Family Survivor Law in Montana Stepchildren V Natural Children
1999 Montana Legislature
Most Bill -- Links
SENATE Nib NO. 473
INTRODUCED By S. DOHERTY
By REQUEST OF THE SENATE JUDICIARY COMMITTEE
AN ACT More often than not REVISING THE LAWS RELATING TO ESTATES, TRUSTS, AND FIDUCIARY RELATIONSHIPS; CLARIFYING THE DEFINITION OF PARENT-Child RELATIONSHIP; CLARIFYING Ciphering OF THE AUGMENTED Estate; Conforming DISCLAIMER RULES TO FEDERAL REGULATIONS; Assuasive A PERSONAL REPRESENTATIVE TO Keep AN UNINCORPORATED BUSINESS; CLARIFYING CIRCUMSTANCES IN WHICH A GUARDIAN OF A Minor MAY Be APPOINTED; EXTENDING THE EXEMPTION FROM INHERITANCE TAXES FOR STEPCHILDREN; Assuasive Sure PERSONAL PROPERTY OWNED By A TRUST TO Be DISPOSED OF Past SEPARATE WRITING; PROVIDING AN OBJECTIVE STANDARD GOVERNING INVESTMENTS BY TRUSTEES By CLARIFYING THE PRUDENT INVESTOR Dominion; PROVIDING FOR DISTRIBUTION OF CHARITABLE TRUSTS' Avails UPON TERMINATION OF THE TRUST; REQUIRING A Argument OF PURPOSE OF TRUST JUDICIAL PROCEEDINGS IN A NOTICE OF HEARING; AMENDING SECTIONS 72-ii-124, 72-2-221, 72-2-222, 72-2-811, 72-3-613, 72-v-222, 72-34-113, 72-34-114, 72-34-205, AND 72-35-306, MCA, AND Section iii, Chapter 464, LAWS OF 1997; AND PROVIDING AN Firsthand Effective Appointment.
Be IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 72-ii-124, MCA, is amended to read:
"72-2-124. Parent and child relationship. (one) Except every bit provided in subsections (two) and (3), for the purposes of intestate succession by, through, or from a person, an individual is the child of the child's natural parents, regardless of their marital status. The parent and child relationship may be established under Title 40, affiliate six, function 1.
(2) An adopted private is the child of an adopting parent or parents and not of the natural parents, simply adoption of a kid by the spouse of either natural parent has no consequence on:
(a) the relationship between the child and either that natural parent; or
(b) the right of the kid or a descendant of the child to inherit from or through the other natural parent.
(three) Inheritance from or through a child by either natural parent or the parent's kindred is precluded unless that natural parent has openly treated the child every bit the parent's and has not refused to support the child."
Section 2. Section 72-two-221, MCA, is amended to read:
"72-2-221. Elective share. (i) The surviving spouse of a decedent who dies domiciled in this state has a right of ballot, nether the limitations and conditions stated in this part, to take an constituent-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of fourth dimension the spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the The elective-share
spouse were married to percentage is:
each other:
Less than 1 year supplemental corporeality just
1 year just less than 2 years 3% of the augmented manor
two years but less than iii years six% of the augmented manor
3 years but less than four years 9% of the augmented estate
4 years but less than five years 12% of the augmented estate
5 years but less than vi years 15% of the augmented estate
six years but less than 7 years xviii% of the augmented manor
7 years but less than 8 years 21% of the augmented estate
viii years but less than 9 years 24% of the augmented estate
ix years but less than 10 years 27% of the augmented manor
10 years but less than 11 years 30% of the augmented manor
11 years but less than 12 years 34% of the augmented estate
12 years merely less than 13 years 38% of the augmented estate
13 years simply less than 14 years 42% of the augmented estate
xiv years but less than 15 years 46% of the augmented estate
15 years or more than 50% of the augmented manor
(2) If the sum of the amounts described in 72-2-222(ii)(d), 72-2-227(1)(a) through (1)(c), and that office of the elective-share amount payable from the decedent's probate manor and nonprobate transfers to others under 72-2-227(two) and (3) is less than $50,000, the surviving spouse is entitled to a supplemental elective-share corporeality equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share corporeality is payable from the decedent'due south probate estate and from recipients of the decedent'south nonprobate transfers to others in the order of priority set up forth in 72-ii-227(2) and (3).
