HF 1990

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to wills; enacting the uniform statutory will 
  1.3             act; proposing coding for new law as Minnesota 
  1.4             Statutes, chapter 524A. 
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [524A.01] [DEFINITIONS.] 
  1.7      In this chapter:  
  1.8      (1) "Child" means, except as modified by this paragraph, a 
  1.9   child of a natural parent whose relationship is involved.  An 
  1.10  adopted individual is the child of the adopting parents and not 
  1.11  of the natural parents, but an individual adopted by the spouse 
  1.12  of a natural parent is also the child of either natural parent.  
  1.13  An individual born out of wedlock is not the child of the father 
  1.14  unless the individual is openly and notoriously so treated by 
  1.15  the father.  The term does not include an individual who is a 
  1.16  stepchild, a foster child, a grandchild, or a more remote 
  1.17  descendant.  
  1.18     (2) "Issue" of an individual means all lineal descendants 
  1.19  of all generations, with the status of a child at each 
  1.20  generation being determined by the definition of child contained 
  1.21  in this chapter.  
  1.22     (3) "Personal representative" includes executor, 
  1.23  administrator, successor personal representative, special 
  1.24  administrator, and a person who performs substantially the same 
  1.25  functions relating to the estate of a decedent under the law 
  2.1   governing their status.  
  2.2      (4) "Property" means an interest, present or future, legal 
  2.3   or equitable, vested or contingent, in real or personal property.
  2.4      (5) "Representation" means the estate is divided into as 
  2.5   many equal shares as there are surviving issue in the nearest 
  2.6   degree of kinship and deceased individuals in the same degree 
  2.7   who left issue surviving the decedent, each surviving issue in 
  2.8   the nearest degree receiving one share and the share of each 
  2.9   deceased individual in the same degree being divided among issue 
  2.10  of that individual in the same manner.  
  2.11     (6) "Statutory will estate" means the entire testamentary 
  2.12  estate, except as otherwise provided in the will. 
  2.13     (7) "Surviving spouse" means the individual to whom the 
  2.14  testator was married at the time of death except a spouse from 
  2.15  whom the testator was then separated under a decree of 
  2.16  separation, whether or not final, or written separation 
  2.17  agreement signed by both parties.  An individual separated from 
  2.18  the testator whose marriage to the testator continues in effect 
  2.19  under the laws of this state solely because a judgment of 
  2.20  divorce or annulment of the marriage is not recognized as valid 
  2.21  in this state is not the testator's surviving spouse under this 
  2.22  chapter.  An individual whose marriage to the testator at the 
  2.23  time of death is not recognized in this state solely because a 
  2.24  judgment of divorce or annulment of a previous marriage of 
  2.25  either or both of them is not recognized as valid in this state 
  2.26  is the testator's surviving spouse under this chapter.  
  2.27     (8) "Testamentary estate" includes every interest in 
  2.28  property subject to disposition or appointed by a will of the 
  2.29  decedent. 
  2.30     (9) "Testator's residence" means one or more properties 
  2.31  normally used at the time of the testator's death by the 
  2.32  testator or the surviving spouse as a residence for any part of 
  2.33  the year.  If the property used as a residence is a unit in a 
  2.34  cooperative or other entity, it includes all rights and 
  2.35  interests relating to that unit.  If the property is used in 
  2.36  part for a commercial, agricultural, or other business purpose, 
  3.1   the testator's residence is an area not exceeding three acres, 
  3.2   which includes the structure used in whole or in part as a 
  3.3   residence and structures normally used by the testator in 
  3.4   connection with the dwelling and excludes structures and areas 
  3.5   outside the dwelling used primarily for a commercial, 
  3.6   agricultural, or other business purpose.  
  3.7      (10) "Trustee" includes an original, additional, or 
  3.8   successor trustee, whether or not appointed or confirmed by the 
  3.9   court.  
  3.10     Sec. 2.  [524A.02] [MAKING STATUTORY WILL.] 
  3.11     An individual having capacity to make a will under the laws 
  3.12  of this state may make a statutory will under this chapter.  The 
  3.13  will must be executed in a manner recognized as valid under the 
  3.14  laws of this state. 
