SF 2540

1st Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to property; changing certain probate and 
  1.3             power of appointment provisions; amending Minnesota 
  1.4             Statutes 2000, sections 501A.01; 524.2-804; 525.313; 
  1.5             Minnesota Statutes 2001 Supplement, section 524.3-1201.
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 2000, section 501A.01, is 
  1.8   amended to read: 
  1.9      501A.01 [WHEN NONVESTED INTEREST, POWERS OF APPOINTMENT ARE 
  1.10  INVALID; EXCEPTIONS.] 
  1.11     (a) A nonvested property interest is invalid unless: 
  1.12     (1) when the interest is created, it is certain to vest or 
  1.13  terminate no later than 21 years after the death of an 
  1.14  individual then alive; or 
  1.15     (2) the interest either vests or terminates within 90 years 
  1.16  after its creation. 
  1.17     (b) A general power of appointment not presently 
  1.18  exercisable because of a condition precedent is invalid unless: 
  1.19     (1) when the power is created, the condition precedent is 
  1.20  certain to be satisfied or become impossible to satisfy no later 
  1.21  than 21 years after the death of an individual then alive; or 
  1.22     (2) the condition precedent either is satisfied or becomes 
  1.23  impossible to satisfy within 90 years after its creation. 
  1.24     (c) A nongeneral power of appointment or a general 
  1.25  testamentary power of appointment is invalid unless: 
  2.1      (1) when the power is created, it is certain to be 
  2.2   irrevocably exercised or otherwise to terminate no later than 21 
  2.3   years after the death of an individual then alive; or 
  2.4      (2) the power is irrevocably exercised or otherwise 
  2.5   terminates within 90 years after its creation. 
  2.6      (d) In determining whether a nonvested property interest or 
  2.7   a power of appointment is valid under subsection paragraph (a), 
  2.8   clause (1), paragraph (b), clause (1), or paragraph (c), 
  2.9   clause (1), the possibility that a child will be born to an 
  2.10  individual after the individual's death is disregarded. 
  2.11     (e) If, in measuring a period from the creation of a trust 
  2.12  or other property arrangement, language in a governing 
  2.13  instrument seeks to: 
  2.14     (1) disallow the vesting or termination of any interest 
  2.15  trust beyond; 
  2.16     (2) postpone the vesting or termination of any interest or 
  2.17  trust until; or 
  2.18     (3) operate in effect in any similar fashion upon, 
  2.19  the later of the expiration of a period of time not exceeding 21 
  2.20  years after the death of the survivor of specified lives in 
  2.21  being at the creation of the trust or other property 
  2.22  arrangement, or the expiration of a period of time that exceeds 
  2.23  or might exceed 21 years after the death of the survivor of 
  2.24  lives in being at the creation of the trust or other property 
  2.25  arrangement; 
  2.26  that language is inoperative to the extent it produces a period 
  2.27  of time that exceeds 21 years after the death of the survivor of 
  2.28  the specified lives. 
  2.29     Sec. 2.  Minnesota Statutes 2000, section 524.2-804, is 
  2.30  amended to read: 
  2.31     524.2-804 [REVOCATION BY DISSOLUTION OF MARRIAGE; NO 
  2.32  REVOCATION BY OTHER CHANGES OF CIRCUMSTANCES.] 
  2.33     If after executing a will the testator's marriage is 
  2.34  dissolved or annulled, the dissolution or annulment revokes any 
  2.35  disposition or appointment of property made by the will to the 
  2.36  former spouse, any provision conferring a general or special 
  3.1   power of appointment on the former spouse, and any nomination of 
  3.2   the former spouse as executor, trustee, conservator, or 
  3.3   guardian, unless the will expressly provides otherwise.  
  3.4   Property prevented from passing to a former spouse because of 
  3.5   revocation by dissolution of marriage or annulment passes as if 
  3.6   the former spouse failed to survive the decedent, and other 
  3.7   provisions conferring some power or office on the former spouse 
  3.8   are interpreted as if the spouse failed to survive the 
  3.9   decedent.  If provisions are revoked solely by this section, 
  3.10  they are revived by testator's remarriage to the former spouse.  