(3) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse'due south homestead allowance, exempt belongings, and family assart, if whatsoever, are non charged against only are in addition to the elective-share and supplemental elective-share amounts.
(4) The correct, if any, of the surviving spouse of a decedent who dies domiciled outside this country to take an elective share in property in this land is governed by the law of the decedent's domicile at death."
Section 3. Section 72-2-222, MCA, is amended to read:
"72-2-222. Augmented estate. (1) (a) As used in this section, the following definitions utilize:
(i) "Decedent's nonprobate transfers to others" means the decedent's nonprobate transfers to persons, other than the decedent'due south spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors, that are included in the augmented estate nether subsection (two)(b).
(two) "Fractional involvement in belongings held in articulation tenancy with the right of survivorship", whether the fractional interest is unilaterally severable or not, ways the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.
(iii) "Wedlock", every bit information technology relates to a transfer past the decedent during union, ways any marriage of the decedent to the decedent'southward surviving spouse.
(4) "Nonadverse political party" means a person who does not have a substantial beneficial interest in the trust or other property system that would exist adversely affected by the exercise or nonexercise of the power that person possesses respecting the trust or other property arrangement. A person having a general power of engagement over property is considered to have a beneficial interest in the property.
(5) "Power" or "power of date" includes a ability to designate the beneficiary of a beneficiary designation.
(vi) "Presently exercisable general power of appointment" means a ability of engagement under which, at the fourth dimension in question, the decedent, whether or not the decedent and then had the capacity to exercise the power, held a power to create a present or future interest in the decedent, the decedent'southward creditors, the decedent's manor, or the creditors of the decedent's estate and includes a power to revoke or invade the principal of a trust or other property organisation.
(7) "Probate manor" means property, whether real or personal, movable or immovable, wherever situated, that would laissez passer past intestate succession if the decedent died without a valid will.
(viii) "Property" includes values bailiwick to a casher designation.
(ix) "Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.
(x) "Transfer", as it relates to a transfer by or of the decedent, includes:
(A) an exercise or release of a before long exercisable general power of appointment held by the decedent;
(B) a lapse at death of a before long exercisable general power of engagement held past the decedent; and
(C) an practise, release, or lapse of a general power of date that the decedent created in the decedent and of a ability described in subsection (2)(b)(2)(B) that the decedent conferred on a nonadverse political party.
(b) (i) Equally used in subsection (ii)(b)(iii)(A), "termination":
(A) with respect to a right or interest in belongings, means that the correct or interest terminated past the terms of the governing instrument or that the decedent transferred or relinquished the right or interest; and
(B) with respect to a ability over property, means that the ability terminated by practise, release, lapse, or default or otherwise.
(two) With respect to a power described in subsection (2)(b)(i)(A), "termination" means that the power terminated by practice or release, only not by lapse or by default or otherwise.