  3.15     Sec. 3.  [524A.03] [INCORPORATION BY REFERENCE.] 
  3.16     (a) A will may incorporate by reference the provisions of 
  3.17  this chapter in whole or in part and with any modifications and 
  3.18  additions the will provides.  To the extent an express provision 
  3.19  of a will conflicts with this chapter, the will governs.  
  3.20     (b) A provision that all or part of the testator's 
  3.21  testamentary estate is to be disposed of in accordance with the 
  3.22  Minnesota uniform statutory will act incorporates by reference 
  3.23  provisions of this chapter in effect on the date the will is 
  3.24  executed. 
  3.25     (c) An incorporation by reference of provisions of this 
  3.26  chapter may be in the following or a substantially similar form: 
  3.27     "Except as otherwise provided in this will, I direct that 
  3.28  my testamentary estate be disposed of in accordance with the 
  3.29  Minnesota uniform statutory will act."  
  3.30     Sec. 4.  [524A.04] [SHARES UNDER STATUTORY WILL.] 
  3.31     The statutory will estate passes as provided in sections 
  3.32  524A.05 to 524A.09.  
  3.33     Sec. 5.  [524A.05] [SHARE OF SPOUSE.] 
  3.34     (a) The share of the surviving spouse is:  
  3.35     (1) if there is no surviving issue, the entire statutory 
  3.36  will estate; or 
  4.1      (2) if there is a surviving issue, 
  4.2      (i) subject to any lien or encumbrance, the testator's 
  4.3   residence and tangible personal property, except personal 
  4.4   property held primarily for investment or for a commercial, 
  4.5   agricultural, or other business purpose; 
  4.6      (ii) the greater of $300,000, or one-half of the balance of 
  4.7   the statutory will estate; and 
  4.8      (iii) subject to paragraph (b), an interest in the 
  4.9   remaining portion of the statutory will estate, including any 
  4.10  property that would pass under item (i) or (ii) but disclaimed 
  4.11  by the surviving spouse, in a trust upon the terms set forth in 
  4.12  section 524A.06. 
  4.13     (b) If the personal representative, other than the 
  4.14  surviving spouse, determines that the trust under section 
  4.15  524A.06 would be uneconomical, the entire statutory will estate 
  4.16  passes to the surviving spouse. 
  4.17     Sec. 6.  [524A.06] [TRUST FOR SPOUSE AND ISSUE.] 
  4.18     Property held in trust under section 524A.05, paragraph 
  4.19  (a), clause (2), is held upon the following terms:  
  4.20     (1) During the life of the surviving spouse, the entire net 
  4.21  income must be paid to or for the benefit of the surviving 
  4.22  spouse in quarterly or more frequent installments.  Net income 
  4.23  accrued or undistributed on the death of the surviving spouse 
  4.24  must be paid to the estate or the spouse.  If unproductive 
  4.25  property is held in the trust, the surviving spouse at any time 
  4.26  by written instrument delivered to the trustee may compel 
  4.27  conversion of the unproductive property to productive property. 
