, sec. 3, p. 612.]
(a) The parent of an incapacitated person or developmentally disabled person may by will appoint a guardian of the incapacitated person or developmentally disabled person. A testamentary appointment by a parent becomes effective when, after having given seven (7) days’ prior written notice of his intention to do so to the incapacitated person or developmentally disabled person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.
(b) The spouse of a married incapacitated person or developmentally disabled person may by will appoint a guardian of the incapacitated person or developmentally disabled person. The appointment becomes effective when, after having given seven (7) days’ prior written notice of his intention to do so to the incapacitated person or developmentally disabled person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(c) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator’s domicile in another state.
(d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this part.
(e) If the appointment by will is for a developmentally disabled person and there is an existing guardianship proceeding under chapter 4, title 66, Idaho Code, in which the decedent was the sole guardian, the guardian appointed by will must also give seven (7) days’ written notice of his intention to file an acceptance of appointment to any then serving guardian ad litem for the developmentally disabled person in such proceeding and to the department of health and welfare for the region in which the proceeding was brought.
(f) If the appointment by will is for an incapacitated person for whom there is an existing guardianship proceeding in which the decedent was the sole guardian, the guardian appointed by will must also give seven (7) days’ written notice of his intention to file an acceptance of appointment to any then serving guardian ad litem for the incapacitated person in such proceeding.
BASIS FOR APPOINTMENT OF GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) Upon petition and after notice and hearing, the court may:
(a) Appoint a guardian for an adult if the court finds by clear and convincing evidence that:
(i) The respondent lacks the ability to meet essential requirements for physical health, safety, or self-care because the respondent is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision-making; and
(ii) The respondent’s identified needs cannot be met by a protective arrangement instead of guardianship or other less restrictive alternative; or
(b) With appropriate findings, treat the petition as one for a conservatorship under part 4 of this chapter or a protective arrangement under part 5 of this chapter, issue any appropriate order, or dismiss the proceeding.
(2) The court shall grant a guardian appointed under subsection (1) of this section only those powers necessitated by the demonstrated needs and limitations of the respondent and issue orders that will encourage development of the respondent’s maximum self-determination and independence. The court may not establish a full guardianship if a limited guardianship, protective arrangement instead of guardianship, or other less restrictive alternatives would meet the needs of the respondent.
[15-5-301, added 1971, ch. 111, sec. 1, p. 233; am. 2009, ch. 86, sec. 1, p. 236; repealed and added 2026, ch. 79, sec. 5, p. 348.]
The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.
PETITION FOR APPOINTMENT OF GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) A person interested in an adult’s welfare, including the adult for whom the order is sought, may petition for appointment of a guardian for the adult.
(2) A petition under subsection (1) of this section shall state the petitioner’s name, principal residence, current street address, if different, email address, phone number, relationship to the respondent, interest in the appointment, the name and address of any attorney representing the petitioner, and, to the extent known, the following:
(a) The respondent’s name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed the respondent will reside if the petition is granted;
(b) The name and address of the respondent’s:
(i) Spouse or, if the respondent has none, an adult with whom the respondent has shared household responsibilities for more than six (6) months in the twelve (12) month period immediately before the filing of the petition;
(ii) Adult children or, if none, each parent and adult sibling of the respondent or, if none, at least one (1) adult nearest in kinship to the respondent who can be found with reasonable diligence; and
(iii) Adult stepchildren whom the respondent actively parented during the stepchildren’s minor years and with whom the respondent had an ongoing relationship in the two (2) year period immediately before the filing of the petition;
(c) The name and current address of each of the following, if applicable:
(i) A person responsible for care of the respondent;
(ii) Any attorney currently representing the respondent;
(iii) Any representative payee appointed by the social security administration for the respondent;
(iv) A guardian or conservator acting for the respondent in this state or in another jurisdiction;
(v) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;
(vi) Any fiduciary for the respondent appointed by the department of veterans affairs;
(vii) An agent designated under a medical directive in which the respondent is identified as the principal;
(viii) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;
(ix) A person nominated as guardian by the respondent;
(x) A person nominated as guardian by the respondent’s parent or spouse in a will or other signed record;
(xi) A proposed guardian and the reason the proposed guardian should be selected; and
(xii) A person known to have routinely assisted the respondent with decision-making during the six (6) months immediately before the filing of the petition;
(d) The reason a guardianship is necessary, including a brief description of:
(i) The nature and extent of the respondent’s alleged need;
(ii) Any protective arrangement instead of guardianship or other less restrictive alternatives for meeting the respondent’s alleged need that have been considered or implemented;
(iii) If no protective arrangement instead of guardianship or other less restrictive alternatives have been considered or implemented, the reason they have not been considered or implemented; and
(iv) The reason a protective arrangement instead of guardianship or other less restrictive alternative is insufficient to meet the respondent’s alleged need;
(e) Whether the petitioner seeks a limited guardianship or full guardianship;
(f) If the petitioner seeks a full guardianship, the reason a limited guardianship or protective arrangement instead of guardianship is not appropriate;
(g) If a limited guardianship is requested, the powers to be granted to the guardian;
(h) The name and current address, if known, of any person with whom the petitioner seeks to limit the respondent’s contact;
(i) If the respondent has property other than personal effects, a general statement of the respondent’s property, with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and
(j) Whether the respondent needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings.
[15-5-302, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 5, p. 349.]
(a) The incapacitated person or any person interested in his welfare may petition for a finding of incapacity and appointment of a guardian or co-guardians, limited or general. It is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their own needs. Recognizing that every individual has unique needs and differing abilities, the public welfare should be promoted by establishing a guardianship that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of guardianship that least interferes with legal capacity of a person to act in his own behalf. The petition shall include a plan in reasonable detail for the proposed actions of the guardian regarding the affairs of the ward after appointment of the guardian, to the extent reasonably known to the petitioner at the time of filing of the petition. If the complete mental, physical and emotional status, and the health care needs and other needs of the ward are not reasonably known to the petitioner at the time the petition is filed, or if the petitioner is not the proposed guardian, then the guardian shall submit to the court, and to all interested persons, in writing, within thirty (30) days after appointment of the guardian, a reasonably detailed plan covering such matters. Such plan must also be given to any person who has filed a request for notice under section 15-5-406, Idaho Code, and to other persons as the court may direct. Such plan shall be given to all such persons in accordance with the methods set forth in section 15-1-401, Idaho Code. If the plan changes during any time period between the periodic reports of the guardian, the modified plan shall be filed with the next report as a part thereof.
(b) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the allegedly incapacitated person has counsel of his own choice, it shall appoint an attorney to represent him in the proceeding, who shall have the powers and duties of a guardian ad litem. The person alleged to be incapacitated shall be examined by a physician or other qualified person appointed by the court who shall submit his report in writing to the court. The court may, in appropriate cases, appoint a mental health professional, defined as a psychiatrist, psychologist, gerontologist, licensed social worker, or licensed counselor, to examine the proposed ward and submit a written report to the court. The person alleged to be incapacitated also shall be interviewed by a visitor sent by the court. The visitor shall also interview the person who appears to have caused the petition to be filed and any person who is nominated to serve as guardian, and visit the present place of abode of the person alleged to be incapacitated and the place it is proposed that he will be detained or reside if the requested appointment is made and submit his report in writing to the court. Where possible without undue delay and expenses beyond the ability to pay of the allegedly incapacitated person, the court, in formulating the judgment, may utilize the service of any public or charitable agency that offers or is willing to evaluate the condition of the allegedly incapacitated person and make recommendations to the court regarding the most appropriate form of state intervention in his affairs.
(c) Unless excused by the court for good cause, the proposed guardian shall attend the hearing. The person alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon his condition. He is entitled to be represented by counsel, to present evidence and subpoena witnesses and documents, to examine witnesses, including the court-appointed physician, mental health professional, or other person qualified to evaluate the alleged impairment, as well as the court-appointed visitor, and otherwise participate in the hearing. The hearing may be a closed hearing upon the request of the person alleged to be incapacitated or his counsel and a showing of good cause. After appointment, the guardian shall immediately provide written notice of any proposed change in the permanent address of the ward to the court and all interested parties.
NOTICE OF HEARING FOR APPOINTMENT OF GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) Upon filing of a petition under section 15-5-302, Idaho Code, for appointment of a guardian for an adult, and after compliance with any required training and background check, the court shall set a date, time, and place for hearing the petition.
(2) A copy of a petition under section 15-5-302, Idaho Code, and notice of a hearing on the petition shall be served personally on the respondent. The notice shall inform the respondent of the respondent’s rights at the hearing, including the right to an attorney and to attend the hearing. The notice shall include a description of the nature, purpose, and consequences of granting the petition. The court may not grant the petition if notice substantially complying with this subsection is not served on the respondent.
(3) In a proceeding on a petition under section 15-5-302, Idaho Code, the notice required under subsection (2) of this section shall be given to the persons required to be listed in the petition under section 15-5-302(2)(a) through (c), Idaho Code, and any other person interested in the respondent’s welfare as the court determines. Failure to give notice under this subsection does not preclude the court from appointing a guardian.
(4) After the appointment of a guardian, notice of a hearing on a petition for an order under this part, together with a copy of the petition, shall be given to:
(a) The adult subject to guardianship;
(b) The guardian; and
(c) Any other person as the court determines.
[15-5-303, added 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1982, ch. 285, sec. 3, p. 723; am. 1999, ch. 128, sec. 1, p. 370; am. 2005, ch. 51, sec. 1, p. 187; am. 2017, ch. 261, sec. 2, p. 645; repealed and added 2026, ch. 79, sec. 5, p. 350.]
(a) The court shall exercise the authority conferred in this part so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.
(b) The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person. The court, on appropriate findings, may:
(1) Treat the petition as one for a protective order under section 15-5-401, Idaho Code, and proceed accordingly;
(2) Enter any other appropriate order; or
(3) Dismiss the proceedings.
(c)(1) As an alternative to appointing one (1) guardian for an incapacitated person, the court may appoint no more than two (2) persons as co-guardians for the incapacitated person if the court finds:
(i) The appointment of co-guardians will best serve the interests of the incapacitated person; and
(ii) The persons to be appointed as co-guardians will work together cooperatively to serve the best interests of the incapacitated person.
(2) The parents of an incapacitated person shall have preference over all other persons for appointment as co-guardians, unless the court finds that the parents are unwilling to serve as co-guardians, or are not capable of adequately serving the best interests of the incapacitated person.
(3) If the court appoints co-guardians, the court shall also determine whether the guardians:
(i) May act independently;
(ii) May act independently but must act jointly in specified matters; or
(iii) Must act jointly.
This determination by the court must be stated in the order of appointment and in the letters of guardianship.
(d) The court may, at the time of appointment or later, on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, limit the powers of a guardian otherwise conferred by this section and thereby create a limited guardianship. Any limitations on the statutory power of a guardian of an incapacitated person shall be endorsed on the guardian’s letters, or in the case of a guardian by testamentary appointment, shall be reflected in letters that shall be issued at the time any limitation is imposed. Following the same procedure, a limitation may be removed and appropriate letters issued.
APPOINTMENT AND ROLE OF DD evaluation committee AND VISITOR. [effective January 1, 2027]
(1) Upon receipt of a petition under section 15-5-302, Idaho Code, for appointment of a guardian for an adult with a developmental disability, the court shall appoint a DD evaluation committee to conduct an evaluation and submit a report in accordance with Idaho supreme court rules.
(2) Upon receipt of a petition under section 15-5-302, Idaho Code, for appointment of a guardian for an adult without a developmental disability, the court shall appoint a visitor to conduct an evaluation and submit a report in accordance with Idaho supreme court rules.
[15-5-304, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 4, p. 724; am. 2017, ch. 261, sec. 3, p. 646; repealed and added 2026, ch. 79, sec. 5, p. 350.]
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.
APPOINTMENT AND ROLE OF ATTORNEY FOR ADULT. [effective January 1, 2027]
(1) Unless the respondent in a proceeding for appointment of a guardian for an adult is represented by an attorney, the court shall appoint an attorney to represent the respondent, regardless of the respondent’s ability to pay.
(2) An attorney representing the respondent in a proceeding for appointment of a guardian for an adult shall:
(a) Make reasonable efforts to ascertain the respondent’s wishes;
(b) Advocate for the respondent’s wishes to the extent reasonably ascertainable; and
(c) If the respondent’s wishes are not reasonably ascertainable, advocate for the result that is the least restrictive in type, duration, and scope, consistent with the respondent’s interests.
[15-5-305, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 5, p. 351.]
(1) Subject to subsection (2) of this section, the authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in section 15-5-307 of this part. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.
(2) If a guardian has the right to control the disposition of the remains of a deceased person or to determine provisions not clearly covered in a prearranged funeral plan pursuant to section 54-1142(1), Idaho Code, then the guardianship shall continue as set forth in that section.
Professional evaluation. [effective January 1, 2027]
(1) At or before a hearing on a petition for a guardianship for an adult, the court may order a professional evaluation of the respondent:
(a) If the respondent requests the evaluation; or
(b) In other cases, unless the court finds that it has sufficient information to determine the respondent’s needs and abilities without the evaluation.
(2) If the court orders an evaluation under subsection (1) of this section, the respondent shall be examined by a licensed physician, psychologist, social worker, or other individual appointed by the court who is qualified to evaluate the respondent’s alleged cognitive and functional abilities and limitations and will not be advantaged or disadvantaged by a decision to grant the petition or otherwise have a conflict of interest. The individual conducting the evaluation promptly shall file a report in a record with the court. Unless otherwise directed by the court, the report shall contain:
(a) A description of the nature, type, and extent of the respondent’s cognitive and functional abilities and limitations;
(b) An evaluation of the respondent’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
(c) A prognosis for improvement and recommendation for the appropriate treatment, support, or habilitation plan; and
(d) The date of the examination on which the report is based.
(3) The respondent may decline to participate in an evaluation ordered under subsection (1) of this section.
[15-5-306, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 19, p. 510; am. 2006, ch. 181, sec. 2, p. 562; am. 2025, ch. 137, sec. 2, p. 702; repealed and added 2026, ch. 79, sec. 5, p. 351.]
(a) On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.
(b) An order adjudicating incapacity may specify a minimum period, not exceeding one (1) year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition for an order that he is no longer incapacitated, and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.
(c) Before removing a guardian, accepting the resignation of a guardian, or ordering that a ward’s incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian, and to the place where the ward resides or is detained, to observe conditions and report in writing to the court.
(d) Upon request, a jury may be summoned to hear factual issues as in other civil cases.
ATTENDANCE AND RIGHTS AT HEARING. [effective January 1, 2027]
(1) Except as otherwise provided in subsection (2) of this section, a hearing under section 15-5-303, Idaho Code, may not proceed unless the respondent attends the hearing. If it is not reasonably feasible for the respondent to attend a hearing at the location court proceedings typically are held, the court shall make reasonable efforts to hold the hearing at an alternative location convenient to the respondent or allow the respondent to attend the hearing using real-time audio-visual technology.
(2) A hearing under section 15-5-303, Idaho Code, may proceed without the respondent in attendance if the court finds by clear and convincing evidence that:
(a) The respondent consistently and repeatedly has refused to attend the hearing after having been fully informed of the right to attend and the potential consequences of failing to attend; or
(b) There is no practicable way for the respondent to attend and participate in the hearing even with appropriate supportive services and technological assistance.
(3) The respondent may be assisted in a hearing under section 15-5-303, Idaho Code, by a person or persons of the respondent’s choosing, assistive technology, or an interpreter or translator, or a combination of these supports. If assistance would facilitate the respondent’s participation in the hearing, but is not otherwise available to the respondent, the court shall make reasonable efforts to provide it.
(4) The respondent has a right to choose an attorney to represent the respondent at a hearing under section 15-5-303, Idaho Code.
(5) At a hearing held under section 15-5-303, Idaho Code, the respondent may:
(a) Present evidence and subpoena witnesses and documents;
(b) Examine witnesses, including any court-appointed evaluator, any member of a DD evaluation committee, and the visitor; and
(c) Otherwise participate in the hearing.
(6) Unless excused by the court for good cause, a proposed guardian shall attend a hearing under section 15-5-303, Idaho Code.
(7) A hearing under section 15-5-303, Idaho Code, shall be closed on request of the respondent and a showing of good cause.
(8) Any person may request to participate in a hearing under section 15-5-303, Idaho Code. The court may grant the request, with or without a hearing, on determining that the best interest of the respondent will be served. The court may impose appropriate conditions on the person’s participation.
[15-5-307, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 5, p. 351.]
(1) A visitor is, with respect to guardianship proceedings, an individual with no personal interest in the proceedings and who meets the qualifications identified in Idaho supreme court rule. A visitor may either be an employee of or appointed by the court. If appointed, a visitor becomes an officer of the court.
(2) A visitor must report to the court on the status of the person proposed to be under guardianship. All reports must be under oath or affirmation and must comply with Idaho supreme court rules.
(3) A visitor shall be personally immune from any liability for acts, omissions or errors in the same manner as if such visitor were a volunteer or director under the provisions of section 6-1605, Idaho Code.
(4) A visitor cannot serve as guardian ad litem. The visitor and the guardian ad litem for the person proposed to be under guardianship may not be members or employees of the same entity.
(5) The visitor may request to order a criminal history and background check at the proposed guardian’s expense on any individual who resides in or may frequent the residence of the person proposed to be under guardianship. Any such check shall be conducted pursuant to chapter 25[27], title 56, Idaho Code.
Confidentiality of records. [effective January 1, 2027]
The confidentiality of records in a proceeding for guardianship for an adult shall be maintained in accordance with Idaho supreme court rules.
[15-5-308, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 20, p. 510; am. 1997, ch. 201, sec. 1, p. 576; am. 1999, ch. 128, sec. 2, p. 371; am. 2002, ch. 217, sec. 1, p. 595; am. 2008, ch. 74, sec. 1, p. 195; am. 2013, ch. 262, sec. 1, p. 640; am. 2017, ch. 261, sec. 4, p. 647; am. 2026, ch. 220, sec. 4, p. 921; repealed and added 2026, ch. 79, sec. 5, p. 352.]
(1) In a proceeding for the appointment or removal of a guardian of an incapacitated person and, if notice is required in a proceeding for appointment of a temporary guardian, notice of hearing shall be given to each of the following:
(a) The ward or the person alleged to be incapacitated and his spouse, or, if none, his adult children or if none, his parents;
(b) Any person who is serving as his guardian, conservator or who has his care and custody;
(c) In case no other person is notified under subsection (1)(a) of this section, at least one (1) of his closest adult relatives, if any can be found; and
(d) Any person who has filed a request for notice under this section.
(2) Notice shall be served personally on the alleged incapacitated person. In all other cases, required notices shall be given as provided in section 15-1-401, Idaho Code. Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is confirmed by the visitor or the guardian ad litem. Representation of the alleged incapacitated person by a guardian ad litem is not necessary.
(3) Any person desiring notice of any order or filing in a proceeding involving an alleged incapacitated person in whom he is interested may file a request for notice with the court stating his name, the name of the incapacitated person, the nature of the requesting person’s interest, and address or that of his attorney. Upon payment of any fee required by statute or court rule, the clerk shall mail a copy of the request to the guardian if one has been appointed or to the petitioner if there is no guardian. A request is effective only as to matters occurring after its filing.
WHO MAY BE GUARDIAN FOR ADULT — ORDER OF PRIORITY. [effective January 1, 2027]
(1) Except as otherwise provided in subsection (3) of this section, the court in appointing a guardian for an adult shall consider persons qualified to be guardian in the following order of priority:
(a) A guardian, other than a temporary or emergency guardian, currently acting for the respondent in another jurisdiction;
(b) A person nominated as guardian by the respondent, including the respondent’s most recent nomination made in a power of attorney;
(c) An agent appointed by the respondent under a medical directive for health care;
(d) A spouse of the respondent; and
(e) A family member or other individual who has shown special care and concern for the respondent.
(2) If two (2) or more persons have equal priority under subsection (1) of this section, the court shall select as guardian the person the court considers best qualified. In determining the best qualified person, the court shall consider the person’s relationship with the respondent, the person’s skills, the expressed wishes of the respondent, the extent to which the person and the respondent have similar values and preferences, and the likelihood the person will be able to perform the duties of a guardian successfully.
(3) The court, acting in the best interest of the respondent, may decline to appoint as guardian a person having priority under subsection (1) of this section and appoint a person having a lower priority or no priority.
(4) A person that provides paid services to the respondent, or an individual who is employed by a person that provides paid services to the respondent or is the spouse, parent, or child of an individual who provides or is employed to provide paid services to the respondent, may not be appointed as guardian unless:
(a) The individual is related to the respondent by blood, marriage, or adoption; or
(b) The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.
(5) An owner, operator, or employee of a long-term care institution at which the respondent is receiving care may not be appointed as guardian unless the owner, operator, or employee is related to the respondent by blood, marriage, or adoption.
(6) Unless the court finds by clear and convincing evidence that such appointment is in the best interest of the respondent, no person shall be appointed as a guardian of a respondent if the person is:
(a) A convicted felon; or
(b) A person whose residence is the respondent’s proposed residence or will be frequented by the respondent and is frequented by a convicted felon.
[15-5-309, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 5, p. 724; am. 2007, ch. 70, sec. 1, p. 187; am. 2007, ch. 71, sec. 2, p. 193; repealed and added 2026, ch. 79, sec. 5, p. 352.]
(a) The court may appoint a temporary guardian if it finds:
(1) A petition for guardianship under section 15-5-303, Idaho Code, has been filed, but a guardian has not yet been appointed;
(2) Substantial evidence of incapacity;
(3) By a preponderance of the evidence an emergency exists that will likely result in immediate and substantial harm to the person’s health, safety or welfare; and
(4) No other person appears to have the ability, authority and willingness to act.
(b) When a person is under guardianship, the court may appoint a temporary guardian if it finds:
(1) Substantial evidence that the guardian is not performing the guardian’s duties; and
(2) By a preponderance of the evidence, an emergency exists that will likely result in immediate and substantial harm to the person’s health, safety or welfare.
The authority of a guardian previously appointed by the court is suspended as long as a temporary guardian has authority. The court must hold a hearing before the expiration of the temporary guardian’s authority and may enter any appropriate order.
(c)(1) A temporary guardian may be appointed without notice or hearing if the court finds from a statement under oath that the person will be immediately and substantially harmed before notice can be given or a hearing held.
(2) If the court appoints a temporary guardian without notice, notice of the appointment must be given to those designated in section 15-5-309, Idaho Code, within seventy-two (72) hours after the appointment. The notice must inform the interested persons of the right to request a hearing. The court must hold a hearing on the appropriateness of the appointment within fourteen (14) days after the request by an interested person.
(3) The temporary guardian’s authority may not exceed ninety (90) days, unless extended for good cause. The powers of the temporary guardian must be limited to those necessary to protect the immediate health, safety or welfare of the person until such time as a hearing may be held in the matter.
(4) A temporary guardian must make reports as the court requires.
ORDER OF APPOINTMENT FOR GUARDIAN. [effective January 1, 2027]
(1) A court order appointing a guardian for an adult shall:
(a) Include a specific finding that clear and convincing evidence established that the identified needs of the respondent cannot be met by a protective arrangement instead of guardianship or other less restrictive alternative, including use of appropriate supportive services, technological assistance, or supported decision-making;
(b) Include a specific finding that clear and convincing evidence established the respondent was given proper notice of the hearing on the petition; and
(c) State whether the adult subject to guardianship retains the right to marry and, if the adult does not retain the right to marry, include findings, established by clear and convincing evidence, that support removing that right.
(2) An adult subject to guardianship retains the right to marry unless the order includes findings that support removing that right by clear and convincing evidence required by subsection (1)(c) of this section.
(3) A court order establishing a full guardianship for an adult subject to guardianship shall state the basis for granting a full guardianship and include specific findings by clear and convincing evidence that support the conclusion that a limited guardianship would not meet the functional needs of the adult subject to guardianship.
(4) A court order establishing a limited guardianship for an adult subject to guardianship shall state the specific powers granted to the guardian.
(5) The court, as part of an order establishing a guardianship for an adult subject to guardianship, shall identify any person that subsequently is entitled to:
(a) Notice of the rights of the adult subject to guardianship under section 15-5-311(2), Idaho Code;
(b) Notice of a change in the primary dwelling of the adult subject to guardianship;
(c) Notice that the guardian will be unavailable to visit the adult subject to guardianship for more than two (2) months or unavailable to perform the guardian’s duties for more than one (1) month;
(d) A copy of the guardian’s plan under section 15-5-316, Idaho Code, and the guardian’s report under section 15-5-317, Idaho Code;
(e) Access to court records relating to the guardianship;
(f) Notice of the death or significant change in the condition of the adult subject to guardianship;
(g) Notice that the court has limited or modified the powers of the guardian; and
(h) Notice of the removal of the guardian.
(6) A spouse and adult children of an adult subject to guardianship are entitled to notice under subsection (5) of this section unless the court determines notice would be contrary to the preferences or prior directions of the adult subject to guardianship or not in the best interest of the adult subject to guardianship.
(7) Orders for guardianship for a person with a developmental disability shall include notice of special limitations on a guardian’s power in section 15-5-315(4), Idaho Code.
[15-5-310, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 6, p. 725; am. 1999, ch. 128, sec. 3, p. 372; am. 2005, ch. 52, sec. 1, p. 189; am. 2017, ch. 261, sec. 5, p. 648; am. 2020, ch. 123, sec. 2, p. 381; repealed and added 2026, ch. 79, sec. 5, p. 353.]
(1) Any competent person, except as set forth hereafter, or a suitable institution may be appointed guardian of an incapacitated person.
(2) The person preferred by the incapacitated person shall be appointed guardian unless good cause be shown why appointment of such person is contrary to the best interests of the incapacitated person. If the incapacitated person is unable to express a preference, any previous expression, including a durable power of attorney for health care, may be considered by the court.
(3) Persons who are not disqualified have priority for appointment as guardian in the following order:
(a) The person preferred by the incapacitated person. The court shall always consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;
(b) The person(s) nominated as health care agent in a durable power of attorney for health care by the incapacitated person, in the order of priority set forth in such power;
(c) The spouse of the incapacitated person;
(d) An adult child of the incapacitated person;
(e) A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
(f) Any relative of the incapacitated person with whom he has resided for more than six (6) months prior to the filing of the petition;
(g) A person nominated by the person who is caring for him or paying benefits to him.
(4) No convicted felon, or person whose residence is the incapacitated person’s proposed residence or will be frequented by the incapacitated person and is frequented by a convicted felon, shall be appointed as a guardian of an incapacitated person unless the court finds by clear and convincing evidence that such appointment is in the best interests of the incapacitated person.
(5) No individual shall be appointed as guardian of an incapacitated person unless all of the following first occurs:
(a) The proposed guardian has submitted to and paid for a criminal history and background check conducted pursuant to chapter 25[27], title 56, Idaho Code;
(b) Pursuant to an order of the court so requiring, any individual who resides in the incapacitated person’s proposed residence has submitted, at the proposed guardian’s expense, to a criminal history and background check conducted pursuant to chapter 25[27], title 56, Idaho Code;
(c) The findings of such criminal history and background checks have been made available to the visitor and guardian ad litem by the department of health and welfare; and
(d) The proposed guardian provided a report of his or her civil judgments and bankruptcies to the visitor, the guardian ad litem and all others entitled to notice of the guardianship proceeding pursuant to section 15-5-309, Idaho Code.
(6) The provisions of paragraphs (a) and (d) of subsection (5) of this section shall not apply to an institution nor to a legal or commercial entity.
(7) Each proposed guardian and each appointed guardian shall immediately report any change in his or her criminal history and any material change in the information required by subsection (5) of this section to the visitor, guardian ad litem, all others entitled to notice of the guardianship proceeding pursuant to section 15-5-309, Idaho Code, and to the court.
Notice of order of appointment — rights. [effective January 1, 2027]
(1) A guardian appointed under section 15-5-309, Idaho Code, shall give the adult subject to guardianship and all other persons given notice under section 15-5-303, Idaho Code, a copy of the order of appointment, together with notice of the right to request termination or modification. The order and notice shall be given not later than fourteen (14) days after the appointment.
(2) Not later than thirty (30) days after appointment of a guardian under section 15-5-309, Idaho Code, the court shall give to the adult subject to guardianship, to the guardian, and to any other person entitled to notice under section 15-5-310(5), Idaho Code, or under a subsequent order, a statement of the rights of the adult subject to guardianship and the procedures to seek relief if the adult is denied those rights. The statement shall be communicated in the manner set forth in section 15-5-113(3), Idaho Code. The statement shall notify the adult subject to guardianship of the right to:
(a) Seek termination or modification of the guardianship or removal of the guardian and choose an attorney to represent the adult subject to guardianship in these matters;
(b) Be involved in decisions affecting the adult subject to guardianship, including decisions about the adult subject to guardianship’s care, dwelling, activities, or social interactions, to the extent reasonably feasible;
(c) Be involved in health care decision-making to the extent reasonably feasible and be supported in understanding the risks and benefits of health care options to the extent reasonably feasible;
(d) Be notified at least fourteen (14) days before a change in the adult subject to guardianship’s primary dwelling or permanent move to a nursing home, mental health facility, or other facility that places restrictions on the adult subject to guardianship’s ability to leave or have visitors unless the change or move is proposed in the guardian’s plan under section 15-5-316, Idaho Code, or authorized by the court by specific order;
(e) Object to a change or move described in paragraph (d) of this subsection and the process for objecting;
(f) Communicate, visit, or interact with others, including receiving visitors and making or receiving telephone calls, personal mail, or electronic communications, including through social media, unless:
(i) The guardian has been authorized by the court by specific order to restrict communications, visits, or interactions;
(ii) A protective order or protective arrangement instead of guardianship is in effect that limits contact between the adult subject to guardianship and a person; or
(iii) The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult subject to guardianship, and the restriction is:
For a period of not more than seven (7) business days if the person has a family or preexisting social relationship with the adult subject to guardianship; or
For a period of not more than sixty (60) days if the person does not have a family or preexisting social relationship with the adult subject to guardianship;
(g) Receive a copy of the guardian’s plan under section 15-5-316, Idaho Code, and the guardian’s report under section 15-5-317, Idaho Code; and
(h) Object to the guardian’s plan or report.
[15-5-311, added 1971, ch. 111, sec. 1, p. 233; am. 1999, ch. 128, sec. 4, p. 373; am. 2000, ch. 179, sec. 1, p. 448; am. 2004, ch. 52, sec. 1, p. 242; am. 2008, ch. 74, sec. 2, p. 196; am. 2013, ch. 262, sec. 2, p. 641; am. 2026, ch. 220, sec. 5, p. 921; repealed and added 2026, ch. 79, sec. 5, p. 354.]
(1) A guardian of an incapacitated person has the powers and responsibilities of a parent who has not been deprived of custody of his unemancipated minor child except that a guardian is not legally obligated to provide from his own funds for the ward and is not liable to third persons for acts of the ward, and except as hereinafter limited. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court when the guardianship is limited:
(a) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, he is entitled to custody of the person of his ward and may establish the ward’s place of abode within or without this state. The guardian shall take reasonable measures to ensure that a convicted felon does not reside with, care for or visit the ward without court approval.
(b) If entitled to custody of his ward he shall make provision for the care, comfort and maintenance of his ward, and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward’s person, he shall take reasonable care of his ward’s clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
(c) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service. A guardian shall be automatically entitled to any information governed by the health insurance portability and accountability act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164, and the appointment of such guardian shall be deemed to grant such release authority.
(d) If no conservator for the estate of the ward has been appointed, the guardian may institute proceedings to appoint a conservator. In no circumstances shall the guardian exercise any of the powers of a conservator.
(e) A guardian shall be required to report to the court at least annually on the status of the ward. All reports shall be under oath or affirmation and shall comply with Idaho supreme court rules.
(f) If a conservator has been appointed, all of the ward’s estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided pursuant to this chapter, and the guardian must account to the conservator for funds expended.
(2) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward’s estate by payment to third persons or institutions for the ward’s care and maintenance.
(3) A guardian may delegate certain of his responsibilities for decisions affecting the ward’s well-being to the ward when reasonable under all of the circumstances.
EMERGENCY GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) On its own, after a petition has been filed under section 15-5-302, Idaho Code, or upon petition by a person interested in an adult respondent’s welfare, the court may appoint an emergency guardian for the respondent if the court finds:
(a) Appointment of an emergency guardian is likely to prevent substantial harm to the respondent’s physical health, safety, or welfare;
(b) No other person appears to have authority and willingness to act in the circumstances; and
(c) There is reason to believe that a basis for appointment of a guardian under section 15-5-301, Idaho Code, exists.
(2) The duration of authority of an emergency guardian for an adult may not exceed ninety (90) days, and the emergency guardian may exercise only the powers specified in the order of appointment. The emergency guardian’s authority may be extended once for not more than ninety (90) days if the court finds that the conditions for appointment of an emergency guardian in subsection (1) of this section continue.
(3) Immediately upon filing of a petition for appointment of an emergency guardian for an adult, the court shall appoint an attorney to represent the respondent in the proceeding. Except as otherwise provided in subsection (4) of this section, reasonable notice of the date, time, and place of a hearing on the petition shall be given to the respondent, the respondent’s attorney, and any other person as the court determines.
(4) The court may appoint an emergency guardian for an adult respondent without notice to the respondent and any attorney for the respondent only if the court finds from an affidavit or testimony that the respondent’s physical health, safety, or welfare will be substantially harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency guardian without giving notice under subsection (3) of this section, the court shall:
(a) Give notice of the appointment not later than forty-eight (48) hours after the appointment to:
(i) The respondent;
(ii) The respondent’s attorney; and
(iii) Any other person as the court determines; and
(b) Hold a hearing on the appropriateness of the appointment not later than seven (7) days after the appointment.
(5) Appointment of an emergency guardian under this section is not a determination that a basis exists for appointment of a guardian under section 15-5-301, Idaho Code.
(6) The court may remove an emergency guardian appointed under this section at any time. The emergency guardian shall make any report the court requires.
[15-5-312, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 7, p. 726; am. 1989, ch. 241, sec. 2, p. 587; am. 2004, ch. 53, sec. 2, p. 245; am. 2008, ch. 74, sec. 3, p. 196; am. 2014, ch. 164, sec. 2, p. 460; repealed and added 2026, ch. 79, sec. 5, p. 355.]
(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship, including proceedings to limit the authority previously conferred on a guardian, or to remove limitations previously imposed.
(b) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, if in this state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation, altering his authority or removing a guardian shall be sent to the court in which acceptance of appointment is filed. If the court in which acceptance of appointment is filed is in another state, the court in this state shall proceed in accordance with chapters 9, 10 and/or 11, title 15, Idaho Code, as appropriate.
DUTIES OF GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) A guardian for an adult is a fiduciary. Except as otherwise limited by the court, a guardian for an adult shall make decisions regarding the support, care, education, health, and welfare of the adult subject to guardianship to the extent necessitated by the adult subject to guardianship’s limitations.
(2) A guardian for an adult subject to guardianship shall promote the self-determination of the adult subject to guardianship and, to the extent reasonably feasible, encourage the adult subject to guardianship to participate in decisions, act on the adult subject to guardianship’s own behalf, and develop or regain the capacity to manage the adult subject to guardianship’s personal affairs. In furtherance of this duty, the guardian shall:
(a) Become or remain personally acquainted with the adult subject to guardianship and maintain sufficient contact with the adult subject to guardianship, including through regular visitation, to know the adult subject to guardianship’s abilities, limitations, needs, opportunities, and physical and mental health;
(b) To the extent reasonably feasible, identify the values and preferences of the adult subject to guardianship and involve the adult subject to guardianship in decisions affecting the adult subject to guardianship, including decisions about the adult subject to guardianship’s care, dwelling, activities, or social interactions; and
(c) Make reasonable efforts to identify and facilitate supportive relationships and services for the adult subject to guardianship.