(2) The augmented manor consists of the sum of:
(a) the value of the decedent'due south probate estate, reduced by funeral and administration expenses, homestead allowance, family unit allowances, exempt property, and enforceable claims;
(b) the value of the decedent's nonprobate transfers to others, which are composed of all property, whether real or personal, movable or immovable, wherever situated, not included in the decedent'southward probate estate, of any of the following types:
(i) holding of whatsoever of the following types that passed exterior probate at the decedent's decease:
(A) belongings over which the decedent lone, immediately before death, held a shortly exercisable general power of appointment; the amount included is the value of the holding subject to the power, to the extent that the property was passed at the decedent's death, past do, release, lapse, or default or otherwise, to or for the do good of any person other than the decedent's manor or surviving spouse;
(B) the decedent's fractional involvement in belongings held by the decedent in articulation tenancy with the right of survivorship; the amount included is the value of the decedent's partial involvement, to the extent that the fractional interest was passed by right of survivorship at the decedent'southward death to a surviving joint tenant other than the decedent's surviving spouse; or
(C) the decedent'south buying involvement in property or accounts held in POD, TOD, or co-ownership registration with the correct of survivorship; the amount included is the value of the decedent's buying interest, to the extent that the decedent's buying interest passed at the decedent's decease to or for the benefit of whatever person other than the decedent's estate or surviving spouse;
(ii) holding transferred in any of the following forms past the decedent during marriage:
(A) whatever irrevocable transfer in which the decedent retained the correct to the possession or enjoyment of, or to the income from, the property if and to the extent that the decedent'due south right terminated at or continued beyond the decedent'south death; the amount included is the value of the fraction of the holding to which the decedent'southward right related, to the extent that the fraction of the property was passed outside probate to or for the benefit of whatsoever person other than the decedent's estate or surviving spouse; or
(B) any transfer in which the decedent created a power over the income or master of the transferred property, exercisable past the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, for the benefit of the decedent, the decedent's creditors, the decedent'south estate, or the creditors of the decedent's estate; the corporeality included is the value of the property subject to the power, to the extent that the power was exercisable at the decedent's death to or for the benefit of any person other than the decedent'south surviving spouse or to the extent that the property subject to the power passed at the decedent's expiry, by do, release, lapse, or default or otherwise, to or for the benefit of any person other than the decedent'southward estate or surviving spouse; and
(iii) holding that passed during matrimony and during the ii-year menstruum preceding the decedent'south death as a result of a transfer by the decedent if the transfer was of any of the following types:
(A) any holding that passed as a result of the termination of a right or interest in, or power over, property that would take been included in the augmented manor nether subsection (two)(b)(i)(A), (two)(b)(i)(B), (2)(b)(i)(C), or (two)(b)(ii) if the right, interest, or ability had not terminated until the decedent's expiry; the amount included is the value of the property that would take been included nether these subsections, except that that property is valued at the time that the right, interest, or power terminated, and is included simply to the extent that the property passed upon termination to or for the benefit of whatsoever person other than the decedent or the decedent's estate, spouse, or surviving spouse; or
(B) whatsoever transfer of belongings, to the extent not otherwise included in the augmented estate, made to or for the do good of a person other than the decedent's surviving spouse; the amount included is the value of the transferred holding to the extent that the aggregate transfers to any 1 donee in either of the 2 years exceeded $x,000 the amount excluded from federal taxable gifts pursuant to section 2503(b) of the Internal Acquirement Code in effect in the yr of transfer;
(c) the value of the decedent'southward nonprobate transfers to the decedent's surviving spouse, which are composed of all property that passed outside probate at the decedent's expiry from the decedent to the surviving spouse by reason of the decedent's death, including:
(i) the decedent'south fractional involvement in property held as a articulation tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving articulation tenant;
(2) the decedent'south buying interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership involvement passed to the surviving spouse as surviving co-possessor;
(iii) proceeds of insurance, including accidental death benefits, on the life of the decedent if the decedent owned the insurance policy immediately earlier death or if and to the extent that the decedent alone and immediately before death held a presently exercisable full general power of date over the policy or its proceeds; the amount included is the value of the proceeds, to the extent that they were payable at the decedent's decease; and
(4) all other property that would take been included in the augmented estate under subsection (2)(b)(i) or (2)(b)(ii) had information technology passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors, but excluding property passing to the surviving spouse under the federal social security system; and
(d) except to the extent included in the augmented estate under subsection (2)(a) or (ii)(c), the value of:
(i) property that was endemic by the decedent's surviving spouse at the decedent'south death, including:
(A) the surviving spouse's partial interest in property held in joint tenancy with the right of survivorship;
(B) the surviving spouse's ownership interest in property or accounts held in co-buying registration with the right of survivorship; and
(C) property that passed to the surviving spouse by reason of the decedent'southward death, merely not including the spouse'due south correct to homestead assart, family allowance, exempt property, or payments under the federal social security system; and
(2) property that would take been included in the surviving spouse'south nonprobate transfers to others, other than the spouse's fractional and ownership interests included in subsections (2)(d)(i)(A) and (2)(d)(i)(B), had the spouse been the decedent. Holding included under this subsection (two)(d)(ii) is valued at the decedent's death, taking into account the fact that the decedent predeceased the spouse, except that, for purposes of subsections (2)(d)(i)(A) and (2)(d)(i)(B), the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. The value of belongings included under this subsection (2)(d)(ii) is reduced in each category past enforceable claims confronting the included belongings and is reduced past enforceable claims against the surviving spouse.