  4.28     (2) During the life of the surviving spouse, the trustee at 
  4.29  any time may pay to or for the benefit of the surviving spouse 
  4.30  and issue of the testator amounts of the principal the trustee 
  4.31  deems advisable, giving reasonable consideration to other 
  4.32  resources available to the distributee, for the individual's 
  4.33  needs for health, education, support, or maintenance.  For the 
  4.34  purpose of making those discretionary payments, the principal 
  4.35  must be administered as two separate shares, which at the 
  4.36  inception of the trust must be equal.  One share is the 
  5.1   surviving spouse's share of the principal.  During the life of 
  5.2   the surviving spouse, payments may not be made from the 
  5.3   surviving spouse's share to anyone other than the surviving 
  5.4   spouse.  Primary consideration must be given to the needs of the 
  5.5   surviving spouse and the children of the testator who are under 
  5.6   the age of 23 years or under disability.  The trustee may rely 
  5.7   in good faith on a written statement furnished by a 
  5.8   beneficiary.  The discretion to pay principal to or for the 
  5.9   benefit of any individual includes the discretion after that 
  5.10  individual's death to pay expenses incurred before the 
  5.11  individual's death and to pay funeral and burial expenses.  If 
  5.12  the trustee, other than the surviving spouse, determines that 
  5.13  continuation of the trust is uneconomical, the trustee may 
  5.14  terminate the trust by distribution of principal to the 
  5.15  surviving spouse.  Principal that in the exercise of the 
  5.16  trustee's discretion is paid to or for the benefit of any issue 
  5.17  may be charged against any share of income or principal 
  5.18  thereafter existing for that issue or for any ancestor or 
  5.19  descendant of that issue, if the trustee upon equitable 
  5.20  considerations so determines.  If the surviving spouse or any 
  5.21  issue is serving as trustee, the trustee's discretion pursuant 
  5.22  to this paragraph is not exercisable in favor of that trustee 
  5.23  except as necessary for the trustee's needs for health, 
  5.24  education, support, or maintenance, nor is the trustee's 
  5.25  discretion exercisable in favor of the trustee's estate, the 
  5.26  trustee's creditors, or creditors of the trustee's estate. 
  5.27     (3) On the death of the surviving spouse, the principal, 
  5.28  unless retained in trust under section 524A.08 or 524A.09, must 
  5.29  be paid, subject to any charges made by the trustee under 
  5.30  paragraph (2), to the children of the testator in equal shares 
  5.31  if all of the children are then living, otherwise to the then 
  5.32  living issue of the testator by representation or, if no issue 
  5.33  of the testator is then living, to the individuals who would be 
  5.34  entitled to receive the estate as if the property were located 
  5.35  in this state and the testator had then died intestate domiciled 
  5.36  in this state in proportions determined under the law then 
  6.1   existing. 
  6.2      Sec. 7.  [524A.07] [SHARES OF HEIRS WHEN NO SURVIVING 
  6.3   SPOUSE.] 
  6.4      (a) If there is no surviving spouse, the statutory will 
  6.5   estate passes, subject to sections 524A.08 and 524A.09, as 
  6.6   follows:  
  6.7      (1) if there is surviving issue, in equal shares to the 
  6.8   children of the testator if all of them survive, otherwise to 
  6.9   the surviving issue of the testator by representation; or 
  6.10     (2) if there is no surviving issue, to the individuals 
  6.11  entitled to receive the estate as if the property were located 
  6.12  in this state and the testator had died intestate domiciled in 
  6.13  this state in the proportions so determined.  
  6.14     (b) Unless the personal representative determines that a 
  6.15  trust would be uneconomical, property to which section 524A.08 
  6.16  or 524A.09 applies must be distributed to the trustee.  If the 
  6.17  personal representative determines that a trust would be 
  6.18  uneconomical, the property passes under paragraph (a) free of 
  6.19  trust.  The discretion provided in this paragraph to the 
  6.20  personal representative is not exercisable by any of the 
  6.21  testator's issue serving as personal representative. 
  6.22     Sec. 8.  [524A.08] [TRUST IF CHILD UNDER SPECIFIED AGE.] 
  6.23     (a) If property is distributable under section 524A.06, 
  6.24  paragraph (3), or 524A.07 to a child of the testator who is 
  6.25  under the age specified in the will or, if the will does not 
  6.26  specify an age, under the age of 23 years, all shares 
  6.27  distributable to issue of the testator must be held in a trust 
  6.28  under this section.  In exercising powers under paragraphs (b) 
  6.29  and (c), primary consideration must be given to the needs of 
  6.30  children of the testator who are under the age of 23 years or 
  6.31  under disability. 
  6.32     (b) Until no living child of the testator is under the age 
  6.33  determined under paragraph (a), the trustee shall pay the income 
  6.34  and principal of the trust to or for the benefit or account of 
  6.35  one or more of the issue of the testator in amounts the trustee 
  6.36  deems advisable for their needs for health, education, support, 
  7.1   or maintenance.  Income not so paid may be added to principal.  
