Skip to main content Skip to office menu Skip to footer
Minnesota Legislature

Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                            CHAPTER 171-S.F.No. 1094 
                  An act relating to probate; changing provisions of the 
                  Uniform Probate Code; changing nomination provisions 
                  for conservators and guardians; amending Minnesota 
                  Statutes 1998, sections 524.2-101; 524.2-702; 
                  524.3-916; and 525.544, subdivision 1. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1998, section 524.2-101, is 
        amended to read: 
           524.2-101 [INTESTATE ESTATE.] 
           (a) Any part of a decedent's estate not effectively The 
        intestate estate of the decedent consists of any part of the 
        decedent's estate not allowed to the decedent's spouse or 
        descendants under sections 524.2-402, 524.2-403, and 524.2-404, 
        and not disposed of by will.  The intestate estate passes by 
        intestate succession to the decedent's heirs as prescribed in 
        this chapter, except as modified by the decedent's will. 
           (b) A decedent by will may expressly exclude or limit the 
        right of an individual or class to succeed to property of the 
        decedent passing by intestate succession.  If that individual or 
        a member of that class survives the decedent, the share of the 
        decedent's intestate estate to which that individual or class 
        would have succeeded passes as if that individual or each member 
        of that class had disclaimed an intestate share. 
           Sec. 2.  Minnesota Statutes 1998, section 524.2-702, is 
        amended to read: 
           524.2-702 [UNIFORM REQUIREMENT OF SURVIVAL FOR 120 HOURS 
        FOR DEVISEES, BENEFICIARIES OF CERTAIN TRUSTS, AND APPOINTEES OF 
        CERTAIN POWERS OF APPOINTMENT; SIMULTANEOUS DEATH ACT FOR OTHER 
        CASES.] 
           Subdivision 1.  [TITLE.] (a) [REQUIREMENT OF SURVIVAL FOR 
        120 HOURS.] A beneficiary of a trust in which the grantor has 
        reserved a power to alter, amend, revoke, or terminate the 
        provisions of the trust who fails to survive the grantor by 120 
        hours, a devisee who fails to survive the testator by 120 hours, 
        or an appointee of a power of appointment taking effect at the 
        death of the holder of the power who fails to survive the holder 
        of the power by 120 hours is deemed to have predeceased the 
        grantor, testator, or holder of the power for purposes of 
        determining title to property passing by the trust instrument, 
        by the testator's will, or by the exercise of the power of 
        appointment. 
           (b)(1) [TITLE TO PROPERTY IN OTHER CASES.] In cases not 
        governed by section 524.2-104 or paragraph (a), 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 disposed of as if the person had survived, except as 
        provided otherwise in this section paragraph.  
           Subd. 2. (2) [DIVISION OF PROPERTY.] Where two or more 
        beneficiaries are designated to take successively by reason of 
        survivorship under another person's disposition 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.  
           Subd. 3. (3) [DIVISION OF PROPERTY.] Where there is no 
        sufficient evidence that two joint tenants or tenants by the 
        entirety have died otherwise than simultaneously the property so 
        held shall be distributed one-half as if one had survived and 
        one-half as if the other had survived.  If there are more than 
        two 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.  
           Subd. 4. (4) [DIVISION OF PROPERTY.] 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.  
           Subd. 5. (c) [NOT RETROACTIVE.] This section shall does not 
        apply to the distribution of the property of a person who has 
        died before it takes effect.  Paragraph (a) applies only to 
        persons who die on or after August 1, 1999. 
           Subd. 6. (d) [APPLICATION.] This section shall does not 
        apply in the case of wills, living trusts, deeds, or contracts 
        of insurance, or documents exercising powers of appointment 
        wherein provision has been made for distribution of property 
        different from the provisions of this section.  Paragraph (a) 
        does not apply to trusts which are part of a qualified or 
        nonqualified retirement plan or individual retirement accounts. 
           Subd. 7.  [CITATION.] This section may be cited as the 
        Uniform Simultaneous Death Act.  
           Sec. 3.  Minnesota Statutes 1998, section 524.3-916, is 
        amended to read: 
           524.3-916 [APPORTIONMENT OF ESTATE TAXES AND 
        GENERATION-SKIPPING TAX.] 
           (a) For purposes of this section:  
           (1) "estate" means the gross estate of a decedent as 
        determined for the purpose of federal estate tax or the estate 
        tax payable to this state; 
           (2) "decedent's generation-skipping transfers" means all 
        generation-skipping transfers as determined for purposes of the 
        federal generation-skipping tax which occur by reason of the 
        decedent's death which relate to property which is included in 
        the decedent's estate; 
           (3) "person" means any individual, partnership, 
        association, joint stock company, corporation, limited liability 
        company, government, political subdivision, governmental agency, 
        or local governmental agency; 
           (4) "person interested in the estate" means any person 
        entitled to receive, or who has received, from a decedent or by 
        reason of the death of a decedent any property or interest 
        therein included in the decedent's estate.  It includes a 
        personal representative, guardian, conservator, trustee, and 
        custodian; 
           (5) "state" means any state, territory, or possession of 
        the United States, the District of Columbia, and the 
        Commonwealth of Puerto Rico; 
           (6) "estate tax" means the federal estate tax and the state 
        estate tax determined by the commissioner of revenue pursuant to 
        chapter 291 and interest and penalties imposed in addition to 
        the tax; 
           (7) "decedent's generation-skipping tax" means the federal 
        generation-skipping tax imposed on the decedent's 
        generation-skipping transfers and interest and penalties imposed 
        in addition to the tax; 
           (8) "fiduciary" means personal representative or trustee.  
