Bill Summary for S 279

Summary date: 

Mar 13 2013
S.L. 2013-91

Bill Information:

View NCGA Bill Details2013-2014 Session
Senate Bill 279 (Public) Filed Tuesday, March 12, 2013
A BILL TO BE ENTITLED AN ACT TO UPDATE AND CLARIFY PROVISIONS OF THE LAWS GOVERNING ESTATES, TRUSTS, GUARDIANSHIPS, POWERS OF ATTORNEY, AND OTHER FIDUCIARIES.
Intro. by Hartsell, Barringer.

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Bill summary

Section 1a

Amends GS 28A-13-3 (Powers of a personal representative or fiduciary) by adding a new subsection, GS 28A-13-3(a34), providing a personal representative the authority to access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, as defined in GS 28A-13-11(d)(3), and digital accounts owned by the decedent, as defined in GS 28A-13-11(d)(2).

Section 1b, 1d, 1g, 1j

Enacts the following new statutes: GS 28A-13-11 (Access to digital assets and accounts by personal representative), GS 32-29 (Access to digital assets and accounts by fiduciary), GS 32A-4 (Access to digital assets and accounts by attorney-in-fact), and GS 35A-1254 (Access to digital assets and accounts by guardian of the estate). Each new section grants authority to the respective personal representative, fiduciary, attorney-in-fact, or guardian of the estate (representative) to access any digital account of the decedent operated by the custodian and copies of any digital assets of the decedent stored by the custodian after issuing the custodian either (1) a written request for access to digital accounts and digital assets from the representative, along with a copy of the death certificate and a copy of the representative's testamentary letter or letters of administration or (2) an order from the clerk of superior court or probate court that has jurisdiction over the decedent's estate.

Prohibits custodians from destroying, disabling, or disposing of any digital accounts or digital assets for two years after receiving either one of the above requests or orders. Does not provide authority for custodian to grant access to digital accounts or assets that are in violation of federal law or to which the decedent or settlor would not have been given access in the ordinary course of business by the custodian.

Provides definitions that apply in the new subsections, including definitions for custodian, digital accounts, and digital assets.

Section 1c

Amends GS 32-27 (Powers which may be incorporated by reference in trust instrument), providing that the authority to access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, defined in GS 32-29(d)(3), or digital accounts, defined in GS 32-29(d)(2), can be incorporated by reference as provided in GS 32-26.

Section 1e

Amends GS 32A-1 (Statutory Short Form of General Power of Attorney), making conforming changes and adding  "digital assets and accounts" to the list of authorities an attorney-in-fact can be granted.

Section 1f

Amends GS 32A-2 (Powers conferred by the Statutory Short Form Power of Attorney set out in GS 32A-1), by adding a new subsection GS 32A-2(18), providing a named attorney-in-fact the authority to access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, as defined in GS 32A-4(d)(3), and digital accounts, as defined in GS 32A-4(d)(2), owned by the decedent.

Section 1h

Amends GS 35A-1251 (Guardian's powers in administering incompetent ward's estate) by creating a new subsection GS 35A-1251(25), providing a general guardian or guardian of the estate of an incompetent ward the authority to access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, as defined in GS 35A-1254(d)(3), and digital accounts, as defined in GS 35A-1254(d)(2), owned by the ward.

Section 1i

Amends GS 35A-1252 (Guardian's powers in administering minor ward's estate), by creating a new subsection GS 35A-1252(18), providing a general guardian or guardian of the estate of a minor ward the authority to access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, as defined in GS 35A-1254(d)(3), and digital accounts, as defined in GS 35A-1254(d)(2), owned by the ward, but, absent a court order with respect to a minor, authority is no greater than the power of a natural guardian.

Section 1k

Amends GS 36C-8-816 (Specific powers of a trustee), by creating a new subsection GS 36C-8-816(33), providing that a trustee can access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets and digital accounts held as part of the trust property or received as trust property from a settlor or any other person.

Section 2a

Amends GS 28A-29-1 (Notice to creditors without estate administration), expanding the areas and circumstances when a person qualified to serve as a personal representative of an estate or a trustee, serving under a revocable trust, can file a petition to be appointed as a limited personal representative for the purpose of providing notice to creditors without administration of an estate. 

Section 2b

Amends GS 28A-29-2(a), expanding the requirements of an affidavit filed for appointment as limited personal representative. Requires an affidavit to also state the following:

(1) Decedent left no personal property subject to probate and no real property to the personal representative.

(2) Decedent's estate is being administered by collection by affidavit.

(3) Estate is being administered under the summary administration provisions.

(4) Estate consists solely of a motor vehicle that can be transferred according to GS 20-77(b).