(3) The value of any holding is excluded from the decedent'southward nonprobate transfers to others:
(a) to the extent the decedent received acceptable and full consideration in money or coin's worth for a transfer of the property;
(b) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse; or
(c) if the property is life insurance, blow insurance, alimony, profit-sharing, retirement, and other benefit plans payable to persons other than the decedent'south surviving spouse or the decedent'southward estate.
(4) The value of property includes the commuted value of whatsoever present or future interest and the commuted value of amounts payable nether whatsoever trust, life insurance settlement option, annuity contract, public or private alimony, disability compensation, death do good or retirement program, or any similar arrangement, exclusive of the federal social security organization. The commuted value of life and term interests in income, annuity, or unitrust amount must exist determined in accordance with U.Southward. treasury regulations for internal revenue purposes in effect at the time of the decedent's expiry.
(5) In instance of overlapping application to the same holding of the provisions of subsection (2), the property is included in the augmented estate nether the provision yielding the highest value, only under any one, but only i, of the overlapping provisions if they all yield the aforementioned value."
Department iv. Section 72-2-811, MCA, is amended to read:
"72-2-811. Disclaimer of property interests. (1) (a) A person or the representative of a person to whom an interest in or with respect to belongings or an interest in the property devolves by whatsoever means may disclaim it in whole or in function by delivering or filing a written disclaimer nether this department.
(b) The right to disclaim exists nonetheless:
(i) any limitation on the involvement of the disclaimant in the nature of a spendthrift provision or like brake; or
(ii) whatsoever restriction or limitation on the correct to disclaim contained in the governing instrument.
(c) For purposes of this subsection (1), the "representative of a person" includes a personal representative of a decedent; a conservator of a disabled person; a guardian of a small or incapacitated person; a guardian advertising litem of a minor, an incapacitated person, an unborn person, an unascertained person, or a person whose identity or address is unknown; and an amanuensis interim on behalf of the person within the authority of a ability of attorney. The representative of a person may rely on a general family benefit accruing to the living members of the represented person's family every bit a basis for making a disclaimer.
(2) The following rules govern the time when a disclaimer must be filed or delivered:
(a) If the holding or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer must be filed, if of a present interest, not later on than 9 months later on the death of the deceased owner or deceased donee of a power of date and, if of a future interest, non later than 9 months afterwards the event determining that the taker of the holding or interest is finally ascertained and the taker's interest is indefeasibly vested. The disclaimer must be filed in the court of the county in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced. A copy of the disclaimer must exist delivered in person or mailed by certified mail, return receipt requested, to any personal representative or other fiduciary of the decedent or donee of the ability.