(3) A guardian for an adult subject to guardianship at all times shall exercise reasonable care, diligence, and prudence when acting on behalf of or making decisions for the adult subject to guardianship. In furtherance of this duty, the guardian shall:
(a) Take reasonable care of the personal effects, pets, and service or support animals of the adult subject to guardianship and bring a proceeding for a conservatorship or protective arrangement instead of conservatorship if necessary to protect the adult subject to guardianship’s property;
(b) Expend funds and other property of the adult subject to guardianship received by the guardian for the adult subject to guardianship’s current needs for support, care, education, health, and welfare;
(c) Conserve any funds and other property of the adult subject to guardianship not expended under paragraph (b) of this subsection for the adult subject to guardianship’s future needs, but if a conservator has been appointed for the adult subject to guardianship, pay the funds and other property at least quarterly to the conservator to be conserved for the adult subject to guardianship’s future needs; and
(d) Monitor the quality of services, including long-term care services, provided to the adult subject to guardianship.
(4) In making a decision for an adult subject to guardianship, the guardian shall make the decision the guardian reasonably believes the adult subject to guardianship would make if the adult subject to guardianship were able unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the adult subject to guardianship. To determine the decision the adult subject to guardianship would make if able, the guardian shall consider the adult subject to guardianship’s previous or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the guardian.
(5) If a guardian for an adult subject to guardianship cannot make a decision under subsection (4) of this section because the guardian does not know and cannot reasonably determine the decision the adult subject to guardianship probably would make if able, or the guardian reasonably believes the decision the adult subject to guardianship would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult subject to guardianship, the guardian shall act in accordance with the best interest of the adult subject to guardianship. In determining the best interest of the adult subject to guardianship, the guardian shall consider:
(a) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the adult subject to guardianship;
(b) Other information the guardian believes the adult subject to guardianship would have considered if the adult subject to guardianship were able to act; and
(c) Other factors a reasonable person in the circumstances of the adult subject to guardianship would consider, including consequences for others.
(6) A guardian for an adult subject to guardianship shall immediately notify the court if the condition of the adult subject to guardianship has changed so that the adult subject to guardianship is capable of exercising rights previously removed.
[15-5-313, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 8, p. 727; am. 2006, ch. 182, sec. 2, p. 565; repealed and added 2026, ch. 79, sec. 5, p. 355.]
(1) If not otherwise compensated for services rendered or expenses incurred, any visitor, guardian ad litem, physician, guardian, or temporary guardian appointed in a protective proceeding is entitled to reasonable compensation from the estate for services rendered and expenses incurred in such status, including for services rendered and expenses incurred prior to the actual appointment of said guardian or temporary guardian which were reasonably related to the proceedings. If any person brings or defends any guardianship proceeding in good faith, whether successful or not, he or she is entitled to receive from the estate his or her necessary expenses and disbursements including reasonable attorney’s fees incurred in such proceeding. If the estate is inadequate to bear any of the reasonable compensation, fees, and/or costs referenced in this section, the court may apportion the reasonable compensation, fees, and/or costs to any party, or among the parties, as the court deems reasonable.
(2) If court visitor services are provided by court personnel, any moneys recovered shall be collected through the clerk of the district court of the county in which the appointment was made and the clerk shall pay the moneys to the state treasurer for deposit in the guardianship and conservatorship project fund established by section 31-3201G, Idaho Code.
POWERS OF GUARDIAN FOR ADULT. [effective January 1, 2027]
(1) Except as limited by court order, a guardian for an adult subject to guardianship may:
(a) Apply for and receive funds and benefits for the support of the adult subject to guardianship, unless a conservator is appointed for the adult subject to guardianship and the application or receipt is within the powers of the conservator;
(b) Unless inconsistent with a court order, establish the adult subject to guardianship’s place of dwelling;
(c) Consent to health care or other care, treatment, or service for the adult subject to guardianship;
(d) If a conservator for the adult subject to guardianship has not been appointed, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel another person to support the adult subject to guardianship or pay funds for the adult subject to guardianship’s benefit;
(e) To the extent reasonable, delegate to the adult subject to guardianship responsibility for a decision affecting the adult subject to guardianship’s well-being; and
(f) Receive personally identifiable health care information regarding the adult subject to guardianship.
(2) The court by specific order may authorize a guardian for an adult subject to guardianship to consent to the adoption of the adult subject to guardianship.
(3) The court by specific order may authorize a guardian for an adult subject to guardianship to:
(a) Consent or withhold consent to the marriage of the adult subject to guardianship if the adult subject to guardianship’s right to marry has been removed under section 15-5-310, Idaho Code;
(b) Petition for divorce, dissolution, or annulment of marriage of the adult subject to guardianship or a declaration of invalidity of the adult subject to guardianship’s marriage; or
(c) Support or oppose a petition for divorce, dissolution, or annulment of marriage of the adult subject to guardianship or a declaration of invalidity of the adult subject to guardianship’s marriage.
(4) In determining whether to authorize a power under subsection (2) or (3) of this section, the court shall consider whether the underlying act would be in accordance with the adult subject to guardianship’s preferences, values, and prior directions and whether the underlying act would be in the adult subject to guardianship’s best interest.
(5) In exercising a guardian’s power under subsection (1)(b) of this section to establish the adult subject to guardianship’s place of dwelling, the guardian shall:
(a) Select a residential setting the guardian believes the adult subject to guardianship would select if the adult subject to guardianship were able, in accordance with the decision-making standard in section 15-5-313(4) and (5), Idaho Code. If the guardian does not know and cannot reasonably determine what setting the adult subject to guardianship probably would choose if able, or the guardian reasonably believes the decision the adult subject to guardianship would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult subject to guardianship, the guardian shall choose in accordance with section 15-5-313(5), Idaho Code, a residential setting that is consistent with the adult subject to guardianship’s best interest;
(b) In selecting among residential settings, give priority to a residential setting in a location that will allow the adult subject to guardianship to interact with persons important to the adult subject to guardianship and meet the adult subject to guardianship’s needs in the least restrictive manner reasonably feasible unless to do so would be inconsistent with the decision-making standard in section 15-5-313(4) and (5), Idaho Code;
(c) No later than fourteen (14) days after a change in the dwelling of the adult subject to guardianship:
(i) Give notice of the change to the court, the adult subject to guardianship, and any person identified as entitled to the notice in the court order appointing the guardian or a subsequent order; and
(ii) Include in the notice the address and nature of the new dwelling and state whether the adult subject to guardianship received advance notice of the change and whether the adult subject to guardianship objected to the change;
(d) Establish or move the permanent place of dwelling of the adult subject to guardianship to a nursing home, mental health facility, or other facility that places restrictions on the adult subject to guardianship’s ability to leave or have visitors only if:
(i) The establishment or move is in the guardian’s plan under section 15-5-316, Idaho Code;
(ii) The court authorizes the establishment or move; or
(iii) The guardian gives notice of the establishment or move at least fourteen (14) days before the establishment or move to the adult subject to guardianship and all persons entitled to notice under section 15-5-310(5)(b), Idaho Code, or a subsequent order, and no objection is filed;
(e) Establish or move the place of dwelling of the adult subject to guardianship outside this state only if consistent with the guardian’s plan and authorized by the court by specific order; and
(f) Take action that would result in the sale of or surrender of the lease to the primary dwelling of the adult subject to guardianship only if:
(i) The action is specifically included in the guardian’s plan under section 15-5-316, Idaho Code;
(ii) The court authorizes the action by specific order; or
(iii) Notice of the action was given at least fourteen (14) days before the action to the adult subject to guardianship and all persons entitled to the notice under section 15-5-310(5)(b), Idaho Code, or a subsequent order and no objection has been filed.
(6) In exercising a guardian’s power under subsection (1)(c) of this section to make health care decisions, the guardian shall:
(a) Involve the adult subject to guardianship in decision-making to the extent reasonably feasible, including, when practicable, by encouraging and supporting the adult subject to guardianship in understanding the risks and benefits of health care options;
(b) Defer to a decision by an agent under a medical directive executed by the adult subject to guardianship and cooperate to the extent feasible with the agent making the decision; and
(c) Take into account:
(i) The risks and benefits of treatment options; and
(ii) The current and previous wishes and values of the adult subject to guardianship, if known or reasonably ascertainable by the guardian.
[15-5-314, added 2002, ch. 215, sec. 1, p. 594; am. 2014, ch. 164, sec. 3, p. 461; repealed and added 2026, ch. 79, sec. 5, p. 357.]
Subject to the direction of the court, the guardian ad litem shall have the following duties, which shall continue until the resignation of the guardian ad litem or until the court removes the guardian ad litem or no longer has jurisdiction, whichever occurs first:
(1) To conduct an independent factual investigation of the circumstances of the ward including, without limitation, the circumstances described in the petition;
(2) To file with the court a written report stating the results of the investigation, the guardian ad litem’s recommendations, and such other information as the court may require. The guardian ad litem’s written report shall be delivered to the court, with copies to all parties to the case, at least five (5) days before the date set for the adjudicatory hearing;
(3) To act as an advocate for the ward for whom appointed at each stage of the proceedings under this chapter and to be charged with the general representation of the ward. To that end, the guardian ad litem shall participate fully in the proceedings to the degree necessary to adequately represent the ward, and shall be entitled to confer with the ward and the ward’s immediate family including, but not limited to, spouse, parents, siblings, children and next of kin;
(4) To facilitate and negotiate to ensure that the court, the department of health and welfare, if applicable, and the ward’s attorney, if any, each fulfill their obligations to the ward in a timely fashion;
(5) To monitor the circumstances of a ward, if the ward is found to be within the purview of this chapter, to assure compliance with the law, and to assure that the terms of the court’s orders are being fulfilled and remain in the best interest of the ward;
(6) To meet any parent or other person having legal or physical custody of the ward, record the concerns of the parent, and report them to the court or, if no such meeting occurs, file an affidavit stating why no meeting occurred;
(7) To maintain all information regarding the case confidential and to not disclose such information except to the court or to other parties to the case;
(8) To determine whether existing powers, trusts, and other measures may adequately give the ward the legal protection otherwise provided by a guardian, or whether such powers, trusts or other measures could be reasonably created and, if so, to recommend that either no guardianship be granted or that only a suitably limited guardianship be granted; and
(9) To exercise such other and further duties as may be expressly imposed by court order.
SPECIAL LIMITATIONS ON GUARDIAN’S POWER. [effective January 1, 2027]
(1) Unless authorized by the court by specific order, a guardian for an adult subject to guardianship does not have the power to revoke or amend a medical directive or power of attorney for finances executed by the adult subject to guardianship. If a medical directive is in effect, unless there is a court order to the contrary, a health care decision of an agent takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible. If a power of attorney for finances is in effect, unless there is a court order to the contrary, a decision by the agent that the agent is authorized to make under the power of attorney for finances takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible.
(2) A guardian for an adult subject to guardianship may not initiate the commitment of the adult subject to guardianship to a mental health facility except in accordance with the state’s procedure for involuntary civil commitment.
(3) A guardian for an adult subject to guardianship may not restrict the ability of the adult subject to guardianship to communicate, visit, or interact with others, including receiving visitors and making or receiving telephone calls, personal mail, or electronic communications, including through social media, or participating in social activities, unless:
(a) Authorized by the court by specific order;
(b) A protective order or a protective arrangement instead of guardianship is in effect that limits contact between the adult subject to guardianship and a person; or
(c) The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult subject to guardianship and the restriction is:
(i) For a period of not more than seven (7) business days if the person has a family or preexisting social relationship with the adult subject to guardianship; or
(ii) For a period of not more than sixty (60) days if the person does not have a family or preexisting social relationship with the adult subject to guardianship.
(4) Except as otherwise provided in subsection (5) of this section, a guardian appointed for a person with a developmental disability shall have no authority to refuse or withhold consent for medically necessary treatment when the effect of withholding such treatment would seriously endanger the life or health and well-being of the individual subject to guardianship. To withhold or attempt to withhold consent for such treatment may be cause for removal of the guardian. Except as otherwise provided in subsection (8) of this section, no health care provider or caregiver shall, based on such guardian’s direction or refusal to consent to care, withhold or withdraw such treatment for the individual subject to guardianship. If the health care provider cannot obtain valid consent for such medically necessary treatment from the guardian, the health care provider or caregiver shall provide the medically necessary treatment as authorized by section 39-4504(1)(i), Idaho Code.
(5) A guardian appointed for a person with a developmental disability may consent to withholding or withdrawing treatment other than appropriate nutrition or hydration to the individual subject to guardianship, and a health care provider may withhold or withdraw such treatment in reliance on such consent, when in the reasonable medical judgment of the treating licensed independent practitioner, as defined in section 39-4502(13), Idaho Code, any of the following circumstances apply:
(a) The attending licensed independent practitioner and at least one (1) other licensed independent practitioner certifies that the individual subject to guardianship is chronically and irreversibly comatose;
(b) The treatment would merely prolong dying, would not be effective in ameliorating or correcting all of the individual subject to guardianship’s life-threatening conditions, or would otherwise be futile in terms of the survival of the individual subject to guardianship; or
(c) The treatment would be virtually futile in terms of the survival of the individual subject to guardianship and would be inhumane under such circumstances.
(6) Any person who has information that medically necessary treatment of a individual subject to guardianship has been withheld or withdrawn in violation of this section may report such information to adult protective services or to the Idaho protection and advocacy system for people with developmental disabilities, which shall have the authority to investigate the report and in appropriate cases to seek a court order to ensure that medically necessary treatment is provided. If adult protective services or the protection and advocacy system determines that the withholding of medical treatment violates the provisions of this section, it may petition the court for an ex parte order to provide or continue the medical treatment in question. If the court finds, based on affidavits or other evidence, that there is probable cause to believe that the withholding of medical treatment in a particular case violates the provisions of this section, and that the life or health of the individual subject to guardianship is endangered thereby, the court shall issue an ex parte order to continue or to provide the treatment until such time as the court can hear evidence from the parties involved. Petitions for court orders under this section shall be expedited by the courts and heard as soon as possible. No bond shall be required of a petitioner under this section.
(7) No partial or total guardian or partial or total conservator appointed under the provisions of this chapter may without specific approval of the court in a proceeding separate from that in which such guardian or conservator was appointed:
(a) Consent to medical or surgical treatment, the effect of which permanently prohibits the conception of children by the individual subject to guardianship unless the treatment or procedures are necessary to protect the physical health of the individual subject to guardianship and would be prescribed for a person who does not have a developmental disability; or
(b) Consent to experimental surgery, procedures, or medications.
(8) Nothing in this section shall affect the rights of a competent person or surrogate decision-maker to withhold or withdraw treatment pursuant to section 39-4514, Idaho Code, unless the person is a respondent as defined in this chapter.
[15-5-315, added 2005, ch. 49, sec. 1, p. 181; repealed and added 2026, ch. 79, sec. 5, p. 359.]
The guardian ad litem has the following rights and powers to fulfill the duties set forth in section 15-5-315, Idaho Code, which shall continue until the resignation of the guardian ad litem or until the court removes the guardian ad litem or no longer has jurisdiction, whichever occurs first.
(1) The guardian ad litem shall have the right and power to file pleadings, motions, memoranda and briefs on behalf of the ward, and to have all of the rights of the ward, whether conferred by statute, rule of court, or otherwise.
(2) All parties to any proceeding under this chapter shall promptly notify the guardian ad litem, and the guardian’s attorney, if any, of all hearings, staff hearings or meetings, investigations, depositions, and significant changes of circumstances of the ward.
(3) Except to the extent prohibited or regulated by federal law, upon presentation of a copy of the order appointing the guardian ad litem, any person or agency, including without limitation any hospital, school organization, department of health and welfare, doctor, nurse or other health care provider, psychologist, psychiatrist, police department, or mental health clinic, shall permit the guardian ad litem to inspect and copy pertinent records relating to the ward necessary for the proceeding for which the guardian ad litem has been appointed.
(4) The guardian ad litem may request, and the court may order whether in response to such request or otherwise, a criminal history and background check to be conducted at the proposed guardian’s expense on any individual who resides in the ward’s proposed residence. Any such check shall be conducted pursuant to chapter 25[27], title 56, Idaho Code.
Guardian’s plan. [effective January 1, 2027]
A guardian’s plan shall be done in accordance with Idaho supreme court rules.
[15-5-316, added 2005, ch. 49, sec. 2, p. 182; am. 2008, ch. 74, sec. 4, p. 197; am. 2013, ch. 262, sec. 3, p. 642; am. 2015, ch. 246, sec. 1, p. 1042; am. 2026, ch. 220, sec. 6, p. 922; repealed and added 2026, ch. 79, sec. 5, p. 360.]
A guardian’s report on care of the adult and monitoring of a guardianship shall be done in accordance with Idaho supreme court rules.
[15-5-317, added 2026, ch. 79, sec. 5, p. 360.]
(1) A guardianship terminates upon the death of the ward or upon order of the court.
(2) On petition of a ward, a guardian, or another person interested in the ward’s welfare, the court may terminate a guardianship if the ward no longer needs the assistance or protection of a guardian. The court may modify the type of appointment or powers granted to the guardian if the extent of protection or assistance previously granted is currently excessive or insufficient or the ward’s capacity to provide for support, care, education, health, and welfare has so changed as to warrant that action.
(3) Except as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. Upon presentation by the petitioner of evidence establishing a prima facie case for termination, the court shall order the termination unless it is proven that continuation of the guardianship is in the best interest of the ward.
REMOVAL OF GUARDIAN FOR ADULT — APPOINTMENT OF SUCCESSOR. [effective January 1, 2027]
(1) The court may remove a guardian for an adult subject to guardianship for failure to perform the guardian’s duties or for other good cause and appoint a successor guardian to assume the duties of guardian.
(2) The court shall hold a hearing to determine whether to remove a guardian for an adult subject to guardianship and appoint a successor guardian upon:
(a) Petition of the adult subject to guardianship, the guardian, or a person interested in the welfare of the adult subject to guardianship that contains allegations that, if true, would support a reasonable belief that removal of the guardian and appointment of a successor guardian may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed during the preceding six (6) months;
(b) Communication from the adult subject to guardianship, the guardian, or a person interested in the welfare of the adult subject to guardianship that supports a reasonable belief that removal of the guardian and appointment of a successor guardian may be appropriate; or
(c) Determination by the court that a hearing would be in the best interest of the adult subject to guardianship.
(3) Notice of a petition under subsection (2)(a) of this section shall be given to the adult subject to guardianship, the guardian, and any other person as the court determines.
(4) An adult subject to guardianship who seeks to remove the guardian and have a successor guardian appointed has the right to choose an attorney to represent the adult subject to guardianship in this matter. If the adult subject to guardianship is not represented by an attorney, the court shall appoint an attorney under the same conditions as in section 15-5-305, Idaho Code. The court shall award reasonable attorney’s fees to the attorney for the adult subject to guardianship as provided in section 15-5-119, Idaho Code.
(5) In selecting a successor guardian for an adult subject to guardianship, the court shall follow the priorities under section 15-5-309, Idaho Code.
(6) No later than thirty (30) days after appointing a successor guardian, the court shall give notice of the appointment to the adult subject to guardianship and any person entitled to notice under section 15-5-310(5), Idaho Code, or a subsequent order.
[15-5-318, added 2014, ch. 135, sec. 1, p. 371; repealed and added 2026, ch. 79, sec. 5, p. 361.]
(1) An adult subject to guardianship, the guardian for the adult subject to guardianship, or a person interested in the welfare of the adult subject to guardianship may petition for:
(a) Termination of the guardianship on the grounds that a basis for appointment under section 15-5-301, Idaho Code, does not exist or that termination would be in the best interest of the adult subject to guardianship or for other good cause; or
(b) Modification of the guardianship on the grounds that the extent of protection or assistance granted is not appropriate or for other good cause.
(2) The court shall hold a hearing to determine whether termination or modification of a guardianship for an adult subject to guardianship is appropriate upon:
(a) Petition under subsection (1) of this section that contains allegations that, if true, would support a reasonable belief that termination or modification of the guardianship may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed during the preceding six (6) months;
(b) Communication from the adult subject to guardianship, the guardian, or a person interested in the welfare of the adult subject to guardianship that supports a reasonable belief that termination or modification of the guardianship may be appropriate, including because the functional needs of the adult subject to guardianship or supports or services available to the adult subject to guardianship have changed;
(c) A report from a guardian or conservator that indicates that termination or modification may be appropriate because the functional needs of the adult subject to guardianship or supports or services available to the adult subject to guardianship have changed or a protective arrangement instead of guardianship or other less restrictive alternative for meeting the adult subject to guardianship’s needs is available; or
(d) A determination by the court that a hearing would be in the best interest of the adult subject to guardianship.
(3) Notice of a petition under subsection (2)(a) of this section shall be given to the adult subject to guardianship, the guardian, and any other person as the court determines.
(4) Upon presentation of prima facie evidence for termination of a guardianship for an adult subject to guardianship, the court shall order termination unless it is proven that a basis for appointment of a guardian under section 15-5-301, Idaho Code, exists.
(5) The court shall modify the powers granted to a guardian for an adult subject to guardianship if the powers are excessive or inadequate due to a change in the abilities or limitations of the adult subject to guardianship, the adult subject to guardianship’s supports, or other circumstances.
(6) Unless the court otherwise orders for good cause, before terminating or modifying a guardianship for an adult subject to guardianship, the court shall follow the same procedures to safeguard the rights of the adult subject to guardianship that apply to a petition for guardianship.
(7) An adult subject to guardianship who seeks to terminate or modify the terms of the guardianship has the right to choose an attorney to represent the adult subject to guardianship in the matter. If the adult subject to guardianship is not represented by an attorney, the court shall appoint an attorney under the same conditions as in section 15-5-305, Idaho Code. The court shall award reasonable attorney’s fees to the attorney for the adult subject to guardianship as provided in section 15-5-119, Idaho Code.
[15-5-319, added 2026, ch. 79, sec. 5, p. 361.]
After making a determination that there exists a need within a county for a guardian for those persons in need of guardianship and for whom there is no person or corporation qualified and willing to act in such capacity, the board of county commissioners may create and budget for, within the county, a board of community guardian. The board of county commissioners of one (1) or more counties within a judicial district may jointly create and budget for a board of community guardian within that district.
[15-5-320, added 2026, ch. 79, sec. 5, p. 362.]
(1) Any board of community guardian that is created within a county or counties in a judicial district shall operate under the laws of the state of Idaho, including the Idaho guardianship, conservatorship, and trust laws.
(2) A board of community guardian shall consist of no fewer than seven (7) and no more than eleven (11) members who are representatives of community interests involving persons needing guardians or conservators as defined in this chapter. Members shall be appointed by the board of county commissioners that created the board of community guardian under section 15-5-320, Idaho Code.
(3) The terms of the members of the board shall be for four (4) years and shall be staggered. A number of members equaling or most closely exceeding fifty percent (50%) shall initially be appointed for three (3) years. Any vacancy created by resignation or expiration of term shall be filled in the same manner as the original appointment.
(4) A member shall continue to serve on the board until that person’s successor is appointed.
(5) The board shall meet not less than once each quarter.
(6) No person shall be a member of a board who is also an employee of the district court or the clerk of the district court in the judicial district where the board is formed.
(7) A board member having previously provided or currently providing services to a person under guardianship shall disclose such to the board and abstain from any decision or action taken concerning that particular person under guardianship.
(8) Board members and officers shall serve without pay.
(9) Each board shall elect its own chairman and other officers.
(10) A board, in those instances when a guardian or conservator is required and no qualified family member or other qualified person has volunteered to serve, may:
(a) Locate a qualified person to serve as guardian or conservator; or
(b) Petition the court to be appointed as guardian or conservator.
(11) The board shall have all the powers and duties where applicable by court order and other provisions of this chapter and in addition shall:
(a) Locate and recommend to the court, where necessary, that a visitor or DD evaluation committee be appointed;
(b) Have access to all confidential records, including abuse registry reports that may be maintained by state or private agencies or institutions, which records concern a person for whom the board acts as guardian or conservator. The name of the person reporting the alleged abuse shall be subject to disclosure according to the provisions of chapter 1, title 74, Idaho Code;
(c) Review and monitor the services provided by public and private agencies to any individual subject to guardianship or conservatorship for whom the board acts as guardian or conservator and determine the continued need for those services;
(d) Assess a fee for services developed pursuant to this part; and
(e) Have the power, subject to the approval of the board of county commissioners, to adopt such rules as are necessary to carry out the duties and responsibilities of the board.
(12) When a board serves as guardian or conservator, it shall be compensated as other guardians or conservators pursuant to Idaho law. If, at the time the board is appointed as guardian or conservator, the person for whom the board is to act has no funds, the court may waive the payment of fees.
(13) When a board serves as guardian or conservator, there is created, at the time of filing of the order of appointment, a lien in favor of the board against any real property owned by the individual subject to guardianship or conservatorship, enforceable only upon the termination of the guardianship or conservatorship, for all fees that were incurred throughout the duration of the services and that were not paid prior to termination. All fees incurred throughout the duration of the services and that were not paid prior to the termination of services shall relate back to the effective date of the lien. The board shall record a notice of said lien within thirty (30) days of filing of the order of appointment. Such liens shall be recorded in every county where property subject to the lien is located. The notice shall contain at least the following information:
(a) Full court heading of the action in which the appointment was made;
(b) The effective date of the lien;
(c) The name and address of the board; and
(d) Any limitations or terms regarding the fees covered by the lien contained in the order of appointment.
(14) The court may postpone or arrange for gradual repayment of the fees if the court finds that the immediate repayment would create a hardship on the individual subject to guardianship.
(15) No member of a board of community guardian, employee of the board, or visitor or DD evaluation committee appointed at the request of such board shall be liable for civil damages by reason of authorizing medical treatment or surgery for the person for whom the board is appointed, if the board member, employee, or visitor or DD evaluation committee, after medical consultation with the person’s physician, acts in good faith, is not negligent, and acts within the limits established for the guardian or conservator by the court. No such person shall be liable, by reason of his authorization, for injury to the person for whom the guardian or conservator has been appointed, which injury results from the negligence or other acts of a third person, if the court has authorized the giving of medical consent by the board or the individual members of the board. No such person shall be liable in the performance of acts done in good faith within the scope of his authority as long as the act is not of a wanton or grossly negligent nature. The board of community guardian shall be deemed to be a governmental entity for the purposes of application of the Idaho tort claims act.
[15-5-321, added 2026, ch. 79, sec. 5, p. 362.]
(1) Each board of community guardian shall report annually in writing to the board of county commissioners, and in the case of a multicounty board, to each participating county, its activities for the preceding year, which report shall contain:
(a) A fiscal report that adequately reflects the financial operation of the board;
(b) The number of volunteer guardians obtained by the board;
(c) The number of persons for whom the board is acting as guardian;
(d) Recommendations for improving guardianship services in the district; and
(e) Such other matters as may be determined advisable by the board of community guardian or the board of county commissioners.
(2) The report shall be filed no later than April 1 of each year and shall cover the preceding calendar year.
(3) The board of county commissioners shall review each report and shall determine whether to dissolve or continue the board of community guardian in the county. Where there is a multicounty board of community guardian, the boards of county commissioners of all concerned counties shall concur in a decision to dissolve the board of community guardian.
[15-5-322, added 2026, ch. 79, sec. 5, p. 364.]
Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:
(a) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his minority, or that funds are needed for his support and education and that protection is necessary or desirable to obtain or provide funds.
(b) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (1) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental disability, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and (2) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.
Basis for appointment of conservator. [effective January 1, 2027]
(1) Upon petition and after notice and hearing, the court may appoint a conservator for the property or financial affairs of a minor if the court finds by a preponderance of evidence that appointment of a conservator is in the minor’s best interest, and:
(a) If the minor has a parent, the court gives weight to any recommendation of the parent whether an appointment is in the minor’s best interest; and
(b) Either:
(i) The minor owns funds or other property requiring management or protection that otherwise cannot be provided;
(ii) The minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minor’s age; or
(iii) Appointment is necessary or desirable to obtain or provide funds or other property needed for the support, care, education, health, or welfare of the minor.
(2) Upon petition and after notice and hearing, the court may appoint a conservator for the property or financial affairs of a respondent if the court finds by clear and convincing evidence that:
(a) The respondent is unable to manage property or financial affairs because:
(i) The respondent is limited in ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services, technological assistance, or supported decision-making; or
(ii) The respondent is missing, detained, or unable to return to the United States;
(b) Appointment is necessary to:
(i) Avoid harm to the respondent or significant dissipation of the property of the respondent; or
(ii) Obtain or provide funds or other property needed for the support, care, education, health, or welfare of the respondent or of an individual entitled to the respondent’s support; and
(c) The respondent’s identified needs cannot be met by a protective arrangement instead of conservatorship or other less restrictive alternative.
(3) The court shall grant a conservator only those powers necessitated by demonstrated limitations and needs of the respondent and issue orders that will encourage development of the respondent’s maximum self-determination and independence. The court may not establish a full conservatorship if a limited conservatorship, protective arrangement instead of conservatorship, or other less restrictive alternative would meet the needs of the respondent.
[15-5-401, added 1971, ch. 111, sec. 1, p. 233; am. 1989, ch. 241, sec. 3, p. 589; am. 2010, ch. 235, sec. 5, p. 547; repealed and added 2026, ch. 79, sec. 6, p. 364.]
After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:
(a) Exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
(b) Exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state shall be managed, expended or distributed to or for the use of the protected person or any of his dependents;
(c) Concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and his title to any property or claim.
PETITION FOR APPOINTMENT OF CONSERVATOR. [effective January 1, 2027]
(1) The following may petition for the appointment of a conservator:
(a) The respondent for whom the order is sought;
(b) A person interested in the estate, financial affairs, or welfare of the respondent, including a person that would be adversely affected by lack of effective management of property or financial affairs of the respondent; or
(c) The guardian of the respondent.
(2) A petition under subsection (1) of this section shall state the petitioner’s name, principal residence, current street address, if different, relationship to the respondent, interest in the appointment, the name and address of any attorney representing the petitioner, and, to the extent known, the following:
(a) The respondent’s name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed the respondent will reside if the petition is granted;
(b) The name and address of the respondent’s:
(i) Spouse or, if the respondent has none, an adult with whom the respondent has shared household responsibilities for more than six (6) months in the twelve (12) month period before the filing of the petition;
(ii) Adult children or, if none, each parent and adult sibling of the respondent or, if none, at least one (1) adult nearest in kinship to the respondent who can be found with reasonable diligence; and
(iii) Adult stepchildren whom the respondent actively parented during the stepchildren’s minor years and with whom the respondent had an ongoing relationship during the two (2) years immediately before the filing of the petition;
(c) The name and current address of each of the following, if applicable:
(i) A person responsible for the care or custody of the respondent;
(ii) Any attorney currently representing the respondent;
(iii) The representative payee appointed by the social security administration for the respondent;
(iv) A guardian or conservator acting for the respondent in this state or another jurisdiction;
(v) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;
(vi) The fiduciary appointed for the respondent by the department of veterans affairs;
(vii) An agent designated under a medical directive in which the respondent is identified as the principal;
(viii) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;
(ix) A person known to have routinely assisted the respondent with decision-making in the six (6) month period immediately before the filing of the petition;
(x) Any proposed conservator, including a person nominated by the respondent, if the respondent is twelve (12) years of age or older; and
(xi) If the individual for whom a conservator is sought is a minor:
An adult not otherwise listed with whom the minor resides; and
Each person not otherwise listed that had primary care or custody of the minor for at least sixty (60) days during the two (2) years immediately before the filing of the petition or for at least seven hundred thirty (730) days during the five (5) years immediately before the filing of the petition;
(d) A general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts;
(e) The reason conservatorship is necessary, including a brief description of:
(i) The nature and extent of the respondent’s alleged need;
(ii) If the petition alleges the respondent is missing, detained, or unable to return to the United States, the relevant circumstances, including the time and nature of the disappearance or detention and any search or inquiry concerning the respondent’s whereabouts;
(iii) Any protective arrangement instead of conservatorship or other less restrictive alternative for meeting the respondent’s alleged need that has been considered or implemented;
(iv) If no protective arrangement or other less restrictive alternative has been considered or implemented, the reason it has not been considered or implemented; and
(v) The reason a protective arrangement or other less restrictive alternative is insufficient to meet the respondent’s need;
(f) Whether the petitioner seeks a limited conservatorship or a full conservatorship;
(g) If the petitioner seeks a full conservatorship, the reason a limited conservatorship or protective arrangement instead of conservatorship is not appropriate;
(h) If the petition includes the name of a proposed conservator, the reason the proposed conservator should be appointed;
(i) If the petition is for a limited conservatorship, a description of the property to be placed under the conservator’s control and any requested limitation on the authority of the conservator;
(j) Whether the respondent needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings; and
(k) The name and address of an attorney representing the petitioner, if any.
[15-5-402, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 365.]
Venue for proceedings under this chapter is:
(a) In the place in this state where the person to be protected resides whether or not a guardian has been appointed in another place; or
(b) If the person to be protected does not reside in this state, in any place where he has property.
NOTICE AND HEARING FOR APPOINTMENT OF CONSERVATOR. [effective January 1, 2027]
(1) Upon filing of a petition under section 15-5-402, Idaho Code, for appointment of a conservator, and after completion of any required training or background checks, the court shall set a date, time, and place for a hearing on the petition.
(2) A copy of the petition and notice of a hearing on the petition shall be served personally on the respondent. If the respondent’s whereabouts are unknown or personal service cannot be made, service on the respondent shall be made as provided by the Idaho supreme court rules. The notice shall inform the respondent of the respondent’s rights at the hearing, including the right to an attorney and to attend the hearing. The notice shall include a description of the nature, purpose, and consequences of granting the petition. The court may not grant a petition for appointment of a conservator if notice substantially complying with the provisions of this subsection is not served on the respondent.
(3) In a proceeding on a petition under section 15-5-402, Idaho Code, the notice required under subsection (2) of this section shall be given to the persons required to be listed in the petition under section 15-5-402(2)(a) through (c), Idaho Code, and any other person interested in the respondent’s welfare as the court determines. Failure to give notice under the provisions of this subsection does not preclude the court from appointing a conservator.
(4) After the appointment of a conservator, notice of a hearing on a petition for an order under this part, together with a copy of the petition, shall be given to:
(a) The individual subject to conservatorship, if the person is twelve (12) years of age or older and not missing, detained, or unable to return to the United States;
(b) The conservator; and
(c) Any other person as the court determines.
[15-5-403, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 367.]
(a) The person to be protected, any person who is interested in his estate, affairs or welfare including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.
(b) The petition shall set forth to the extent known, the interest of the petitioner; the name, age, residence and address of the person to be protected; the name and address of his guardian, if any; the name and address of his nearest relative known to the petitioner; a general statement of his property with an estimate of the value thereof, including any compensation, insurance, pension or allowance to which he is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also shall set forth the name and address of the person whose appointment is sought and the basis of his priority for appointment.
(c) The petition shall include a financial plan for the proposed actions of the conservator regarding the financial affairs of the protected person after appointment of the conservator, to the extent reasonably known to the petitioner at the time of filing of the petition. If the complete assets, income, expenses, debts and other financial concerns of the protected person are not reasonably known to the petitioner at the time the petition is filed, or if the petitioner is not the proposed conservator, then the conservator shall submit to the court, and to all interested persons, in writing, within the ninety (90) day inventory, as a part thereof, a financial plan covering all of the assets, income, expenses, debts and other financial concerns of the protected person. Such financial plan must also be given to any person who has filed a request for notice under section 15-5-406, Idaho Code, and to other persons as the court may direct. Such financial plan shall be given to all such persons in accordance with the methods set forth in section 15-1-401, Idaho Code. If the financial plan changes during any time period between the periodic reports of the conservator, the modified financial plan shall be filed with the next report as a part thereof. The financial plan and any modified financial plan filed pursuant to this subsection (c) shall be subject to examination and review by the court, or persons designated by the court to make such examination and review, as provided by rules adopted by the Idaho supreme court.