  3.11  For purposes of this chapter and chapter 525, dissolution of 
  3.12  marriage includes divorce.  A decree of separation which does 
  3.13  not terminate the status of husband and wife is not a 
  3.14  dissolution of marriage for purposes of this section.  No change 
  3.15  of circumstances other than as described in this section revokes 
  3.16  a will.  Subdivision 1.  [REVOCATION UPON DISSOLUTION.] Except 
  3.17  as provided by the express terms of a governing instrument, 
  3.18  other than a trust instrument under section 501B.90, executed 
  3.19  prior to the dissolution or annulment of an individual's 
  3.20  marriage, a court order, a contract relating to the division of 
  3.21  the marital property made between individuals before or after 
  3.22  their marriage, dissolution, or annulment, or a plan document 
  3.23  governing a qualified or nonqualified retirement plan, the 
  3.24  dissolution or annulment of a marriage revokes any revocable: 
  3.25     (1) disposition, beneficiary designation, or appointment of 
  3.26  property made by an individual to the individual's former spouse 
  3.27  in a governing instrument; 
  3.28     (2) provision in a governing instrument conferring a 
  3.29  general or nongeneral power of appointment on an individual's 
  3.30  former spouse; and 
  3.31     (3) nomination in a governing instrument, nominating an 
  3.32  individual's former spouse to serve in any fiduciary or 
  3.33  representative capacity, including a personal representative, 
  3.34  executor, trustee, conservator, agent, or guardian. 
  3.35     Subd. 2.  [EFFECT OF REVOCATION.] Provisions of a governing 
  3.36  instrument are given effect as if the former spouse died 
  4.1   immediately before the dissolution or annulment. 
  4.2      Subd. 3.  [REVIVAL IF DISSOLUTION NULLIFIED.] Provisions 
  4.3   revoked solely by this section are revived by the individual's 
  4.4   remarriage to the former spouse or by a nullification of the 
  4.5   dissolution or annulment. 
  4.6      Subd. 4.  [NO REVOCATION FOR OTHER CHANGE OF 
  4.7   CIRCUMSTANCES.] No change of circumstances other than as 
  4.8   described in this section and in section 524.2-803 effects a 
  4.9   revocation. 
  4.10     Subd. 5.  [PROTECTION OF PAYORS AND OTHER THIRD 
  4.11  PARTIES.] (a) A payor or other third party is not liable for 
  4.12  having made a payment or transferred an item of property or any 
  4.13  other benefit to a beneficiary designated in a governing 
  4.14  instrument affected by a dissolution, annulment, or remarriage, 
  4.15  or for having taken any other action in good faith reliance on 
  4.16  the validity of the governing instrument, before the payor or 
  4.17  other third party received written notice of the dissolution, 
  4.18  annulment, or remarriage.  A payor or other third party is 
  4.19  liable for a payment made or other action taken after the payor 
  4.20  or other third party received written notice of a claimed 
  4.21  forfeiture or revocation under this section. 
  4.22     (b) Written notice of the dissolution, annulment, or 
  4.23  remarriage under paragraph (a) must be delivered to the payor's 
  4.24  or other third party's main office or home.  Upon receipt of 
  4.25  written notice of the dissolution, annulment, or remarriage, a 
  4.26  payor or other third party may pay any amount owed or transfer 
  4.27  or deposit any item of property held by it to or with the court 
  4.28  having jurisdiction of the probate proceedings relating to the 
  4.29  decedent's estate or, if no proceedings have been commenced, to 
  4.30  or with the court having jurisdiction of probate proceedings 
  4.31  relating to decedents' estates located in the county of the 
  4.32  decedent's residence.  The court shall hold the funds or item of 
  4.33  property and, upon its determination under this section, shall 
  4.34  order disbursement or transfer in accordance with the 
  4.35  determination.  Payments, transfers, or deposits made to or with 
  4.36  the court discharge the payor or other third party from all 
  5.1   claims for the value of amounts paid to or items of property 
  5.2   transferred to or deposited with the court. 
  5.3      Sec. 3.  Minnesota Statutes 2001 Supplement, section 
  5.4   524.3-1201, is amended to read: 
  5.5      524.3-1201 [COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT.] 
