Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1999, Regular Session
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.
Official Publication of the State of Minnesota
Revisor of Statutes