ORDER TO PRESERVE OR APPLY PROPERTY WHILE PROCEEDING PENDING. [effective January 1, 2027]
While a petition under section 15-5-402, Idaho Code, is pending, after preliminary hearing and without notice to others, the court may issue an order to preserve and apply property of the respondent as required for the support of the respondent or an individual who is in fact dependent on the respondent. The court may appoint a master to assist in implementing the order.
[15-5-404, added 1971, ch. 111, sec. 1, p. 233; am. 2005, ch. 51, sec. 2, p. 188; am. 2009, ch. 78, sec. 2, p. 214; repealed and added 2026, ch. 79, sec. 6, p. 367.]
On a petition for appointment of a conservator or other protective order, notice shall be given in accordance with section 15-5-309, Idaho Code.
APPOINTMENT AND ROLE OF DD evaluation committee or VISITOR. [effective January 1, 2027]
(1) Upon filing of a petition under section 15-5-402, Idaho Code, for appointment of a conservator for an adult with a developmental disability, the court shall appoint a DD evaluation committee to conduct an evaluation.
(2) Upon filing of a petition under section 15-5-402, Idaho Code, for appointment of a conservator for an adult without a developmental disability, the court shall appoint a visitor to conduct an evaluation.
(3) The appointment and role of a DD evaluation committee or visitor under this section shall be conducted in accordance with Idaho supreme court rules.
[15-5-405, added 1971, ch. 111, sec. 1, p. 233; am. 2007, ch. 70, sec. 2, p. 188; am. 2007, ch. 71, sec. 3, p. 194; am. 2008, ch. 27, sec. 4, p. 45; repealed and added 2026, ch. 79, sec. 6, p. 367.]
Any person desiring notice of any order or filing in a protective proceeding described in this part involving a person in whom he is interested may file a request for notice with the court stating his name, the name of the alleged disabled person, the nature of the requesting person’s interest, and his address or that of his attorney. Upon payment of any fee required by statute or court rule, the clerk shall mail a copy of the request to the conservator if one has been appointed, or to the petitioner if there is no conservator. A request is effective only as to matters occurring after its filing.
APPOINTMENT AND ROLE OF ATTORNEY. [effective January 1, 2027]
(1) Unless the respondent in a proceeding for appointment of a conservator is represented by an attorney, the court may, in the discretion of the court, appoint an attorney to represent the respondent, regardless of the respondent’s ability to pay.
(2) An attorney representing the respondent in a proceeding for appointment of a conservator shall:
(a) Make reasonable efforts to ascertain the respondent’s wishes;
(b) Advocate for the respondent’s wishes to the extent reasonably ascertainable; and
(c) If the respondent’s wishes are not reasonably ascertainable, advocate for the result that is the least restrictive in type, duration, and scope, consistent with the respondent’s interests.
(3) The court may, in the discretion of the court, appoint an attorney to represent a parent of a minor who is the subject of a proceeding under section 15-5-402, Idaho Code, if:
(a) The parent objects to appointment of a conservator;
(b) The court determines that counsel is needed to ensure that consent to appointment of a conservator is informed; or
(c) The court otherwise determines the parent needs representation.
[15-5-406, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 9, p. 727; am. 2007, ch. 71, sec. 4, p. 194; repealed and added 2026, ch. 79, sec. 6, p. 368.]
(a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it must appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen (14) years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing.
Unless the person to be protected has counsel of his own choice, the court may appoint a lawyer to represent him who then has the powers and duties of a guardian ad litem. If the alleged disability is mental illness, mental disability, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician designated by the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. The court may send a visitor to interview the person to be protected. The visitor may be a guardian ad litem or an officer or employee of the court.
(c) After hearing, upon finding that a basis of the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate order.
Professional evaluation. [effective January 1, 2027]
(1) At or before a hearing on a petition for conservatorship for an adult, the court may order a professional evaluation of the respondent:
(a) If the respondent requests the evaluation; or
(b) In other cases, if the court finds it does not have sufficient information to determine the respondent’s needs and abilities without the evaluation.
(2) If the court orders an evaluation under subsection (1) of this section, the respondent shall be examined by a licensed physician, psychologist, social worker, or other individual appointed by the court who is qualified to evaluate the respondent’s alleged cognitive and functional abilities and limitations and who will not be advantaged or disadvantaged by a decision to grant the petition or otherwise have a conflict of interest. The individual conducting the evaluation promptly shall file a report in a record with the court. Unless otherwise directed by the court, the report shall contain:
(a) A description of the nature, type, and extent of the respondent’s cognitive and functional abilities and limitations with regard to the management of the respondent’s property and financial affairs;
(b) An evaluation of the respondent’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
(c) A prognosis for improvement with regard to the ability to manage the respondent’s property and financial affairs; and
(d) The date of the examination on which the report is based.
(3) A respondent may decline to participate in an evaluation ordered under subsection (1) of this section.
[15-5-407, added 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 14, p. 319; am. 2010, ch. 235, sec. 6, p. 547; repealed and added 2026, ch. 79, sec. 6, p. 368.]
(a) The court may appoint upon an ex parte petition, without hearing, a person to act as temporary conservator, pending the final hearing, upon a finding supported by statement made under oath that an emergency situation exists. The emergency appointment shall remain in effect no longer than ninety (90) days, unless extended for good cause upon application of the temporary conservator.
(b) Any one (1) of the following shall be considered an emergency situation:
(1) A finding that the person to be protected is unable to reasonably manage said person’s finances and as a result the person’s assets will be wasted or dissipated unless proper management is provided without delay; or
(2) A finding that the person to be protected has been taken advantage of and that the situation is likely to continue unless a temporary appointment is made without delay; or
(3) A finding that funds are needed for support, care and welfare of the person to be protected and a temporary appointment is necessary to secure such funding; or
(4) A finding that other conditions exist that in the court’s determination necessitate the appointment of a temporary conservator.
(c) The duty of a temporary conservator shall be to preserve and protect the assets of the estate and to provide the funding necessary for the support, care and welfare of the person to be protected. The conservator shall have all the powers enumerated in section 15-5-424, Idaho Code, to be exercised, however, only within said limited context. The court may expand the duties of the temporary conservator upon application and a finding that a proposed action is necessary prior to the hearing.
(d) A temporary conservator shall not remove any of the assets of the estate from the jurisdiction of the court without a specific order to that effect.
(e) The petition for appointment of a temporary conservator must be accompanied by a petition for appointment of a conservator pursuant to section 15-5-404, Idaho Code.
(f) If the person to be protected is a minor, the court shall appoint a guardian ad litem for said minor at the same time the temporary appointment of a conservator is made.
(g) Upon application by an interested party and a hearing, the court may limit the powers and duties of the temporary conservator.
(h) Notice of the appointment of a temporary conservator shall be given to all interested persons by the petitioner within seventy-two (72) hours after the date of such appointment.
(i) The court shall hold a hearing on the appropriateness of the temporary appointment within fourteen (14) days if requested by an interested party. In such event, if a visitor and physician have not already been appointed, the court shall appoint a visitor to meet with the alleged incapacitated person and to make a written report to the court, and shall appoint a physician to examine the proposed ward and submit a written report to the court giving preference to the appointment of the proposed ward’s treating physician if the proposed ward has a current treating physician.
[15-5-407A, added 2004, ch. 53, sec. 1, p. 244; am. 2005, ch. 52, sec. 2, p. 190; am. 2020, ch. 123, sec. 3, p. 382.]
(a) The court shall exercise the authority conferred in the part so as to encourage the development of maximum self-reliance and independence of the protected person and make protective orders only to the extent necessitated by the protected person’s actual mental and adaptive limitations and other conditions warranting the procedure.
(b) The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for his benefit or the benefit of his dependents.
(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family and members of his household.
(3) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of his household, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to power to make gifts, to convey or release his contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release his powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond his disability or life, to exercise options of the disabled person to purchase securities or other property, to exercise his right to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, to exercise his right to an elective share in the estate of his deceased spouse and to renounce any interest by testate or intestate succession or by inter vivos transfer.
(4) The court may exercise or direct the exercise of, its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding twenty per cent (20%) of any year’s income of the estate or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that he either is incapable of consenting or has consented to the proposed exercise of power.
(5) An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person.
ATTENDANCE AND RIGHTS AT HEARING. [effective January 1, 2027]
(1) Except as otherwise provided in subsection (2) of this section, a hearing under section 15-5-403, Idaho Code, may not proceed unless the respondent attends the hearing. If it is not reasonably feasible for the respondent to attend a hearing at the location court proceedings typically are held, the court shall make reasonable efforts to hold the hearing at an alternative location convenient to the respondent or allow the respondent to attend the hearing using real-time audio-visual technology.
(2) A hearing under section 15-5-403, Idaho Code, may proceed without the respondent in attendance if the court finds by clear and convincing evidence that:
(a) The respondent consistently and repeatedly has refused to attend the hearing after having been fully informed of the right to attend and the potential consequences of failing to attend;
(b) There is no practicable way for the respondent to attend and participate in the hearing even with appropriate supportive services or technological assistance; or
(c) The respondent is a minor who has received proper notice and attendance would be harmful to the minor.
(3) The respondent may be assisted in a hearing under section 15-5-403, Idaho Code, by a person or persons of the respondent’s choosing, assistive technology, or an interpreter or translator, or a combination of these supports. If assistance would facilitate the respondent’s participation in the hearing, but is not otherwise available to the respondent, the court shall make reasonable efforts to provide it.
(4) The respondent has a right to choose an attorney to represent the respondent at a hearing under section 15-5-403, Idaho Code.
(5) At a hearing under section 15-5-403, Idaho Code, the respondent may:
(a) Present evidence and subpoena witnesses and documents;
(b) Examine witnesses, including any court-appointed evaluator, any member of the DD evaluation committee, and the visitor; and
(c) Otherwise participate in the hearing.
(6) Unless excused by the court for good cause, a proposed conservator shall attend a hearing under section 15-5-403, Idaho Code.
(7) A hearing under section 15-5-403, Idaho Code, shall be closed upon request of the respondent and a showing of good cause.
(8) Any person may request to participate in a hearing under section 15-5-403, Idaho Code. The court may grant the request, with or without a hearing, upon determining that the best interest of the respondent will be served. The court may impose appropriate conditions on the person’s participation.
[15-5-408, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 10, p. 728; repealed and added 2026, ch. 79, sec. 6, p. 368.]
(a) If it is established in a proper proceeding that a basis exists as described in section 15-5-401 of this Part for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit or retention of funds or property, sale, mortgage, lease or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.
(b) When it has been established in a proper proceeding that a basis exists as described in section 15-5-401 of this Part for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.
(c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.
(d) If it is established in a proper proceeding that a basis exists as described in section 15-5-401 of this Part for affecting property and affairs of a person, the court may in its discretion, without appointing a conservator, order the establishment or continuation of a special needs trust as provided in chapter 14, title 68, Idaho Code.
Confidentiality of records. [effective January 1, 2027]
The confidentiality of records in a proceeding for a conservatorship shall be maintained in accordance with Idaho supreme court rules.
[15-5-409, added 1971, ch. 111, sec. 1, p. 233; am. 1995, ch. 214, sec. 2, p. 745; repealed and added 2026, ch. 79, sec. 6, p. 369.]
(1) When a minor has a claim for money against a third person, the persons or entities listed below have the right to petition for a compromise of the claim in the following order of priority:
(a) An appointed conservator of the minor;
(b) A guardian of the minor, if appointed;
(c) Either or both parents, provided that:
(i) If the parents are living separate and apart, then the parent who has been awarded primary physical custody; or
(ii) If no custody award has been made, the parent with whom the minor is living;
(d) A de facto custodian; and
(e) Any other legal representative.
(2) The court for good cause may pass over a person having priority under subsection (1) of this section and appoint a person having less priority or no priority; provided that the court shall not pass over a parent or parents unless the court concludes that the parent or parents are incapable or unwilling to act reasonably and in the best interest of the minor. Such proposed compromise is not effective until it is approved by the district court of the county where the minor resides or, if the minor is not a resident of the state of Idaho, by the district court of the county where the claim arose, upon verified petition, filed with the court.
(3) A verified petition made pursuant to this section shall include the following:
(a) The name, age and residence of the minor;
(b) The facts that bring the minor within the purview of this section, including the circumstances that make it a claim for money, the name of the third person against whom the claim is made and, if the claim is the result of an accident, the date, place and facts of the accident;
(c) The names and residence of the parents or guardian of the minor;
(d) The name and residence of the person or persons having physical custody or control of the minor;
(e) The name and residence of the petitioner, the relationship of the petitioner to the minor and the basis of the petitioner’s right to compromise the claim;
(f) The total amount of proceeds of the proposed compromise, the apportionment of those proceeds and whether the fees and expenses are to be deducted before or after the calculation of any contingency fee, including the amount to be used for:
(i) Attorney’s fees and whether the attorney’s fees are fixed or contingent fees;
(ii) Medical expenses; or
(iii) Other expenses;
(g) Whether the petitioner believes the acceptance of this compromise is in the best interest of the minor;
(h) That the petitioner has been advised and understands that acceptance of the compromise will bar the minor from seeking further relief from the third person offering the compromise;
(i) If the claim involves a personal injury suffered by the minor, a summary of:
(i) The injury, prognosis, treatment and progress of recovery of the minor; and
(ii) The amount of medical expenses incurred to date, the nature and amount of medical expenses that have been paid and by whom, any amount owing for medical expenses and an estimate of the amount of medical expenses that may be incurred in the future; and
(j) The policy limits of the insurance contract, if applicable.
(4)(a) If the minor’s claim is less than ten thousand dollars ($10,000) and the court is satisfied after review of the verified petition that the compromise is reasonable and in the best interest of the minor, the court may approve the compromise or set a hearing;
(b) If the minor’s claim is ten thousand dollars ($10,000) or more, the court shall set a hearing for approval of the compromise.
(5) If the court finds the compromise is reasonable and in the best interest of the minor, the court may approve such compromise and may direct the money be paid:
(a) To the parents, guardian, trustee, conservator, legal representative or the designated payee thereof in accordance with this chapter;
(b) Subject to the provisions of an appropriate protective order; or
(c) In accordance with the provisions of chapter 14, title 68, Idaho Code.
(6) No filing fee shall be charged for the filing of any petition under the provisions of this section.
[15-5-409a, added 1973, ch. 26, sec. 2, p. 50; am. 1974, ch. 199, sec. 1, p. 1516; am. 1989, ch. 214, sec. 1, p. 523; am. 1995, ch. 214, sec. 3, p. 746; am. 2016, ch. 238, sec. 1, p. 633.]
(1) The court may appoint an individual, except as set forth hereafter, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
(a) An individual or corporation nominated by the protected person if he is fourteen (14) or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(b) The individual or corporation nominated as conservator of the protected person in the financial power of attorney of the protected person, or if no such nomination is made therein, the individual or corporation nominated as agent therein, provided that:
(i) If the nomination is of coconservators, or coagents, as appropriate, the court may consider whether appointment of coconservators is in the best interests of the protected person or whether a sole conservator should be appointed;
(ii) If several individuals or corporations are nominated in order of priority, the court shall consider such nominations in that order of priority; and
(iii) If more than one (1) financial power of attorney made by the protected person exists, the court shall determine which financial power of attorney is appropriate to be the basis for nomination of a conservator;
(c) The spouse of the protected person;
(d) An adult child of the protected person;
(e) A conservator, guardian of property or other like fiduciary, but not a fiduciary serving only as a trustee, appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(f) A parent of the protected person, or a person nominated by the will of a deceased parent;
(g) Any relative of the protected person with whom he has resided for more than six (6) months prior to the filing of the petition;
(h) A person nominated by the person who is caring for him or paying benefits to him.
(2) A person in priorities (c), (d), (e), (f) or (g) of subsection (1) of this section may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court for good cause, may pass over a person having priority and appoint a person having less priority or no priority.
(3) No convicted felon shall be appointed as a conservator of the estate of a protected person unless the court finds by clear and convincing evidence that such appointment is in the best interests of the protected person.
WHO MAY BE CONSERVATOR — ORDER OF PRIORITY. [effective January 1, 2027]
(1) The court may appoint an individual, except as set forth in this part, or a person with general power to serve as conservator, as conservator of the estate of the respondent. The following are entitled to consideration for appointment in the order listed:
(a) An individual or person nominated by the respondent if the respondent is twelve (12) or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(b) The individual or person nominated as conservator of the respondent in the financial power of attorney for the respondent, or if no such nomination is made therein, the individual or person nominated as agent therein, provided that:
(i) If co-conservators or co-agents, as appropriate, are nominated, the court may consider whether appointment of co-conservators is in the best interest of the respondent or whether a sole conservator should be appointed;
(ii) If several individuals or persons are nominated in order of priority, the court shall consider such nominations in that order of priority; and
(iii) If more than one (1) financial power of attorney made by the respondent exists, the court shall determine which financial power of attorney is appropriate to be the basis for nomination of a conservator;
(c) The spouse of the respondent;
(d) An adult child of the respondent;
(e) A conservator, guardian of property, or other like fiduciary, but not a fiduciary serving only as a trustee, appointed or recognized by the appropriate court of any other jurisdiction in which the respondent resides;
(f) A parent of the respondent or a person nominated by the will of a deceased parent;
(g) Any relative of the respondent with whom the respondent has resided for more than six (6) months prior to the filing of the petition; or
(h) A person nominated by the respondent who is caring for or paying benefits to the respondent.
(2) A person in priority of subsection (1)(c) through (g) of this section may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court for good cause may pass over a person having priority and appoint a person having less priority or no priority.
(3) No convicted felon shall be appointed as a conservator of the estate of a respondent unless the court finds by clear and convincing evidence that such appointment is in the best interest of the respondent.
(4) A person that provides paid services to the respondent, or an individual who is employed by a person that provides paid services to the respondent, or is the spouse, parent, or child of an individual who provides or is employed to provide paid services to the respondent, may not be appointed as conservator unless:
(a) The individual is related to the respondent by blood, marriage, or adoption; or
(b) The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.
(5) An owner, operator, or employee of a long-term care institution at which the respondent is receiving care may not be appointed as conservator unless the owner, operator, or employee is related to the respondent by blood, marriage, or adoption.
[15-5-410, added 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 2004, ch. 52, sec. 2, p. 243; am. 2008, ch. 145, sec. 1, p. 429; repealed and added 2026, ch. 79, sec. 6, p. 369.]
The court may require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it shall specify. Unless otherwise directed, the bond shall be in the amount of the aggregate capital value of the property of the estate in his control plus one (1) year’s estimated income minus the value of securities deposited under arrangements requiring an order by the court for their removal and the value of any land which the fiduciary, by express limitation of power, lacks power to sell or convey without court authorization. The court in lieu of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land.
ORDER OF APPOINTMENT OF CONSERVATOR. [effective January 1, 2027]
(1) A court order appointing a conservator for a minor shall include findings to support appointment of a conservator and, if a full conservatorship is granted, the reason a limited conservatorship would not meet the identified needs of the minor.
(2) A court order appointing a conservator for an adult respondent shall:
(a) Include a specific finding that clear and convincing evidence has established that the identified needs of the respondent cannot be met by a protective arrangement instead of conservatorship or other less restrictive alternative, including use of appropriate supportive services, technological assistance, or supported decision-making; and
(b) Include a specific finding that clear and convincing evidence established the respondent was given proper notice of the hearing on the petition.
(3) A court order establishing a full conservatorship for an individual subject to conservatorship shall state the basis for granting a full conservatorship and include specific findings to support the conclusion that a limited conservatorship would not meet the functional needs of the individual subject to conservatorship.
(4) A court order establishing a limited conservatorship shall state the specific property placed under the control of the conservator and the powers granted to the conservator.
(5) The court, as part of an order establishing a conservatorship, shall identify any person that subsequently is entitled to:
(a) Notice of the rights of the individual subject to conservatorship under section 15-5-412(2), Idaho Code;
(b) Notice of a sale of or surrender of a lease to the primary dwelling of the individual subject to conservatorship;
(c) Notice that the conservator has delegated a power that requires court approval under section 15-5-414, Idaho Code, or substantially all powers of the conservator;
(d) Notice that the conservator will be unavailable to perform the conservator’s duties for more than one (1) month;
(e) A copy of the conservator’s plan under section 15-5-419, Idaho Code, and the conservator’s report under section 15-5-423, Idaho Code;
(f) Access to court records relating to the conservatorship;
(g) Notice of a transaction involving a substantial conflict between the conservator’s fiduciary duties and personal interests;
(h) Notice of the death or significant change in the condition of the individual subject to conservatorship;
(i) Notice that the court has limited or modified the powers of the conservator; and
(j) Notice of the removal of the conservator.
(6) If an individual subject to conservatorship is an adult, the spouse and adult children of the individual subject to conservatorship are entitled under subsection (5) of this section to notice unless the court determines notice would be contrary to the preferences or prior directions of the individual subject to conservatorship or not in the best interest of the individual subject to conservatorship.
(7) If the individual subject to conservatorship is a minor, each parent and adult sibling of the minor is entitled under subsection (5) of this section to notice unless the court determines notice would not be in the best interest of the minor.
[15-5-411, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 370.]
(a) The following requirements and provisions apply to any bond required under section 15-5-411 of this Part:
(1) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the conservator and with each other;
(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. 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;
(3) On petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;
(4) The bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No 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.
NOTICE OF ORDER OF APPOINTMENT — RIGHTS. [effective January 1, 2027]
(1) A conservator appointed under section 15-5-411, Idaho Code, shall give to the individual subject to conservatorship and to all other persons given notice under section 15-5-403, Idaho Code, a copy of the order of appointment, together with notice of the right to request termination or modification. The order and notice shall be given not later than fourteen (14) days after the appointment.
(2) Not later than thirty (30) days after appointment of a guardian under section 15-5-309, Idaho Code, the court shall give to the individual subject to conservatorship, to the guardian, and to any other person entitled to notice under section 15-5-310(5), Idaho Code, or under a subsequent order, a statement of the rights of the individual subject to conservatorship and the procedures to seek relief if the individual subject to conservatorship is denied those rights. The statement shall be communicated:
(a) In a form and manner that is accessible and understandable by the recipient, through the use of assistive technology if necessary;
(b) In plain language; and
(c) To the extent feasible, in a language in which the recipient is proficient.
(3) A statement issued under subsection (2) of this section shall notify the individual subject to conservatorship of the right to:
(a) Seek termination or modification of the conservatorship, or removal of the conservator, and to choose an attorney to represent the individual subject to conservatorship in such matters;
(b) Participate in decision-making to the extent reasonably feasible;
(c) Receive a copy of the conservator’s plan under section 15-5-419, Idaho Code, the conservator’s inventory under section 15-5-420, Idaho Code, and the conservator’s report under section 15-5-423, Idaho Code; and
(d) Object to the conservator’s inventory, plan, or report.
(4) If a conservator is appointed pursuant to section 15-5-401(2)(a)(ii), Idaho Code, and the individual subject to conservatorship is missing, notice under this section to the individual subject to conservatorship is not required.
[15-5-412, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 371.]
By accepting appointment, a conservator 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 conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
Emergency conservator. [effective January 1, 2027]
(1) On its own, or upon petition by a person interested in a respondent’s welfare after a petition has been filed under section 15-5-402, Idaho Code, the court may appoint an emergency conservator for the respondent if the court finds:
(a) Appointment of an emergency conservator is likely to prevent substantial and irreparable harm to the respondent’s property or financial interests;
(b) No other person appears to have authority and willingness to act in the circumstances; and
(c) There is reason to believe that a basis for appointment of a conservator under section 15-5-401, Idaho Code, exists.
(2) The duration of authority of an emergency conservator may not exceed ninety (90) days, and the emergency conservator may exercise only the powers specified in the order of appointment. The emergency conservator’s authority may be extended once for not more than ninety (90) days if the court finds that the conditions for appointment of an emergency conservator under subsection (1) of this section continue.
(3) Immediately upon filing of a petition for an emergency conservator, the court may, in the discretion of the court, appoint an attorney to represent the respondent in the proceeding. Except as otherwise provided in subsection (4) of this section, reasonable notice of the date, time, and place of a hearing on the petition shall be given to the respondent, the respondent’s attorney, and any other person as the court determines.
(4) The court may appoint an emergency conservator without notice to the respondent and any attorney for the respondent only if the court finds from an affidavit or testimony that the respondent’s property or financial interests will be substantially and irreparably harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency conservator without giving notice under subsection (3) of this section, the court shall give notice of the appointment not later than forty-eight (48) hours after the appointment to:
(a) The respondent;
(b) The respondent’s attorney; and
(c) Any other person as the court determines.
(5) Not later than seven (7) days after the appointment, the court shall hold a hearing on the appropriateness of the appointment.
(6) Appointment of an emergency conservator under this section is not a determination that a basis exists for appointment of a conservator under section 15-5-401, Idaho Code.
(7) The court may remove an emergency conservator appointed under this section at any time. The emergency conservator shall make any report the court requires.
[15-5-413, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 372.]
If not otherwise compensated for services rendered or expenses incurred, any visitor, guardian ad litem, physician, conservator or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate for services rendered and expenses incurred in such status, including for services rendered and expenses incurred prior to the actual appointment of said conservator or special conservator which were reasonably related to the proceedings. If any person brings or defends any conservatorship proceeding in good faith, whether successful or not, he or she is entitled to receive from the estate his or her necessary expenses and disbursements including reasonable attorney’s fees incurred in such proceeding. If the estate is inadequate to bear any of the reasonable compensation, fees, and/or costs referenced in this section, the court may apportion the reasonable compensation, fees, and/or costs to any party, or among the parties, as the court deems reasonable.
POWERS OF CONSERVATOR REQUIRING COURT APPROVAL. [effective January 1, 2027]
(1) Except as otherwise ordered by the court, a conservator shall give notice to persons entitled to notice under section 15-5-403(4), Idaho Code, and receive specific authorization by the court before the conservator may exercise with respect to the conservatorship the power to:
(a) Make a gift, except a gift of de minimis value;
(b) Sell, encumber an interest in, or surrender a lease to the primary dwelling of the individual subject to conservatorship;
(c) Convey, release, or disclaim a contingent or expectant interest in property, including marital property, and any right of survivorship incident to joint tenancy or tenancy by the entirety or community property with right of survivorship;
(d) Exercise or release a power of appointment;
(e) Create a revocable or irrevocable trust of property of the conservatorship estate, whether or not the trust extends beyond the duration of the conservatorship, or revoke or amend a trust revocable by the individual subject to conservatorship;
(f) Exercise a right to elect an option or change a beneficiary under an insurance policy or annuity or surrender the policy or annuity for its cash value;
(g) Exercise a right to an elective share in the estate of a deceased spouse of the individual subject to conservatorship or renounce or disclaim a property interest;
(h) Grant a creditor priority for payment over creditors of the same or higher class if the creditor is providing property or services used to meet the basic living and care needs of the individual subject to conservatorship and preferential treatment otherwise would be impermissible under section 15-5-428(5), Idaho Code; and
(i) Acquire an undivided interest in property in which the conservator, in a fiduciary capacity, holds an undivided interest.
(2) In approving a conservator’s exercise of a power listed in subsection (1) of this section, the court shall consider primarily the decision the individual subject to conservatorship would make if able, to the extent the decision can be ascertained.
(3) To determine under subsection (2) of this section the decision the individual subject to conservatorship would make if able, the court shall consider the individual subject to conservatorship’s prior or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the conservator. The court also shall consider:
(a) The financial needs of the individual subject to conservatorship and individuals who are in fact dependent on the individual subject to conservatorship for support, and the interests of creditors of the individual subject to conservatorship;
(b) Possible reduction of income, estate, inheritance, or other tax liabilities;
(c) Eligibility for governmental assistance;
(d) The previous pattern of giving or level of support provided by the individual subject to conservatorship;
(e) Any existing estate plan or lack of estate plan of the individual subject to conservatorship;
(f) The life expectancy of the individual subject to conservatorship and the probability the conservatorship will terminate before the individual subject to conservatorship’s death; and
(g) Any other relevant factor.
(4) A conservator may not revoke or amend a power of attorney for finances executed by the individual subject to conservatorship. If a power of attorney for finances is in effect, a decision of the agent takes precedence over that of the conservator, unless the court orders otherwise.
[15-5-414, added 1971, ch. 111, sec. 1, p. 233; am. 2002, ch. 215, sec. 2, p. 594; repealed and added 2026, ch. 79, sec. 6, p. 373.]
The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of his predecessor.
PETITION FOR ORDER AFTER APPOINTMENT. [effective January 1, 2027]
An individual subject to conservatorship or a person interested in the welfare of the individual subject to conservatorship may petition for an order:
(1) Requiring the conservator to furnish a bond or collateral or additional bond or collateral or allowing a reduction in a bond or collateral previously furnished;
(2) Requiring an accounting for the administration of the conservatorship estate;
(3) Directing distribution;
(4) Removing the conservator and appointing a temporary or successor conservator;
(5) Modifying the type of appointment or powers granted to the conservator if the extent of protection or management previously granted is excessive or insufficient to meet the individual subject to conservatorship’s needs, including because the individual subject to conservatorship’s abilities or supports have changed;
(6) Rejecting or modifying the conservator’s plan under section 15-5-419, Idaho Code, the conservator’s inventory under section 15-5-420, Idaho Code, or the conservator’s report under section 15-5-423, Idaho Code; or
(7) Granting other appropriate relief.
[15-5-415, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 374.]
(a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief.
(b) A conservator may petition the appointing court for instructions concerning his fiduciary responsibility.
(c) Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.
BOND — ALTERNATIVE ASSET-PROTECTION ARRANGEMENT. [effective January 1, 2027]
(1) Except as otherwise provided in subsection (3) of this section, the court shall require a conservator to furnish a bond with a surety the court specifies, or require an alternative asset-protection arrangement, conditioned on faithful discharge of all duties of the conservator. The court may waive the requirement only if the court finds that a bond or other asset-protection arrangement is not necessary to protect the interests of the individual subject to conservatorship. Except as otherwise provided in subsection (3) of this section, the court may not waive the requirement if the conservator is in the business of serving as a conservator and is being paid for the service.
(2) Unless the court directs otherwise, the bond required under this section shall be in the amount of the aggregate capital value of the conservatorship estate, plus one (1) year’s estimated income, less the value of property deposited under an arrangement requiring a court order for its removal and real property the conservator lacks power to sell or convey without specific court authorization. The court, in place of surety on a bond, may accept collateral for the performance of the bond, including a pledge of securities or a mortgage of real property.
(3) A regulated financial-service institution qualified to do trust business in this state is not required to give a bond under this section.
[15-5-416, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 374.]
In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by section 15-7-302 of this code.
TERMS AND REQUIREMENTS OF BOND. [effective January 1, 2027]
(1) The following rules apply to the bond required under section 15-5-416, Idaho Code:
(a) Except as otherwise provided by the bond, the surety and the conservator are jointly and severally liable;
(b) By executing a bond provided by a conservator, the surety submits to the personal jurisdiction of the court that issued letters of office to the conservator in a proceeding relating to the duties of the conservator in which the surety is named as a party. Notice of the proceeding shall be given to the surety at the address shown in the records of the court in which the bond is filed and any other address of the surety then known to the person required to provide the notice;
(c) Upon petition of a successor conservator or person affected by a breach of the obligation of the bond, a proceeding may be brought against the surety for breach of the obligation of the bond; and
(d) A proceeding against the bond may be brought until liability under the bond is exhausted.
(2) A proceeding may not be brought under this section against a surety of a bond on a matter as to which a proceeding against the conservator is barred.
(3) If a bond under section 15-5-416, Idaho Code, is not renewed by the conservator, the surety or sureties immediately shall give notice to the court and the individual subject to conservatorship.
[15-5-417, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 374.]
(1) A conservator is a fiduciary and has duties of prudence and loyalty to the individual subject to conservatorship.
(2) A conservator shall promote the self-determination of the individual subject to conservatorship and, to the extent feasible, encourage the individual subject to conservatorship to participate in decisions, act on the individual subject to conservatorship’s own behalf, and develop or regain the capacity to manage the individual subject to conservatorship’s personal affairs.
(3) In making a decision for an individual subject to conservatorship, the conservator shall make the decision the conservator reasonably believes the individual subject to conservatorship would make if able, unless doing so would fail to preserve the resources needed to maintain the individual subject to conservatorship’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual subject to conservatorship. To determine the decision the individual subject to conservatorship would make if able, the conservator shall consider the individual subject to conservatorship’s prior or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the conservator.
(4) If a conservator cannot make a decision under subsection (3) of this section because the conservator does not know and cannot reasonably determine the decision the individual subject to conservatorship probably would make if able, or the conservator reasonably believes the decision the individual subject to conservatorship would make would fail to preserve resources needed to maintain the individual subject to conservatorship’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual subject to conservatorship, the conservator shall act in accordance with the best interest of the individual subject to conservatorship. In determining the best interest of the individual subject to conservatorship, the conservator shall consider:
(a) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the individual subject to conservatorship;
(b) Other information the conservator believes the individual subject to conservatorship would have considered if the individual subject to conservatorship were able to act; and
(c) Other factors a reasonable person in the circumstances of the individual subject to conservatorship would consider, including consequences for others.
(5) Except when inconsistent with the conservator’s duties under subsections (1) through (4) of this section, a conservator shall invest and manage the conservatorship estate as a prudent investor would, by considering:
(a) The circumstances of the individual subject to conservatorship and the conservatorship estate;
(b) General economic conditions;
(c) The possible effect of inflation or deflation;
(d) The expected tax consequences of an investment decision or strategy;
(e) The role of each investment or course of action in relation to the conservatorship estate as a whole;
(f) The expected total return from income and appreciation of capital;
(g) The need for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) The special relationship or value, if any, of specific property to the individual subject to conservatorship.
(6) The propriety of a conservator’s investment and management of the conservatorship estate is determined in light of the facts and circumstances existing when the conservator decides or acts and not by hindsight.
(7) A conservator shall make a reasonable effort to verify facts relevant to the investment and management of the conservatorship estate.
(8) A conservator that has special skills or expertise, or is named conservator in reliance on the conservator’s representation of special skills or expertise, has a duty to use the special skills or expertise in carrying out the conservator’s duties.
(9) In investing, selecting specific property for distribution, and invoking a power of revocation or withdrawal for the use or benefit of the individual subject to conservatorship, a conservator shall consider any estate plan of the individual subject to conservatorship known or reasonably ascertainable to the conservator and may examine the will or other donative, nominative, or appointive instrument of the individual.
(10) A conservator shall maintain insurance on the insurable real and personal property of the individual subject to conservatorship, unless the conservatorship estate lacks sufficient funds to pay for insurance or the court finds:
(a) The property lacks sufficient equity; or
(b) Insuring the property would unreasonably dissipate the conservatorship estate or otherwise not be in the best interest of the individual subject to conservatorship.
(11) If a power of attorney for finances is in effect, a conservator shall cooperate with the agent to the extent feasible.
(12) A conservator has access to and authority over a digital asset of the individual subject to conservatorship to the extent provided in chapter 14, title 15, Idaho Code, the revised uniform fiduciary access to digital assets act, or court order.
(13) A conservator for an adult individual subject to conservatorship shall notify the court if the condition of the adult individual subject to conservatorship has changed so that the adult individual subject to conservatorship is capable of exercising rights previously removed. The notice shall be given immediately on learning of the change.
[15-5-418, added 2026, ch. 79, sec. 6, p. 375.]
(1) Every conservator shall file with the court an inventory within ninety (90) days of appointment, an accounting at least annually, and a final accounting at the termination of the appointment of the conservator. All inventories and accountings shall be under oath or affirmation and shall comply with the Idaho supreme court rules. The court may require a conservator to submit to a physical check of the estate in his control, to be made in any manner the court may specify.