  7.2      (c) The trustee at any time in its discretion may 
  7.3   distribute to a beneficiary the share, in whole or in part, of 
  7.4   the trust to which the distributee would be entitled if the 
  7.5   trust then terminated.  If the whole of a share has been 
  7.6   distributed under this paragraph, the trustee thereafter must 
  7.7   not make any further distribution of income or principal to that 
  7.8   distributee or issue of that distributee.  
  7.9      (d) The trust terminates when no living child of the 
  7.10  testator is under the age determined under paragraph (a) or the 
  7.11  trustee determines that continuation of the trust is 
  7.12  uneconomical.  
  7.13     (e) Subject to paragraph (c) and section 524A.09, the 
  7.14  property in the trust must be distributed upon termination to 
  7.15  the issue of the testator in proportion to the shares determined 
  7.16  at the death of the surviving spouse under section 524A.06, 
  7.17  paragraph (3), or at the death of the testator under section 
  7.18  524A.07, if there is no surviving spouse.  In determining the 
  7.19  amount to be distributed to any distributee, the trustee shall 
  7.20  charge the share of that distributee with any partial 
  7.21  distribution made under paragraph (c) and may charge, in its 
  7.22  discretion, the share of that distributee with distributions 
  7.23  under paragraph (b) to or for the benefit or account of the 
  7.24  distributee, or issue or ancestor of the distributee.  If any 
  7.25  issue whose share is held in trust under this section dies 
  7.26  before the complete distribution of the share, the property to 
  7.27  which the issue would have been entitled if living must be 
  7.28  distributed to the assignees, or, if none, to the estate of the 
  7.29  deceased issue.  
  7.30     (f) If an issue is serving as trustee, the discretion of 
  7.31  the trustee under this section is not exercisable, except as 
  7.32  necessary for that individual's needs for health, education, 
  7.33  support, or maintenance, in favor of that individual, that 
  7.34  individual's estate, that individual's creditors, or the 
  7.35  creditors of that individual's estate. 
  7.36     Sec. 9.  [524A.09] [EFFECT OF DISABILITY AT DISTRIBUTION.] 
  8.1      (a) If property becomes distributable by a personal 
  8.2   representative or trustee to an individual under the age 
  8.3   specified in the will or, if the will does not specify an age, 
  8.4   under the age of 23 years, or to an individual who the personal 
  8.5   representative or trustee determines cannot effectively manage 
  8.6   or apply the property by reason of mental illness, mental 
  8.7   deficiency, physical illness or disability, chronic use of 
  8.8   drugs, chronic intoxication, or other cause: 
  8.9      (i) the personal representative or trustee, as to principal 
  8.10  or income, may distribute part or all of the property to the 
  8.11  distributee directly, by deposit or investment in the 
  8.12  distributee's name or for the distributee's account, or to a 
  8.13  guardian or conservator for the distributee; 
  8.14     (ii) the personal representative may distribute to the 
  8.15  trustee in trust under item (iii); or 
  8.16     (iii) the trustee may retain all or any of the property in 
  8.17  trust for the distributee and thereafter at any time the trustee 
  8.18  may distribute or apply part or all of the principal or income 
  8.19  to or for the benefit or account of the distributee.  
  8.20     (b) Unless terminated earlier, a trust under paragraph (a), 
  8.21  item (iii), terminates upon the attainment of the required age, 
  8.22  removal of the disability, or death of the distributee.  Upon 
  8.23  termination, the trustee shall distribute the remaining trust 
  8.24  property to the distributee or personal representative of the 
  8.25  distributee's estate.  
  8.26     (c) This section does not apply to distributions to a 
  8.27  surviving spouse of the testator. 
  8.28     Sec. 10.  [524A.10] [POWERS OF APPOINTMENT.] 
  8.29     (a) A will incorporating by reference the terms of this 
  8.30  chapter does not exercise a power of appointment unless 
  8.31     (i) the will complies with any conditions imposed on the 
  8.32  exercise of the power; 
  8.33     (ii) the appointment is within the scope of the power; and 
  8.34     iii) the will expressly refers to the power or expresses an 
  8.35  intent to exercise any power of appointment held by the testator.