  5.6      (a) Thirty days after the death of a decedent, (i) any 
  5.7   person indebted to the decedent, (ii) any person having 
  5.8   possession of tangible personal property or an instrument 
  5.9   evidencing a debt, obligation, stock, or chose in action 
  5.10  belonging to the decedent, or (iii) any safe deposit company, as 
  5.11  defined in section 55.01, controlling the right of access to 
  5.12  decedent's safe deposit box shall make payment of the 
  5.13  indebtedness or deliver the tangible personal property or an 
  5.14  instrument evidencing a debt, obligation, stock, or chose in 
  5.15  action or deliver the entire contents of the safe deposit box to 
  5.16  a person claiming to be the successor of the decedent, or a 
  5.17  state or county agency with a claim authorized by section 
  5.18  256B.15, upon being presented a certified death record of the 
  5.19  decedent and an affidavit, in duplicate, made by or on behalf of 
  5.20  the successor stating that: 
  5.21     (1) the value of the entire probate estate, determined as 
  5.22  of the date of death, wherever located, including specifically 
  5.23  any contents of a safe deposit box, less liens and encumbrances, 
  5.24  does not exceed $20,000; 
  5.25     (2) 30 days have elapsed since the death of the decedent 
  5.26  or, in the event the property to be delivered is the contents of 
  5.27  a safe deposit box, 30 days have elapsed since the filing of an 
  5.28  inventory of the contents of the box pursuant to section 55.10, 
  5.29  paragraph (h); 
  5.30     (3) no application or petition for the appointment of a 
  5.31  personal representative is pending or has been granted in any 
  5.32  jurisdiction; 
  5.33     (4) if presented, by a state or county agency with a claim 
  5.34  authorized by section 256B.15, to a financial institution with a 
  5.35  multiple-party account in which the decedent had an interest at 
  5.36  the time of death, the amount of the affiant's claim and a good 
  6.1   faith estimate of the extent to which the decedent was the 
  6.2   source of funds or beneficial owner of the account; and 
  6.3      (5) the claiming successor is entitled to payment or 
  6.4   delivery of the property. 
  6.5      (b) A transfer agent of any security shall change the 
  6.6   registered ownership on the books of a corporation from the 
  6.7   decedent to the successor or successors upon the presentation of 
  6.8   an affidavit as provided in subsection (a). 
  6.9      (c) The claiming successor or state or county agency shall 
  6.10  disburse the proceeds collected under this section to any person 
  6.11  with a superior claim under section 524.2-403 or 524.3-805. 
  6.12     (d) A motor vehicle registrar shall issue a new certificate 
  6.13  of title in the name of the successor upon the presentation of 
  6.14  an affidavit as provided in subsection (a). 
  6.15     (e) The person controlling access to decedent's safe 
  6.16  deposit box need not open the box or deliver the contents of the 
  6.17  box if: 
  6.18     (1) the person has received notice of a written or oral 
  6.19  objection from any person or has reason to believe that there 
  6.20  would be an objection; or 
  6.21     (2) the lessee's key or combination is not available. 
  6.22     Sec. 4.  Minnesota Statutes 2000, section 525.313, is 
  6.23  amended to read: 
  6.24     525.313 [CLEARANCE FOR MEDICAL ASSISTANCE CLAIMS.] 
  6.25     (a) The court shall not enter a decree of descent until the 
  6.26  petitioner has filed a clearance for medical assistance claims 
  6.27  under this section, and until any medical assistance claims 
  6.28  filed under this section have been paid, settled, or otherwise 
  6.29  finally disposed of. 
  6.30     (b) After filing the petition, the petitioner or the 
  6.31  petitioner's attorney shall apply to the county agency in the 
  6.32  county in which the petition is pending for a clearance of 
  6.33  medical assistance claims.  The application must state the 
  6.34  decedent's name, date of birth, and social security number; the 
  6.35  name, date of birth, and social security number of any 
  6.36  predeceased spouse of the decedent; the names and addresses of 
  7.1   the devisees and heirs; and the name, address, and telephone 
  7.2   number of the petitioner or the attorney making the application 
  7.3   on behalf of the petitioner, and include a copy of the notice of 
  7.4   hearing.  
  7.5      (c) The county agency shall determine whether the decedent 
  7.6   or any of the decedent's predeceased spouses received medical 
  7.7   assistance under chapter 256B or general assistance medical care 
  7.8   under chapter 256D giving rise to a claim under section 
  7.9   256B.15.  If there are no claims, the county agency shall issue 
  7.10  the petitioner a clearance for medical assistance claims stating 
  7.11  no medical assistance claims exist.  If there is a claim, the 
  7.12  county agency shall issue the petitioner a clearance for medical 
  7.13  assistance claims stating that a claim exists and the total 
  7.14  amount of the claim.  The county agency shall mail the completed 
  7.15  clearance for medical assistance claims to the applicant within 
  7.16  15 working days after receiving the application without cost to 
  7.17  the applicant or others. 