(2) If a conservator:
(a) Makes a substantial misstatement on filings of any required inventories or reports; or
(b) Is guilty of gross impropriety in handling the property of the protected person; or
(c) Willfully fails to file the report required by this section after receiving written notice of the failure to file and after a grace period of two (2) months have elapsed;
then the court may impose a fine in an amount not to exceed five thousand dollars ($5,000) on the conservator. The court may appoint a guardian ad litem for the protected person on its own motion or on the motion of any interested party to represent the protected person in any proceedings hereunder and may also appoint appropriate persons or entities to make investigation of the actions of the conservator. The court may also order restitution of funds misappropriated from the estate of a protected person and may impose a surcharge upon the conservator responsible for such misappropriation for all damages, costs and other appropriate sums determined by the court, in addition to any fine imposed including, but not limited to, any fees and costs of the guardian ad litem. The court may take any other actions which are in the best interests of the protected person and the protection of the assets of the protected person. Any sums awarded hereunder shall be paid by the conservator and may not be paid by the estate of the protected person. The court may enter judgment against a conservator for any or all of the foregoing and may impose judgment against any bond of such conservator.
Conservator’s plan. [effective January 1, 2027]
A plan required of a conservator appointed pursuant to this part shall conform to Idaho supreme court rules.
[15-5-419, added 1971, ch. 111, sec. 1, p. 233; am. 1989, ch. 241, sec. 4, p. 589; am. 1990, ch. 290, sec. 1, p. 810; am. 1999, ch. 108, sec. 1, p. 336; am. 2005, ch. 50, sec. 1, p. 184; am. 2009, ch. 78, sec. 4, p. 215; am. 2014, ch. 164, sec. 5, p. 462; repealed and added 2026, ch. 79, sec. 6, p. 376.]
(a) The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact, or to the part thereof specified in the order. An order specifying that only a part of the property of the protected person vests in the conservator creates a limited conservatorship.
(b) The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.
(c) Until termination of his appointment, a conservator has the same power over the title to property of the protected person’s estate that an absolute owner would have, provided however, that such power is held in trust for the benefit of the protected person. This power may be exercised without notice, hearing, or order of the court.
Inventory — records. [effective January 1, 2027]
(1) Not later than ninety (90) days after appointment, a conservator shall prepare and file with the appointing court a detailed inventory of the conservatorship estate, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits.
(2) A conservator shall give notice of the filing of an inventory to the individual subject to conservatorship, any person entitled to notice under section 15-5-411(5), Idaho Code, or a subsequent order, and any other person as the court determines. The notice shall be given not later than seven (7) days after the filing.
(3) A conservator shall keep records of the administration of the conservatorship estate and make them available for examination upon reasonable request of the individual subject to conservatorship, a guardian for the individual subject to conservatorship, or any other person as the conservator or the court determines.
[15-5-420, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 11, p. 729; am. 2005, ch. 48, sec. 1, p. 180; repealed and added 2026, ch. 79, sec. 6, p. 376.]
Letters of conservatorship are evidence of transfer of all assets, or the part thereof specified in the letters, of a protected person to the conservator. An order terminating a conservatorship is evidence of transfer of all assets of the estate subjected to the conservatorship from the conservator to the protected person, or his successors. Letters of conservatorship and orders terminating conservatorship may be recorded in the office of the county recorder in any county in which property affected by such letters or orders is located and, from the time of filing the same for record, notice is imparted to all persons of the contents of such letters or orders.
ADMINISTRATIVE POWERS OF CONSERVATOR NOT REQUIRING COURT APPROVAL. [effective January 1, 2027]
(1) Except as otherwise provided in section 15-5-414, Idaho Code, or qualified or limited in the court’s order of appointment and stated in the letters of office, a conservator has all powers granted in this section and any additional power granted to a trustee by law of this state other than this chapter.
(2) A conservator, acting reasonably and consistent with the fiduciary duties of the conservator to accomplish the purpose of the conservatorship, without specific court authorization or confirmation, may with respect to the conservatorship estate:
(a) Collect, hold, and retain property, including property in which the conservator has a personal interest and real property in another state, until the conservator determines disposition of the property should be made;
(b) Receive additions to the conservatorship estate;
(c) Continue or participate in the operation of a business or other enterprise;
(d) Invest assets;
(e) Deposit funds or other property in a financial institution, including one operated by the conservator;
(f) Acquire or dispose of property, including real property in another state, for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of, or abandon property;
(g) Make ordinary or extraordinary repairs or alterations in a building or other structure, demolish any improvement, or raze an existing or erect a new party wall or building;
(h) Subdivide or develop land, dedicate land to public use, make or obtain the vacation of a plat and adjust a boundary, adjust a difference in valuation of land, exchange or partition land by giving or receiving consideration, and dedicate an easement to public use without consideration;
(i) Enter for any purpose into a lease of property as lessor or lessee, with or without an option to purchase or renew, for a term within or extending beyond the term of the conservatorship;
(j) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or a pooling or unitization agreement;
(k) Grant an option involving disposition of property or accept or exercise an option for the acquisition of property;
(l) Vote a security, in person or by general or limited proxy;
(m) Pay a call, assessment, or other sum chargeable or accruing against or on account of a security;
(n) Sell or exercise a stock subscription or conversion right;
(o) Consent, directly or through a committee or agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(p) Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery;
(q) Insure:
(i) The conservatorship estate, in whole or in part, against damage or loss in accordance with section 15-5-418(10), Idaho Code; and
(ii) The conservator against liability with respect to a third person;
(r) Borrow funds, with or without security, to be repaid from the conservatorship estate or otherwise;
(s) Advance funds for the protection of the conservatorship estate or the individual subject to conservatorship and for all expenses, losses, and liability sustained in the administration of the conservatorship estate or because of holding any property for which the conservator has a lien on the conservatorship estate;
(t) Pay or contest a claim, settle a claim by or against the conservatorship estate or the individual subject to conservatorship by compromise, arbitration, or otherwise, or release, in whole or in part, a claim belonging to the conservatorship estate to the extent the claim is uncollectible;
(u) Pay a tax, assessment, compensation for the conservator or any guardian, and other expense incurred in the collection, care, administration, and protection of the conservatorship estate;
(v) Pay a sum distributable to the individual subject to conservatorship or an individual who is in fact dependent on the individual subject to conservatorship by paying the sum to the distributee or for the use of the distributee:
(i) To the guardian for the distributee;
(ii) To the custodian of the distributee under the uniform transfers to minors act or custodial trustee under the uniform custodial trust act; or
(iii) If there is no guardian, custodian, or custodial trustee, to a relative or other person having physical custody of the distributee;
(w) Bring or defend an action, claim, or proceeding in any jurisdiction for the protection of the conservatorship estate or the conservator in the performance of the conservator’s duties;
(x) Structure the finances of the individual subject to conservatorship to establish eligibility for a public benefit, including by making gifts consistent with the individual’s preferences, values, and prior directions, if the conservator’s action does not jeopardize the individual subject to conservatorship’s welfare and otherwise is consistent with the conservator’s duties; and
(y) Execute and deliver any instrument that will accomplish or facilitate the exercise of a power of the conservator.
[15-5-421, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 12, p. 729; repealed and added 2026, ch. 79, sec. 6, p. 377.]
Any sale or encumbrance to a conservator, 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 is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court.
DISTRIBUTION FROM CONSERVATORSHIP ESTATE. [effective January 1, 2027]
Except as otherwise provided in section 15-5-414, Idaho Code, or qualified or limited in the court’s order of appointment and stated in the letters of conservatorship, and unless contrary to a conservator’s plan under section 15-5-419, Idaho Code, the conservator may expend or distribute income or principal of the conservatorship estate without specific court authorization or confirmation for the support, care, education, health, or welfare of the individual subject to conservatorship or an individual who is in fact dependent on the individual subject to conservatorship, including the payment of child or spousal support, in accordance with the following rules:
(1) The conservator shall consider a recommendation relating to the appropriate standard of support, care, education, health, or welfare for the individual subject to conservatorship or individual who is dependent on the individual subject to conservatorship, made by a guardian for the individual subject to conservatorship, if any, and, if the individual subject to conservatorship is a minor, a recommendation made by a parent of the minor.
(2) The conservator acting in compliance with the conservator’s duties under section 15-5-418, Idaho Code, is not liable for an expenditure or distribution made based on a recommendation under subsection (1) of this section unless the conservator knows or should have known the expenditure or distribution is not in the best interest of the individual subject to conservatorship.
(3) In making an expenditure or distribution under this section, the conservator shall consider:
(a) The size of the conservatorship estate, the estimated duration of the conservatorship, and the likelihood the individual subject to conservatorship, at some future time, may be fully self-sufficient and able to manage the individual subject to conservatorship’s financial affairs and the conservatorship estate;
(b) The accustomed standard of living of the individual subject to conservatorship and an individual who is dependent on the individual subject to conservatorship;
(c) Other funds or sources used for the support of the individual subject to conservatorship; and
(d) The preferences, values, and prior directions of the individual subject to conservatorship.
(4) Funds expended or distributed under this section may be paid by the conservator to any person, including the individual subject to conservatorship, as reimbursement for expenditures the conservator might have made, or in advance for services to be provided to the individual subject to conservatorship or an individual who is dependent on the individual subject to conservatorship if it is reasonable to expect the services will be performed and advance payment is customary or reasonably necessary under the circumstances.
[15-5-422, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 378.]
A person who in good faith either assists a conservator or deals with him for value in any transaction other than those requiring a court order as provided in section 15-5-408 of this Part, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in section 15-5-426 of this Part are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. 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.
CONSERVATOR’S REPORT AND ACCOUNTING — MONITORING. [effective January 1, 2027]
A conservator’s report and accounting and the monitoring of a conservatorship shall be done in accordance with Idaho supreme court rules.
[15-5-423, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 379.]
(1) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this state. In addition, a conservator of the estate of an unmarried minor under the age of eighteen (18) years, as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in section 15-5-209 of this code until the minor attains the age of eighteen (18) years or marries, but the parental rights so conferred on a conservator do not preclude appointment of a guardian as provided by part 2 of this chapter.
(2) A conservator has power without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.
(3) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation to:
(a) Collect, hold and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally interested;
(b) Receive additions to the estate;
(c) Continue or participate in the operation of any business or other enterprise;
(d) Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;
(e) Invest and reinvest estate assets in accordance with subsection (2) of this section;
(f) Deposit estate funds in a bank including a bank operated by the conservator;
(g) Acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of or abandon an estate asset;
(h) Make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;
(i) Subdivide, develop or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;
(j) 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 term of the conservatorship;
(k) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(l) Grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;
(m) Vote a security, in person or by general or limited proxy;
(n) Pay calls, assessments and any other sums chargeable or accruing against or on account of securities;
(o) Sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise;
(p) Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held;
(q) Insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;
(r) Borrow money to be repaid from estate assets or otherwise; to advance money for the protection of the estate or the protected person, and for all expenses, losses and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets and the conservator has a lien on the estate as against the protected person for advances so made;
(s) Pay or contest any claim; to settle a claim by or against the estate or the protected person by compromise, arbitration or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible;
(t) Pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate;
(u) Allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties;
(v) Pay any sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or, if none, to a relative or other person with custody of his person;
(w) Employ persons, including attorneys, auditors, investment advisors or agents, even though they are associated with the conservator to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one (1) or more agents to perform any act of administration, whether or not discretionary;
(x) Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties;
(y) Execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator; and
(z) Take control of, conduct, continue or terminate any accounts of the protected person on any social networking website, any microblogging or short message service website or any e-mail service website.
ATTEMPTED TRANSFER OF PROPERTY BY INDIVIDUAL SUBJECT TO CONSERVATORSHIP. [effective January 1, 2027]
(1) The interest of an individual subject to conservatorship in property included in the conservatorship estate is not transferable or assignable by the individual subject to conservatorship and is not subject to levy, garnishment, or similar process for claims against the individual subject to conservatorship unless allowed under section 15-5-428, Idaho Code.
(2) If an individual subject to conservatorship enters into a contract after having the right to enter the contract removed by the court, the contract is void against the individual subject to conservatorship and the individual subject to conservatorship’s property but is enforceable against the person that contracted with the individual subject to conservatorship.
(3) A person other than the conservator that deals with an individual subject to conservatorship with respect to property included in the conservatorship estate is entitled to protection provided by law of this state other than this chapter.
[15-5-424, added 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 15, p. 319; am. 2011, ch. 69, sec. 2, p. 146; repealed and added 2026, ch. 79, sec. 6, p. 379.]
(a) A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person and his dependents in accordance with the following principles:
(1) The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person, unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
(2) The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (A) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (B) the accustomed standard of living of the protected person and members of his household; (C) other funds or sources used for the support of the protected person.
(3) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person’s household who are unable to support themselves, and who are in need of support.
(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
(5) A conservator, in discharging the responsibilities conferred by court order and this part, shall implement the principles described in section 15-5-408(a) of this code.
(b) If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent (20%) of the income from the estate.
(c) When a minor who has not been adjudged disabled under subsection (b) of section 15-5-401 of this part attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
(d) When the conservator is satisfied that a protected person’s disability (other than minority) has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
(e) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after forty (40) days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent’s estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 15-3-204 of this code and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and indorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 15-3-308 and parts 6 through 10 of chapter 3 except that the estate in the name of the conservator, after administration, may be distributed to the decedent’s successors without prior re-transfer to the conservator as personal representative.
(f) During the period between the death of a protected person and the appointment of a personal representative for the protected person’s estate, or the conferral of the powers of a personal representative upon the conservator as provided in this section, the person acting as conservator at the time of the deceased protected person’s death shall have the duties and powers of a temporary conservator as set forth in section 15-5-407A, Idaho Code, and the powers set forth in section 54-1142(1), Idaho Code.
TRANSACTION INVOLVING CONFLICT OF INTEREST. [effective January 1, 2027]
A transaction involving a conservatorship estate that is affected by a substantial conflict between the conservator’s fiduciary duties and personal interests is voidable unless the transaction is authorized by court order after notice to persons entitled to notice under section 15-5-411(5), Idaho Code, or a subsequent order. A transaction affected by a substantial conflict includes a sale, encumbrance, or other transaction involving the conservatorship estate entered into by the conservator, an individual with whom the conservator resides, the spouse, descendant, sibling, agent, or attorney of the conservator, or a corporation or other enterprise in which the conservator has a substantial beneficial interest.
[15-5-425, added 1971, ch. 111, sec. 1, p. 233; am. 1982, ch. 285, sec. 13, p. 730; am. 2006, ch. 181, sec. 3, p. 562; am. 2025, ch. 137, sec. 3, p. 703; repealed and added 2026, ch. 79, sec. 6, p. 379.]
Subject to the restrictions in subsection (d) of section 15-5-408 of this Part, the court may confer on a conservator at the time of appointment or later, in addition to the powers conferred on him by sections 15-5-424 and 15-5-425 of this Part, any power which the court itself could exercise under subsection (b) and (c) of section 15-5-408 this Part. The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by sections 15-5-424 and 15-5-425 of this Part, or previously conferred by the court, and may at any time relieve him of any limitation. If the court limits any power conferred on the conservator by section 15-5-424 or section 15-5-425 of this Part, the limitation shall be indorsed upon his letters of appointment.
PROTECTION OF PERSON DEALING WITH CONSERVATOR. [effective January 1, 2027]
(1) A person that assists or deals with a conservator in good faith and for value in any transaction, other than a transaction requiring a court order under section 15-5-414, Idaho Code, is protected as though the conservator properly exercised any power in question. Knowledge by a person that the person is dealing with a conservator alone does not require the person to inquire into the existence of authority of the conservator or the propriety of the conservator’s exercise of authority, but restrictions on authority stated in letters of office, or otherwise provided by law, are effective as to the person. A person that pays or delivers property to a conservator is not responsible for proper application of the property.
(2) Protection under subsection (1) of this section extends to a procedural irregularity or jurisdictional defect in the proceeding leading to the issuance of letters of office and does not substitute for protection for a person that assists or deals with a conservator provided by comparable provisions in law of this state other than this chapter relating to a commercial transaction or simplifying a transfer of securities by a fiduciary.
[15-5-426, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 380.]
In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of section 15-5-425 of this Part, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account and preserve insofar as possible any known estate plan of the protected person, including his will, any revocable trust of which he is settlor, and any contract, transfer or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated. The conservator may examine the will of the protected person.
DEATH OF INDIVIDUAL SUBJECT TO CONSERVATORSHIP. [effective January 1, 2027]
(1) If an individual subject to conservatorship dies, the conservator shall deliver to the court for safekeeping any will of the individual subject to conservatorship in the conservator’s possession and inform the personal representative named in the will if feasible, or if not feasible, a beneficiary named in the will, of the delivery.
(2) If forty (40) days after the death of an individual subject to conservatorship no personal representative has been appointed and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative to administer and distribute the decedent’s estate. The conservator shall give notice to a person nominated as personal representative by a will of the decedent of which the conservator is aware. The court may grant the application if there is no objection and endorse the letters of office to note that the individual formerly subject to conservatorship is deceased and the conservator has acquired the powers and duties of a personal representative.
(3) Issuance of an order under this section has the effect of an order of appointment of a personal representative under section 15-3-307, Idaho Code, and parts 6 through 10 of chapter 3, title 15, Idaho Code.
(4) Upon the death of an individual subject to conservatorship, the conservator shall conclude the administration of the conservatorship estate as provided in section 15-5-431, Idaho Code.
[15-5-427, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 21, p. 510; repealed and added 2026, ch. 79, sec. 6, p. 380.]
(a) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods: (1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed; (2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator. A claim is deemed presented on the first to occur of receipt by the conservator of a written statement of claim or the filing with the court of the written statement of claim. A presented claim is allowed if it is not disallowed by written statement mailed by the conservator to the claimant within sixty (60) days after its presentation. The presentation of a claim tolls any statute of limitations relating to the claim until thirty (30) days after its disallowance.
(b) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.
(c) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance and education of the protected person or his dependents and existing claims for expenses of administration.
PRESENTATION AND ALLOWANCE OF CLAIM. [effective January 1, 2027]
(1) A conservator may pay, or secure by encumbering property included in the conservatorship estate, a claim against the conservatorship estate or the individual subject to conservatorship arising before or during the conservatorship upon presentation and allowance in accordance with the priorities under subsection (4) of this section. A claimant may present a claim by:
(a) Sending or delivering to the conservator a statement in a record of the claim, indicating its basis, the name and address of the claimant, and the amount claimed; or
(b) Filing the claim with the court, in a form acceptable to the court, and sending or delivering a copy of the claim to the conservator.
(2) A claim under subsection (1) of this section is presented on receipt by the conservator of the statement of the claim or the filing with the court of the claim, whichever first occurs. A presented claim is allowed if it is not disallowed in whole or in part by the conservator in a record sent or delivered to the claimant not later than sixty (60) days after its presentation. Before payment, the conservator may change an allowance of the claim to a disallowance in whole or in part, but not after allowance under a court order or order directing payment of the claim. Presentation of a claim tolls the running of a statute of limitations that has not expired relating to the claim until thirty (30) days after its disallowance.
(3) A claimant whose claim under subsection (1) of this section has not been paid may petition the court to determine the claim at any time before it is barred by a statute of limitations, and the court may order its allowance, payment, or security by encumbering property included in the conservatorship estate. If a proceeding is pending against the individual subject to conservatorship at the time of appointment of the conservator or is initiated thereafter, the moving party shall give the conservator notice of the proceeding if it could result in creating a claim against the conservatorship estate.
(4) If a conservatorship estate is likely to be exhausted before all existing claims are paid, the conservator shall distribute the estate in money or in kind in payment of claims in the following order:
(a) Costs and expenses of administration;
(b) A claim of the federal or state government having priority under law other than this chapter;
(c) A claim incurred by the conservator for support, care, education, health, or welfare previously provided to the individual subject to conservatorship or an individual who is in fact dependent on the individual subject to conservatorship;
(d) A claim arising before the conservatorship; and
(e) All other claims.
(5) Preference may not be given in the payment of a claim under subsection (4) of this section over another claim of the same class. A claim due and payable may not be preferred over a claim not due unless:
(a) Doing so would leave the conservatorship estate without sufficient funds to pay the basic living and health care expenses of the individual subject to conservatorship; and
(b) The court authorizes the preference under section 15-5-414(1)(h), Idaho Code.
(6) If assets of a conservatorship estate are adequate to meet all existing claims, the court, acting in the best interest of the individual subject to conservatorship, may order the conservator to grant a security interest in the conservatorship estate for payment of a claim at a future date.
[15-5-428, added 1971, ch. 111, sec. 1, p. 233; am. 1972, ch. 201, sec. 22, p. 510; repealed and added 2026, ch. 79, sec. 6, p. 380.]
(a) Unless otherwise provided in the contract, a conservator 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.
(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(c) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.
(d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.
PERSONAL LIABILITY OF CONSERVATOR. [effective January 1, 2027]
(1) Except as otherwise agreed by a conservator, the conservator is not personally liable for a contract properly entered into in a fiduciary capacity in the course of administration of the conservatorship estate unless the conservator fails to reveal the conservator’s representative capacity in the contract or before entering into the contract.
(2) A conservator is personally liable for an obligation arising from control of property of the conservatorship estate or an act or omission occurring in the course of administration of the conservatorship estate only if the conservator is personally at fault.
(3) A claim based on a contract entered into by a conservator in a fiduciary capacity, an obligation arising from control of property included in the conservatorship estate, or a tort committed in the course of administration of the conservatorship estate may be asserted against the conservatorship estate in a proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable for the claim.
(4) A question of liability between a conservatorship estate and the conservator personally may be determined in a proceeding for accounting, surcharge, or indemnification or another appropriate proceeding or action.
[15-5-429, added 1971, ch. 111, sec. 1, p. 233; repealed and added 2026, ch. 79, sec. 6, p. 381.]
The protected person, his personal representative, the conservator, or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedure as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased or that it would be in the best interests of the protected person to establish the conservatorship in another jurisdiction may terminate the conservatorship and, where appropriate, order initiation of proceedings in another jurisdiction or delivery of the assets to a foreign conservator as set forth in chapters 9, 10 and/or 11, title 15, Idaho Code. Upon termination, title to assets of the estate passes to the former protected person or to his successor subject to provision in the order for expenses of administration or to conveyances from the conservator to the former protected person or his successors, to evidence the transfer.
REMOVAL OF CONSERVATOR — APPOINTMENT OF SUCCESSOR. [effective January 1, 2027]
(1) The court may remove a conservator for failure to perform the conservator’s duties or other good cause and appoint a successor conservator to assume the duties of the conservator.
(2) The court shall hold a hearing to determine whether to remove a conservator and appoint a successor upon:
(a) Petition of the individual subject to conservatorship, the conservator, or a person interested in the welfare of the individual subject to conservatorship that contains allegations that, if true, would support a reasonable belief that removal of the conservator and appointment of a successor may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed during the preceding six (6) months;
(b) Communication from the individual subject to conservatorship, the conservator, or a person interested in the welfare of the individual subject to conservatorship that supports a reasonable belief that removal of the conservator and appointment of a successor may be appropriate; or
(c) Determination by the court that a hearing would be in the best interest of the individual subject to conservatorship.
(3) Notice of a petition under subsection (2)(a) of this section shall be given to the individual subject to conservatorship, the conservator, and any other person as the court determines.
(4) An individual subject to conservatorship who seeks to remove the conservator and have a successor appointed has the right to choose an attorney to represent the individual subject to conservatorship in this matter. If the individual subject to conservatorship is not represented by an attorney, the court may, in the discretion of the court, appoint an attorney under the same conditions as in section 15-5-406, Idaho Code. The court shall award reasonable attorney’s fees to the attorney as provided in section 15-5-119, Idaho Code.
(5) In selecting a successor conservator, the court shall follow the priorities under section 15-5-410, Idaho Code.
(6) Not later than thirty (30) days after appointing a successor conservator, the successor conservator shall give notice of the appointment to the individual subject to conservatorship and any person entitled to notice under section 15-5-411(5), Idaho Code, or a subsequent order.
[15-5-430, added 1971, ch. 111, sec. 1, p. 233; am. 2006, ch. 182, sec. 3, p. 566; repealed and added 2026, ch. 79, sec. 6, p. 382.]
Any person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:
(a) That no protective proceeding relating to the protected person is pending in this state, including any proceeding under chapters 9, 10 and/or 11, title 15, Idaho Code; and
(b) That the foreign conservator is entitled to payment or to receive delivery.
If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.
TERMINATION OR MODIFICATION OF CONSERVATORSHIP. [effective January 1, 2027]
(1) A conservatorship for a minor terminates on the earliest of:
(a) A court order terminating the conservatorship;
(b) The minor:
(i) Becoming an adult; or
(ii) If the minor consents, or the court finds by clear and convincing evidence that substantial harm to the minor’s interests is otherwise likely, attaining twenty-one (21) years of age;
(c) Emancipation of the minor; or
(d) Death of the minor.
(2) A conservatorship for an adult individual subject to conservatorship terminates on order of the court or when the adult individual subject to conservatorship dies.
(3) An individual subject to conservatorship, the conservator, or a person interested in the welfare of the individual subject to conservatorship may petition for:
(a) Termination of the conservatorship on the grounds that a basis for appointment under section 15-5-401, Idaho Code, does not exist or termination would be in the best interest of the individual subject to conservatorship or for other good cause; or
(b) Modification of the conservatorship on the grounds that the extent of protection or assistance granted is not appropriate or for other good cause.
(4) The court shall hold a hearing to determine whether termination or modification of a conservatorship is appropriate upon:
(a) Petition under subsection (3) of this section that contains allegations that, if true, would support a reasonable belief that termination or modification of the conservatorship may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed within the preceding six (6) months;
(b) A communication from the individual subject to conservatorship, the conservator, or a person interested in the welfare of the individual subject to conservatorship that supports a reasonable belief that termination or modification of the conservatorship may be appropriate, including because the functional needs of the individual subject to conservatorship or supports or services available to the individual subject to conservatorship have changed;
(c) A report from a guardian or conservator that indicates that termination or modification may be appropriate because the functional needs or supports or services available to the individual subject to conservatorship have changed or a protective arrangement instead of conservatorship or other less restrictive alternative is available; or
(d) A determination by the court that a hearing would be in the best interest of the individual subject to conservatorship.
(5) Notice of a petition under subsection (3) of this section shall be given to the individual subject to conservatorship, the conservator, and any such other person as the court determines.
(6) Upon presentation of prima facie evidence for termination of a conservatorship, the court shall order termination unless it is proven that a basis for appointment of a conservator under section 15-5-401, Idaho Code, exists.
(7) The court shall modify the powers granted to a conservator if the powers are excessive or inadequate due to a change in the abilities or limitations of the individual subject to conservatorship, supports given to the individual subject to conservatorship, or other circumstances.
(8) Unless the court otherwise orders for good cause, before terminating a conservatorship, the court shall follow the same procedures to safeguard the rights of the individual subject to conservatorship that apply to a petition for conservatorship.
(9) An individual subject to conservatorship who seeks to terminate or modify the terms of the conservatorship has the right to choose an attorney to represent the individual subject to conservatorship in the matter. If the individual is not represented by an attorney, the court shall appoint an attorney under the same conditions as in section 15-5-406, Idaho Code. The court shall award reasonable attorney’s fees to the attorney as provided in section 15-5-119, Idaho Code.
(10) Upon termination of a conservatorship other than by reason of the death of the individual subject to conservatorship, property of the conservatorship estate passes to the individual formerly subject to conservatorship. The order of termination shall direct the conservator to file a final report and petition for discharge on approval by the court of the final report.
(11) Upon termination of a conservatorship by reason of the death of the individual subject to conservatorship, the conservator promptly shall file a final report and petition for discharge on approval by the court of the final report. Upon approval of the final report, the conservator shall proceed expeditiously to distribute the conservatorship estate to the individual subject to conservatorship’s estate or as otherwise ordered by the court. The conservator may take reasonable measures necessary to preserve the conservatorship estate until distribution can be made.
(12) The court shall issue a final order of discharge on the approval by the court of the final report and satisfaction by the conservator of any other condition the court imposed on the conservator’s discharge.
[15-5-431, added 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 16, p. 319; am. 2006, ch. 182, sec. 4, p. 566; repealed and added 2026, ch. 79, sec. 6, p. 382.]
(1) Unless a person required to transfer funds or other property to a minor knows that a conservator for the minor has been appointed or a proceeding is pending for conservatorship, the person may transfer an amount or value not exceeding fifteen thousand dollars ($15,000) in a twelve (12) month period to:
(a) A person that has care or custody of the minor and with whom the minor resides;
(b) A guardian for the minor;
(c) A custodian under the uniform transfers to minors act or uniform gifts to minors act, chapter 8, title 68, Idaho Code; or
(d) A financial institution as a deposit in an interest-bearing account or certificate solely in the name of the minor and shall give notice to the minor of the deposit.
(2) A person that transfers funds or other property under the provisions of this section is not responsible for its proper application.
(3) A person that receives funds or other property for a minor under subsection (1)(a) or (b) of this section may apply it only to the support, care, education, health, or welfare of the minor and may not derive a personal financial benefit from it, except for reimbursement for necessary expenses. Funds not applied for such purposes shall be preserved for the future support, care, education, health, or welfare of the minor and the balance, if any, transferred to the minor when the minor becomes an adult or otherwise is emancipated.
[15-5-432, added 2026, ch. 79, sec. 6, p. 384.]
If so stated in the order appointing such conservator, or in any supplemental order entered prior to the time the minor reaches the age of eighteen (18) years, the conservator for a minor (said minor being hereinafter referred to as the "protected person") shall act until the protected person reaches the age of twenty-one (21) years, subject to the following provisions:
(a) The court may state in such order special terms and conditions for such conservator when acting while the protected person is of the age of eighteen (18) years or more, but less than the age of twenty-one (21) years;
(b) Upon reaching the age of eighteen (18) years, the protected person may, at any time thereafter, petition the court to terminate or modify the conservatorship prior to the protected person attaining the age of twenty-one (21) years. Said petition must be based on the ability of the minor to adequately manage his or her own financial affairs, demonstrated by appropriate evidence, including:
(1) Demonstrated ability to manage his or her financial affairs;
(2) Submission of budgets and other appropriate similar documents;
(3) Employment history;
(4) Educational history;
(5) Criminal history; and
(6) Other relevant evidence;
(c) The burden of showing such financial management ability shall be upon the protected person and must be demonstrated by clear and convincing evidence thereof; and
(d) The court may, in its discretion, order reports to be filed by the conservator, and/or a court visitor, and/or may appoint a guardian ad litem for the protected person.
The original determination of whether to extend the conservatorship to age twenty-one (21) years shall be within the discretion of the court and may be based on such factors as the court deems to be relevant to such determination.
MINORS COMPROMISE — PROCEDURE. [effective January 1, 2027]
(1) When a minor has a claim for money against a third person, the persons listed below have the right to petition for a compromise of the claim in the following order of priority:
(a) An appointed conservator of the minor;
(b) A guardian of the minor, if appointed;
(c) Either or both parents, provided that:
(i) If the parents are living separate and apart, then the parent who has been awarded primary physical custody; or
(ii) If no custody award has been made, then the parent with whom the minor is living;
(d) A de facto custodian; and
(e) Any other legal representative.
(2) The court for good cause may pass over a person having priority under subsection (1) of this section and appoint a person having less priority or no priority; provided that the court shall not pass over a parent or parents unless the court concludes that the parent or parents are incapable or unwilling to act reasonably and in the best interest of the minor. Such proposed compromise is not effective until it is approved by the district court of the county where the minor resides or, if the minor is not a resident of the state of Idaho, by the district court of the county where the claim arose, upon verified petition, filed with the court.
(3) A verified petition made pursuant to this section shall include the following:
(a) The name, age, and residence of the minor;
(b) The facts that bring the minor within the purview of this section, including the circumstances that make it a claim for money, the name of the third person against whom the claim is made, and, if the claim is the result of an accident, the date, place, and facts of the accident;
(c) The names and residence of the parents or guardian of the minor;
(d) The name and residence of the person or persons having physical custody or control of the minor;
(e) The name and residence of the petitioner, the relationship of the petitioner to the minor, and the basis of the petitioner’s right to compromise the claim;
(f) The total amount of proceeds of the proposed compromise, the apportionment of those proceeds, and whether the fees and expenses are to be deducted before or after the calculation of any contingency fee, including the amount to be used for:
(i) Attorney’s fees and whether the attorney’s fees are fixed or contingent fees;
(ii) Medical expenses; or
(iii) Other expenses;
(g) Whether the petitioner believes the acceptance of this compromise is in the best interest of the minor;
(h) That the petitioner has been advised and understands that acceptance of the compromise will bar the minor from seeking further relief from the third person offering the compromise;
(i) If the claim involves a personal injury suffered by the minor, a summary of:
(i) The injury, prognosis, treatment, and progress of recovery of the minor; and
(ii) The amount of medical expenses incurred to date, the nature and amount of medical expenses that have been paid and by whom, any amount owing for medical expenses, and an estimate of the amount of medical expenses that may be incurred in the future; and
(j) The policy limits of the insurance contract, if applicable.
(4) If the minor’s claim is less than ten thousand dollars ($10,000) and the court is satisfied after review of the verified petition that the compromise is reasonable and in the best interest of the minor, the court may approve the compromise or set a hearing. If the minor’s claim is ten thousand dollars ($10,000) or more, the court shall set a hearing for approval of the compromise.
(5) If the court finds the compromise is reasonable and in the best interest of the minor, the court may approve such compromise and may direct that money be paid:
(a) To the parents, guardian, trustee, conservator, legal representative, or the designated payee thereof in accordance with the provisions of this chapter;
(b) Subject to the provisions of an appropriate protective order; or
(c) In accordance with the provisions of chapter 14, title 68, Idaho Code.
(6) No filing fee shall be charged for the filing of any petition under the provisions of this section.
[15-5-433, added 1996, ch. 423, sec. 1, p. 1447; repealed and added 2026, ch. 79, sec. 6, p. 384.]
Subject to the direction of the court, the guardian ad litem shall have the following duties, which shall continue until the resignation of the guardian ad litem or until the court removes the guardian ad litem or no longer has jurisdiction, whichever occurs first:
(1) To conduct an independent factual investigation of the circumstances of the protected person including, without limitation, the circumstances described in the petition;
(2) To file with the court a written report stating the results of the investigation, the guardian ad litem’s recommendations, and such other information as the court may require. The guardian ad litem’s written report shall be delivered to the court, with copies to all parties to the case, at least five (5) days before the date set for the adjudicatory hearing;
(3) To act as an advocate for the protected person for whom appointed at each stage of the proceedings under this chapter and to be charged with the general representation of the protected person. To that end, the guardian ad litem shall participate fully in the proceedings to the degree necessary to adequately represent the protected person, and shall be entitled to confer with the protected person and the protected person’s immediate family including, but not limited to, spouse, parents, siblings, children and next of kin;
(4) To facilitate and negotiate to ensure that the court, the department of health and welfare, if applicable, and the protected person’s attorney, if any, each fulfill their obligations to the protected person in a timely fashion;
(5) To monitor the circumstances of a protected person, if the protected person is found to be within the purview of this chapter, to assure compliance with the law, and to assure that the terms of the court’s orders are being fulfilled and remain in the best interest of the protected person;
(6) To meet any parent or other person having legal or physical custody of the protected person, record the concerns of the parent, and report them to the court or, if no such meeting occurs, file an affidavit stating why no meeting occurred;
(7) To maintain all information regarding the case confidential and to not disclose such information except to the court or to other parties to the case;
(8) To determine whether existing powers, trusts, and other measures may adequately give the protected person the legal protection otherwise provided by a conservator, or whether such powers, trusts or other measures could be reasonably created and, if so, to recommend that either no conservatorship be granted or that only a suitably limited conservatorship be granted; and
(9) To exercise such other and further duties as may be expressly imposed by court order.
[15-5-434, added 2005, ch. 49, sec. 3, p. 183.]
The guardian ad litem has the following rights and powers to fulfill the duties set forth in section 15-5-434, Idaho Code, which shall continue until the resignation of the guardian ad litem or until the court removes the guardian ad litem or no longer has jurisdiction, whichever occurs first.
