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§33-15-37.1  Minimization of taxes – Estate planning. –

Published: 2015

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Probate practice and procedure


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.)