TITLE 33
Probate practice and procedure
CHAPTER 33-15
Limited Guardianship and Guardianship of Adults
SECTION 33-15-37.1
§ 33-15-37.1 Minimization of taxes
Estate planning.
(a) The superior or probate court, upon the petition of a conservator, limited
guardian or guardian, other than the guardian of a minor, and after notice by
publication as the court directs and other notice to all persons interested,
may authorize the conservator, limited guardian or guardian to exercise any and
all powers over the estate and business affairs of the ward which the ward
could exercise if present and not under disability. The court may authorize the
taking of such action, or the application of any funds as are not required for
the ward's own maintenance and support, in any fashion as the court shall
approve as being in keeping with the ward's wishes, so far as they can be
ascertained, or which the conservator, guardian or limited guardian can
demonstrate is in the best interest of the ward. In ascertaining and carrying
out the ward's wishes, or in determining which actions are in the ward's best
interests, the court may consider, but shall not be limited to minimization of
current or prospective state or federal income, estate and inheritance taxes,
and providing for gifts to charities, relatives and friends as would be likely
recipients of donations or future inheritances from the ward.
(b) This action or application of funds may include, but
shall not be limited to, the making of gifts, to the conveyance or release of
the ward's contingent and expectant interests in property including marital
property rights, and any right of survivorship incident to joint tenancy or
tenancy by the entirety, to the exercise or release of the ward's powers as
donee of a power of appointment, the making of contracts, the creation of
revocable or irrevocable trusts of property of the ward's estate which may
extend beyond the ward's disability or life and for which the ward may or may
not be a beneficiary, the exercise of options of the ward to purchase
securities or other property, the exercise of the ward's right to elect options
and to change beneficiaries under insurance and annuity policies, and the
surrendering of policies for their cash value, the exercise of the ward's right
to an elective share in the estate of the ward's deceased spouse, and the
renunciation or disclaimer of any interest acquired by testate or intestate
succession or by inter vivos transfer.
(c) The guardian, limited guardian or conservator in the
petition shall briefly outline the action or application of funds for which
approval is sought, the results expected to be accomplished thereby and the tax
savings, if any, expected to accrue. The proposed action or application of
funds may include gifts of the ward's personal property or real estate. Gifts
may be for the benefit of prospective legatees, devisees or heirs apparent of
the ward, or may be made to individuals or charities in which the ward is
believed to have an interest. The conservator, limited guardian or guardian
shall also indicate in the petition that any planned disposition is consistent
with the intentions of the ward insofar as they can be ascertained, or are
otherwise in the best interest of the ward. If the ward's intentions cannot be
ascertained, the ward will be presumed to favor reduction in the incidence of
the various forms of taxation, and the partial distribution of the ward's
estate during his or her lifetime, as provided in this section. The
conservator, limited guardian or guardian shall not, however, be required to
include as a beneficiary any person whom there is reason to believe would be
excluded by the ward.
History of Section.
(P.L. 1982, ch. 306, § 1; P.L. 1992, ch. 493, § 3; P.L. 1996, ch.
110, § 9.)