           (b) Unless the will or other governing instrument otherwise 
        provides: 
           (1) the estate tax shall be apportioned among all persons 
        interested in the estate.  The apportionment is to be made in 
        the proportion that the value of the interest of each person 
        interested in the estate bears to the total value of the 
        interests of all persons interested in the estate.  The values 
        used in determining the tax are to be used for that purpose; and 
           (2) the decedent's generation-skipping tax shall be 
        apportioned as provided by federal law.  To the extent not 
        provided by federal law, the decedent's generation-skipping tax 
        shall be apportioned among all persons receiving the decedent's 
        generation-skipping transfers whose tax apportionment is not 
        provided by federal law in the proportion that the value of the 
        transfer to each person bears to the total value of all such 
        transfers. 
           If the decedent's will or other written instrument directs 
        a method of apportionment of estate tax or of the decedent's 
        generation-skipping tax different from the method described in 
        this code section, the method described in the will or other 
        written instrument controls provided, however, that: 
           (i) unless the decedent's will or other written instrument 
        specifically indicates an intent to waive any right of recovery 
        under section 2207A of the Internal Revenue Code of 1986, as 
        amended, estate taxes must be apportioned under the method 
        described in this section to property included in the decedent's 
        estate under section 2044 of the Internal Revenue Code of 1986, 
        as amended; and 
           (ii) unless the decedent's will or other written instrument 
        specifically indicates an intent to waive any right of recovery 
        under section 2207B of the Internal Revenue Code of 1986, as 
        amended, estate taxes must be apportioned under the method 
        described in this section to property included in the decedent's 
        estate under section 2036 of the Internal Revenue Code of 1986, 
        as amended.  
           (c)(1) The court in which venue lies for the administration 
        of the estate of a decedent, on petition for the purpose may 
        determine the apportionment of the estate tax or of the 
        decedent's generation-skipping tax.  
           (2) If the court finds that it is inequitable to apportion 
        interest and penalties in the manner provided in subsection (b), 
        because of special circumstances, it may direct apportionment 
        thereof in the manner it finds equitable.  
           (3) If the court finds that the assessment of penalties and 
        interest assessed in relation to the estate tax or the 
        decedent's generation-skipping tax is due to delay caused by the 
        negligence of the fiduciary, the court may charge the fiduciary 
        with the amount of the assessed penalties and interest.  
           (4) In any action to recover from any person interested in 
        the estate the amount of the estate tax or of the decedent's 
        generation-skipping tax apportioned to the person in accordance 
        with this code section the determination of the court in respect 
        thereto shall be prima facie correct.  
           (d)(1) The personal representative or other person in 
        possession of the property of the decedent required to pay the 
        estate tax or the decedent's generation-skipping tax may 
        withhold from any property distributable to any person 
        interested in the estate, upon its distribution, the amount of 
        any taxes attributable to the person's interest.  If the 
        property in possession of the personal representative or other 
        person required to pay any taxes and distributable to any person 
        interested in the estate is insufficient to satisfy the 
        proportionate amount of the taxes determined to be due from the 
        person, the personal representative or other person required to 
        pay any taxes may recover the deficiency from the person 
        interested in the estate.  If the property is not in the 
        possession of the personal representative or the other person 
        required to pay any taxes, the personal representative or the 
        other person required to pay any taxes may recover from any 
        person interested in the estate the amount of any taxes 
        apportioned to the person in accordance with this section.  
           (2) If property held by the personal representative or 
        other person in possession of the property of the decedent 
        required to pay the estate tax or the decedent's 
        generation-skipping tax is distributed prior to final 
        apportionment of the estate tax or the decedent's 
        generation-skipping tax, the distributee shall provide a bond or 
        other security for the apportionment liability in the form and 
        amount prescribed by the personal representative or other 
        person, as the case may be.  
           (e)(1) In making an apportionment, allowances shall be made 
        for any exemptions granted, any classification made of persons 
        interested in the estate and for any deductions and credits 
        allowed by the law imposing the tax.  
           (2) Any exemption or deduction allowed by reason of the 
        relationship of any person to the decedent, by reason of the 
        purposes of the gift, or by allocation to the gift (either by 
        election by the fiduciary or by operation of federal law), 
        inures to the benefit of the person bearing such relationship or 
        receiving the gift; but if an interest is subject to a prior 
        present interest which is not allowable as a deduction, the tax 
        apportionable against the present interest shall be paid from 
        principal.  