(1) The guardian ad litem shall have the right and power to file pleadings, motions, memoranda and briefs on behalf of the protected person, and to have all of the rights of the protected person, whether conferred by statute, rule of court, or otherwise.
(2) All parties to any proceeding under this chapter shall promptly notify the guardian ad litem, and the conservator’s attorney, if any, of all hearings, staff hearings or meetings, investigations, depositions, and significant changes of circumstances of the protected person.
(3) Except to the extent prohibited or regulated by federal law, upon presentation of a copy of the order appointing the guardian ad litem, any person or agency including, without limitation, any hospital, school organization, department of health and welfare, doctor, nurse or other health care provider, psychologist, psychiatrist, police department, or mental health clinic, shall permit the guardian ad litem to inspect and copy pertinent records relating to the protected person necessary for the proceeding for which the guardian ad litem has been appointed.
[15-5-435, added 2005, ch. 49, sec. 4, p. 184; am. 2015, ch. 246, sec. 2, p. 1042.]
(1) Under this part, a court:
(a) Upon receiving a petition for a guardianship for an adult may order a protective arrangement instead of guardianship as a less restrictive alternative to guardianship; and
(b) Upon receiving a petition for a conservatorship for an individual may order a protective arrangement instead of conservatorship as a less restrictive alternative to conservatorship.
(2) A person interested in an adult’s welfare, including the adult or a conservator for the adult, may petition under this part for a protective arrangement instead of guardianship.
(3) The following persons may petition under this part for a protective arrangement instead of conservatorship:
(a) The individual for whom the protective arrangement is sought;
(b) A person interested in the property, financial affairs, or welfare of the individual, including a person that would be affected adversely by lack of effective management of property or financial affairs of the individual; and
(c) The guardian for the individual.
[15-5-501, added 2026, ch. 79, sec. 7, p. 385.]
(1) After the hearing on a petition under section 15-5-302, Idaho Code, for a guardianship or under section 15-5-501(2), Idaho Code, for a protective arrangement instead of guardianship, the court may issue an order under subsection (2) of this section for a protective arrangement instead of guardianship if the court finds by clear and convincing evidence that:
(a) The respondent lacks the ability to meet essential requirements for physical health, safety, or self-care because the respondent is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision-making; and
(b) The respondent’s identified needs cannot be met by a less restrictive alternative.
(2) If the court makes the findings under subsection (1) of this section, the court, instead of appointing a guardian, may:
(a) Authorize or direct a transaction necessary to meet the respondent’s need for health, safety, or care, including:
(i) A particular medical treatment or refusal of a particular medical treatment;
(ii) A move to a specified place of dwelling; or
(iii) Visitation or supervised visitation between the respondent and another person;
(b) Restrict access to the respondent by a specified person whose access places the respondent at serious risk of physical, psychological, or financial harm; and
(c) Order other arrangements on a limited basis that are appropriate.
(3) In deciding whether to issue an order under this section, the court shall consider the factors under sections 15-5-313 and 15-5-314, Idaho Code, that a guardian shall consider when making a decision on behalf of an adult subject to guardianship.
[15-5-502, added 2026, ch. 79, sec. 7, p. 386.]
(1) After the hearing on a petition under section 15-5-402, Idaho Code, for conservatorship for an adult or under section 15-5-501(3), Idaho Code, for a protective arrangement instead of conservatorship for an adult, the court may issue an order under subsection (3) of this section for a protective arrangement instead of conservatorship for the adult if the court finds by clear and convincing evidence that:
(a) The adult is unable to manage property or financial affairs because:
(i) The adult is limited in the ability to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision-making; or
(ii) The adult is missing, detained, or unable to return to the United States;
(b) An order under subsection (3) of this section is necessary to:
(i) Avoid harm to the adult or significant dissipation of the property of the adult; or
(ii) Obtain or provide funds or other property needed for the support, care, education, health, or welfare of the adult or an individual entitled to the adult’s support; and
(c) The respondent’s identified needs cannot be met by a less restrictive alternative.
(2) After the hearing on a petition under section 15-5-402, Idaho Code, for conservatorship for a minor or under section 15-5-501(3), Idaho Code, for a protective arrangement instead of conservatorship for a minor, the court may issue an order under subsection (3) of this section for a protective arrangement instead of conservatorship for the minor if the court finds by a preponderance of the evidence that the arrangement is in the minor’s best interest, and:
(a) If the minor has a parent, the court gives weight to any recommendation of the parent whether an arrangement is in the minor’s best interest;
(b) Either:
(i) The minor owns money or property requiring management or protection that otherwise cannot be provided;
(ii) The minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minor’s age; or
(iii) The arrangement is necessary or desirable to obtain or provide funds or other property needed for the support, care, education, health, or welfare of the minor; and
(c) The order under subsection (3) of this section is necessary or desirable to obtain or provide money needed for the support, care, education, health, or welfare of the minor.
(3) If the court makes the findings under subsection (1) or (2) of this section, the court, instead of appointing a conservator, may:
(a) Authorize or direct a transaction necessary to protect the financial interest or property of the respondent, including:
(i) An action to establish eligibility for benefits;
(ii) Payment, delivery, deposit, or retention of funds or property;
(iii) Sale, mortgage, lease, or other transfer of property;
(iv) Purchase of an annuity;
(v) Entry into a contractual relationship, including a contract to provide for personal care, supportive services, education, training, or employment;
(vi) Addition to or establishment of a trust;
(vii) Ratification or invalidation of a contract, trust, will, or other transaction, including a transaction related to the property or business affairs of the respondent; or
(viii) Settlement of a claim; or
(b) Restrict access to the respondent’s property by a specified person whose access to the property places the respondent at serious risk of financial harm.
(4) After the hearing on a petition under section 15-5-501(1)(b) or (3), Idaho Code, whether or not the court makes the findings under subsection (1) or (2) of this section, the court may issue an order to restrict access to the respondent or the respondent’s property by a specified person that the court finds by clear and convincing evidence:
(a) Through fraud, coercion, duress, or the use of deception and control caused or attempted to cause an action that would have resulted in financial harm to the respondent or the respondent’s property; and
(b) Poses a serious risk of substantial financial harm to the respondent or the respondent’s property.
(5) Before issuing an order under subsection (3) or (4) of this section, the court shall consider the factors under section 15-5-418, Idaho Code, that a conservator shall consider when making a decision on behalf of an individual subject to conservatorship.
(6) Before issuing an order under subsection (3) or (4) of this section for a respondent who is a minor, the court shall also consider the best interest of the minor, the preference of the parents of the minor, and the preference of the minor, if the minor is twelve (12) years of age or older.
[15-5-503, added 2026, ch. 79, sec. 7, p. 386.]
A petition for a protective arrangement instead of guardianship or conservatorship shall state the petitioner’s name, principal residence, current street address, if different, relationship to the respondent, interest in the protective arrangement, the name and address of any attorney representing the petitioner, and, to the extent known, the following:
(1) The respondent’s name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed the respondent will reside if the petition is granted;
(2) The name and address of the respondent’s:
(a) Spouse or, if the respondent has none, an adult with whom the respondent has shared household responsibilities for more than six (6) months in the twelve (12) month period before the filing of the petition;
(b) Adult children or, if none, each parent and adult sibling of the respondent or, if none, at least one (1) adult nearest in kinship to the respondent who can be found with reasonable diligence; and
(c) Adult stepchildren whom the respondent actively parented during the stepchildren’s minor years and with whom the respondent had an ongoing relationship in the two (2) year period immediately before the filing of the petition;
(3) The name and current address of each of the following, if applicable:
(a) A person responsible for the care or custody of the respondent;
(b) Any attorney currently representing the respondent;
(c) The representative payee appointed by the social security administration for the respondent;
(d) A guardian or conservator acting for the respondent in this state or another jurisdiction;
(e) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;
(f) The fiduciary appointed for the respondent by the department of veterans affairs;
(g) An agent designated under a medical directive in which the respondent is identified as the principal;
(h) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;
(i) A person nominated as guardian or conservator by the respondent if the respondent is twelve (12) years of age or older;
(j) A person nominated as guardian by the respondent’s parent or spouse in a will or other signed record;
(k) A person known to have routinely assisted the respondent with decision-making in the six (6) month period immediately before the filing of the petition; and
(l) If the respondent is a minor:
(i) An adult not otherwise listed with whom the respondent resides; and
(ii) Each person not otherwise listed that had primary care or custody of the respondent for at least sixty (60) days during the two (2) years immediately before the filing of the petition or for at least seven hundred thirty (730) days during the five (5) years immediately before the filing of the petition;
(4) The nature of the protective arrangement sought;
(5) The reason the protective arrangement sought is necessary, including a brief description of:
(a) The nature and extent of the respondent’s alleged need;
(b) Any less restrictive alternative for meeting the respondent’s alleged need that has been considered or implemented;
(c) If no less restrictive alternative has been considered or implemented, the reason less restrictive alternatives have not been considered or implemented; and
(d) The reason other less restrictive alternatives are insufficient to meet the respondent’s alleged need;
(6) The name and current address, if known, of any person with whom the petitioner seeks to limit the respondent’s contact;
(7) Whether the respondent needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings;
(8) If a protective arrangement instead of guardianship is sought and the respondent has property other than personal effects, a general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts; and
(9) If a protective arrangement instead of conservatorship is sought, a general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts.
[15-5-504, added 2026, ch. 79, sec. 7, p. 388.]
(1) Upon filing of a petition under section 15-5-501, Idaho Code, the court shall set a date, time, and place for a hearing on the petition.
(2) A copy of a petition under section 15-5-501, Idaho Code, and notice of a hearing on the petition shall be served personally on the respondent. The notice shall inform the respondent of the respondent’s rights at the hearing, including the right to an attorney and to attend the hearing. The notice shall include a description of the nature, purpose, and consequences of granting the petition. The court may not grant the petition if notice substantially complying with this subsection is not served on the respondent.
(3) In a proceeding on a petition under section 15-5-501, Idaho Code, the notice required under subsection (2) of this section shall be given to the persons required to be listed in the petition under section 15-5-504(1) through (3), Idaho Code, and any other person interested in the respondent’s welfare as the court determines. Failure to give notice under this subsection does not preclude the court from granting the petition.
(4) After the court has ordered a protective arrangement under this part, notice of a hearing on a petition filed under this section, together with a copy of the petition, shall be given to the respondent and any other person as the court determines.
[15-5-505, added 2026, ch. 79, sec. 7, p. 389.]
(1) Upon filing of a petition under section 15-5-501, Idaho Code, for an adult with a developmental disability, the court may appoint a DD evaluation committee to conduct an evaluation.
(2) Upon filing of a petition under section 15-5-501, Idaho Code, for an adult without a developmental disability, the court may appoint a visitor to conduct an evaluation.
(3) The appointment and role of a DD evaluation committee or visitor under this section shall be conducted in accordance with Idaho supreme court rules.
[15-5-506, added 2026, ch. 79, sec. 7, p. 390.]
(1) Unless the respondent in a proceeding under this part is represented by an attorney, the court shall appoint an attorney to represent the respondent, regardless of the respondent’s ability to pay.
(2) An attorney representing the respondent in a proceeding under this part shall:
(a) Make reasonable efforts to ascertain the respondent’s wishes;
(b) Advocate for the respondent’s wishes to the extent reasonably ascertainable; and
(c) If the respondent’s wishes are not reasonably ascertainable, advocate for the result that is the least restrictive alternative in type, duration, and scope, consistent with the respondent’s interests.
(3) The court shall appoint an attorney to represent a parent of a minor who is the subject of a proceeding under this part if:
(a) The parent objects to the entry of an order for a protective arrangement instead of guardianship or conservatorship;
(b) The court determines that counsel is needed to ensure that consent to the entry of an order for a protective arrangement is informed; or
(c) The court otherwise determines the parent needs representation.
[15-5-507, added 2026, ch. 79, sec. 7, p. 390.]
(1) At or before a hearing on a petition under this part for a protective arrangement, the court may order a professional evaluation of the respondent:
(a) If the respondent requests the evaluation; or
(b) In other cases, unless the court finds that it has sufficient information to determine the respondent’s needs and abilities without the evaluation.
(2) If the court orders an evaluation under subsection (1) of this section, the respondent shall be examined by a licensed physician, psychologist, social worker, or other individual appointed by the court who is qualified to evaluate the respondent’s alleged cognitive and functional abilities and limitations and will not be advantaged or disadvantaged by a decision to grant the petition or otherwise have a conflict of interest. The individual conducting the evaluation promptly shall file a report in a record with the court. Unless otherwise directed by the court, the report shall contain:
(a) A description of the nature, type, and extent of the respondent’s cognitive and functional abilities and limitations;
(b) An evaluation of the respondent’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
(c) A prognosis for improvement, including with regard to the ability to manage the respondent’s property and financial affairs if a limitation in that ability is alleged, and recommendation for the appropriate treatment, support, or habilitation plan; and
(d) The date of the examination on which the report is based.
(3) The respondent may decline to participate in an evaluation ordered under subsection (1) of this section.
[15-5-508, added 2026, ch. 79, sec. 7, p. 390.]
(1) Except as otherwise provided in subsection (2) of this section, a hearing under this part may not proceed unless the respondent attends the hearing. If it is not reasonably feasible for the respondent to attend a hearing at the location court proceedings typically are held, the court shall make reasonable efforts to hold the hearing at an alternative location convenient to the respondent or allow the respondent to attend the hearing using real-time audio-visual technology.
(2) A hearing under this part may proceed without the respondent in attendance if the court finds by clear and convincing evidence that:
(a) The respondent consistently and repeatedly has refused to attend the hearing after having been fully informed of the right to attend and the potential consequences of failing to attend;
(b) There is no practicable way for the respondent to attend and participate in the hearing even with appropriate supportive services and technological assistance; or
(c) The respondent is a minor who has received proper notice and attendance would be harmful to the minor.
(3) The respondent may be assisted in a hearing under this part by a person or persons of the respondent’s choosing, assistive technology, or an interpreter or translator, or a combination of these supports. If assistance would facilitate the respondent’s participation in the hearing, but is not otherwise available to the respondent, the court shall make reasonable efforts to provide it.
(4) The respondent has a right to choose an attorney to represent the respondent at a hearing under this part.
(5) At a hearing under this part, the respondent may:
(a) Present evidence and subpoena witnesses and documents;
(b) Examine witnesses, including any court-appointed evaluator, any member of a DD evaluation committee, and the visitor; and
(c) Otherwise participate in the hearing.
(6) A hearing under this part shall be closed upon request of the respondent and a showing of good cause.
(7) Any person may request to participate in a hearing under this part. The court may grant the request, with or without a hearing, upon determining that the best interest of the respondent will be served. The court may impose appropriate conditions on the person’s participation.
[15-5-509, added 2026, ch. 79, sec. 7, p. 391.]
The petitioner shall give notice of an order under this part to the individual who is subject to the protective arrangement instead of guardianship or conservatorship, a person whose access to the individual is restricted by the order, and any other person as the court determines.
[15-5-510, added 2026, ch. 79, sec. 7, p. 391.]
The confidentiality of records in a proceeding for a protective arrangement shall be maintained in accordance with Idaho supreme court rules.
[15-5-511, added 2026, ch. 79, sec. 7, p. 391.]
The court may appoint a master to assist in implementing a protective arrangement under this part. The master has the authority conferred by the order of appointment and serves until discharged by court order.
[15-5-512, added 2026, ch. 79, sec. 7, p. 391.]
(a) After making a determination that there exists a need within a county for a guardian for those persons in need of guardianship and for whom there is no person or corporation qualified and willing to act in such capacity, the board of county commissioners may create and budget for, within the county, a board of community guardian. The board of county commissioners of one or more counties within a judicial district may jointly create and budget for a board of community guardian within that district.
[15-5-601, added 1982, ch. 285, sec. 14, p. 731; am. 1987, ch. 320, sec. 1, p. 673; am. 1992, ch. 22, sec. 1, p. 71.]
(a) Any board of community guardian which is created within a county or counties in a judicial district shall operate under the laws of the state of Idaho, including the Idaho guardianship, conservatorship and trust laws.
(b) A board of community guardian shall consist of not fewer than seven (7) or more than eleven (11) members who are representatives of community interests involving persons needing guardians or conservators as defined by chapter 5, title 15, Idaho Code. Members shall be appointed by the board of county commissioners that created the board of community guardian under section 15-5-601, Idaho Code.
(1) The terms of the members of the board shall be for four (4) years and shall be staggered. A number of members equaling or most closely exceeding one-half (1/2) shall initially be appointed for three (3) years. Any vacancy created by resignation or expiration of term shall be filled in the same manner as the original appointment;
(2) A member will continue to serve on the board until that person’s successor is appointed;
(3) The board shall meet not less than once each quarter;
(4) No person shall be a member of a board who is also an employee of the district court or the clerk of the district court;
(5) A board member having previously provided or currently providing services to a ward shall disclose such to the board and abstain from any decision or action taken concerning that particular ward;
(6) Board members and officers shall serve without pay;
(7) Each board shall elect its own chairman and other officers.
(c) A board, in those instances when a guardian and/or conservator is required and no qualified family member or other qualified person has volunteered to serve, may:
(1) Locate a qualified person to serve as guardian and/or conservator; or
(2) Petition the court to be appointed guardian and/or conservator.
(d) The board shall have all the powers and duties where applicable by court order, as provided under section 15-5-312, Idaho Code, and/or sections 15-5-408 and 15-5-424, Idaho Code, and in addition thereto shall:
(1) Locate and recommend to the court, where necessary, that a visitor be appointed as provided in section 15-5-503, Idaho Code;
(2) Have access to all confidential records, including abuse registry reports that may be maintained by state or private agencies or institutions, which records concern a person for whom the board acts as guardian and/or conservator. The name of the person reporting the alleged abuse shall be subject to disclosure according to chapter 1, title 74, Idaho Code;
(3) Review and monitor the services provided by public and private agencies to any incapacitated person for whom the board acts as guardian and/or conservator and determine the continued need for those services;
(4) Assess a fee for services developed pursuant to this part;
(5) Have the power, subject to the approval of the board of county commissioners, to adopt such rules as are necessary to carry out the duties and responsibilities of the board.
(e) When a board serves as guardian or conservator, it shall be compensated as other guardians or conservators pursuant to Idaho law. If, at the time the board is appointed as guardian and/or conservator, the incapacitated person for whom the board is to act has no funds, the court may waive the payment of fees.
(f) When a board serves as guardian and/or conservator there is created, at the time of filing of the order of appointment, a lien in favor of the board against any real property owned by the ward or protected person, enforceable only upon the termination of the guardianship and/or conservatorship, for all fees which were incurred throughout the duration of the services and which were not paid prior to termination. All fees incurred throughout the duration of the services and which were not paid prior to the termination of services shall relate back to the effective date of the lien. The board must record a notice of said lien within thirty (30) days of filing of the order of appointment. Such liens shall be recorded in every county where property subject to the lien is located. The notice shall contain at least the following information: full court heading of the action in which the appointment was made; the effective date of the lien; the name and address of the board; and any limitations or terms regarding the fees covered by the lien contained in the order of appointment. The court may postpone or arrange for gradual repayment of the fees if the court finds that the immediate repayment would create a hardship on the person.
(g) No member of a board of community guardian, any employees, or any visitor appointed at the request of such board pursuant to section 15-5-303, Idaho Code, shall be liable for civil damages by reason of authorizing medical treatment or surgery for the person for whom the board is appointed, if the board member, employee or visitor, after medical consultation with the person’s physician, acts in good faith, is not negligent, and acts within the limits established for the guardian and/or conservator by the court. No such person shall be liable, by reason of his authorization, for injury to the person for whom the guardian and/or conservator has been appointed which injury results from the negligence or other acts of a third person, if the court has authorized the giving of medical consent by the board or the individual members of the board. No such person shall be liable in the performance of acts done in good faith within the scope of his authority as long as the act is not of a wanton or grossly negligent nature. The board of community guardian shall be deemed to be a governmental entity for the purposes of application of the Idaho tort claims act.
[15-5-602, added 1982, ch. 285, sec. 14, p. 732; am. 1987, ch. 320, sec. 2, p. 673; am. 1990, ch. 213, sec. 8, p. 492; am. 1993, ch. 24, sec. 1, p. 83; am. 2001, ch. 97, sec. 1, p. 245; am. 2012, ch. 54, sec. 1, p. 152; am. 2015, ch. 141, sec. 11, p. 382.]
(a) Each board shall report annually in writing to the board of county commissioners and, in the case of a multi-county board, to each participating county, its activities for the preceding year, which report shall contain:
(1) A fiscal report which adequately reflects the financial operation of the board;
(2) The number of volunteer guardians obtained by the board;
(3) The number of incapacitated persons for whom the board is acting as guardian;
(4) Recommendations for improving guardianship services in the circuit;
(5) Such other matters as may be determined advisable by the board or the board of county commissioners.
The report shall be filed no later than April 1 of each year and shall cover the preceding calendar year.
(b) The board of county commissioners shall review each report and shall determine whether to dissolve or continue the board of community guardian in the county. Where there is a multi-county board of community guardian, the boards of county commissioners of all concerned counties must concur in a decision to dissolve the board of community guardian.
[15-5-603, added 1982, ch. 285, sec. 14, p. 733; am. 1987, ch. 320, sec. 3, p. 675.]
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[15-5-701, added 2026, ch. 79, sec. 9, p. 392.]
This chapter modifies, limits, or supersedes the electronic signatures in global and national commerce act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).
[15-5-702, added 2026, ch. 79, sec. 9, p. 392.]
This act applies to:
(1) A proceeding for appointment of a guardian or conservator or for a protective arrangement instead of guardianship or conservatorship commenced after January 1, 2027; and
(2) A guardianship, conservatorship, or protective arrangement instead of guardianship or conservatorship in existence on January 1, 2027, unless the court finds application of a particular provision of this act would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of this act does not apply and the superseded law applies.
[15-5-703, added 2026, ch. 79, sec. 9, p. 392.]
If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end, the provisions of this act are severable.
[15-5-704, added 2026, ch. 79, sec. 9, p. 392.]
In this Part, unless the context otherwise requires:
(1) "Account" means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement;
(2) "Beneficiary" means a person named in a trust account as one for whom a party to the account is named as trustee;
(3) "Financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions;
(4) "Joint account" means an account payable on request to one (1) or more of two (2) or more parties whether or not mention is made of any right of survivorship;
(5) A "multiple-party account" is any of the following types of account:
(a) a joint account;
(b) a P.O.D. account; or
(c) a trust account. It does not include accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes, or accounts controlled by one (1) or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization or a regular fiduciary or trust account where the relationship is established other than by deposit agreement;
(6) "Net contribution" of a party to a joint account as of any given time is the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question;
(7) "Party" means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal;
(8) "Payment" of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any set-off, or reduction or other disposition of all or part of an account pursuant to a pledge;
(9) "Proof of death" includes a death certificate or record or report which is prima facie proof of death under section 15-1-107 of this code;
(10) "P.O.D. account" means an account payable on request to one (1) person during his lifetime and on his death to one (1) or more P.O.D. payees, or to one (1) or more persons during their lifetimes and on the death of all of them to one (1) or more P.O.D. payees;
(11) "P.O.D. payee" means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one (1) or more persons;
(12) "Request" means a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning necessary signatures and regulations of the financial institutions; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of this part the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal;
(13) "Sums on deposit" means the balance payable on a multiple-party account including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party;
(14) "Trust account" means an account in the name of one (1) or more parties as trustee for one (1) or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relation such as attorney-client;
(15) "Withdrawal" includes payment to a third person pursuant to check or other directive of a party.
[I.C., sec. 15-6-101, as added by 1971, ch. 111, sec. 1, p. 233.]
The provisions of sections 15-6-103 through 15-6-105 of this Part concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of sections 15-6-108 through 15-6-113 of this Part govern the liability of financial institutions who make payments pursuant thereto, and their set-off rights.
[I.C., sec. 15-6-102, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
(b) A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two (2) or more parties are named as original payees, during their lifetimes rights as between them are governed by subsection (a) of this section.
(c) Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two (2) or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by subsection (a) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.
[I.C., sec. 15-6-103, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent if an intent to give the account can be shown by the surviving party or parties. If there are two (2) or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under section 15-6-103 of this Part augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.
(b) If the account is a P.O.D. account, on death of the original payee or of the survivor of two (2) or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one (1) or more die before the original payee; if two (2) or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c) If the account is a trust account, on death of the trustee or the survivor of two (2) or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one (1) or more die before the trustee, unless there is clear and convincing evidence of a contrary intent; if two (2) or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d) In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.
(e) A right of survivorship arising from the express terms of the account or under this section, if an intent to give can be shown, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will.
[I.C., sec. 15-6-104, as added by 1971, ch. 111, sec. 1, p. 233; am. 1971, ch. 126, sec. 1, p. 487; am. 1972, ch. 201, sec. 25, p. 510.]
The provisions of section 15-6-104 of this Part as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order given by a party to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order or request must be signed by a party, received by the financial institution during the party’s lifetime, and not countermanded by other written order of the same party during his lifetime.
[I.C., sec. 15-6-105, as added by 1971, ch. 111, sec. 1, p. 233.]
Any transfers resulting from the application of section 15-6-104 of this chapter are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to chapters 1 through 4 of this code.
[I.C., sec. 15-6-106, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) In this section, "nonprobate transfer" means a valid transfer effective at death, other than of a survivorship interest in a joint tenancy of real estate, by a transferor whose last domicile was in this state to the extent that the transferor immediately before death had power, acting alone, to prevent the transfer by revocation or withdrawal and instead to use the property for the benefit of the transferor to apply it to discharge claims against the transferor’s probate estate.
(2) Except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to the decedent’s probate estate for allowed claims against the decedent’s probate estate and statutory allowances to the decedent’s surviving spouse, minor children and dependent children to the extent the decedent’s probate estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee.
(3) Nonprobate transferees are liable for the insufficiency described in subsection (2) of this section in the following order:
(a) As provided in the decedent’s will or any other governing instrument;
(b) To the extent of the value of the nonprobate transfer received or controlled by the trustee of a trust serving as the principal nonprobate instrument in the decedent’s estate plan as shown by its designation as devisee of the decedent’s residuary estate or by other facts or circumstances;
(c) Other nonprobate transferees, in proportion to the values received.
(4) Unless otherwise provided by the trust instrument, interests of beneficiaries in all trusts incurring liabilities under this section shall abate as necessary to satisfy the liability as if all of the trust instruments were a single will and the interests were devises under it.
(5) A provision made in one (1) instrument may direct the apportionment of the liability among the nonprobate transferees taking under that or any other governing instrument. If a provision in one (1) instrument conflicts with a provision in another, the later one prevails.
(6) Upon due notice to a nonprobate transferee, the liability imposed by this section is enforceable in proceedings in this state, wherever the transferee is located.
(7) A proceeding under this section may not be commenced unless the personal representative of the decedent’s estate has received from the surviving spouse or one acting for a minor or dependent child, to the extent that statutory allowances are affected, or a creditor, a written demand for the proceeding. If the personal representative declines or fails to commence a proceeding after demand, a person making demand may commence the proceeding in the name of the decedent’s estate, at the expense of the person making the demand and not of the estate. A personal representative who declines in good faith to commence a requested proceeding incurs no personal liability for declining.
(8) A proceeding under this section must be commenced within two (2) years after the decedent’s death, but a proceeding on behalf of a creditor whose claim was allowed after proceedings challenging disallowance of the claim may be commenced within sixty (60) days after final allowance of the claim.
(9) Unless a written notice asserting that a decedent’s probate estate is insufficient to pay allowed claims and statutory allowances has been received from the decedent’s personal representative the following rules apply:
(a) Payment or delivery of assets by a financial institution, registrar or other obligor to a nonprobate transferee in accordance with the terms of the governing instrument controlling the transfer releases the obligor from all claims for amounts paid or assets delivered.
(b) A trustee receiving or controlling a nonprobate transfer is released from liability under this section on any assets distributed to the trust’s beneficiaries. Each beneficiary to the extent of the distribution received becomes liable for the amount of the trustee’s liability attributable to that asset imposed by subsections (2) and (3) of this section.
[15-6-107, added 2003, ch. 61, sec. 2, p. 207.]
Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one (1) or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions.
[I.C., sec. 15-6-108, as added by 1971, ch. 111, sec. 1, p. 233.]
Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proofs of death are presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under section 15-6-104 of this Part.
[I.C., sec. 15-6-109, as added by 1971, ch. 111, sec. 1, p. 233.]
Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.
[I.C., sec. 15-6-110, as added by 1971, ch. 111, sec. 1, p. 233.]
Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.
[I.C., sec. 15-6-111, as added by 1971, ch. 111, sec. 1, p. 233.]
Payment made pursuant to sections 15-6-108, 15-6-109, 15-6-110 or 15-6-111 of this Part discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided here. The protection here provided shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.
[I.C., sec. 15-6-112, as added by 1971, ch. 111, sec. 1, p. 233.]
Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the account in which the party has or had immediately before his death a present right of withdrawal. The amount of the account subject to setoff is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of proof of net contributions, to an equal share with all parties having present rights of withdrawal.
[I.C., sec. 15-6-113, as added by 1971, ch. 111, sec. 1, p. 233.]
A deposit of community property in an account does not alter the community character of the property or community rights in the property, but a right of survivorship between parties married to each other arising from the express terms of the account or of the provisions of this chapter may not be altered by will.
[15-6-114, added 2016, ch. 363, sec. 1, p. 1071.]
(a) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, deposit agreement, pension plan, trust agreement, conveyance, agreement to pass property at death to the surviving spouse or any other written instrument effective as a contract, gift, conveyance, or trust is deemed to be nontestamentary, and this code does not invalidate the instrument or any provision:
(1) that money or other benefits theretofore due to, controlled or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently;
(2) that any money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promissor before payment or demand; or
(3) that any property which is the subject of the instrument shall pass to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently.
(b) Nothing in this section limits the rights of creditors under other laws of this state.
(c) In the case of agreements to pass property at death to the surviving spouse, such agreements shall be executed in writing, acknowledged or proved in the same manner as deeds to real property, contain a description of all real property, be altered or amended in the same way, and shall be revoked in the event husband and wife are subsequently divorced. The existence of such an agreement shall not affect the rights of creditors and any debt, cause of action or any obligation which could have been presented as a claim against the property of the decedent’s estate shall survive against the other parties to the agreement; statutes of limitations on any such debts, causes of action, choses in action, or other legal obligations shall continue to run as though the deceased person had survived and any action brought against the persons succeeding to such property shall be brought within the period limited for the commencement of such action, provided that recovery against the person succeeding to such property shall be limited to the fair market value of the property at the time of the death of the decedent.
(d) No such agreement shall be effective to pass title to property until it has been recorded, prior to the death of any party thereto, in the recorder’s office of the county of the domicile of the decedent and of each county in which real property described therein is located; nor shall any amendment to any such agreement be effective for any purpose until such amendment has been recorded in like manner prior to the death of any party thereto.
[I.C., sec. 15-6-201, as added by 1971, ch. 111, sec. 1, p. 233; am. 1973, ch. 167, sec. 18, p. 319.]
In this part:
(1) "Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
(2) "Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
(3) "Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
(4) "Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.
(5) "Security account" means: (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner’s death; (ii) an investment management or custody account with a trust company or a trust division of a bank with trust powers, including the securities in the account, a cash balance in the account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner’s death; or (iii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner’s death.
[15-6-301, added 1996, ch. 303, sec. 1, p. 996; am. 2002, ch. 122, sec. 1, p. 346.]
Only individuals whose registration of a security shows sole ownership by one (1) individual or multiple ownership by two (2) or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
[15-6-302, added 1996, ch. 303, sec. 1, p. 997.]
A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity’s principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner’s address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
[15-6-303, added 1996, ch. 303, sec. 1, p. 997.]
A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners in the form set forth in section 15-6-305, Idaho Code.
[15-6-304, added 1996, ch. 303, sec. 1, p. 997; am. 2000, ch. 244, sec. 1, p. 680.]
Registration in beneficiary form shall be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of a beneficiary.
[15-6-305, added 1996, ch. 303, sec. 1, p. 997; am. 2000, ch. 244, sec. 2, p. 680.]
The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner’s death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.
[15-6-306, added 1996, ch. 303, sec. 1, p. 997.]
On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.
[15-6-307, added 1996, ch. 303, sec. 1, p. 998.]
(1) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this part.
(2) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this part.
(3) A registering entity is discharged from all claims to a security by the estate, creditors, heirs or devisees of a deceased owner if it registers a transfer of the security in accordance with section 15-6-307, Idaho Code, and does so in good faith reliance (i) on the registration, (ii) on this part, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary’s representatives, or other information available to the registering entity. The protections of this part do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this part.
(4) The protection provided by this part to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
[15-6-308, added 1996, ch. 303, sec. 1, p. 998.]
(1) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this part and is not testamentary.
(2) This part does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.
[15-6-309, added 1996, ch. 303, sec. 1, p. 998.]
(1) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form, and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary’s descendants to take in the place of the named beneficiary in the event of the beneficiary’s death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary’s descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary’s domicile at the owner’s death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one (1) or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity’s terms and conditions.
(2) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
(a) Sole owner-sole beneficiary: John S. Brown, TOD (or POD) John S. Brown Jr.
(b) Multiple owners-sole beneficiary: John S. Brown, Mary B. Brown, JT TEN TOD John S. Brown Jr.
(c) Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown, Mary B. Brown, JT TEN TOD John S. Brown Jr., SUB BENE Peter Q. Brown or John S. Brown, Mary B. Brown, JT TEN TOD John S. Brown Jr., LDPS.
[15-6-310, added 1996, ch. 303, sec. 1, p. 999.]
(1) This part shall be known as and may be cited as the "Uniform TOD Security Registration Act."
(2) This act shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of this act among states enacting it.
(3) Unless displaced by the particular provisions of this act, the principles of law and equity supplement its provisions.
[15-6-311, added 1996, ch. 303, sec. 1, p. 999.]
This part applies to registrations of securities in beneficiary form made before or after the effective date of this act, by decedents dying on or after the effective date of this act.
[15-6-312, added 1996, ch. 303, sec. 1, p. 999.]
Any estate in real property held by a husband and wife as community property with right of survivorship shall, upon the death of one (1) spouse, transfer and belong to the surviving spouse. An estate in community property with right of survivorship is created by a grant, transfer or devise to a husband and wife, when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship. An estate in community property with right of survivorship may also be created by grant or transfer from a husband and wife, when holding title as community property or otherwise, to themselves or from either husband or wife to both husband and wife when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship.
[15-6-401, added 2008, ch. 175, sec. 1, p. 478.]
(1) In the case of real property owned by a husband and wife as community property with right of survivorship pursuant to section 15-6-401, Idaho Code, the right of survivorship is extinguished on the recordation in the office of the recorder of the county or counties where the real property is located an affidavit entitled "affidavit terminating right of survivorship" executed by either spouse under oath which sets forth:
(a) A stated intent by the spouse to terminate the survivorship right;
(b) A description in the instrument by which the right of survivorship was created, including the date the instrument was recorded and the county recorder’s book and page or instrument reference number; and
(c) The legal description of the real property affected by the affidavit.
The recordation shall not extinguish the community interest of either spouse.
(2) Divorce, or annulment of the marriage of, the husband and wife, unless otherwise ordered by the court in which the divorce is granted, severs the interests of the former spouses in property held by them at the time of the divorce or annulment as community property with the right of survivorship and transforms the interests of the former spouses into tenancies in common. A severance under 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 that a person relied upon as evidence of ownership in the ordinary course of transactions involving that property.
[15-6-402, added 2008, ch. 175, sec. 1, p. 478.]