(b) If a belongings or interest has devolved to the disclaimant under a nontestamentary musical instrument or contract, the disclaimer must exist delivered or filed, if of a present involvement, not afterwards than 9 months after the effective date of the nontestamentary musical instrument or contract and, if of a future interest, not after than nine months after the event determining that the taker of the holding or interest is finally ascertained and the taker's involvement is indefeasibly vested. If the person entitled to disclaim does not know of the being of the involvement, the disclaimer must be delivered or filed not later than 9 months later the person learns of the beingness of the interest. The effective date of a revocable instrument or contract is the appointment on which the maker no longer has power to revoke it or to transfer to the maker or another the entire legal and equitable buying of the interest. The disclaimer or a copy of the disclaimer must be delivered in person or mailed by certified mail, return receipt requested, to the person who has legal championship to or possession of the interest disclaimed.
(c) A surviving articulation tenant may disclaim as a divide interest any property or interest in holding devolving to the surviving joint tenant past correct of survivorship inside ix months after the expiry of the deceased joint owner, regardless of whether the surviving joint tenant contributed to the purchase of jointly held belongings or benefitted from the jointly held property prior to the other joint tenant's death. A surviving joint tenant may disclaim the entire interest in whatever property or interest in the property that is the subject of a articulation tenancy devolving to the joint tenant if the joint tenancy was created by act of a deceased joint tenant, the survivor did not join in creating the joint tenancy, and the survivor has not accepted a do good under it.
(d) If existent property or an involvement in the property is disclaimed, a copy of the disclaimer may be recorded in the office of the clerk and recorder of the canton in which the belongings or interest disclaimed is located.
(3) The disclaimer must:
(a) draw the property or interest disclaimed;
(b) declare the disclaimer and extent of the disclaimer; and
(c) be signed past the disclaimant.
(four) The following are the furnishings of a disclaimer:
(a) If property or an interest in property devolves to a disclaimant nether a testamentary musical instrument, under a power of date exercised past a testamentary instrument, or under the laws of intestacy and the decedent has non provided for another disposition of that interest, should information technology be disclaimed, or of disclaimed or failed interests in general, the disclaimed interest devolves as if the disclaimant had predeceased the decedent, just if by constabulary or nether the testamentary instrument the descendants of the disclaimant would share in the disclaimed involvement by representation or otherwise were the disclaimant to predecease the decedent, and then the disclaimed interest passes by representation, or passes as directed past the governing instrument, to the descendants of the disclaimant who survive the decedent. A hereafter involvement that takes effect in possession or enjoyment afterward the termination of the estate or interest disclaimed takes effect as if the disclaimant had predeceased the decedent. A disclaimer relates back for all purposes to the engagement of the death of the decedent.
(b) If property or an involvement in property devolves to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for some other disposition of that interest, should information technology be disclaimed, or of disclaimed or failed interests in general, the disclaimed involvement devolves as if the disclaimant had predeceased the effective date of the musical instrument or contract, simply if by police force or under the nontestamentary instrument or contract the descendants of the disclaimant would share in the disclaimed involvement by representation or otherwise were the disclaimant to predecease the constructive date of the instrument, and then the disclaimed interest passes by representation, or passes equally directed by the governing instrument, to the descendants of the disclaimant who survive the effective engagement of the instrument. A disclaimer relates dorsum for all purposes to that engagement. A hereafter interest that takes effect in possession or enjoyment at or afterward the termination of the disclaimed interest takes effect as if the disclaimant had died before the constructive date of the instrument or contract that transferred the disclaimed interest.
(c) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and on all persons claiming through or under either of them.
(5) The right to disclaim property or an interest in the holding is barred past:
(a) an assignment, conveyance, encumbrance, pledge, or transfer of the belongings or involvement or a contract therefor;
(b) a written waiver of the right to disclaim;
(c) an acceptance of the property or interest or benefit under it; or
(d) a sale of the belongings or involvement nether judicial sale made earlier the disclaimer is made.
(6) This section does not abridge the right of a person to waive, release, disclaim, or renounce holding or an interest in property nether any other statute.