  7.18     (d) The petitioner or attorney shall file the certificate 
  7.19  in the proceedings for the decree of descent as soon as 
  7.20  practicable after it is received.  Notwithstanding any rule or 
  7.21  law to the contrary, if a medical assistance claim appears in a 
  7.22  clearance for medical assistance claims, then: 
  7.23     (1) the claim shall be a claim against the decedent's 
  7.24  property which is the subject of the petition.  The county 
  7.25  agency issuing the certificate shall be the claimant.  The 
  7.26  filing of the clearance for medical assistance claims in the 
  7.27  proceeding for a decree of descent constitutes presentation of 
  7.28  the claim; 
  7.29     (2) the claim shall be an unbarred and undischarged claim 
  7.30  and shall be payable, in whole or in part, from the decedent's 
  7.31  property which is the subject of the petition, including the net 
  7.32  sale proceeds from any sale of property free and clear of the 
  7.33  claim under this section; 
  7.34     (3) the claim may be allowed, denied, appealed, and bear 
  7.35  interest as provided for claims in estates under chapter 524; 
  7.36  and 
  8.1      (4) the county agency may collect, compromise, or otherwise 
  8.2   settle the claim with the estate, the petitioner, or the 
  8.3   assignees of the property on whatever terms and conditions are 
  8.4   deemed appropriate. 
  8.5      (e) Any of the decedent's devisees, heirs, successors, 
  8.6   assigns, or their successors and assigns, may apply for a 
  8.7   partial decree of descent to facilitate the good faith sale of 
  8.8   their interest in any real or personal property described in the 
  8.9   petition free and clear of any medical assistance claim any time 
  8.10  before the entry of a decree of descent under section 525.312.  
  8.11  The applicant must prove an interest in the property as provided 
  8.12  under section 525.312.  The court may enter a partial decree of 
  8.13  descent any time after it could hear and decide the petition for 
  8.14  a decree of descent.  A partial decree of descent shall assign 
  8.15  the interests in the real and personal property described in the 
  8.16  application to the parties entitled to the property free and 
  8.17  clear of any and all medical assistance claims.  The net sale 
  8.18  proceeds from the sale shall be: 
  8.19     (1) substituted in the estate according to this section for 
  8.20  the property sold; 
  8.21     (2) paid over to and held by the petitioner pending the 
  8.22  entry of a decree of descent; 
  8.23     (3) used for payment of medical assistance claims; and 
  8.24     (4) distributed according to the decree of descent after 
  8.25  any medical assistance claims are paid. 
  8.26     (f) The clearance for medical assistance claims must: 
  8.27     (1) include the case name, case number, and district court 
  8.28  in which the proceeding for a decree of descent is pending; 
  8.29     (2) include the name, date of birth, and social security 
  8.30  number of the decedent and any of the decedent's predeceased 
  8.31  spouses; 
  8.32     (3) state whether there are medical assistance claims 
  8.33  against the decedent, or a predeceased spouse, and the total 
  8.34  amount of each claim; and 
  8.35     (4) include the name, address, and telephone number of the 
  8.36  county agency giving the clearance for medical assistance 
  9.1   claims.  The certificate shall be signed by the director of the 
  9.2   county agency or the director's designee.  The signature of the 
  9.3   director or the director's designee does not require an 
  9.4   acknowledgment. 
  9.5      (g) All recoveries under this section are recoveries under 
  9.6   section 256B.15. 
  9.7      (h) For purposes of this section and chapter 256B, all 
  9.8   property identified in the petition and all subsequent 
  9.9   amendments to the petition shall constitute an estate. 
  9.10     (i) No clearance for medical assistance claims is required 
  9.11  under this section and section 525.312 in an action for a decree 
  9.12  of descent proceeding in which all of the following apply to the 
  9.13  decedent whose property is the subject of the proceeding: 
  9.14     (1) the decedent's estate was previously probated in this 
  9.15  state; 
  9.16     (2) the previous probate was not a special administration 
  9.17  or summary proceeding; and 
  9.18     (3) the decedent's property, which is the subject of the 
  9.19  petition for a decree of descent, was omitted from the previous 
  9.20  probate. 
  9.21     Sec. 5.  [EFFECTIVE DATE.] 
  9.22     Section 4 applies to proceedings for a decree of descent 
  9.23  commenced after July 31, 2002.