Any estate in personal property held by a husband and wife as community property with right of survivorship shall, upon the death of one (1) spouse, transfer and belong solely to the surviving spouse as a nontestamentary disposition at death. The first deceased spouse does not have a right of disposition at death of any interest in community property with right of survivorship. An estate in community property with right of survivorship is created by a written grant, transfer or devise to a husband and wife when expressly declared in the written grant, transfer or devise to be an estate in community property with right of survivorship. An estate in community property with right of survivorship may also be created by written grant or transfer from a husband and wife, when holding title as community property or otherwise, to themselves or from either husband or wife to both husband and wife when expressly declared in the written grant, transfer or devise to be an estate in community property with right of survivorship. The grant, transfer or devise is effective upon delivery, while both husband and wife are alive, to the entity at which the personal property is held. A written grant, transfer or devise includes the making of the appropriate choice on a form from the entity at which the personal property is held.
[15-6-403, added 2015, ch. 247, sec. 1, p. 1043.]
(1) The right of survivorship is extinguished by a document executed by either spouse that sets forth:
(a) A stated intent by the spouse to terminate the survivorship right;
(b) A description of the instrument by which the right of survivorship was created, including the date the instrument was executed; and
(c) A description of the personal property affected by the document.
The execution of the document shall not extinguish the community interest of either spouse.
(2) The right of survivorship is extinguished upon delivery, while both husband and wife are alive, of the document described in subsection (1) of this section to the entity at which the personal property is held.
(3) Divorce or annulment of the marriage of the husband and wife, unless otherwise ordered by the court in which the divorce is granted, severs the interests of the former spouses in property held by them at the time of the divorce or annulment as community property with the right of survivorship and transforms the interests of the former spouses into tenancies in common. A severance under 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 that a person relied upon as evidence of ownership in the ordinary course of transactions involving that property.
(4) If both spouses are deceased and it cannot be reasonably ascertained which spouse was the first to die and which spouse survived, the right of survivorship shall be deemed terminated and the property treated as community property without the right of survivorship.
[15-6-404, added 2015, ch. 247, sec. 2, p. 1044.]
The trustee of a trust having its principal place of administration in this state shall register the trust in the court of this state at the principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is the trustee’s usual place of business where the records pertaining to the trust are kept, or at the trustee’s residence if he has no such place of business. In the case of co-trustees, the principal place of administration, if not otherwise designated in the trust instrument, is (1) the usual place of business of the corporate trustee if there is but one (1) corporate co-trustee, or (2) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one (1) such person and no corporate co-trustee, and otherwise (3) the usual place of business or residence of any of the co-trustees as agreed upon by them. The duty to register under this Part does not apply to the trustee of a trust if registration would be inconsistent with the retained jurisdiction of a foreign court from which the trustee cannot obtain release.
[I.C., sec. 15-7-101, as added by 1971, ch. 111, sec. 1, p. 233.]
Registration shall be accomplished by filing a statement indicating the name and address of the trustee in which it acknowledges the trusteeship. The statement shall indicate whether the trust has been registered elsewhere. The statement shall identify the trust: (1) in the case of a testamentary trust, by the name of the testator and the date and place of domiciliary probate; (2) in the case of a written inter vivos trust, by the name of each settlor and the original trustee and the date of the trust instrument; or (3) in the case of an oral trust, by information identifying the settlor or other source of funds and describing the time and manner of the trust’s creation and the terms of the trust, including the subject matter, beneficiaries and time of performance. If a trust has been registered elsewhere, registration in this state is ineffective until the earlier registration is released by order of the court where prior registration occurred, or an instrument executed by the trustee and all beneficiaries, filed with the registration in this state.
[I.C., sec. 15-7-102, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) By registering a trust, or accepting the trusteeship of a registered trust, the trustee submits personally to the jurisdiction of the court in any proceeding under 15-7-201 of this code relating to the trust that may be initiated by any interested person while the trust remains registered. Notice of any proceeding shall be delivered to the trustee, or mailed to him by ordinary first class mail at his address as listed in the registration or as thereafter reported to the court and to his address as then known to the petitioner.
(b) To the extent of their interests in the trust, all beneficiaries of a trust properly registered in this state are subject to the jurisdiction of the court of registration for the purposes of proceedings under section 15-7-201 of this code, provided notice is given pursuant to section 15-1-401 of this code.
[I.C., sec. 15-7-103, as added by 1971, ch. 111, sec. 1, p. 233.]
A trustee who fails to register a trust in a proper place as required by this Part, for purposes of any proceedings initiated by a beneficiary of the trust prior to registration, is subject to the personal jurisdiction of any court in which the trust could have been registered. In addition, any trustee who, within thirty (30) days after receipt of a written demand by a settlor or beneficiary of the trust, fails to register a trust as required by this chapter is subject to removal and denial of compensation or to surcharge as the court may direct unless directed not to register by all beneficiaries or as provided in section 15-1-108 of this code a person with a general power of appointment representing all the beneficiaries and acting for them. A provision in the terms of the trust purporting to excuse the trustee from the duty to register, or directing that the trust or trustee shall not be subject to the jurisdiction of the court, is ineffective.
[I.C., sec. 15-7-104, as added by 1971, ch. 111, sec. 1, p. 233.]
A foreign corporate trustee is required to qualify as a foreign corporation doing business in this state if it maintains the principal place of administration of any trust within the state. A foreign cotrustee is not required to qualify in this state solely because its cotrustee maintains the principal place of administration in this state. Unless otherwise doing business in this state, local qualification by a foreign trustee, corporate or individual, is not required in order for the trustee to receive distribution from a local estate or to hold, invest in, manage or acquire property located in this state, or maintain litigation. Nothing in this section affects a determination of what other acts require qualification as doing business in this state.
[I.C., sec. 15-7-105, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) The court of registration has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of trusts, the declaration of rights and the determination of other matters involving trustees and beneficiaries of trusts. These include, but are not limited to, proceedings to:
(1) appoint or remove a trustee;
(2) review trustees’ fees and to review and settle interim or final accounts;
(3) ascertain beneficiaries, to determine any question arising in the administration or distribution of any trust including questions of construction of trust instruments, to instruct trustees, and to determine the existence or nonexistence of any immunity, power, privilege, duty or right; and
(4) release registration of a trust.
(b) Neither registration of a trust nor a proceeding under this section results in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee’s fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously consistent with the terms of the trust, free of judicial intervention and without order, approval or other action of any court, subject to the jurisdiction of the court as invoked by interested parties or as otherwise exercised as provided by law.
[I.C., sec. 15-7-201, as added by 1971, ch. 111, sec. 1, p. 233.]
Venue for proceedings under section 15-7-201 of this Part involving registered trusts is in the place of registration. Venue for proceedings under section 15-7-201 of this Part involving trusts not registered in this state is in any place where the trust properly could have been registered, and otherwise by the rules of civil procedure.
[I.C., sec. 15-7-202, as added by 1971, ch. 111, sec. 1, p. 233.]
The court will not, over the objection of a party, entertain proceedings under section 15-7-201 of this Part involving a trust registered or having its principal place of administration in another state, unless (1) when all appropriate parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration or (2) when the interests of justice otherwise would seriously be impaired. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state in which the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.
[I.C., sec. 15-7-203, as added by 1971, ch. 111, sec. 1, p. 233.]
The court of the place in which the trust is registered has concurrent jurisdiction with other courts of this state of actions and proceedings to determine the existence or nonexistence of trusts created other than by will, of actions by or against creditors or debtors of trusts, and of other actions and proceedings involving trustees and third parties. Venue is determined by the rules generally applicable to civil action.
[I.C., sec. 15-7-204, as added by 1971, ch. 111, sec. 1, p. 233.]
On petition of an interested person, after notice to all interested persons, the court may review the propriety of employment of any person by a trustee including any attorney, auditor, investment advisor or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed, and the reasonableness of the compensation determined by the trustee for his own services. Any person who has received excessive compensation from a trust may be ordered to make appropriate refunds.
[I.C., sec. 15-7-205, as added by 1971, ch. 111, sec. 1, p. 233.]
Proceedings under section 15-7-201 of this Part are initiated by filing a petition in the court and giving notice pursuant to section 15-1-401 of this code to interested parties. The court may order notification of additional persons. A decree is valid as to all who are given notice of the proceeding though fewer than all interested parties are notified.
[I.C., sec. 15-7-206, as added by 1971, ch. 111, sec. 1, p. 233.]
Except as specifically provided, the general duty of the trustee to administer a trust expeditiously for the benefit of the beneficiaries is not altered by this code.
[I.C., sec. 15-7-301, as added by 1971, ch. 111, sec. 1, p. 233.]
Except as otherwise provided by the terms of the trust, the trustee shall observe the standards in dealing with the trust assets that would be observed by a prudent man dealing with the property of another, and if the trustee has special skills or is named trustee on the basis of representations of special skills or expertise, he is under a duty to use those skills.
[I.C., sec. 15-7-302, as added by 1971, ch. 111, sec. 1, p. 233.]
The trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration. In addition:
(a) Within thirty (30) days after his acceptance of the trust, the trustee shall inform in writing the current beneficiaries and if possible, one (1) or more persons who under section 15-1-403 of this code may represent beneficiaries with future interests, of the court in which the trust is registered and of his name and address.
(b) Upon reasonable request, the trustee shall provide the beneficiary with a copy of the terms of the trust which describe or affect his interest and with relevant information about the assets of the trust and the particulars relating to the administration.
(c) Upon reasonable request, a beneficiary is entitled to a statement of the accounts of the trust annually and on termination of the trust or change of the trustee.
[I.C., sec. 15-7-303, as added by 1971, ch. 111, sec. 1, p. 233.]
A trustee need not provide bond to secure performance of his duties unless required by the terms of the trust, reasonably requested by a beneficiary or found by the court to be necessary to protect the interests of the beneficiaries who are not able to protect themselves and whose interests otherwise are not adequately represented. On petition of the trustee or other interested person the court may excuse a requirement of bond, reduce the amount of the bond, release the surety, or permit the substitution of another bond with the same or different sureties. If bond is required, it shall be filed in the court of registration or other appropriate court in amounts and with sureties and liabilities as provided in sections 15-3-604 and 15-3-606 of this code relating to bonds of personal representatives.
[I.C., sec. 15-7-304, as added by 1971, ch. 111, sec. 1, p. 233.]
A trustee is under a continuing duty to administer the trust at a place appropriate to the purposes of the trust and to its sound, efficient management. If the principal place of administration becomes inappropriate for any reason, the court may enter any order furthering efficient administration and the interests of beneficiaries, including, if appropriate, release of registration, removal of the trustee and appointment of a trustee in another state. Trust provisions relating to the place of administration and to changes in the place of administration or of trustee control unless compliance would be contrary to efficient administration or the purposes of the trust. Views of adult beneficiaries shall be given weight in determining the suitability of the trustee and the place of administration.
[I.C., sec. 15-7-305, as added by 1971, ch. 111, sec. 1, p. 233.]
(a) Unless otherwise provided in the contract, a trustee is not personally liable on contracts properly entered into in his fiduciary capacity in the course of administration of the trust estate unless he fails to reveal his representative capacity and identify the trust estate in the contract.
(b) A trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if he is personally at fault.
(c) Claims based on contracts entered into by a trustee in his fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his fiduciary capacity, whether or not the trustee is personally liable therefor.
(d) The question of liability as between the trust estate and the trustee individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding.
[I.C., sec. 15-7-306, as added by 1971, ch. 111, sec. 1, p. 233.]
Unless previously barred by adjudication, consent or limitation, any claim against a trustee for breach of trust is barred as to any beneficiary who has received a final account or other statement fully disclosing the matter and showing termination of the trust relationship between the trustee and the beneficiary unless a proceeding to assert the claim is commenced within six (6) months after receipt of the final account or statement. In any event and notwithstanding lack of full disclosure a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of records for his examination is protected after three (3) years. A beneficiary is deemed to have received a final account or statement if, being an adult, it is received by him personally or if, being a minor or disabled person, it is received by his representative as described in subsections (a)(1) and (2) of section 15-1-403 of this code.
[I.C., sec. 15-7-307, as added by 1971, ch. 111, sec. 1, p. 233.]
(1) A trustee may be removed in accordance with the terms of the trust or by the court on its own initiative or on petition of a trustor, cotrustee or beneficiary.
(2) The court may remove a trustee or order other appropriate relief:
(a) If the trustee has committed a material breach of trust;
(b) If the trustee is unfit or unable to administer the trust;
(c) If lack of cooperation among cotrustees substantially impairs the administration of the trust;
(d) If the investment decisions of the trustee, although not constituting a breach of trust, have resulted in investment performance persistently and substantially below those of comparable trusts;
(e) If, because of changed circumstances, removal of the trustee would substantially further the trustor’s purpose in creating the trust; or
(f) For other good cause shown.
(3) Pending a final decision on the petition to remove the trustee, the court may order such appropriate relief as may be necessary to protect the trust property or the interests of the beneficiaries.
[15-7-308, added 2000, ch. 157, sec. 1, p. 400.]
The powers of trustees are set forth in the uniform powers of trustees act, sections 68-104 through 68-113, Idaho Code.
[I.C., sec. 15-7-401, as added by 1971, ch. 111, sec. 1, p. 233.]
In addition to the powers provided for in section 15-7-401, Idaho Code, a trustee shall have the following powers:
(1) To sever any trust estate on a fractional share basis into two (2) or more separate trusts for any reason.
(2) To divide a trust into two (2) or more single trusts or consolidate two (2) or more trusts into a single trust, upon those terms and conditions as it considers appropriate, provided that the trustee make a written determination that: (a) division or consolidation is not inconsistent with the intent of the trustor with regard to any trust to be consolidated or divided; (b) division or consolidation would facilitate administration of the trusts; and (c) division or consolidation would be in the best interests of all beneficiaries and not materially impair their respective interests. The trustee shall give written notice of the proposed division or consolidation by personal service or by certified mail to all interested persons of every trust affected by the division or consolidation and to any trustee of such trust(s) who does not join in the notice. The notice shall: (i) state the name and mailing address of the trustee; (ii) include a copy of the governing instrument of each trust to be divided or consolidated; (iii) include a statement of assets and liabilities of each trust to be divided or consolidated, dated within ninety (90) days of the notice; (iv) fully describe the terms and manner of division or consolidation; and (v) state the reasons supporting the proposed division or consolidation. The notice shall advise the recipient of the right to petition for a judicial determination of the proposed division or consolidation as provided in subsection (3) of this section. The notice shall include a form on which consent or objection to the proposed division or consolidation may be indicated. If the trustee receives written consent to the proposed division or consolidation from all persons entitled to notice, the trustee may divide or consolidate the trusts as provided in the notice. Any person dealing with the trustee of the resulting divided or consolidated trust is entitled to rely on the authority of that trustee to act and is not obliged to inquire into the validity or propriety of the division or consolidation under this section.
(3) Any interested person may petition the court of the county in which the principal place of administration of a trust is located for an order dividing one (1) or more trusts or consolidating two (2) or more trusts. If nonjudicial consolidation has been commenced pursuant to subsection (2) of this section, a petition may be filed under this section unless the trustee has received all necessary consents. The principal place of administration of the trust is the trustee’s usual place of business where the records pertaining to the trust are kept, or the trustee’s residence if the trustee has no such place of business. At the conclusion of the hearing, if the court finds that the requirements of subsections (2)(a), (b) and (c) of this section have been satisfied, it may direct division of one (1) or more trusts or consolidation of two (2) or more trusts on such terms and conditions as appropriate. The court, in its discretion, may provide for payment from one (1) or more of the trusts of reasonable fees and expenses for any party to the proceeding.
(4) If the net fair market value of the assets of a trust, taken collectively, is less than one hundred thousand dollars ($100,000), the trustee may terminate the trust by the following procedure:
(a) The trustee shall determine a plan for distribution that agrees, as nearly as possible, with the trust’s dispositive plan;
(b) The trustee shall give notice, in writing, to all interested persons of its intent to distribute the assets in accordance with the plan unless an interested person objects in writing within thirty (30) days after the date of the notice, containing also in such notice a statement of the provisions of paragraph (e) of this subsection;
(c) If no written objection is received by the trustee within thirty (30) days after the date of the written notice to all interested persons, the trustee shall proceed to distribute the trust assets in accordance with the plan;
(d) If the trustee receives a written objection to the plan within thirty (30) days after the date of the notice, the trustee shall not distribute the assets of the trust, but may then petition the court for an order authorizing distribution in accordance with the plan, and the court shall have plenary authority to approve, modify, or reject the trustee’s petition;
(e) For purposes of the thirty (30) day provisions of this subsection, the "date of notice" shall be the later of the date set forth in the notice (if any) or the date of actual mailing, if mailed, or of actual delivery, if delivered in person to the interested person, and provided further that an objection in writing is timely if mailed within thirty (30) days to the trustee, with the burden of proof of the date of such mailing to be on the interested person.
The existence of a spendthrift or similar provision shall not affect the trustee’s powers under this subsection unless the trust instrument specifically provides that the trustee shall not have the power to terminate the trust.
(5) This section applies to all trusts whenever created.
[15-7-402, added 1995, ch. 180, sec. 1, p. 663; am. 1997, ch. 211, sec. 1, p. 629; am. 2006, ch. 162, sec. 1, p. 482.]
Upon application to the court in which the trust is registered in the state of Idaho, and notice to all interested parties, the court may appoint the trustee as such (or as successor trustee, if applicable). Upon filing of an acceptance of the duties of the office of trustee by the trustee, containing the oath of the trustee to the effect that the trustee will perform the duties of his office according to the law, letters of trusteeship shall be issued, evidencing the authority of the trustee. Such letters may be recorded in the office of the county recorder in any county in which property held by the trust is located and, from the time of filing of such letters for record, notice is imparted to all persons of the contents of such letters of trusteeship. The application to the court shall contain at least the following:
(1) A statement of the interest of the applicant in the matter, including the priority of the person whose appointment is sought and a statement of the names and addresses and priority for appointment of any other persons having a prior or equal right to the appointment under law or the terms of the trust;
(2) A description of the trust;
(3) A statement identifying and indicating the address of any existing trustee of the trust whose appointment has not been terminated;
(4) The name and address of the person or entity for whom appointment is sought;
(5) A statement identifying and indicating the address of all current and contingent beneficiaries of the trust, and the ages of any such beneficiaries that are minors;
(6) A statement that a copy of the trust is either in the possession of the court or accompanies the application, or that copies of portions of the trust accompany the application showing:
(a) The grantor and original trustee of the trust,
(b) Any language regarding the appointment of an original or successor trustee, including any limitations thereon,
(c) The signature page(s) of the trust,
(d) Any amendments to the trust which relate to the appointment of an original or successor trustee, including any limitations thereon;
(7) A statement that, after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the trust;
(8) If the application is for appointment of a successor trustee, a statement of the method of termination of the appointment of the prior trustee and the effective date thereof and that copies of any documents relating thereto are in the possession of the court or accompany the application.
[15-7-403, added 1998, ch. 80, sec. 1, p. 286; am. 2004, ch. 55, sec. 3, p. 258.]
(1) Definition of terms:
(a) "Distribution trust advisor" means a person given authority by the trust instrument to exercise all or any portions of the powers and discretions set forth in subsection (11) of this section.
(b) "Excluded fiduciary" means any fiduciary excluded from exercising certain powers under the instrument, which powers may be exercised by the grantor or a trust advisor or a trust protector.
(c) "Fiduciary" means a trustee under any testamentary or other trust, an executor, administrator, or personal representative of a decedent’s estate, or any other party, including a trust advisor or a trust protector, who is acting in a fiduciary capacity for any person, trust or estate.
(d) "Instrument" means any revocable or irrevocable trust document whether created inter vivos or testamentary.
(e) "Investment trust advisor" means a person given authority by the trust instrument to exercise all or any portions of the powers and discretions set forth in subsection (10) of this section.
(f) "Trust advisor" means a distribution trust advisor or an investment advisor.
(g) "Trust protector" means any disinterested third party whose appointment is provided for in the trust instrument.
(2) Liability limits of excluded fiduciary. An excluded fiduciary is not liable, either individually or as a fiduciary, for either of the following:
(a) Any loss that results from compliance with a direction of the trust advisor;
(b) Any loss that results from a failure to take any action proposed by an excluded fiduciary that requires a prior authorization of the trust advisor if that excluded fiduciary timely sought but failed to obtain that authorization.
Any excluded fiduciary is also relieved from any obligation to perform investment reviews and make recommendations with respect to any investments to the extent the trust advisor had authority to direct the acquisition, disposition or retention of any such investment.
(3) Death of grantor. An excluded fiduciary may continue to follow the direction of the trust advisor upon the incapacity or death of the grantor if the instrument so allows.
(4) When trust advisor considered as fiduciary. If one (1) or more trust advisors are given authority by the terms of a governing instrument to direct, consent to, or disapprove a fiduciary’s investment decisions, or proposed investment decisions, such trust advisors shall be considered to be fiduciaries when exercising such authority unless the governing instrument provides otherwise.
(5) Excluded fiduciary’s liability for loss if trust protector appointed. If an instrument appoints a trust protector, the excluded fiduciary is not liable for any loss resulting from any action taken upon such trust protector’s direction.
(6) Powers and discretions of trust protector. The powers and discretions of a trust protector shall be as provided in the governing instrument and may, in the best interests of the trust, be exercised or not exercised in the sole and absolute discretion of the trust protector and shall be binding on all other persons. Such powers and discretion may include the following:
(a) To modify or amend the trust instrument to achieve favorable tax status or because of changes in the Internal Revenue Code, state law, or the rulings and regulations thereunder;
(b) To increase or decrease the interests of any beneficiaries to the trust;
(c) To modify the terms of any power of appointment granted by the trust. However, a modification or amendment may not grant a beneficial interest to any individual or class of individuals not specifically provided for under the trust instrument;
(d) To terminate the trust;
(e) To veto or direct trust distributions;
(f) To change situs or governing law of the trust, or both;
(g) To appoint a successor trust protector;
(h) To interpret terms of the trust instrument at the request of the trustee;
(i) To advise the trustee on matters concerning a beneficiary; and
(j) To amend or modify the trust instrument to take advantage of laws governing restraints on alienation, distribution of trust property, or the administration of the trust.
(7) Submission to court jurisdiction — Effect on trust advisor or trust protector. By accepting an appointment to serve as a trust advisor or trust protector of a trust that is subject to the laws of this state, the trust advisor or the trust protector submits to the jurisdiction of the courts of Idaho even if investment advisory agreements or other related agreements provide otherwise, and the trust advisor or trust protector may be made a party to any action or proceeding if issues relate to a decision or action of the trust advisor or trust protector.
(8) Powers of trust protector incorporated by reference in will or trust instrument. Any of the powers enumerated in subsection (6) of this section, as they exist at the time of the signing of a will by a testator or testatrix or at the time of the signing of a trust instrument by a trustor may be, by appropriate reference made thereto, incorporated in whole or in part in such will or trust instrument by a clearly expressed intention of a testator or testatrix of a will or trustor of a trust instrument.
(9) Investment trust advisor or distribution trust advisor provided for in trust instrument. A trust instrument governed by the laws of Idaho may provide for a person to act as an investment trust advisor or a distribution trust advisor, respectively, with regard to investment decisions or discretionary distributions.
(10) Powers and discretions of investment trust advisor. The powers and discretions of an investment trust advisor shall be provided in the trust instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the investment trust advisor and are binding on any other person and any other interested party, fiduciary, and excluded fiduciary. Unless the terms of the document provide otherwise, the investment trust advisor has the power to perform the following:
(a) Direct the trustee with respect to the retention, purchase, sale or encumbrance of trust property and the investment and reinvestment of principal and income of the trust;
(b) Vote proxies for securities held in trust; and
(c) Select one (1) or more investment advisors, managers or counselors, including the trustee, and delegate to them any of its powers.
(11) Powers and discretions of distribution trust advisor. The powers and discretions of a distribution trust advisor shall be provided in the trust instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the distribution trust advisor and are binding on any other person and any other interested party, fiduciary, and excluded fiduciary. Unless the terms of the document provide otherwise, the distribution trust advisor shall direct the trustee with regard to all discretionary distributions to beneficiaries.
[15-7-501, added 1999, ch. 331, sec. 1, p. 893; am. 2007, ch. 68, sec. 2, p. 178.]
(1) A settlor may provide in the terms of the trust that the interest of a beneficiary in the income or in the principal or in both may not be voluntarily or involuntarily transferred before payment or delivery of the interest to the beneficiary by the trustee.
(2) A declaration in a trust instrument that the interest of a beneficiary shall be held subject to a "spendthrift trust" is sufficient to restrain voluntary or involuntary alienation of the interest by a beneficiary to the maximum extent permitted under this section.
(3) Validity of a restraint on transfer in a trust document shall not require specific reference to or identical verbiage set forth in subsection (1) or (2) of this section.
(4) If a person is both a settlor and beneficiary of the same trust, a provision restraining the voluntary or involuntary transfer of the settlor’s beneficial interest in such trust does not prevent the settlor’s creditors from satisfying claims from the settlor’s interest in the trust estate that relates to the portion of the trust that was contributed by the settlor. For the purposes of this subsection, however, a settlor shall not be considered to be a beneficiary of an irrevocable trust created by the settlor and taxed for federal income tax purposes pursuant to the grantor trust rules of the Internal Revenue Code, sections 671 through 679, inclusive, if the settlor’s only beneficial interest in such trust consists of the right to receive a distribution from such trust in an amount equal to or less than the amount of the federal and state income tax liability incurred by the settlor as a result of such trust being characterized as a grantor trust pursuant to the aforementioned grantor trust rules.
(5) A beneficiary of a trust shall not be considered a settlor of a trust merely because of a lapse, waiver or release of:
(a) A power described in subsection (6) of this section; or
(b) The beneficiary’s right to withdraw a part of the trust property to the extent that the value of the property affected by the lapse, waiver or release in any calendar year does not exceed the greater of the amount specified in:
(i) Section 2041(b)(2) or 2514(e) of the Internal Revenue Code of 1986, as amended; or
(ii) Section 2503(b) of the Internal Revenue Code of 1986, as amended.
(6) A beneficiary of a trust shall not be considered a settlor, to have made a voluntary or involuntary transfer of the beneficiary’s interest in a trust, or to have the power to make a voluntary or involuntary transfer of the beneficiary’s interest in the trust, merely because the beneficiary, in any capacity including, but not limited to, as a trustee, holds or exercises:
(a) A presently exercisable power to:
(i) Consume, invade, appropriate or distribute property to or for the benefit of the beneficiary, if the power is either exercisable only on consent of another person holding an interest adverse to the beneficiary’s interest or limited by an ascertainable standard including, but not limited to, health, education, support or maintenance of the beneficiary; or
(ii) Exercise a limited power of appointment, as defined in the Internal Revenue Code of 1986, as amended, including, but not limited to, the power to appoint any property of the trust to or for the benefit of a person other than the beneficiary, a creditor of the beneficiary, the beneficiary’s estate, or a creditor of the beneficiary’s estate;
(b) A testamentary power of appointment; or
(c) A presently exercisable right described in subsection (5)(b) of this section.
[15-7-502, added 2007, ch. 68, sec. 4, p. 181; am. 2015, ch. 77, sec. 1, p. 199.]
(1) A trust may be created for any purpose, charitable or noncharitable, under the terms of a trust agreement or will. A noncharitable trust so created is a purpose trust and shall exist to serve a purpose.
(2) A purpose trust does not need a beneficiary.
(3) A purpose trust shall be enforceable on the terms set forth in the trust agreement by the person named to enforce the trust; provided, however, that the failure to name a person to enforce the trust shall not void the trust or otherwise cause it to be unenforceable.
(4) A person named to enforce a purpose trust may resign or be removed or replaced in accordance with the trust.
(5) If the person named to enforce the trust resigns, or is removed, or is unwilling or unable to act, and if no successor is named in accordance with the trust, the trustee shall forthwith apply to the court having jurisdiction of the purpose trust for directions or for a person to be appointed by the court to enforce the trust. The court having jurisdiction of the purpose trust shall be empowered to make an order appointing a person to enforce the trust on such terms as it sees fit and to designate how successors will be named.
(6) During any period of time when no person is named or acting to enforce a purpose trust, the court having jurisdiction of the purpose trust shall have the right to exercise all powers necessary to enforce the trust in order to serve the purpose for which it was created.
(7) Any interested person, as defined in section 15-1-201(25), Idaho Code, may bring an action under law or equity to enforce a purpose trust.
(8) Charitable trusts are not governed by this section.
(9) A purpose trust created prior to July 1, 2005, shall be valid and enforceable from the date of the trust’s creation.
[15-7-601, added 2005, ch. 99, sec. 1, p. 319; am. 2020, ch. 82, sec. 6, p. 178.]
A trust shall be valid and enforceable even though it may not be funded at a given time, or from time to time, or does not have any res or corpus or otherwise contain any asset of any nature.
[15-7-701, added 2006, ch. 161, sec. 2, p. 482.]
(1) This chapter shall be known and may be cited as either the "Trust and Estate Dispute Resolution Act" or "TEDRA."
(2) The overall purpose of this chapter is to set forth generally applicable statutory provisions for the resolution of disputes and other matters involving trusts and estates in a single chapter under title 15, Idaho Code. The provisions of this chapter are intended to provide nonjudicial methods for the resolution of matters by agreement. This chapter also provides for judicial resolution of disputes if a nonjudicial resolution is not obtained that are alternatives to the other provisions for resolution of contested matters under other chapters of title 15, Idaho Code. The provisions of this chapter shall not supersede, but shall supplement, any otherwise applicable provisions and procedures contained in title 15, Idaho Code, or other Idaho law.
[15-8-101, added 2005, ch. 122, sec. 1, p. 397.]
(1) It is the intent of the legislature that the courts shall have full and ample power and authority under this chapter to administer and settle:
(a) All matters concerning the estates and assets of incapacitated, missing, and deceased persons, including matters involving nonprobate assets and powers of attorney, in accordance with this chapter; and
(b) All trusts and trust matters.
(2) If this title 15, Idaho Code, should in any case or under any circumstances be inapplicable, insufficient or doubtful with reference to the administration and settlement of matters listed in subsection (1) of this section, the court nevertheless has full power and authority to proceed with such administration and settlement in any manner and way that to the court seems right and proper, all to the end that the matters be expeditiously administered and settled by the court.
[15-8-102, added 2005, ch. 122, sec. 1, p. 398.]
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:
(1) "Matter" includes any issue, question or dispute involving:
(a) The determination of any class of creditors, devisees, legatees, heirs, next of kin, or other persons interested in an estate, trust, nonprobate asset, or with respect to any other asset or property interest passing at death;
(b) The direction of a personal representative or trustee to do or to abstain from doing any act in a fiduciary capacity;
(c) The determination of any question arising in the administration of an estate or trust, or with respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, that may include, without limitation, questions relating to:
(i) The construction of wills, trusts, devolution agreements, and other writings;
(ii) A change of personal representative or trustee;
(iii) A change of the situs of a trust;
(iv) An accounting from a personal representative or trustee; or
(v) The determination of fees for a personal representative or trustee;
(d) The grant to a personal representative or trustee of any necessary or desirable power not otherwise granted in the governing instrument or given by law;
(e) The amendment, reformation, or conformation of a will or a trust instrument to comply with statutes and regulations of the United States internal revenue service in order to more efficiently allocate exemptions or to achieve qualification for deductions, elections, and other tax requirements including, but not limited to, the qualification of any gift thereunder for the benefit of a surviving spouse who is not a citizen of the United States for the estate tax marital deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a qualified domestic trust under section 2056A of the Internal Revenue Code, the qualification of any gift thereunder as a qualified conservation easement as permitted by federal law, or the qualification of any gift for the charitable estate tax deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust; and
(f) With respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, including actual joint tenancy property, property subject to a devolution agreement, or assets subject to a pay on death or transfer on death designation:
(i) The ascertaining of any class of creditors or others for purposes of section 15-6-107, Idaho Code;
(ii) The ordering of a custodian of any of the decedent’s records relating to a nonprobate asset to do or abstain from doing any particular act with respect to those records;
(iii) The determination of any question arising in the administration of a nonprobate asset under section 15-6-107, Idaho Code;
(iv) The determination of any questions relating to the abatement, rights of creditors, or other matter relating to the administration, settlement, or final disposition of a nonprobate asset under title 15, Idaho Code; and
(v) The resolution of any matter referencing this chapter, including a determination of any questions relating to the ownership or distribution of an individual retirement account on the death of the spouse of the account holder as contemplated by section 11-604A(6), Idaho Code;
(g) The resolution of any other matter that could affect the nonprobate asset.
(2) "Nonprobate assets" means assets that are covered by chapter 6, title 15, Idaho Code.
(3) "Party" or "parties" means each of the following persons who has an interest in the subject of the particular proceeding and whose name and address are known to, or are reasonably ascertainable by, the petitioner:
(a) The trustor if living;
(b) The trustee;
(c) The personal representative;
(d) An heir;
(e) A beneficiary, including devisees, legatees, and trust beneficiaries;
(f) The surviving spouse of a decedent with respect to his or her interest in the decedent’s property;
(g) A guardian ad litem;
(h) A creditor;
(i) Any other person who has an interest in the subject of the particular proceeding;
(j) The attorney general if required under section 67-1401(5), Idaho Code;
(k) Any duly appointed and acting legal representative of a party such as a guardian, conservator, special representative, or attorney in fact;
(l) Where applicable, the virtual representative of any person described in this subsection (3), the giving of notice to whom would meet notice requirements as provided in section 15-8-204, Idaho Code; and
(m) The owner or the personal representative of the estate of the deceased owner of the nonprobate asset that is the subject of the particular proceeding, if the subject of the particular proceeding relates to the beneficiary’s liability to a decedent’s estate or creditors under section 15-6-107, Idaho Code.
(4) "Persons interested in the estate or trust" means the trustor, if living, all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust.
(5) "Representative" and other similar terms refer to a person who virtually represents another person under section 15-8-205, Idaho Code.
(6) "Trustee" means any acting and qualified trustee of the trust.
[15-8-103, added 2005, ch. 122, sec. 1, p. 398; am. 2007, ch. 341, sec. 1, p. 1000.]
(1) Any party may have a judicial proceeding for the declaration of rights or legal relations with respect to:
(a) Any matter, as defined in section 15-8-103, Idaho Code;
(b) The resolution of any other case or controversy that arises under the Idaho Code and referenced judicial proceedings under this chapter; or
(c) The determination of the persons entitled to notice under section 15-8-204, Idaho Code.
(2) The provisions of this chapter apply to disputes arising in connection with estates of incapacitated persons unless otherwise covered by chapter 5, title 15, Idaho Code. The provisions of this chapter shall not supersede, but shall supplement, any otherwise applicable provisions and procedures contained in title 15, Idaho Code, or other Idaho law. The provisions of this chapter shall not apply to actions for wrongful death under any other chapter or title of Idaho Code.
[15-8-201, added 2005, ch. 122, sec. 1, p. 400.]
(1) The provisions of this chapter shall control over any inconsistent provision of the Idaho rules of civil procedure.
(2) A judicial proceeding under this chapter may be commenced as a new action or as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset.
(3) Once commenced, the action may be consolidated with an existing proceeding or converted to a separate action upon the motion of a party for good cause shown, or by the court on its own motion.
(4) The Idaho rules of civil procedure apply to judicial proceedings under this chapter only to the extent that they are consistent with this chapter, unless otherwise provided by Idaho Code, or ordered by the court under section 15-8-102, Idaho Code, or provided by other applicable Idaho rules of civil procedure.
[15-8-202, added 2005, ch. 122, sec. 1, p. 400.]
The Idaho rules of civil procedure apply to all proceedings under part 2 of this chapter.
[15-8-203, added 2005, ch. 122, sec. 1, p. 401.]
(1) Subject to section 15-8-207, Idaho Code, in all judicial proceedings under this chapter that require notice, the notice must be personally served on or mailed to all parties or the parties’ virtual representatives at least fourteen (14) days before the hearing on the petition, unless a different period is provided by statute or ordered by the court. The date of service shall be determined under the Idaho rules of civil procedure.