(7) An interest in belongings that exists on October 1, 1993, as to which, if a present interest, the time for filing a disclaimer nether this section has not expired or, if a future interest, the interest has not get indefeasibly vested or the taker finally ascertained may be disclaimed inside 9 months after October one, 1993."
Section 5. Section 72-iii-613, MCA, is amended to read:
"72-3-613. Transactions authorized for personal representative. Except equally restricted by this code or otherwise provided past the volition or by an social club in a formal proceeding and subject area to the priorities stated in 72-iii-901, a personal representative, interim reasonably for the benefit of the interested persons, may properly:
(1) retain assets endemic 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) perform, compromise, or decline performance of the decedent's contracts that continue as obligations of the manor, every bit he the personal representative may determine under the circumstances. In performing enforceable contracts past the decedent to convey or charter land, the personal representative, amid 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 human action 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 non needed to meet debts and expenses currently payable and are non immediately distributable, deposit or invest liquid assets of the estate, including money received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments that would exist reasonable for utilise past trustees generally. If the personal representative is authorized to invest funds in The states obligations, he the personal representative may invest in these obligations either directly or in the form of securities of or other interests in an open up-cease or airtight-finish management type investment visitor or investment trust registered nether the Investment Company Act of 1940 (fifteen United statesC. 80a-1 through 80a-64), as amended, if:
(a) the portfolio of the investment visitor or investment trust is limited to United States regime obligations and repurchase agreements fully collateralized by United states of america government obligations; and
(b) the investment visitor or investment trust takes delivery of the collateral for any repurchase agreement, either directly or through an authorized custodian.
(6) acquire or dispose of an asset, including land in this or some other land, for cash or on credit, at public or private auction and manage, develop, improve, exchange, sectionalisation, modify the grapheme of, or abandon an estate asset;
(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish whatsoever improvements, raze existing or erect new political party walls or buildings;
(eight) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or sectionalisation past giving or receiving considerations; or dedicate easements to public use without consideration;
(nine) enter for any purpose into a charter as lessor or lessee, with or without option to buy 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 resource or enter into a pooling or unitization understanding;
(11) with the consent of the heirs or devisees or the court, abandon property when in the opinion of the personal representative it is valueless or is so burdened or is in condition that information technology is of no benefit to the estate;
(12) vote stocks or other securities in person or by full general or limited proxy;
(xiii) pay calls, assessments, and other sums chargeable or accruing against or on business relationship of securities, unless barred by the provisions relating to claims;
(14) agree a security in the name of a nominee or in other form without disclosure of the interest of the manor, but the personal representative is liable for whatsoever act of the nominee in connexion with the security so held;
(15) insure the avails of the estate against damage, loss, and liability and himself the personal representative against liability as to third persons;
(sixteen) infringe coin with or without security to be repaid from the estate avails or otherwise and advance coin for the protection of the estate;
(17) with the consent of the heirs or devisees or the courtroom, 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 manor. If the personal representative holds a mortgage, pledge, or other lien upon property of some other person, he the personal representative may, in lieu of foreclosure, have a conveyance or transfer of burdened assets from the owner thereof in satisfaction of the indebtedness secured by lien.
(eighteen) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(19) sell or do 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) classify items of income or expense to either manor income or principal, every bit permitted or provided by law;
(21) utilise persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or aid the personal representative in the performance of his the personal representative's administrative duties; act without contained investigation upon their recommendations; and, instead of acting personally, apply one 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 the personal representative's duties;
(23) sell, mortgage, or lease any real or personal holding of the estate or whatever interest therein for greenbacks, credit, or for part cash and part credit and with or without security for unpaid balances; provided, however, a personal representative may not, without prior court approving in a supervised proceeding, either directly or indirectly purchase whatever holding of the manor he that the personal representative represents, nor may he be interested in the sale. All sales must be adequately conducted and made for the best cost obtainable.