           (3) Any deduction for property previously taxed and any 
        credit for gift taxes or death taxes of a foreign country paid 
        by the decedent or the decedent's estate inures to the 
        proportionate benefit of all persons liable to apportionment.  
           (4) Any credit for inheritance, succession or estate taxes 
        or taxes in the nature thereof applicable to property or 
        interests includable in the estate, inures to the benefit of the 
        persons or interests chargeable with the payment thereof to the 
        extent proportionately that the credit reduces the tax.  
           (5) To the extent that property passing to or in trust for 
        a surviving spouse or any charitable, public or similar gift or 
        devise is not an allowable deduction for purposes of the estate 
        tax solely by reason of an estate tax imposed upon and 
        deductible from the property, the property is not included in 
        the computation provided for in subsection (b)(1) hereof, and to 
        that extent no apportionment is made against the property.  The 
        sentence immediately preceding does not apply to any case if the 
        result would be to deprive the estate of a deduction otherwise 
        allowable under section 2053(d) of the Internal Revenue Code of 
        1986, as amended, of the United States, relating to deduction 
        for state death taxes on transfers for public, charitable, or 
        religious uses.  
           (f) No interest in income and no estate for years or for 
        life or other temporary interest in any property or fund is 
        subject to apportionment as between the temporary interest and 
        the remainder.  The estate tax on the temporary interest and the 
        estate tax, if any, on the remainder is chargeable against the 
        corpus of the property or funds subject to the temporary 
        interest and remainder.  The decedent's generation-skipping tax 
        is chargeable against the property which constitutes the 
        decedent's generation-skipping transfer. 
           (g) Neither the personal representative nor other person 
        required to pay the tax is under any duty to institute any 
        action to recover from any person interested in the estate the 
        amount of the estate tax or of the decedent's 
        generation-skipping tax apportioned to the person until the 
        final determination of the tax.  A personal representative or 
        other person required to pay the estate tax or decedent's 
        generation-skipping tax who institutes the action within a 
        reasonable time after final determination of the tax is not 
        subject to any liability or surcharge because any portion of the 
        tax apportioned to any person interested in the estate was 
        collectible at a time following the death of the decedent but 
        thereafter became uncollectible.  If the personal representative 
        or other person required to pay the estate tax or decedent's 
        generation-skipping tax cannot collect from any person 
        interested in the estate the amount of the tax apportioned to 
        the person, the amount not recoverable shall be equitably 
        apportioned among the other persons interested in the estate who 
        are subject to apportionment of the tax involved.  
           (h) A personal representative acting in another state or a 
        person required to pay the estate tax or decedent's 
        generation-skipping tax domiciled in another state may institute 
        an action in the courts of this state and may recover a 
        proportionate amount of the federal estate tax, of an estate tax 
        payable to another state or of a death duty due by a decedent's 
        estate to another state, or of the decedent's 
        generation-skipping tax, from a person interested in the estate 
        who is either domiciled in this state or who owns property in 
        this state subject to attachment or execution.  For the purposes 
        of the action the determination of apportionment by the court 
        having jurisdiction of the administration of the decedent's 
        estate in the other state is prima facie correct.  
           Sec. 4.  Minnesota Statutes 1998, section 525.544, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [BY PROPOSED WARD OR CONSERVATEE.] (a) In 
        the petition or in a written instrument executed before or after 
        the petition is filed, the proposed ward or conservatee may, if 
        acting with sufficient capacity to form an intelligent 
        preference, nominate a conservator or guardian or give 
        instructions to the conservator or guardian.  
           (b) The written instrument shall must either 
           (1) be executed and attested in the same manner as a will; 
        or 
           (2) be signed by the proposed ward or conservatee, or in 
        the proposed ward's or conservatee's name by some other 
        individual in the presence of and at the direction of the 
        proposed ward or conservatee, and acknowledged by the proposed 
        ward or conservatee before a notary public who is not the 
        nominated conservator or guardian.  
           (c) The court shall appoint the person so nominated as 
        conservator or guardian and shall charge the person with the 
        instructions, unless the court finds that the appointment of the 
        nominee or the instructions are not in the best interests of the 
        proposed ward or conservatee. 
           Sec. 5.  [INSTRUCTION TO REVISOR.] 
           The revisor of statutes is directed to remove the words 
        "executor" and "administrator" or similar terms each place that 
        the words appear in chapter 48 of Minnesota Statutes and replace 
        those words with "personal representative" or similar terms, 
        provided that any reference to the "administrator of veterans 
        affairs" shall not be changed.  The revisor of statutes is 
        directed to add the word "conservator" or similar term to each 
        section of chapter 48 of Minnesota Statutes where there appears 
        the word "guardian," except where the word "guardian" is 
        followed by the words "of a minor". 
           Presented to the governor May 13, 1999 
           Signed by the governor May 17, 1999, 4:38 p.m.