(2) Proof of the service or mailing required in this section must be made by affidavit or declaration filed at or before the hearing.
[15-8-204, added 2005, ch. 122, sec. 1, p. 401.]
(1) This section is intended to adopt the common law concept of virtual representation. This section supplements the common law relating to the doctrine of virtual representation and the provisions of section 15-1-403, Idaho Code, and shall not be construed as limiting the application of that common law doctrine or the provisions of section 15-1-403, Idaho Code.
(2) Any notice requirement in this chapter is satisfied if notice is given as follows:
(a) Where an interest in an estate, trust, or nonprobate asset, or an interest that may be affected by a power of attorney, has been given to persons who comprise a certain class upon the happening of a certain event, notice may be given to the living persons who would constitute the class if the event had happened immediately before the commencement of the proceedings requiring notice, and the persons shall virtually represent all other members of the class;
(b) Where an interest in an estate, trust, or nonprobate asset, or an interest that may be affected by a power of attorney, has been given to a living person, and the same interest, or a share in it, is to pass to the surviving spouse or to persons who are, or might be, the distributees, heirs, issue, or other kindred of that living person upon the happening of a future event, notice may be given to that living person, and the living person shall virtually represent the surviving spouse, distributees, heirs, issue, or other kindred of the person; and
(c) Except as otherwise provided in this subsection (2), where an interest in an estate, trust, or nonprobate asset, or an interest that may be affected by a power of attorney, has been given to a person or a class of persons, or both, upon the happening of any future event, and the same interest or a share of the interest is to pass to another person or class of persons, or both, upon the happening of an additional future event, notice may be given to the living person or persons who would take the interest upon the happening of the first event, and the living person or persons shall virtually represent the persons and classes of persons who might take upon the happening of the additional future event.
(3) A party is not virtually represented by a person receiving notice if a conflict of interest involving the matter is known to exist between the notified person and the party.
(4) An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented.
[15-8-205, added 2005, ch. 122, sec. 1, p. 401.]
Nothing in this chapter eliminates the requirement to give notice to a person who has filed a demand for notice pursuant to section 15-3-204, Idaho Code.
[15-8-206, added 2005, ch. 122, sec. 1, p. 402.]
Notwithstanding any other provision of this chapter, notice of a hearing does not need to be given to a legally competent person who has waived in writing notice of the hearing in person or by attorney, or who has appeared at the hearing without objecting to the lack of proper notice or personal jurisdiction. The waiver of notice may apply either to a specific hearing or to any and all hearings and proceedings to be held, in which event the waiver of notice is of continuing effect unless subsequently revoked by the filing of a written notice of revocation of the waiver and the mailing of a copy of the notice of revocation of the waiver to the other parties. Unless notice of a hearing is required to be given by publication, if all persons entitled to notice of the hearing waive the notice or appear at the hearing without objecting to the lack of proper notice or personal jurisdiction, the court may hear the matter immediately. A guardian or conservator or a guardian ad litem may make the waivers on behalf of the incapacitated person, and a trustee may make the waivers on behalf of any competent or incapacitated beneficiary of the trust. A consul or other representative of a foreign government, whose appearance has been entered as provided by law on behalf of any person residing in a foreign country, may make the waiver of notice on behalf of the person.
[15-8-207, added 2005, ch. 122, sec. 1, p. 402.]
(1) Either the district court or the court on appeal may, in its discretion, order costs, including reasonable attorney’s fees, to be awarded to any party:
(a) From any party to the proceedings;
(b) From the assets of the estate or trust involved in the proceedings; or
(c) From any nonprobate asset that is the subject of the proceedings. The court may order the costs to be paid in such amount and in such manner as the court determines to be equitable.
(2) This section applies to all proceedings governed by this chapter including, but not limited to, proceedings involving trusts, decedent’s estates and properties, and guardianship matters. Except as provided in section 12-117, Idaho Code, this section shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, unless such statute specifically provides otherwise.
[15-8-208, added 2005, ch. 122, sec. 1, p. 402.]
(1) The court, upon its own motion or upon request of one (1) or more of the parties, at any stage of a judicial proceeding or at any time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, or incapacitated, or unborn, or unascertained person, or any person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.
(2) The court appointed guardian ad litem supersedes the special representative if so provided in the court order.
(3) The court may appoint the guardian ad litem at an ex parte hearing, or the court may order a hearing as provided in section 15-8-201, Idaho Code, with notice as provided in this section and section 15-8-204, Idaho Code.
(4) The guardian ad litem is entitled to reasonable compensation for services. Such compensation is to be paid from the principal of the estate or trust whose beneficiaries are represented.
[15-8-209, added 2005, ch. 122, sec. 1, p. 402.]
If a party is entitled to a trial by jury and a jury is demanded, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice, shall settle and frame the issues to be tried. Any jury for any proceeding under this part 2 shall consist of six (6) jurors. If a jury is not demanded, the court shall try the issues, and sign and file its findings and decision in writing, as provided for in civil actions.
[15-8-210, added 2005, ch. 122, sec. 1, p. 403.]
Judgment on the issues, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions.
[15-8-211, added 2005, ch. 122, sec. 1, p. 403.]
An interested party may seek appellate review of a final order, judgment, or decree of the court respecting a judicial proceeding under this chapter. The review must be done in the manner and way provided by law for appeals in civil actions.
[15-8-212, added 2005, ch. 122, sec. 1, p. 403.]
The purpose of this part 3 is to provide a binding nonjudicial procedure to resolve matters through written agreements among the parties interested in the estate or trust. The procedure is supplemental to, and may not derogate from, any other proceeding or provision authorized by statute or the common law.
[15-8-301, added 2005, ch. 122, sec. 1, p. 403.]
Sections 15-8-301 through 15-8-305, Idaho Code, shall be applicable to the resolution of any matter, as defined in section 15-8-103, Idaho Code, other than matters subject to chapter 5, title 15, Idaho Code, or a trust for a minor or other incapacitated person created at its inception by the judgment or decree of a court unless the judgment or decree provides that sections 15-8-301 through 15-8-305, Idaho Code, shall be applicable. If all parties agree to a resolution of any such matter, then the agreement shall be evidenced by a written agreement signed by all parties. Subject to the provisions of section 15-8-304, Idaho Code, the written agreement shall be binding and conclusive on all persons interested in the estate or trust. The agreement shall identify the subject matter of the dispute and the parties. If the agreement or a memorandum of the agreement is to be filed with the court under section 15-8-303, Idaho Code, the agreement may, but need not, include provisions specifically addressing jurisdiction, governing law, the waiver of notice of the filing and the discharge of any special representative who has acted with respect to the agreement. If a party who virtually represents another person under section 15-8-205, Idaho Code, signs the agreement, then the party’s signature constitutes the signature of all persons whom the party virtually represents, and all the virtually represented persons shall be bound by the agreement.
[15-8-302, added 2005, ch. 122, sec. 1, p. 403.]
(1) Any party, or a party’s legal representative, may file the written agreement or a memorandum summarizing the written agreement with the court having jurisdiction over the estate or trust. However, if a special representative is a party to the written agreement, the agreement or a memorandum of its terms may not be filed within thirty (30) days of the agreement’s execution by all parties unless the written consent of the special representative is filed along with, or included within, the provision of such agreement or memorandum. The agreement or a memorandum of its terms may be filed after a special representative has commenced a proceeding under section 15-8-304, Idaho Code, only after the court has determined that the special representative has adequately represented and protected the parties represented. Failure to complete any action authorized or required under this subsection does not cause the written agreement to be ineffective and the agreement is nonetheless binding and conclusive on all persons interested in the estate or trust.
(2) On filing the agreement or memorandum, the agreement will be deemed approved by the court and is equivalent to a final court order binding on all persons interested in the estate or trust.
[15-8-303, added 2005, ch. 122, sec. 1, p. 404.]
Within thirty (30) days of execution of the agreement by all parties, the special representative may notice a hearing for presentation of the written agreement to a court of competent jurisdiction. The special representative shall provide notice of the time and date of the hearing to each party to the agreement whose address is known, unless such notice has been waived. Proof of mailing or delivery of the notice must be filed with the court. At such hearing, the court shall review the agreement on behalf of the parties represented by the special representative. The court shall determine whether or not the interests of the represented parties have been adequately represented and protected, and an order declaring the court’s determination shall be entered. If the court determines that such interests have not been adequately represented and protected, the agreement shall be declared of no effect.
[15-8-304, added 2005, ch. 122, sec. 1, p. 404.]
(1) (a) The personal representative or trustee may petition the court having jurisdiction over the matter for the appointment of a special representative to represent a person who is interested in the estate or trust and:
(i) Who is a minor;
(ii) Who is incompetent or disabled;
(iii) Who is yet unborn or unascertained; or
(iv) Whose identity or address is unknown.
The petition may be heard by the court without notice.
(b) In appointing the special representative, the court shall give due consideration and deference to any nomination(s) made in the petition, the special skills required in the representation, and the need for a representative who will act independently and prudently. The nomination of a person as special representative by the personal representative or trustee and the person’s willingness to serve as special representative are not grounds by themselves for finding a lack of independence; provided however, the court may consider any interests that the nominating fiduciary may have in the estate or trust in making the determination.
(c) The special representative may enter into a binding agreement on behalf of the person or beneficiary. The special representative may be appointed for more than one (1) person or class of persons if the interests of such persons or class are not in conflict. The petition shall be verified. The petition and order appointing the special representative may be in the following forms:
CAPTION OF CASE PETITION FOR APPOINTMENT OF
SPECIAL REPRESENTATIVE UNDER
/SECTION 15-8-305, IDAHO CODE
The undersigned petitioner petitions the court for the appointment of a special representative in accordance with section 15-8-305, Idaho Code, and represents to the court as follows:
Petitioner. Petitioner …………… is the qualified and presently acting (personal representative) (trustee) of the above (estate) (trust) having been named (personal representative) (trustee) under (describe will and reference probate order or describe trust instrument.)
Issue Concerning (Estate) (Trust) Administration. A question concerning administration of the (estate) (trust) has arisen as to (describe issue, for example, "Related to interpretation, construction, administration, distribution.") The issues are appropriate for determination under section 15-8-305, Idaho Code.
Beneficiaries. The beneficiaries of the (estate) (trust) include persons who are unborn, unknown, or unascertained persons, or who are under eighteen (18) years of age: (list, with status of each.)
Special Representative. The nominated special representative ……….. is a lawyer licensed to practice before the courts of this state or an individual with special skills or training in the administration of estates or trusts. The nominated special representative does not have an interest in the affected estate or trust and is not related to any person interested in the estate or trust. The nominated special representative is willing to serve. The petitioner has no reason to believe that the nominated special representative will not act in an independent and prudent manner and in the best interests of the represented parties. (It is recommended that the petitioner also include information specifying the particular skills of the nominated special representative that relate to the matter in issue.)
Resolution. Petitioner desires to achieve a resolution of the questions that have arisen concerning the (estate) (trust). Petitioner believes that proceeding in accordance with the procedures permitted under sections 15-8-301 through 15-8-305, Idaho Code, would be in the best interests of the (estate) (trust) and the beneficiaries.
Request of Court. Petitioner requests that (……………, an attorney licensed to practice in the state of Idaho,) (OR) (…………….., an individual with special skills or training in the administration of estates or trusts,) be appointed special representative for those beneficiaries who are not yet adults, as well as for the unborn, unknown, and/or unascertained beneficiaries, as provided under section 15-8-305, Idaho Code.
DATED this ……. date of ……………, ………….
VERIFICATION
I certify under penalty of perjury under the laws of the state of Idaho that the foregoing is true and correct.
DATED ………….., ……….., at …………………., Idaho.
CAPTION OF CASE ORDER FOR APPOINTMENT OF
SPECIAL REPRESENTATIVE UNDER
/SECTION 15-8-305, IDAHO CODE
THIS MATTER having come on for hearing before this Court on Petition for Appointment of Special Representative filed herein, and it appearing that it would be in the best interests of the (estate) (trust) described in the Petition to appoint a special representative to address the issues that have arisen concerning the (estate) (trust) and the Court finding that the facts stated in the Petition are true, now, therefore,
IT IS ORDERED that ………………….. is appointed under section 15-8-305, Idaho Code, as special representative for the (estate) (trust) beneficiaries who are not yet adult age, and for unborn, unknown, or unascertained beneficiaries to represent their respective interests in the (estate) (trust) as provided in section 15-8-305, Idaho Code. The special representative shall be discharged of responsibility with respect to the (estate) (trust) at such time as a written agreement is executed resolving the present issues, all as provided in that statute, or if an agreement is not reached within six (6) months from entry of this Order, the special representative appointed under this Order shall be discharged of responsibility, subject to subsequent reappointment under section 15-8-305, Idaho Code.
DONE IN OPEN COURT this …….. day of ………………., ………
(2) Upon appointment by the court, the special representative shall file a sworn certificate made upon penalty of perjury that he or she:
(a) Is not interested in the estate or trust;
(b) Is not related to any person interested in the estate or trust;
(c) Is willing to serve; and
(d) Will act independently, prudently, and in the best interests of the represented parties.
(3) The special representative must be a lawyer licensed to practice before the courts of this state, or an individual with special skills or training in the administration of estates or trusts. The special representative may not have an interest in the affected estate or trust, and may not be related to a person interested in the estate or trust. The special representative is entitled to reasonable compensation for services, which must be paid from the principal of the estate or trust whose beneficiaries are represented.
(4) The special representative shall be discharged from any responsibility and shall have no further duties with respect to the estate or trust or with respect to any person interested in the estate or trust, on the earlier of:
(a) The expiration of six (6) months from the date the special representative was appointed, unless the order appointing the special representative provides otherwise; or
(b) The execution of the written agreement by all parties or their virtual representatives.
(5) Any action against a special representative must be brought before the earlier of:
(a) One (1) year from the discharge of the special representative; or
(b) The entry of an order by a court of competent jurisdiction under section 15-8-304, Idaho Code, approving the written agreement executed by all interested parties in accordance with the provisions of section 15-8-302, Idaho Code.
[15-8-305, added 2005, ch. 122, sec. 1, p. 404.]
This chapter may be known and cited as the "Uniform Power of Attorney Act."
[15-12-101, added 2008, ch. 186, sec. 2, p. 560.]
In this chapter:
(1) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an original agent, coagent, successor agent or a person to which an agent’s authority is delegated.
(2) "Durable" with respect to a power of attorney means not terminated by the principal’s incapacity.
(3) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(4) "Good faith" means honesty in fact.
(5) "Incapacity" means inability of an individual to manage property or business affairs because:
(a) The individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(b) The individual is:
(i) Missing;
(ii) Detained, including incarcerated in a penal system; or
(iii) Outside the United States and unable to return.
(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
(7) "Power of attorney" means a writing or other record which grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.
(8) "Presently exercisable general power of appointment" with respect to the property or property interest subject to the power means that the power is exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors, or the creditors of the principal’s estate. The term includes a power of appointment that is not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.
(9) "Principal" means an individual who grants authority to an agent in a power of attorney.
(10) "Property" means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein.
(11) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(12) "Sign" means, with present intent to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol; or
(b) To attach to or logically associate with the record an electronic sound, symbol or process.
(13) "State" means a state of the United States, the District of Columbia, Puerto Rico, United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
(14) "Stocks and bonds" means stocks, bonds, mutual funds and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner, except commodity futures contracts and call and put options on stocks and stock indexes.
[15-12-102, added 2008, ch. 186, sec. 2, p. 560.]
This chapter applies to all powers of attorney except:
(1) A power to the extent it is coupled with an interest in the subject of the power, including, but not limited to, a power given to or for the benefit of a creditor in connection with a credit transaction;
(2) A power to make health care decisions;
(3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity; and
(4) A power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.
[15-12-103, added 2008, ch. 186, sec. 2, p. 561.]
A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal.
[15-12-104, added 2008, ch. 186, sec. 2, p. 561.]
A power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney, including as set forth in section 73-114, Idaho Code. The signature is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized to take acknowledgments, including as set forth in section 51-109, Idaho Code.
[15-12-105, added 2008, ch. 186, sec. 2, p. 561; am. 2017, ch. 192, sec. 10, p. 455.]
(1) A power of attorney executed in this state on or after the effective date of this chapter is valid if its execution complies with section 15-12-105, Idaho Code.
(2) A power of attorney executed in this state before the effective date of this chapter is valid if its execution complied with the law of this state as it existed at the time of execution.
(3) A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:
(a) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to section 15-12-107, Idaho Code; or
(b) The requirements for a military power of attorney pursuant to 10 U.S.C. section 1044b, as amended.
(4) Except as otherwise provided by statute other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
[15-12-106, added 2008, ch. 186, sec. 2, p. 561.]
The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.
[15-12-107, added 2008, ch. 186, sec. 2, p. 562.]
(1) In a power of attorney, a principal may nominate a conservator of the principal’s estate for consideration by the court if protective proceedings for the principal’s estate are thereafter commenced.
(2) If, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal’s property, including appointment of a temporary conservator pursuant to section 15-5-407A, Idaho Code, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is terminated unless otherwise ordered by the court.
Nomination of conservator — relation of agent to court-appointed fiduciary. [effective January 1, 2027]
(1) In a power of attorney, a principal may nominate a conservator of the principal’s estate for consideration by the court if protective proceedings for the principal’s estate are thereafter commenced.
(2) If, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal’s property, including appointment of a temporary conservator pursuant to section 15-5-125, Idaho Code, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is terminated unless otherwise ordered by the court.
[15-12-108, added 2008, ch. 186, sec. 2, p. 562; am. 2013, ch. 144, sec. 1, p. 341; am. 2026, ch. 79, sec. 11, p. 396.]
(1) A power of attorney is effective when executed unless the principal provides in the power of attorney that it is to become effective at a future date or upon the occurrence of a future event or contingency.
(2) If a power of attorney is to become effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one (1) or more persons to determine in a writing or other record that the event or contingency has occurred.
(3) If a power of attorney is to become effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:
(a) A physician or licensed psychologist that the principal is incapacitated within the meaning of section 15-12-102(5)(a), Idaho Code; or
(b) A licensed attorney at law, judge or appropriate governmental official that the principal is incapacitated within the meaning of section 15-12-102(5)(b), Idaho Code.
(4) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal’s personal representative as defined in, and pursuant to, the health insurance portability and accountability act, sections 1171 through 1179 of the social security act, 42 U.S.C. section 1320d through 1320d-8, as amended, and applicable regulations, to obtain access to the principal’s health care information and communicate with the principal’s health care provider.
[15-12-109, added 2008, ch. 186, sec. 2, p. 562.]
(1) A power of attorney terminates when:
(a) The principal dies;
(b) The principal becomes incapacitated, if the power of attorney is not durable;
(c) The principal revokes the power of attorney;
(d) The power of attorney provides it terminates;
(e) The purpose of the power of attorney is accomplished; or
(f) The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.
(2) An agent’s authority terminates when:
(a) The principal revokes the agent’s authority;
(b) The agent dies, becomes incapacitated or resigns;
(c) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or
(d) The power of attorney terminates.
(3) Unless the power of attorney otherwise provides, an agent’s authority is exercisable until the power of attorney terminates, notwithstanding a lapse of time since the execution of the power of attorney.
(4) Termination of an agent’s authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.
(5) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.
(6) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.
[15-12-110, added 2008, ch. 186, sec. 2, p. 563.]
(1) A principal may designate two (2) or more persons to act as coagents. Unless a power of attorney otherwise provides, each coagent may exercise its authority independently.
(2) A principal may designate one (1) or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve, including a successor coagent. A principal may grant to an agent or other person designated by name, office or function, authority to designate one (1) or more successor agents, including a successor coagent. Unless a power of attorney otherwise provides, a successor agent:
(a) Has the same authority as that granted to the original agent; and
(b) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.
(3) Except as otherwise provided in the power of attorney and subsection (4) of this section, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.
(4) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal’s best interest. An agent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.
[15-12-111, added 2008, ch. 186, sec. 2, p. 563.]
Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.
[15-12-112, added 2008, ch. 186, sec. 2, p. 564.]
Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.
[15-12-113, added 2008, ch. 186, sec. 2, p. 564.]
(1) Notwithstanding provisions in a power of attorney, an agent that has accepted appointment shall:
(a) Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;
(b) Act in good faith; and
(c) Act only within the scope of authority granted in the power of attorney.
(2) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:
(a) Act loyally for the principal’s benefit;
(b) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;
(c) Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances;
(d) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;
(e) Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest; and
(f) Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:
(i) The value and nature of the principal’s property;
(ii) The principal’s foreseeable obligations and need for maintenance;
(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes; and
(iv) Eligibility for a benefit, a program or assistance under a statute or governmental regulation.
(3) An agent that acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(4) An agent that acts with care, competence and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
(5) If an agent is selected by the principal because of special skills or expertise possessed by the agent, or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence and diligence under the circumstances.
(6) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(7) An agent that exercises authority to delegate to another person the authority granted by the principal or that employs another person on behalf of the principal is not liable for an act, error of judgment or default of that person if the agent exercises care, competence and diligence in selecting and monitoring the person.
(8) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, conservator, other fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, the agent shall comply with the request within thirty (30) days or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty (30) days.
[15-12-114, added 2008, ch. 186, sec. 2, p. 564.]
A provision in a power of attorney relieving the agent of liability for breach of duty is binding on the principal and the principal’s successors in interest except to the extent the provision:
(1) Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
(2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.
[15-12-115, added 2008, ch. 186, sec. 2, p. 565.]
(1) The following persons may petition a court to construe a power of attorney or review the agent’s conduct, and grant appropriate relief:
(a) The principal or the agent;
(b) A guardian, conservator or other fiduciary acting for the principal;
(c) A person authorized to make health care decisions for the principal;
(d) The principal’s spouse, parent or descendant;
(e) An individual who would qualify as a presumptive heir of the principal;
(f) A person named as a beneficiary to receive any property, benefit or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;
(g) A governmental agency having regulatory authority to protect the welfare of the principal;
(h) The principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare; and
(i) A person asked to accept the power of attorney.
(2) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.
(3) The court may award reasonable attorney’s fees and costs to the prevailing party in a proceeding under this section.
[15-12-116, added 2008, ch. 186, sec. 2, p. 565.]
An agent that violates this chapter is liable to the principal or the principal’s successors in interest for the amount required to:
(1) Restore the value of the principal’s property to what it would have been had the violation not occurred; and
(2) Reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs, and other professional fees and costs, paid on the agent’s behalf.
[15-12-117, added 2008, ch. 186, sec. 2, p. 566.]
If a power of attorney does not provide the method for an agent’s resignation, an agent may resign by giving written notice to the principal and, if the principal is incapacitated:
(1) To the conservator or guardian, if one (1) has been appointed for the principal, and a coagent or successor agent; or
(2) If there is no person described in subsection (1) of this section, to:
(a) The principal’s caregiver;
(b) Another person reasonably believed by the agent to have sufficient interest in the principal’s welfare; or
(c) A governmental agency having authority to protect the welfare of the principal.
[15-12-118, added 2008, ch. 186, sec. 2, p. 566.]
(1) For purposes of this section and section 15-12-120, Idaho Code, "acknowledged" means purportedly verified before a notary public or other individual authorized to take acknowledgments.
(2) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under section 15-12-105, Idaho Code, that the signature is genuine.
(3) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority.
(4) A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:
(a) An agent’s certification under penalty of perjury of any factual matter concerning the principal, the agent or the power of attorney;
(b) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and
(c) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.
(5) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than seven (7) business days after the power of attorney is presented for acceptance.
(6) For purposes of this section and section 15-12-120, Idaho Code, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.
[15-12-119, added 2008, ch. 186, sec. 2, p. 566.]
(1) Except as otherwise provided in subsection (2) of this section:
(a) A person must either accept an acknowledged power of attorney or request an agent’s certification, a translation or an opinion of counsel pursuant to section 15-12-119(4), Idaho Code, within seven (7) business days after presentation of the power of attorney for acceptance;
(b) If a person requests an agent’s certification, a translation, or an opinion of counsel under section 15-12-119(4), Idaho Code, the person must accept the power of attorney no later than five (5) business days after receipt of the certification, translation or opinion of counsel; and
(c) A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(2) A person is not required to accept an acknowledged power of attorney if:
(a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) Engaging in a transaction with the agent or the principal in the same circumstances would not be consistent with federal law;
(c) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
(d) A request for a certification, a translation, or an opinion of counsel under section 15-12-119(4), Idaho Code, is refused;
(e) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not an agent’s certification, a translation or an opinion of counsel has been requested or provided; or
(f) The person makes, or has actual knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent.
(3) A person that refuses in violation of this section to accept an acknowledged power of attorney is subject to:
(a) A court order mandating acceptance of the power of attorney; and
(b) Liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
[15-12-120, added 2008, ch. 186, sec. 2, p. 567.]
Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.
[15-12-121, added 2008, ch. 186, sec. 2, p. 568.]
This chapter does not supersede any law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.
[15-12-122, added 2008, ch. 186, sec. 2, p. 568.]
The remedies under this chapter are not exclusive and do not abrogate any right or remedy under the law of this state.
[15-12-123, added 2008, ch. 186, sec. 2, p. 568.]
(1) An agent under a power of attorney may exercise the following authority on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise is not otherwise prohibited by other agreement or instrument to which the authority or property is subject:
(a) Create, amend, revoke or terminate an inter vivos trust;
(b) Make a gift;
(c) Create or change rights of survivorship;
(d) Create or change a beneficiary designation;
(e) Delegate authority granted under the power of attorney;
(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
(g) Exercise fiduciary powers that the principal has authority to delegate.
(2) Notwithstanding a grant of authority to exercise authority in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.
(3) Subject to subsections (1), (2), (4) and (5) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in sections 15-12-204 through 15-12-216, Idaho Code.
(4) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to section 15-12-217, Idaho Code.
(5) Subject to subsections (1), (2) and (4) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(6) Authority granted in a power of attorney is exercisable with respect to a property interest that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(7) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.
[15-12-201, added 2008, ch. 186, sec. 2, p. 568.]
(1) An agent has authority described in this part if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in sections 15-12-204 through 15-12-217, Idaho Code, or cites the section in which the authority is described.
(2) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in sections 15-12-204 through 15-12-217, Idaho Code, or a citation to sections 15-12-204 through 15-12-217, Idaho Code, incorporates the entire section as if it were set out in full in the power of attorney.
(3) A principal may modify authority incorporated by reference.
[15-12-202, added 2008, ch. 186, sec. 2, p. 569.]
Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in sections 15-12-204 through 15-12-217, Idaho Code, or that grants to an agent authority to do all acts that a principal could do pursuant to section 15-12-201(3), Idaho Code, a principal authorizes the agent, with respect to that subject, to:
(1) Demand, receive and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received for the purposes intended;
(2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release or modify the contract or another contract made by or on behalf of the principal;
(3) Execute, acknowledge, seal, deliver, file or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;
(4) Prosecute, defend, submit to alternative dispute resolution, settle and propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
(5) Seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
(6) Engage, compensate and discharge an attorney, accountant, discretionary investment manager, expert witness or other assistant;
(7) Prepare, execute and file a record, report or other document to safeguard or promote the principal’s interest under a statute or governmental regulation;
(8) Communicate with any representative or employee of a government, governmental subdivision, agency or instrumentality on behalf of the principal;
(9) Access communications intended for and communicate on behalf of the principal, whether by mail, electronic transmission, telephone or other means; and
(10) In general, do any other lawful act with respect to the subject and all property related to the subject.
[15-12-203, added 2008, ch. 186, sec. 2, p. 569.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:
(1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit or otherwise acquire or reject an interest in real property or a right incident to real property;
(2) Sell; exchange; convey with or without covenants, representations or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning, rezoning or other governmental permits; plat or consent to platting; develop; grant options concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
(3) Pledge or mortgage an interest in real property or right incident to real property as security in order to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien or other claim to real property which exists or is asserted;
(5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
(a) Insuring against liability, or casualty or other loss;
(b) Obtaining or regaining possession or protecting the interest or right by litigation or otherwise;
(c) Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with them; and
(d) Purchasing supplies, hiring assistance or labor and making repairs or alterations to the real property;
(6) Use, develop, alter, replace, remove, erect or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
(7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive and hold stocks and bonds or other property received in a plan of reorganization, and act with respect to them, including:
(a) Selling or otherwise disposing of them;
(b) Exercising or selling an option, conversion, or similar right with respect to them; and
(c) Exercising any voting rights in person or by proxy;
(8) Change the form of title of an interest in or right incident to real property; and
(9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.
[15-12-204, added 2008, ch. 186, sec. 2, p. 570.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:
(1) Demand, buy, receive, accept as a gift or as security for an extension of credit or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
(2) Sell; exchange; convey with or without covenants, representations or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or otherwise dispose of tangible personal property or an interest in tangible personal property;
(3) Grant a security interest in tangible personal property or an interest in tangible personal property as security in order to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;
(5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
(a) Insuring against liability, or casualty or other loss;
(b) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
(c) Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;
(d) Moving the property from place to place;
(e) Storing the property for hire or on a gratuitous bailment; and
(f) Using and making repairs, alterations or improvements to the property; and
(6) Change the form of title of an interest in tangible personal property.
[15-12-205, added 2008, ch. 186, sec. 2, p. 571.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:
(1) Buy, sell and exchange securities;
(2) Establish, continue, modify or terminate a securities account;
(3) Pledge securities as security in order to borrow, pay, renew or extend the time of payment of a debt of the principal;
(4) Receive certificates and other evidences of ownership with respect to securities; and
(5) Exercise voting rights with respect to securities in person or by proxy, enter into voting trusts and consent to limitations on the right to vote.
[15-12-206, added 2008, ch. 186, sec. 2, p. 571.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:
(1) Buy, sell, exchange, assign, settle and exercise commodity futures contracts and call and put options on stocks and stock indexes traded on a regulated option exchange; and
(2) Establish, continue, modify and terminate option accounts.
[15-12-207, added 2008, ch. 186, sec. 2, p. 572.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:
(1) Continue, modify and terminate an account or other banking arrangement made by or on behalf of the principal;
(2) Establish, modify and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm or other financial institution selected by the agent;
(3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
(4) Withdraw, by check, order, electronic funds transfer or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
(5) Receive statements of account, vouchers, notices and similar documents from a financial institution and act with respect to them;
(6) Enter a safe deposit box or vault and withdraw or add to the contents;
(7) Borrow money and pledge as security personal property of the principal necessary in order to borrow money or pay, renew or extend the time of payment of a debt of the principal;
(8) Make, assign, draw, endorse, discount, guarantee and negotiate promissory notes, checks, drafts and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds of those transactions and accept a draft drawn by a person upon the principal and pay it when due;
(9) Receive for the principal and act upon a sight draft, warehouse receipt or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;
(10) Apply for, receive and use letters of credit, credit and debit cards, electronic transaction authorizations and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
(11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.
[15-12-208, added 2008, ch. 186, sec. 2, p. 572.]
Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:
(1) Operate, buy, sell, enlarge, reduce or terminate an ownership interest;
(2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege or option that the principal has, may have, or claims to have;
(3) Enforce the terms of an ownership agreement;
(4) Defend, submit to alternative dispute resolution, settle or compromise litigation to which the principal is a party because of an ownership interest;
(5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege or option the principal has or claims to have as the holder of stocks and bonds;
(6) Defend, submit to alternative dispute resolution, settle or compromise litigation to which the principal is a party concerning stocks and bonds;
(7) With respect to an entity or business owned solely by the principal:
(a) Continue, modify, renegotiate, extend and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
(b) Determine:
(i) The location of its operation;
(ii) The nature and extent of its business;
(iii) The methods of manufacturing, selling, merchandising, financing, accounting and advertising employed in its operation;
(iv) The amount and types of insurance carried; and
(v) The mode of engaging, compensating and dealing with its employees and accountants, attorneys or other agents;
(c) Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
(d) Demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
(8) Put additional capital into an entity or business in which the principal has an interest;
(9) Join in a plan of reorganization, consolidation, conversion, domestication or merger of the entity or business;
(10) Sell or liquidate an entity or business or part of it;
(11) Establish the value of an entity or business under a buy-out agreement to which the principal is a party;
(12) Prepare, sign, file and deliver reports, compilations of information, returns or other papers with respect to an entity or business and make related payments; and
(13) Pay, compromise or contest taxes or assessments and perform any other act to protect the principal from illegal or unnecessary taxation, fines, penalties or assessments with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.
[15-12-209, added 2008, ch. 186, sec. 2, p. 573.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:
(1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
(2) Procure new, different and additional contracts of insurance and annuities for the principal and the principal’s spouse, children and other dependents, and select the amount, type of insurance or annuity and mode of payment;
(3) Pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract of insurance or annuity procured by the agent;
(4) Apply for and receive a loan secured by a contract of insurance or annuity;
(5) Surrender and receive the cash surrender value on a contract of insurance or annuity;
(6) Exercise an election;
(7) Exercise investment powers available under a contract of insurance or annuity;
(8) Change the manner of paying premiums on a contract of insurance or annuity;
(9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;
(10) Apply for and procure a benefit or assistance under a statute or governmental regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
(11) Collect, sell, assign, hypothecate, borrow against or pledge the interest of the principal in a contract of insurance or annuity;
(12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and
(13) Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.
[15-12-210, added 2008, ch. 186, sec. 2, p. 574.]
(1) In this section, "estates, trusts, and other beneficial interests" means a trust, probate estate, guardianship, conservatorship, escrow or custodianship, or any other fund from which the principal is, may become, or claims to be, entitled to a share or payment.
(2) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts and other beneficial interests authorizes the agent to:
(a) Accept, receive, receipt for, sell, assign, pledge or exchange a share in or payment from the estate, trust or beneficial interest;
(b) Demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of the estate, trust or beneficial interest, by litigation or otherwise;
(c) Exercise for the benefit of the principal a presently exercisable power of appointment held by the principal;
(d)(i) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to:
Ascertain the meaning, validity or effect of a deed, will, declaration of trust or other instrument or transaction affecting the interest of the principal; or
Remove, substitute or surcharge a fiduciary; and
(ii) Regardless of whether or not language in a power of attorney grants general authority with respect to estates, trusts and other beneficial interests, the agent is authorized to enter into any resolution of disputes and other matters involving trusts and estates judicially or nonjudicially as provided in part 1, chapter 8, title 15, Idaho Code;
(e) Conserve, invest, disburse or use anything received for an authorized purpose;
(f) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities and other property to the trustee of a trust created by the principal as settlor; and
(g)(i) Release or consent to a reduction in or modification of a share in or payment from the estate, trust or beneficial interest; and
(ii) Regardless of whether or not language in a power of attorney grants general authority with respect to estates, trusts and other beneficial interests, the agent is authorized to reject, renounce or disclaim a share in or payment from the estate, trust or beneficial interest pursuant to section 15-2-801, Idaho Code.
[15-12-211, added 2008, ch. 186, sec. 2, p. 574.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to perform any lawful act on behalf of the principal in connection with claims and litigation, including:
(1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance or other relief;
(2) Bring an action to determine adverse claims, intervene in litigation and seek to act as amicus curiae;
(3) Seek an attachment, garnishment, order of arrest or other preliminary, provisional or intermediate relief and use an available procedure to effect or satisfy a judgment, order or decree;
(4) Perform any lawful act, including make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination before trial and bind the principal in litigation;
(5) Submit to alternative dispute resolution, settle and propose or accept a compromise;
(6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement or other instrument in connection with the prosecution, settlement or defense of a claim or litigation;
(7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;
(8) Pay a judgment, award or order against the principal or a settlement made in connection with litigation or alternative dispute resolution; and
(9) Receive money or another thing of value paid in settlement of or as proceeds of a claim or litigation.
[15-12-212, added 2008, ch. 186, sec. 2, p. 575.]
