2014 -- S 2547 AS AMENDED

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LC004845

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - PRACTICE IN PROBATE

COURTS

     Introduced By: Senator Michael J.McCaffrey

     Date Introduced: February 27, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 33-22-4, 33-22-8, 33-22-19 and 33-22-23 of the General Laws in

Chapter 33-22 entitled "Practice in Probate Courts" are hereby repealed.

     33-22-4. Listing of and notice to legatees and devisees in will contests. -- Whenever, in

any proceeding pending in a probate court for the probate of a will, it appears to the court that the

probate of the will or the appointment of an executor or administrator with the will annexed is to

be contested in the probate court, then and in that event, the court shall forthwith cause to be

entered upon its records an order requiring the petitioner to file with the clerk of court the same

information relative to legatees and devisees, if any, named in the will or their representatives as

is required relative to a surviving spouse and heirs at law; and the petitioner or his or her attorney

shall give or cause notice to be given to those legatees and devisees in the same manner and under

the same conditions as provided in this title for notice to a surviving spouse and heirs at law.

     33-22-8. Notice of authority to sell or mortgage real estate. -- Authority to sell or

mortgage real estate shall not be given to a guardian until notice by public advertisement or

otherwise, as the court may order, has been given to the husband or wife and the next of kin of the

ward, and authority to mortgage shall not be given to an executor or administrator until after

personal notice shall have been given by citation to all known parties interested.

     33-22-19. Decrees and orders in writing -- Recording. -- All the decrees and orders of

probate courts shall be made in writing, and shall be recorded by the clerk in books kept for that

purpose.

     33-22-23. Division of fees. -- The fees provided for in section 33-22-21 shall inure, one-

half (1/2) to and for the use of the probate court, and one-half (1/2) to and for the use of the

probate clerk, unless provision is made to the contrary as provided in this chapter.

     SECTION 2. Sections 33-22-5, 33-22-6, 33-22-7, 33-22-11, 33-22-14 and 33-22-21 of

the General Laws in Chapter 33-22 entitled "Practice in Probate Courts" are hereby amended to

read as follows:

     33-22-5. Waiver of notice. -- If all interested parties, not including, however, the

legatees and devisees named in the will unless they shall have become entitled to notice under the

provisions of section 33-22-4, shall, in writing, waive the notice required by section 33-22-3 or

section 33-22-4, and assent to action upon the petition by the court at any time, the court may

proceed to hear the cause without publication or further notice and any decree entered in the

proceeding shall be of the same force and effect as if notice had been given in the manner

provided by this chapter.

     33-22-6. Additional notice given -- Failure to comply. -- The notice prescribed by

section 33-7-9 and the notice by publication in the manner as prescribed by section 33-22-11 shall

also be given in all cases in which notice by mail is required by section 33-22-3, unless waived in

writing by the persons entitled to such notice surviving spouse and heirs at law, but failure to

comply with any of the provisions in sections 33-22-2 and 33-22-3 33-22-4 shall not defeat the

jurisdiction of the court or affect adversely the regularity of any proceedings in which the failure

shall have occurred, and upon discovery of the failure the court may make such further orders as

the circumstances may require.

     33-22-7. Proceedings in which notice given by court. – (a) Every probate court shall,

before proceeding, give notice to all parties known to be interested in the following cases:

      (1) In the granting of letters of administration.

      (2) In the probate of a will.

      (3) In the appointment or approval of a conservator or guardian.

      (4) In any complaint for the removal of an executor, administrator, conservator, or

guardian.

      (5) In the acceptance of the resignation of an executor, administrator, conservator, or

guardian.

      (4)(6) In the making of any decree upon the account of an executor, conservator, or

guardian.

      (7) In the appointment of commissioners and in the making of any order upon the report

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of commissioners on any estate.

      (8) In the making of any order of distribution among the next of kin of a deceased

person.

      (5)(9) In any petition of an executor, administrator, conservator, or guardian for leave to

sell real estate of the testator, intestate, or ward.

      (10) In the granting of any petition of a conservator or guardian for leave to make a

mortgage or written lease of real estate of his or her ward.

      (11) In canceling the bond of an executor, administrator, conservator, or guardian.

      (12) In making an allowance out of the estate of a deceased person for the support of his

or her family.

      (13) In any petition of an executor or administrator for leave to mortgage real estate of

the testator or intestate.

      (14) In setting off and allowing real estate in fee, or the proceeds of sale thereof, to a

widow or surviving husband.

     (b) Nothing contained in this section shall be deemed to limit the court's discretion to

order whatever notice it considers appropriate given the circumstances of the matter before it, and

whose interests may be affected by the court's action.

