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.)