(5) Decedent left assets that can be treated as assets of an estate as in GS 28A-15-10.

Section 2c

Amends GS 30-3.1 (Right of elective share), changing the amounts and applicable share of total net assets that are awarded as follows:

(1) if the surviving spouse was married to the decedent for less than five years, 15% of the total net assets (was, if not survived by any lineal descendants, one half)

(2) if the surviving spouse was married to the decedent for at least 5 years but less than 10 years, 25% of the total net assets (was, if survived by one child or lineal descendants of one deceased child, one half)  

(3) if the surviving spouse was married to the decedent for at least 10 years but less than 15 years, 33% of the total net assets (was, if survived by two or more children, or by one or more children and by lineal descendants of one or more deceased children, or by lineal descendants of two or more deceased children, one third)

(4) if the surviving spouse was married to the decedent for 15 years or more, 50% of the total net assets

Deletes the "Reduction of Applicable Share" clause, which reduced a survivng spouse's elective share where they are the second or successive spouse and the decedent had at least one lineal descendant as described.

Section 2d

Amends GS 30-31 (Amount of Allowance), to provide that attorneys' fees and costs awarded to the petitioner under GS 6-21 will be paid as an administrative expense of the estate.

Section 2e

Amends GS 31-11.6 (How attested wills may be made self-proved), making technical changes. Provides that wills executed in another state and self-proved per that state's laws are considered self-proved; the same occurs for a will that appears on its face to be executed, attested, or notarized under another state's laws.  Military testamentary instruments executed in accordance with 10 USC 1044d(d) are considered self-proved.

Section 2f

Amends GS 31-46 (Validity of will; which laws govern), to expand the ways in which a will is considered valid, including, complies with the laws of the place where it was executed, complied with the laws of the place where the testator was domiciled, or is a military instrument executed correctly, according to applicable law.

Section 2g

Amends GS 28A-2A-17 (Certified copy of will of nonresident recorded), to provide that for a copy of a will to pass title according to laws at the time of its execution or at the time of the testator's death, or as otherwise recognized as valid under GS 31-46, must appear affirmatively.

Section 3a

Enacts new GS 36C-1-114 (Insurable Interest of Trustee), providing that the trustee has an insurable interest in the life of an individual insured by a life insurance policy that is trust property if the insured at the date of issuance is the settlor of the trust or an individual in whom a settlor of the trust has an insurable interest and the proceeds from the policy are for the benefit of one or more trust beneficiaries who have an insurable interest in the life of the insured.

Section 3b

Amends GS 36C-5-505(c) to define a settlor's spouse.

Section 3c

Amends GS 36C-8-816.1, making clarifying changes and deleting the rule of perpetuities and suspension of power of alienation from the provisions to which the power of appointment is subject.

Section 4a

Amends GS 1C-1601(a), expanding the areas that are free of enforcement from claims of creditors to include any money or assets in a retirement plan after an individual's death if held by one or more subsequent beneficiaries by direct transfer or eligible rollover that are excluded from gross income under the Internal Revenue Code (IRC), including a direct transfer or eligible rollover to an inherited individual retirement account as defined in section 408(d)(3) of the IRC.

Section 4b

Amends GS 32-72(d), making technical and clarifying changes. Clarifies the duties and liabilities of a fiduciary. Provides that if the terms of an instrument confer power and authority to a person other than the fiduciary, the fiduciary is not liable for losses resulting directly or indirectly from the exercise or nonexercise of that power.

Makes clarifying and technical changes.

Section 4c

Amends GS 35A-1336.1 (Prerequisites to approval by judge of gifts to individuals), clarifying a requirement for a judge to approve a gift from income. Provides in GS 35A-1336.1(2)c., one option for approval, that the gift qualify for either the federal annual gift tax exclusion or is a qualified transfer for tuition or medical expenses when the donee is the spouse, parent, descendent of the incompetent, or descendent of the incompetent's parent.

Section 4d

Amends GS 35A-1341.1 (Prerequisites to approval by judge of gifts to individuals), making the same changes as above in Secion 4c, except that it applies to gifts from principal to individuals.

Section 4e

Amends GS 35A-1251 (Guardian's powers in administering incompetent ward's estate), providing that in GS 35A-1251(24) a guardian cannot alter the designation of beneficiaries to receive property at the time of the ward's death under the existing estate plan, but may incorporate tax planning or public benefits planning into the ward's existing estate plan, including leaving beneficial interests in trust rather than outright.

Effective date

Section 1 and 2c become effective October 1, 2013, and apply to estates of decedents dying on or after that date. The remainder is effective when it becomes law. Section 4(a) applies to all inherited individual retirement accounts without regard to the date an account was created.

 

 

 

 

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