     33-22-11. Notice by advertisement. -- In all cases in which notice is required and special

provision is not made for it, it shall be given by advertisement of a notice once a week for at least

two (2) weeks, the first advertisement to be published at least fourteen (14) days before the first

of any hearing dates contained in such notice, in a newspaper printed in English and published in

the county city or town or in a Providence newspaper having general circulation within the

county in which the matter is to be acted upon, as the probate court by general rule or special

order may designate for that purpose; provided, however, that when a probate court shall give, or

order to be given, notice by advertisement in a newspaper which has furnished the court with a

definite schedule of prices for this advertising, the court shall require the cost of the advertising to

be paid to the clerk of the court in advance, and the court shall pay over each month to the

newspaper the sums so paid in, upon proof that the notice has been advertised as ordered;

provided, however, that any advertisement affecting probate matters in the town of New

Shoreham shall be given in a newspaper printed in English and published in the counties of

Washington and/or Providence.

     33-22-14. Findings of court as to notice. -- If it shall appear to the court, before

proceeding, that notice has been given to all known parties interested, by the clerk, upon

application to him or her made, in accordance with the foregoing provisions, and in a manner

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satisfactory to the court, it shall be sufficient to warrant proceeding; and its findings as to notice,

unless appealed from, shall be conclusive. Notice by telephone, facsimile, e-mail or other

electronic transmission may supplement, but shall not discharge any party's obligation under this

chapter to give notice by service or mail.

     33-22-21. Fees enumerated -- Hearing date to be noted on receipt. -- (a) The fees in

probate courts shall be as follows: for every petition for the appointment of a receiver, custodian,

administrator, guardian, or conservator, or for the probate of and recording of a will, one percent

(1.0%) of the personal property of the decedent or ward over which the court has jurisdiction, but

in no event shall the fee be less than thirty dollars ($30.00) nor more than one thousand five

hundred dollars ($1,500); for every petition for the change of name, thirty dollars ($30.00); for

every petition for adoption, thirty dollars ($30.00); for every petition of a foreign administrator,

executor, or guardian to transfer or sell real or personal estate, one percent (1.0%) of the personal

property of the decedent, or ward located in Rhode Island, but in no event shall the fee be less

than thirty dollars ($30.00) nor more than one thousand five hundred dollars ($1,500) which fees

shall be in lieu of all subsequent filing and recording fees in the same proceedings, except as

hereinafter provided, and shall be paid before the petition is filed, and shall be based upon

estimates submitted by the petitioner or someone in his or her behalf, and shall be subject to

revision whenever it appears that the estimates were incorrect, and upon revision a further

payment or rebate shall be made promptly. In the event that the appointment of a receiver or

custodian, pending the appointment of an administrator, guardian, or conservator, or the probate

of or recording of a will, is necessary, the fee so paid for the petition shall be applied on the

amount to be paid upon the filing of a petition for the appointment of the administrator, guardian,

or conservator, or for the probate of or recording of the will. The court at any time may cite in and

examine any receiver, custodian, executor, administrator, guardian, or conservator for the purpose

of determining the full fee due and payable. Also, the following fees shall be charged:

      (1) For every petition to file a claim out of time, thirty dollars ($30.00);

      (2) For every petition for the removal of an executor, administrator, guardian,

conservator, or other fiduciary, thirty dollars ($30.00);

      (3) For every petition for appointment of a successor guardian under the uniform gifts to

minors act, thirty dollars ($30.00);

      (4) For every petition to file a will with no probate, thirty dollars ($30.00);

      (5) An For every affidavit of complete administration, thirty dollars ($30.00);

      (6) For every certificate of appointment, five dollars ($5.00);

      (7) For every petition to remove or fill a vacancy of a trustee of any trust established

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under a will, or the termination of such trust, thirty dollars ($30.00); and

      (8) For every petition for tax minimization or estate planning, thirty dollars ($30.00).;

      (9) For every petition for change of name, thirty dollars ($30.00); and

     (10) For every petition for adoption, thirty dollars ($30.00).

      (b) Upon payment of any fee enumerated in this section, the clerk of the court shall issue

a written receipt to the person making payment. In the event that the matter filed with the court

calls for a hearing, the clerk of the court shall note the hearing date and time on the receipt

whenever possible; otherwise as soon as is practicable after the filing of the matter, the clerk of

the court shall provide written notice of the hearing date and time directly to the person filing the

matter.

      (c) The clerk of the court shall charge one dollar and fifty cents ($1.50) per page and

three dollars ($3.00) to certify any probate documents on file with the probate court.

     SECTION 3. This act shall take effect upon passage.

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LC004845

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - PRACTICE IN PROBATE

COURTS

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     This act would eliminate and amend certain notice requirements to parties in interest in

the probate of a will or letters of administration but in no way would limit the discretion of the

court to order any notice it deems necessary and would make technical amendments to the

probate court fees enumerated in this section.

     This act would take effect upon passage.

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