(24) keep any unincorporated business concern or venture in which the decedent was engaged at the time of his expiry:
(a) in the aforementioned business organization class for a period of not more than 4 months from the date of engagement of a general personal representative if continuation is a reasonable means of preserving the value of the business organisation, including good will;
(b) in the aforementioned business form for whatever additional menstruation of time that may be approved past order of the court in a formal proceeding to which the persons interested in the estate are parties; or
(c) throughout the flow of administration, if the business organisation is incorporated past 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 manor; in the same business form, including a sole proprietorship, partnership, or limited liability visitor, unless otherwise ordered by the court in a formal proceeding initiated by an interested person on the ground that continuation of the business is not in the best interests of the estate or its beneficiaries;
(25) contain any business or venture in which the decedent was engaged at the fourth dimension of his death;
(26) satisfy and settle claims and distribute the estate every bit provided in this code."
Department 6. Section 72-5-222, MCA, is amended to read:
"72-5-222. Court appointment of guardian of modest -- when allowed -- priority of testamentary appointment. (one) The court may appoint a guardian for an unmarried pocket-size if all parental rights of custody have been terminated or if parental rights accept been suspended or limited by circumstances or prior court guild.
(2) A guardian appointed by will as provided in 72-v-211 and 72-5-212 whose appointment has not been prevented or nullified under 72-five-213 has priority over any guardian who may be appointed by the courtroom, but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary date within 30 days after notice of the guardianship proceeding."
Section 7. Section 72-34-113, MCA, is amended to read:
"72-34-113. Duty not to consul unabridged administration of trust. (1) The trustee has a duty non to consul to others the performance of acts that the trustee can reasonably be required personally to perform and may non transfer the office of trustee to another person nor delegate the entire assistants of the trust to a cotrustee or other person.
(2) In a instance where a trustee has properly delegated a affair to an amanuensis, cotrustee, or other person, the trustee has a duty to do full general supervision over the person performing the delegated matter.
(2) A trustee may delegate investment, direction, and administrative functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall practise reasonable care, skill, and caution in:
(a) selecting an amanuensis;
(b) establishing the scope and terms of the delegation, consequent with the purposes and terms of the trust;
(c) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
(3) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
(4) A trustee who complies with the requirements of subsection (2) is non liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
(five) By accepting the delegation of a trust role from the trustee of a trust that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state."
Department 8. Section 72-34-114, MCA, is amended to read:
"72-34-114. Duty to use ordinary skill and prudence. (1) The trustee shall administer the trust with the intendance, skill, prudence, and diligence under the circumstances then prevailing that a prudent person would employ to accomplish the purposes of the trust as determined from the trust instrument.
(2) When investing, reinvesting, purchasing, acquiring, exchanging, selling, and managing trust property, the trustee shall act with the care, skill, prudence, and diligence under the circumstances and then prevailing, including simply not express to the general economical atmospheric condition and the anticipated needs of the trust and its beneficiaries, that a prudent person would utilise to accomplish the purposes of the trust as adamant from the trust musical instrument. In the course of administering the trust pursuant to this standard, individual investments shall be considered every bit function of an overall investment strategy.
(two) A trustee shall invest and manage trust assets every bit a prudent investor would, past considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall practise reasonable care, skill, and caution.
(3) A trustee's investment and direction decisions respecting individual avails must exist evaluated non in isolation but in the context of a trust portfolio as a whole and as a role of an overall investment strategy having run a risk and render objectives reasonably suited to the trust.
(4) Among circumstances that a trustee shall consider in investing and managing trust assets are any of the following that are relevant to the trust or its beneficiaries:
(a) general economic weather;
(b) the possible effect of inflation or deflation;
(c) the expected tax consequences of investment decisions or strategies;
(d) the role that each investment or grade of activity plays within the overall trust portfolio, which may include fiscal assets, interests in closely held enterprises, tangible and intangible personal holding, and real belongings;
(eastward) the expected total return from income and the appreciation of the uppercase;
(f) other resources of the beneficiaries;
(g) needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) an nugget's special human relationship or special value, if whatever, to the purposes of the trust or to one or more of the beneficiaries.