(1) Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:
(a) Perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, and the following individuals, whether living when the power of attorney is executed or later born:
(i) The principal’s children;
(ii) Other individuals legally entitled to be supported by the principal; and
(iii) Those individuals whom the principal has customarily supported or indicated the intent to support;
(b) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
(c) Provide living quarters for those individuals described in paragraph (a) of this subsection by purchase, lease or other contract or pay the operating costs, including interest, amortization payments, repairs, improvements and taxes, on premises owned by the principal or occupied by those individuals;
(d) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and career technical education and other current living costs for those individuals described in paragraph (a) of this subsection;
(e) Pay expenses for necessary health care and custodial care on behalf of the individuals described in paragraph (a) of this subsection;
(f) Act as the principal’s personal representative pursuant to the health insurance portability and accountability act, sections 1171 through 1179 of the social security act, 42 U.S.C. section 1320d through 1320d-8, as amended, and applicable regulations, in making decisions related to the past, present or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;
(g) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring and replacing them for the individuals described in paragraph (a) of this subsection;
(h) Maintain credit and debit accounts for the convenience of the individuals described in paragraph (a) of this subsection and open new accounts to accomplish a lawful purpose; and
(i) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order or other organization or to continue contributions to those organizations.
(2) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.
[15-12-213, added 2008, ch. 186, sec. 2, p. 576; am. 2016, ch. 25, sec. 2, p. 35.]
(1) In this section, "benefits from governmental programs or civil or military service" means any benefit, program or assistance provided under a statute or governmental regulation including social security, medicare and medicaid.
(2) Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:
(a) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in section 15-12-213(1)(a), Idaho Code, and for shipment of their household effects;
(b) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate or other instrument for that purpose;
(c) Enroll in, apply for, select, reject, change, amend or discontinue, on the principal’s behalf, a benefit or program;
(d) Prepare, file and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal claims to be entitled under a statute or governmental regulation;
(e) Prosecute, defend, submit to alternative dispute resolution, settle and propose or accept a compromise with respect to any benefit or assistance the principal may be entitled to receive under a statute or governmental regulation; and
(f) Receive the financial proceeds of a claim of the type described in paragraph (d) of this subsection and conserve, invest, disburse or use anything so received for a lawful purpose.
[15-12-214, added 2008, ch. 186, sec. 2, p. 577.]
(1) In this section, "retirement plan" means any plan or account created by an employer, the principal or another individual for the purpose of providing retirement benefits or deferred compensation of which the principal is a participant, beneficiary or owner, including a plan or account under the following sections of the Internal Revenue Code:
(a) An individual retirement account under Internal Revenue Code section 408, 26 U.S.C. section 408, as amended;
(b) A Roth individual retirement account under Internal Revenue Code section 408A, 26 U.S.C. section 408A, as amended;
(c) A deemed individual retirement account under Internal Revenue Code section 408(q), 26 U.S.C. section 408(q), as amended;
(d) An annuity or mutual fund custodial account under Internal Revenue Code section 403(b), 26 U.S.C. section 403(b), as amended;
(e) A pension, profit-sharing, stock bonus or other retirement plan qualified under Internal Revenue Code section 401(a), 26 U.S.C. section 401(a), as amended;
(f) A plan under Internal Revenue Code section 457(b), 26 U.S.C. section 457(b), as amended; and
(g) A nonqualified deferred compensation plan under Internal Revenue Code section 409A, 26 U.S.C. section 409A, as amended.
(2) Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:
(a) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
(b) Make a rollover, including a direct trustee to trustee rollover, of benefits from one (1) retirement plan to another;
(c) Establish a retirement plan in the principal’s name;
(d) Make contributions to a retirement plan;
(e) Exercise investment powers available under a retirement plan; and
(f) Borrow from, sell assets to or purchase assets from a retirement plan.
[15-12-215, added 2008, ch. 186, sec. 2, p. 578.]
Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:
(1) Prepare, sign and file federal, state, local and foreign income, gift, payroll, property, federal insurance contributions act and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters and any other tax related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code section 2032A, 26 U.S.C. section 2032A, as amended, closing agreements and any power of attorney required by the internal revenue service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following twenty-five (25) tax years;
(2) Pay taxes due, collect refunds, post bonds, receive confidential information and contest deficiencies determined by the internal revenue service or other taxing authority;
(3) Exercise any election available to the principal under federal, state, local or foreign tax law; and
(4) Act for the principal in all tax matters for all periods before the internal revenue service, and any other taxing authority.
[15-12-216, added 2008, ch. 186, sec. 2, p. 578.]
(1) In this section, a gift "for the benefit of" a person includes, but is not limited to, a gift to a trust, an account under the uniform transfers to minors act and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. section 529, as amended.
(2) Unless a power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent to:
(a) Make outright to, or for the benefit of, a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code section 2503(b), 26 U.S.C. section 2503(b), as amended, without regard to whether the federal gift tax exclusion applies to the gift, and if the principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code section 2513, 26 U.S.C. section 2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
(b) Consent, pursuant to Internal Revenue Code section 2513, 26 U.S.C. section 2513, as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
(3) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including, but not limited to:
(a) The value and nature of the principal’s property;
(b) The principal’s foreseeable obligations and need for maintenance;
(c) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes;
(d) Eligibility for a benefit, a program, or assistance under a statute or governmental regulation; and
(e) The principal’s personal history of making or joining in making gifts.
[15-12-217, added 2008, ch. 186, sec. 2, p. 579.]
A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed in this chapter.
IDAHO STATUTORY FORM POWER OF ATTORNEY
IMPORTANT INFORMATION
This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent can make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the uniform power of attorney act, chapter 12, title 15, Idaho Code.
This power of attorney does not authorize the agent to make health care decisions for you.
You should select someone you trust to serve as your agent. The agent’s authority will continue until your death unless you revoke the power of attorney or the agent resigns.
Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.
This form provides for designation of one (1) agent. If you wish to name more than one (1) agent, you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions.
If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.
This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.
If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.
DESIGNATION OF AGENT
I, ….(Name of Principal)…., name the following person as my agent:
Name of Agent:
Agent’s Address:
Agent’s Phone Number:
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name as my successor agent:
Name of Successor Agent:
Successor Agent’s Address:
Successor Agent’s Phone Number:
If my successor agent is unable or unwilling to act for me, I name as my second successor agent:
Name of Second Successor Agent:
Second Successor Agent’s Address:
Second Successor Agent’s Phone Number:
GRANT OF GENERAL AUTHORITY
I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the uniform power of attorney act, chapter 12, title 15, Idaho Code:
(INITIAL each subject you want to include in the agent’s general authority. If you wish to grant general authority over all of the subjects you may initial "All Preceding Subjects" instead of initialing each subject.)
(…) Real Property
(…) Tangible Personal Property
(…) Stocks and Bonds
(…) Commodities and Options
(…) Banks and Other Financial Institutions
(…) Operation of an Entity or Business
(…) Insurance and Annuities
(…) Estates, Trusts, and Other Beneficial Interests
(…) Claims and Litigation
(…) Personal and Family Maintenance
(…) Benefits from Governmental Programs or Civil or Military Service
(…) Retirement Plans
(…) Taxes
(…) All Preceding Subjects
GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:
(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)
(…) Create, amend, revoke, or terminate an inter vivos trust
(…) Make a gift, subject to the limitations of the uniform power of attorney act, chapter 12, title 15, Idaho Code, and any special instructions in this power of attorney
(…) Make a gift without limitations except any special instructions in this power of attorney
(…) Create or change rights of survivorship
(…) Create or change a beneficiary designation
(…) Authorize another person to exercise the authority granted under this power of attorney
(…) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
(…) Exercise fiduciary powers that the principal has authority to delegate
LIMITATION ON AGENT’S AUTHORITY
An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.
SPECIAL INSTRUCTIONS (OPTIONAL)
On the following lines you may give special instructions:
.
.
.
EFFECTIVE DATE
This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.
NOMINATION OF CONSERVATOR (OPTIONAL)
If it becomes necessary for a court to appoint a conservator of my estate, I nominate the following person(s) for appointment:
Name of Nominee for conservator of my estate:
Nominee’s Address:
Nominee’s Phone Number:
RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it is terminated or invalid.
SIGNATURE AND ACKNOWLEDGMENT
(OPTION ONE – IF YOU ARE ABLE TO SIGN ON YOUR OWN)
Your Signature:
Date:
Your Name Printed:
Your Address:
Your Phone Number:
NOTARY – REQUIRED FOR RECORDING AND FOR REAL PROPERTY
State of Idaho, county of …., ss.
On this …. day of …., in the year of …., before me (here insert the name and quality of the officer), personally appeared …., known or identified to me (or proved to me on the oath of ….), to be the person whose name is subscribed to the within instrument, and acknowledged to me that he (or they) executed the same.
(OPTION TWO – IF YOU ARE UNABLE TO SIGN ON YOUR OWN AND DIRECT THE NOTARY TO SIGN FOR YOU)
Signature of person by notary: ………………..
Signature affixed by notary in the presence of (names of person and witness).
State of Idaho )
)ss.
County of ….. )
On this ….. day of ………., in the year ….., before me (here insert the name and quality of the officer), personally appeared …………., known or identified to me (or proved to me on the oath of …………………..) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same by directing the undersigned notary to affix his signature thereto.
IMPORTANT INFORMATION FOR AGENT
AGENT’S DUTIES
When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:
(1) Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest;
(2) Act in good faith;
(3) Do nothing beyond the authority granted in this power of attorney; and
(4) Disclose your identity as an agent whenever you act for the principal by signing the name of the principal and signing your own name as "agent" in the following manner:
…….(Principal’s Name)……by…….(Your Signature)…..as agent
Unless the Special Instructions in this power of attorney state otherwise, you must also:
(1) Act loyally for the principal’s benefit;
(2) Avoid conflicts that would impair your ability to act in the principal’s best interest;
(3) Act with care, competence and diligence;
(4) Keep a record of all receipts, disbursements, and transactions conducted for the principal;
(5) Cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and
(6) Attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.
Termination of Agent’s Authority
You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:
(1) Death of the principal;
(2) The principal’s revocation of the power of attorney or your authority;
(3) The occurrence of a termination event stated in the power of attorney;
(4) The purpose of the power of attorney is fully accomplished; or
(5) A legal action is filed with a court to end your marriage to the principal, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.
LIABILITY OF AGENT
The meaning of the authority granted to you is defined in the act. If you violate the act or act outside the authority granted, you may be liable for any damages caused by your violation.
IF THERE IS ANYTHING ABOUT THIS DOCUMENT OR YOUR DUTIES THAT YOU DO NOT UNDERSTAND, YOU SHOULD SEEK LEGAL ADVICE.
[15-12-301, added 2008, ch. 186, sec. 2, p. 579.]
The following optional form may be used by an agent to certify facts concerning a power of attorney.
AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND
AGENT’S AUTHORITY
State of Idaho )
) ss.
County of …… )
I, ……(Name of Agent)……, certify under penalty of perjury that ……(Name of Principal) …… granted me authority as an agent or successor agent in a Power of Attorney dated …….
I further certify that to my knowledge:
(1) The Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and that the Power of Attorney and my authority to act under the Power of Attorney have not terminated;
(2) If the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;
(3) If I was named as a successor agent, that the prior agent is no longer able or willing to serve; and
(4) (Insert other relevant statements):
.
SIGNATURE AND ACKNOWLEDGMENT
Date:
Agent’s Name Printed:
Agent’s Address:
Agent’s Phone Number:
This document was acknowledged before me on …..(date)….., by ….(Name of Agent)…..
Notary Public for Idaho:
Residing at:
My commission expires on:
[15-12-302, added 2008, ch. 186, sec. 2, p. 584.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
[15-12-401, added 2008, ch. 186, sec. 2, p. 585.]
This chapter modifies, limits and supersedes the federal electronic signatures in global and national commerce act, 15 U.S.C. section 7001 et seq., but does not modify, limit or supersede section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
[15-12-402, added 2008, ch. 186, sec. 2, p. 585.]
Except as otherwise provided in this chapter, on the effective date of this chapter:
(1) This chapter applies to a power of attorney created before, on or after the effective date of this chapter;
(2) This chapter applies to a judicial proceeding concerning a power of attorney commenced on or after the effective date of this chapter;
(3) This chapter applies to a judicial proceeding concerning a power of attorney commenced before the effective date of this chapter unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and
(4) An act done before the effective date of this chapter is not affected by this chapter.
[15-12-403, added 2008, ch. 186, sec. 2, p. 585.]
This chapter may be cited as the "Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act."
[15-13-101, added 2011, ch. 36, sec. 1, p. 79.]
In this chapter:
(1) "Adult" means an individual who has attained eighteen (18) years of age.
(2) "Conservator" means a person appointed by the court to administer the property of an adult, including a person appointed pursuant to chapter 5, title 15, Idaho Code.
(3) "Guardian" means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed pursuant to chapter 5, title 15, Idaho Code.
(4) "Guardianship order" means an order appointing a guardian.
(5) "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
(6) "Incapacitated person" means an adult for whom a guardian has been appointed.
(7) "Party" means the respondent, petitioner, guardian, conservator or any other person allowed by the court to participate in a guardianship or protective proceeding.
(8) "Person," except in the term "incapacitated person" or "protected person," means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
(9) "Protected person" means an adult for whom a protective order has been issued.
(10) "Protective order" means an order appointing a conservator or other order related to management of an adult’s property.
(11) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
(12) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(13) "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
(14) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe or any territory or insular possession subject to the jurisdiction of the United States.
[15-13-102, added 2011, ch. 36, sec. 1, p. 79.]
A court of this state may treat a foreign country as if it were a state for the purpose of applying part 1 of this chapter and parts 2, 3 and 5 of this chapter.
[15-13-103, added 2011, ch. 36, sec. 1, p. 80.]
(1) A court of this state may communicate with a court in another state concerning a proceeding arising pursuant to this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (2) of this section, the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
(2) Courts may communicate concerning schedules, calendars, court records and other administrative matters without making a record.
[15-13-104, added 2011, ch. 36, sec. 1, p. 80.]
(1) In a guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another state to do any of the following:
(a) Hold an evidentiary hearing;
(b) Order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
(c) Order that an evaluation or assessment be made of the respondent;
(d) Order any appropriate investigation of a person involved in a proceeding;
(e) Forward to the court of this state a certified copy of the transcript or other record of a hearing pursuant to paragraph (a) of this subsection or any other proceeding, any evidence otherwise produced pursuant to paragraph (b) of this subsection, and any evaluation or assessment prepared in compliance with an order pursuant to paragraph (c) or (d) of this subsection;
(f) Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person;
(g) Issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 CFR 160.103, as amended.
(2) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (1) of this section, a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
[15-13-105, added 2011, ch. 36, sec. 1, p. 80.]
(1) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
(2) In a guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone, audio-visual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
(3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.
[15-13-106, added 2011, ch. 36, sec. 1, p. 80.]
(1) In this part:
(a) "Emergency" means a circumstance that likely will result in substantial harm to a respondent’s health, safety or welfare, including finances, and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent’s behalf.
(b) "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months ending within the six (6) months prior to the filing of the petition.
(c) "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.
(2) In determining whether a respondent has a significant connection with a particular state pursuant to sections 15–13–203 and 15–13–301(5), Idaho Code, the court shall consider:
(a) The location of the respondent’s family and other persons required to be notified of the guardianship or protective proceeding;
(b) The length of time the respondent at any time was physically present in the state and the duration of any absence;
(c) The location of the respondent’s property; and
(d) The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver’s license, social relationship and receipt of services.
[15-13-201, added 2011, ch. 36, sec. 1, p. 81.]
This part provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a protective order for an adult.
[15-13-202, added 2011, ch. 36, sec. 1, p. 81.]
A court of this state has jurisdiction to appoint a guardian or issue a protective order for a respondent if:
(1) This state is the respondent’s home state;
(2) On the date the petition is filed, this state is a significant-connection state and:
(a) The respondent does not have a home state, or a court of the respondent’s home state has declined to exercise jurisdiction because this state is a more appropriate forum; or
(b) The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:
(i) A petition for an appointment or order is not filed in the respondent’s home state;
(ii) An objection to the court’s jurisdiction is not filed by a person required to be notified of the proceeding; and
(iii) The court in this state concludes that it is an appropriate forum under the factors set forth in section 15–13–206, Idaho Code;
(3) This state does not have jurisdiction under either subsection (1) or (2) of this section, the respondent’s home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the constitutions of this state and the United States; or
(4) The requirements for special jurisdiction under section 15–13–204, Idaho Code, are met.
[15-13-203, added 2011, ch. 36, sec. 1, p. 81.]
(1) A court of this state lacking jurisdiction pursuant to section 15–13–203(1) through (3), Idaho Code, has special jurisdiction to do any of the following:
(a) Appoint a guardian in an emergency for a term not exceeding ninety (90) days for a respondent who is physically present in this state;
(b) Issue a protective order with respect to real or tangible personal property located in this state;
(c) Appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to section 15–13–301, Idaho Code.
(2) If a petition for the appointment of a guardian in an emergency is brought in this state and this state was not the respondent’s home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
[15-13-204, added 2011, ch. 36, sec. 1, p. 82.]
Except as otherwise provided in section 15–13–204, Idaho Code, a court that has appointed a guardian or issued a protective order consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.
[15-13-205, added 2011, ch. 36, sec. 1, p. 82.]
(1) A court of this state having jurisdiction pursuant to section 15–13–203, Idaho Code, to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
(2) If a court of this state declines to exercise its jurisdiction pursuant to subsection (1) of this section, it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
(3) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
(a) Any expressed preference of the respondent;
(b) Whether there is reason to suspect that abuse, neglect or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect or exploitation;
(c) The length of time the respondent was physically present in or was a legal resident of this or another state;
(d) The distance of the respondent from the court in each state;
(e) The financial circumstances of the respondent’s estate;
(f) The nature and location of the evidence;
(g) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
(h) The familiarity of the court of each state with the facts and issues in the proceeding; and
(i) If an appointment was made, the court’s ability to monitor the conduct of the guardian or conservator.
[15-13-206, added 2011, ch. 36, sec. 1, p. 82.]
(1) If at any time a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
(a) Decline to exercise jurisdiction;
(b) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety and welfare of the respondent or the protection of the respondent’s property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
(c) Continue to exercise jurisdiction after considering:
(i) The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court’s jurisdiction;
(ii) Whether it is a more appropriate forum than the court of any other state under the factors set forth in section 15–13–206(c), Idaho Code; and
(iii) Whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section 15–13–203, Idaho Code.
(2) If a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney’s fees, investigative fees, court costs, communication expenses, witness fees and expenses and travel expenses. The court may not assess fees, costs or expenses of any kind against this state or a governmental subdivision, agency or instrumentality of this state unless authorized by law other than this chapter.
[15-13-207, added 2011, ch. 36, sec. 1, p. 83.]
If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not the respondent’s home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding was brought in the respondent’s home state. The notice must be given in the same manner as notice is required to be given in this state.
[15-13-208, added 2011, ch. 36, sec. 1, p. 83.]
Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this state pursuant to section 15–13–204(1)(a) or (1)(b), Idaho Code, if a petition for the appointment of a guardian or issuance of a conservatorship or other protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply:
(1) If the court in this state has jurisdiction pursuant to section 15–13–203, Idaho Code, it may proceed with the case unless a court in another state acquires jurisdiction pursuant to provisions similar to section 15–13–203, Idaho Code, before the appointment or issuance of the order.
(2) If the court in this state does not have jurisdiction pursuant to section 15–13–203, Idaho Code, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.
[15-13-209, added 2011, ch. 36, sec. 1, p. 83.]
(1) A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.
(2) Notice of a petition pursuant to subsection (1) of this section must be given to the persons that would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.
(3) On the court’s own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (1) of this section.
(4) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:
(a) The incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
(b) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and
(c) Plans for care and services for the incapacitated person in the other state are reasonable and sufficient.
(5) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
(a) The protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in section 15–13–201(b), Idaho Code;
(b) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
(c) Adequate arrangements will be made for management of the protected person’s property.
(6) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
(a) A provisional order accepting the proceeding from the court to which the proceeding is to be transferred that is issued under provisions similar to section 15–13–302, Idaho Code; and
(b) The documents required to terminate a guardianship or conservatorship in this state.
[15-13-301, added 2011, ch. 36, sec. 1, p. 84.]
(1) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to section 15–13–301, Idaho Code, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state’s provisional order of transfer.
(2) Notice of a petition pursuant to subsection (1) of this section must be given to those persons that would be entitled to notice if the petition was a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.
(3) On the court’s own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (1) of this section.
(4) The court shall issue an order provisionally granting a petition filed pursuant to subsection (1) of this section unless:
(a) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
(b) The guardian or conservator is ineligible for appointment in this state.
(5) The court shall issue a final order accepting the proceeding and appointing a guardian or conservator as guardian or conservator in this state upon its receipt, from the court from which the proceeding is being transferred, of a final order issued under provisions similar to section 15–13–301, Idaho Code, transferring the proceeding to this state.
(6) Not later than ninety (90) days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.
(7) In granting a petition pursuant to this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person’s incapacity and the appointment of a guardian or conservator.
(8) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state pursuant to chapter 5, title 15, Idaho Code, if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
[15-13-302, added 2011, ch. 36, sec. 1, p. 84.]
If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a foreign judgment in a court, in any appropriate county of this state, certified copies of the order and letters of office.
[15-13-401, added 2011, ch. 36, sec. 1, p. 85.]
If a conservator has been appointed in another state and a petition for a protective order is not pending in this state, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this state by filing as a foreign judgment in a court of this state, in any county in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.
[15-13-402, added 2011, ch. 36, sec. 1, p. 85.]
(1) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.
(2) A court of this state may grant any relief available pursuant to this chapter and other law of this state to enforce a registered order.
[15-13-403, added 2011, ch. 36, sec. 1, p. 86.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[15-13-501, added 2011, ch. 36, sec. 1, p. 86.]
This chapter modifies, limits and supersedes the federal electronic signatures in global and national commerce act, 15 U.S.C. section 7001, et seq., but does not modify, limit or supersede section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
[15-13-502, added 2011, ch. 36, sec. 1, p. 86.]
[15-13-503, added 2011, ch. 36, sec. 1, p. 86.]
(1) This chapter applies to guardianship and protective proceedings begun on or after July 1, 2011.
(2) Parts 1, 3 and 4 of this chapter and sections 15–13–501 and 15–13–502, Idaho Code, apply to proceedings begun before July 1, 2011, regardless of whether a guardianship or protective order has been issued.
[15-13-504, added 2011, ch. 36, sec. 1, p. 86.]
This chapter shall be known and may be cited as the "Revised Uniform Fiduciary Access to Digital Assets Act."
[15-14-101, added 2016, ch. 263, sec. 1, p. 685.]
As used in this chapter:
(1) "Account" means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of the user or provides goods or services to the user.
(2) "Agent" means an attorney in fact granted authority under a durable or nondurable power of attorney.
(3) "Carries" means engages in the transmission of an electronic communication.
(4) "Catalog of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.
(5) "Conservator" means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator.
(6) "Content of an electronic communication" means information concerning the substance or meaning of the communication that:
(a) Has been sent or received by a user;
(b) Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
(c) Is not readily accessible to the public.
(7) "Court" means the court in this state having jurisdiction in matters relating to the content of this chapter.
(8) "Custodian" means a person that carries, maintains, processes, receives or stores a digital asset of a user.
(9) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.
(10) "Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(12) "Electronic communication" has the meaning set forth in 18 U.S.C. 2510(12).
(13) "Electronic communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.
(14) "Fiduciary" means an original, additional or successor personal representative, conservator, agent or trustee.
(15) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases or the like.
(16) "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(17) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.
(18) "Personal representative" means an executor, administrator, special administrator or person that performs substantially the same function under the law of this state other than this chapter.
(19) "Power of attorney" means a record that grants an agent authority to act in the place of a principal.
(20) "Principal" means an individual who grants authority to an agent in a power of attorney.
(21) "Protected person" means an individual for whom a conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator is pending.
(22) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(23) "Remote computing service" means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. 2510(14).
(24) "Terms of service agreement" means an agreement that controls the relationship between a user and a custodian.
(25) "Trustee" means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee.
(26) "User" means a person that has an account with a custodian.
(27) "Will" includes a codicil, testamentary instrument that only appoints an executor and instrument that revokes or revises a testamentary instrument.
[15-14-102, added 2016, ch. 263, sec. 1, p. 686.]
(1) This chapter applies to:
(a) A fiduciary acting under a will or power of attorney executed before, on or after July 1, 2016;
(b) A personal representative acting for a decedent who died before, on or after July 1, 2016;
(c) A conservatorship proceeding commenced before, on or after July 1, 2016; and
(d) A trustee acting under a trust created before, on or after July 1, 2016.
(2) This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.
(3) This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.
[15-14-103, added 2016, ch. 263, sec. 1, p. 687.]
(1) A user may use an online tool to direct the custodian to disclose to the designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.
(2) If a user has not used an online tool to give direction under subsection (1) of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney or other record, the disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
(3) A user’s direction under subsection (1) or (2) of this section overrides a contrary provision in a terms of service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.
[15-14-104, added 2016, ch. 263, sec. 1, p. 687.]
(1) This chapter does not change or impair a right of a custodian or a user under a terms of service agreement to access and use digital assets of the user.
(2) This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(3) A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law or by a terms of service agreement if the user has not provided direction under section 15-14-104, Idaho Code.
[15-14-105, added 2016, ch. 263, sec. 1, p. 687.]
(1) When disclosing the digital assets of a user under this chapter, the custodian may at its sole discretion:
(a) Grant a fiduciary or designated recipient full access to the user’s account;
(b) Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(c) Provide a fiduciary or designated recipient with a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(3) A custodian need not disclose a digital asset deleted by a user.
(4) If a user directs or a fiduciary requests a custodian to disclose some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or the fiduciary may seek an order from the court for an order to disclose:
(a) A subset limited by date of the user’s digital assets;
(b) All of the user’s digital assets to the fiduciary or designated recipient;
(c) None of the user’s digital assets; or
(d) All of the user’s digital assets to the court for review in camera.
[15-14-106, added 2016, ch. 263, sec. 1, p. 688.]
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letter of appointment of the personal representative or a small estate affidavit or court order;
(4) Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney or other record evidencing the user’s consent to disclosure of the content of electronic communications; and
(5) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(b) Evidence linking the account to the user; or
(c) A finding by the court that:
(i) The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection; or
(ii) Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. 2701 et seq., 47 U.S.C. 222, or other applicable law;
(iii) Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(iv) Disclosure of the content of electronic communications of the user is reasonably necessary for the administration of the estate.
[15-14-107, added 2016, ch. 263, sec. 1, p. 688.]
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives to the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letter of appointment of the representative or a small estate affidavit or court order; and
(4) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(b) Evidence linking the account to the user;
(c) An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate; or
(d) A finding by the court that:
(i) The user had a specific account with the custodian, identifiable by the information specified in paragraph (a) of this subsection; or
(ii) Disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.
[15-14-108, added 2016, ch. 263, sec. 1, p. 689.]
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content of an electronic communication sent or received by the principal if the agent gives to the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(b) Evidence linking the account to the principal.
[15-14-109, added 2016, ch. 263, sec. 1, p. 689.]
Unless otherwise ordered by the court, directed by the principal or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of the principal a catalog of electronic communications sent or received by the principal and digital assets of the principal, other than the content of electronic communications, if the agent gives to the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(b) Evidence linking the account to the principal.
[15-14-110, added 2016, ch. 263, sec. 1, p. 689.]
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including any catalog of electronic communications of the trustee and the content of electronic communications.
[15-14-111, added 2016, ch. 263, sec. 1, p. 690.]
Unless otherwise ordered by the court, directed by the user or provided in a trust, a custodian shall disclose to a trustee that is not an original user of the account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received or stored by the custodian in the account of the trust if the trustee gives to the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the trust instrument or a certification of the trust under chapter 1, title 68, Idaho Code, that includes consent to disclosure of the content of electronic communications to the trustee;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(b) Evidence linking the account to the trust.
[15-14-112, added 2016, ch. 263, sec. 1, p. 690.]
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalog of electronic communications sent or received by an original or successor user and stored, carried or maintained by the custodian in an account of the trust and any digital assets in which the trust has a right or interest, other than the content of electronic communications, if the trustee gives to the custodian:
(1) A written request for disclosure in physical or electronic form;
(2) A certified copy of the trust instrument or a certification of the trust under chapter 1, title 68, Idaho Code;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(a) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(b) Evidence linking the account to the trust.
[15-14-113, added 2016, ch. 263, sec. 1, p. 690.]
(1) The court, after an opportunity for a hearing under part 4, chapter 5, title 15, Idaho Code, may grant a conservator the right to access a protected person’s digital assets.
(2) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalog of electronic communications sent or received by the protected person and any digital assets in which the protected person has a right or interest, other than the content of electronic communications, if the conservator gives to the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the court order that gives the conservator authority over the protected person’s digital assets; and
(c) If requested by the custodian:
(i) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the protected person’s account; or
(ii) Evidence linking the account to the protected person.
(3) A conservator with general authority to manage the assets of a protected person may request a custodian of the protected person’s digital assets to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person’s property.
[15-14-114, added 2016, ch. 263, sec. 1, p. 690.]
(1) The legal duties imposed on a fiduciary charged with managing tangible personal property apply to the management of digital assets, including:
(a) The duty of care;
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
(a) Is subject to the applicable terms of service agreement governing the account, except as otherwise provided in section 15-14-104, Idaho Code;
(b) Is subject to other applicable laws, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, protected person, principal or settlor has the right to access any digital asset in which the decedent, protected person, principal or settlor had a right or interest and that is not held by a custodian or subject to a terms of service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including section 18-2202, Idaho Code.
(5) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including section 18-2202, Idaho Code.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for account termination must be in writing, in either physical or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the letter of appointment of the personal representative or a small estate affidavit, court order, power of attorney or trust giving the fiduciary authority over the account; and
(c) If requested by the custodian:
(i) A number, user name, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(ii) Evidence linking the account to the user; or
(iii) An order of the court finding that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (i) of this paragraph.
[15-14-115, added 2016, ch. 263, sec. 1, p. 691.]
(1) Not later than sixty (60) days after receipt of the information required under sections 15-14-107 through 15-14-115, Idaho Code, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or to terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(2) An order directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. 2702.
(3) A custodian may notify the user that a request for disclosure of digital assets or account termination was made pursuant to this chapter.
(4) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or account termination if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.
(5) This chapter does not limit a custodian’s ability to obtain or to require a fiduciary or designated recipient requesting disclosure or termination to obtain a court order which:
(a) Specifies that an account belongs to the protected person or principal;
(b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(c) Contains a finding required by any other applicable law.
(6) A custodian and its officers, employees and agents are immune from liability for an act or omission done reasonably and in good faith compliance with this chapter.
[15-14-116, added 2016, ch. 263, sec. 1, p. 692.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[15-14-117, added 2016, ch. 263, sec. 1, p. 692.]
This chapter modifies, limits or supersedes the electronic signatures in global and national commerce act, 15 U.S.C. 7001 et seq., but does not modify, limit or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).
[15-14-118, added 2016, ch. 263, sec. 1, p. 692.]
If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
[15-14-119, added 2016, ch. 263, sec. 1, p. 692.]
This chapter shall be known and may be cited as the "Uniform Recognition of Substitute Decision-Making Documents Act."
[15-15-101, added 2015, ch. 115, sec. 1, p. 298.]
As used in this chapter:
(1) "Decision maker" means a person authorized to act for an individual under a substitute decision-making document, whether denominated a decision maker, agent, attorney in fact, proxy, representative or by another title. The term includes an original decision maker, a co-decision maker, a successor decision maker and a person to which a decision maker’s authority is delegated.
(2) "Good faith" means honesty in fact.
(3) "Health care" means a service or procedure to maintain, diagnose, treat or otherwise affect an individual’s physical or mental condition.
(4) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity.
(5) "Personal care" means an arrangement or service to provide an individual shelter, food, clothing, transportation, education, recreation, social contact or assistance with the activities of daily living.
(6) "Property" means anything that may be subject to ownership, whether real or personal or legal or equitable, or any interest or right therein.
(7) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(8) "Substitute decision-making document" means a record created by an individual to authorize a decision maker to act for the individual with respect to property, health care or personal care.
[15-15-102, added 2015, ch. 115, sec. 1, p. 298.]
(1) A substitute decision-making document for property executed outside this state is valid in this state if, when the document was executed, the execution complied with the law of the jurisdiction indicated in the document or, if no jurisdiction is indicated, the law of the jurisdiction in which the document was executed.
(2) A substitute decision-making document for health care or personal care executed outside this state is valid in this state if, when the document was executed, the execution complied with:
(a) The law of the jurisdiction indicated in the document or, if no jurisdiction is indicated, the law of the jurisdiction in which the document was executed; or
(b) The law of this state other than this chapter.
(3) Except as otherwise provided by law of this state other than this chapter, a photocopy or electronically transmitted copy of an original substitute decision-making document has the same effect as the original.
[15-15-103, added 2015, ch. 115, sec. 1, p. 298.]
The meaning and effect of a substitute decision-making document and the authority of the decision maker are determined by the law of the jurisdiction indicated in the document or, if no jurisdiction is indicated, the law of the jurisdiction in which the document was executed.
[15-15-104, added 2015, ch. 115, sec. 1, p. 298.]
(1) Except as otherwise provided for in sections 15-12-119 and 39-4513, Idaho Code, a person that in good faith accepts a substitute decision-making document without actual knowledge that the document is void, invalid or terminated, or that the authority of the purported decision maker is void, invalid or terminated, may assume without inquiry that the document is genuine, valid and still in effect and that the decision maker’s authority is genuine, valid and still in effect.
(2) A person that is asked to accept a substitute decision-making document may request and without further investigation rely upon:
(a) The decision maker’s assertion of a fact concerning the individual for whom a decision will be made, the decision maker or the document;
(b) A translation of the document if the document contains, in whole or in part, language other than English; and
(c) An opinion of counsel regarding any matter of law concerning the document if the person provides in a record the reason for the request.
[15-15-105, added 2015, ch. 115, sec. 1, p. 298.]
(1) Except as otherwise provided in subsection (2) of this section or by law of this state other than this act, including section 15-12-120(2)(b), Idaho Code, a person that is asked to accept a substitute decision-making document shall accept within a reasonable time a document that purportedly meets the validity requirements of section 15-15-103, Idaho Code. The person may not require an additional or different form of document for authority granted in the document presented.
(2) A person that is asked to accept a substitute decision-making document is not required to accept the document if:
(a) The person otherwise would not be required in the same circumstances to act if requested by the individual who executed the document;
(b) The person has actual knowledge of the termination of the decision maker’s authority or the document;
(c) The person’s request under section 15-15-105(2), Idaho Code, for the decision maker’s assertion of fact, a translation or an opinion of counsel is refused;
(d) The person in good faith believes that the document is not valid or the decision maker does not have the authority to request a particular transaction or action; or
(e) The person makes, or has actual knowledge that another person has made, a report to the local office of adult protective services stating a belief that the individual for whom a decision will be made may be subject to abuse, neglect, exploitation or abandonment by the decision maker or a person acting for or with the decision maker.
(3) A person that in violation of the provisions of this section refuses to accept a substitute decision-making document is subject to:
(a) A court order mandating acceptance of the document; and
(b) Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document.
[15-15-106, added 2015, ch. 115, sec. 1, p. 299.]
The remedies under this act are not exclusive and do not abrogate any right or remedy under law of this state other than this chapter.
[15-15-107, added 2015, ch. 115, sec. 1, p. 299.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
[15-15-108, added 2015, ch. 115, sec. 1, p. 299.]
This chapter modifies, limits or supersedes the electronic signatures in global and national commerce act, 15 U.S.C. section 7001 et seq., but does not modify, limit or supersede section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
[15-15-109, added 2015, ch. 115, sec. 1, p. 299.]
This chapter applies to a substitute decision-making document created before, on or after the effective date of this chapter.
[15-15-110, added 2015, ch. 115, sec. 1, p. 300.]
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