  8.36     (b) If a power of appointment is exercised as provided in 
  9.1   paragraph (a), the appointed property passes as part of the 
  9.2   statutory will estate unless the will provides otherwise. 
  9.3      Sec. 11.  [524A.11] [SURVIVAL.] 
  9.4      An individual who does not survive the testator by 30 days 
  9.5   or more is treated as if the individual predeceased the testator.
  9.6      Sec. 12.  [524A.12] [APPOINTMENT OF PERSONAL REPRESENTATIVE 
  9.7   AND TRUSTEE.] 
  9.8      (a) The person named in the will as personal representative 
  9.9   or trustee is entitled to serve, if qualified, as personal 
  9.10  representative or trustee.  
  9.11     (b) If a qualified person is not named in the will as 
  9.12  personal representative, or the named person is incapacitated, 
  9.13  unwilling to serve, or dead, and a qualified alternate is not 
  9.14  named in the will, priority for appointment as personal 
  9.15  representative is determined by the laws of the state of 
  9.16  descendant's domicile at death.  
  9.17     (c) If a qualified person is not named in the will as 
  9.18  trustee, or the named person is incapacitated, unwilling to 
  9.19  serve, or dead, and a qualified alternate is not named in the 
  9.20  will, the personal representative may appoint, without court 
  9.21  approval, a qualified person, including a person serving as 
  9.22  personal representative, to serve as trustee.  
  9.23     (d) If a personal representative or trustee resigns, is 
  9.24  removed, becomes incapacitated, or dies, the surviving spouse, 
  9.25  or if there is no surviving spouse or the surviving spouse is 
  9.26  unable or unwilling to act, a majority of the adult children of 
  9.27  the testator, may appoint a qualified successor personal 
  9.28  representative or trustee.  
  9.29     (e) In all other cases, personal representatives and 
  9.30  trustees must be appointed by the court. 
  9.31     Sec. 13.  [524A.13] [POWERS.] 
  9.32     (a) Except as expressly provided in the will, a personal 
  9.33  representative has all powers available to personal 
  9.34  representatives by law, including powers set forth in section 
  9.35  524.3-715. 
  9.36     (b) Except as expressly provided in the will, a trustee has 
 10.1   all powers available to trustees by law, including powers set 
 10.2   forth in section 501B.81. 
 10.3      (c) Except as expressly provided in the will, the personal 
 10.4   representative or trustee shall observe the standards in dealing 
 10.5   with the estate which would be observed by a prudent person 
 10.6   dealing with the property of another.  If the personal 
 10.7   representative or trustee has special skills or is named 
 10.8   personal representative or trustee on the basis of 
 10.9   representation of special skills or expertise, the person is 
 10.10  under a duty to use those skills.  Except to the extent 
 10.11  qualified property is not available, only property that 
 10.12  qualifies for the estate tax marital deduction under the 
 10.13  Internal Revenue Code, as amended, may be allocated to the 
 10.14  surviving spouse under section 524A.05 or to the surviving 
 10.15  spouse's share of principal in a trust established under section 
 10.16  524A.06. 
 10.17     Sec. 14.  [524A.14] [BOND OR SURETY.] 
 10.18     A personal representative or trustee under this chapter 
 10.19  shall serve without giving bond or surety unless the testator by 
 10.20  will, or the court upon the application of any person interested 
 10.21  in the estate, provides otherwise. 
 10.22     Sec. 15.  [524A.15] [SHORT TITLE.] 
 10.23     This chapter may be cited as the Minnesota uniform 
 10.24  statutory will act. 
 10.25     Sec. 16.  [524A.16] [UNIFORMITY OF APPLICATION AND 
 10.26  CONSTRUCTION.] 
 10.27     This chapter shall be applied and construed to effectuate 
 10.28  its general purpose and make uniform the law with respect to the 
 10.29  subject of this chapter among states enacting it.