(five) A trustee shall make a reasonable effort to verify facts relevant to the investment and direction of trust avails.
(half-dozen) A trustee may invest in any kind of property or type of investment consequent with the standards of this section.
(3) (7) The trustor may expand or restrict the standards provided in subsections (1) and (2) through (6) by limited provisions in the trust instrument. A trustee is not liable to a beneficiary for the trustee's reliance on these express provisions.
(8) Compliance with the prudent investor rule is adamant in light of the facts and circumstances existing at the fourth dimension of a trustee's conclusion or action and not by hindsight."
Section 9. Department 72-34-205, MCA, is amended to read:
"72-34-205. Incorporation in trust instruments. The provisions of 72-34-202 through 72-34-204 and [section 12] shall be considered to be independent in the instrument creating every trust to which this function applies. Any provision of the instrument inconsistent with or contrary to this part is without effect."
Department 10. Department 72-35-306, MCA, is amended to read:
"72-35-306. Observe. (one) At least 14 days before the fourth dimension set for the hearing on the petition, the petitioner shall cause notice of the time and place of hearing to be mailed to whatever of the following persons who are not petitioners:
(i) (a) all trustees;
(two) (b) all beneficiaries who are entitled to notice; and
(three) (c) the attorney general, if the petition is related to a charitable trust subject field to the jurisdiction of the attorney full general, unless the attorney general waives notice.
(2) The detect for a petition and hearing requesting the courtroom to settle accounts or pass upon the acts of the trustee or that otherwise may affect noun belongings rights of a beneficiary or other interested party must state that fact in the discover and must further country that failure to appear and object bars any further claims against the trustee relating to the subject thing of the petition."
Section eleven. Separate writing identifying disposition of tangible personal property. (i) A trust may refer to a written argument or list to dispose of items of tangible personal property not otherwise specifically tending of by the trust, other than coin.
(2) To exist admissible under this department as evidence of the intended disposition, the writing must be signed by the trustor and must describe the items and the devisees with reasonable certainty.
(3) The writing may exist:
(a) referred to equally one to be in existence at the fourth dimension of the trustor's decease;
(b) prepared before or later on the execution of the trust;
(c) altered by the trustor later on its preparation; and
(d) a writing that has no significance apart from its effect upon the dispositions made by the trust.
Section 12. Disposition of property upon termination of 501(c)(3) trust. At the termination of a charitable trust, private foundation, or whatsoever other trust described in section 501(c)(iii) of the Internal Revenue Code, the trust property must be distributed for one or more exempt purposes or to organizations that are organized and operated exclusively for exempt purposes inside the meaning of section 501(c)(3) of the Internal Acquirement Code or must be distributed to the federal government or to a state or local regime for a public purpose. Whatsoever trust property not disposed of must be disposed of past the district court for the county in which the main function of the trust is then located, exclusively for exempt purposes or to organizations, as the court determines, that are organized and operated exclusively for exempt purposes.
Section 13. Section three, Affiliate 464, Laws of 1997, is amended to read:
"Department iii.Termination -- applicability Applicability. (ane) [Section 1] terminates July 1, 1999.
(2) Yet the provisions of subsection (1), [section [Section 1] applies to all inheritance taxes arising from deaths occurring between afterward Jan 1, 1995, and July 1, 1999."
Section 14. Codification instruction. (1) [Section 11] is intended to be codified as an integral part of Title 72, chapter 33, part 2, and the provisions of Title 72, chapter 33, office ii, utilize to [section xi].
(ii) [Section 12] is intended to exist codified as an integral function of Title 72, chapter 34, office two, and the provisions of Title 72, chapter 34, part 2, apply to [section 12].
Section 15. Effective date. [This act] is effective on passage and approval.
- End -
Latest Version of SB 473 (SB0473.ENR)
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