2011 -- H 5359

=======

LC00758

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2011

____________

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE

     Introduced By: Representatives Jackson, Gallison, Lally, and JP O`Neill

     Date Introduced: February 15, 2011

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 33-1-1, 33-1-2, 33-1-3, 33-1-5, 33-1-6, 33-1-7 and 33-1-11 of the

1-2

General Laws in Chapter 33-1 entitled "Rules of Descent" are hereby amended to read as follows:

1-3

     33-1-1. Real estate descending by intestacy to children or descendants, parents, or

1-4

brothers and sisters. -- Whenever any person having title to any real estate of inheritance shall

1-5

die intestate as to such estate, it shall descend and pass in equal portions to his or her kindred, in

1-6

the following course:

1-7

      (1) First to his the intestate's children or their descendants, if there are any.

1-8

      (2) Second if there be no children nor their descendants, then to the intestate's parents in

1-9

equal shares, or to the surviving parent of such intestate.

1-10

      (3) Third if there is no parent, then to the intestate's brothers and sisters of the intestate,

1-11

and their descendants.

1-12

     33-1-2. Descent of real estate to paternal or maternal kindred. -- If there is no the

1-13

intestate has no surviving parent, nor brother, nor sister, nor their descendants, the inheritance

1-14

shall go in equal moieties to the intestate's paternal and maternal kindred, each in the following

1-15

course:

1-16

      (1) First to the grandparents, in equal shares, if any there be.

1-17

      (2) Second if there be no grandparent, then to the uncles and aunts, or their descendants

1-18

by representation, or such of them as there be.

1-19

      (3) Third if there be no grandparent, nor uncle, nor aunt, nor their descendants, then to

2-1

the great grandparents in equal shares, if any there be.

2-2

      (4) Fourth if there be no great grandparent, then to the great uncles and great aunts or

2-3

their descendants by representation, or such of them as there be; and so on, in other cases, without

2-4

end, passing to the nearest lineal ancestors and their descendants or such of them as there be.

2-5

     33-1-3. Descent when no paternal or maternal kindred survive. -- When in this

2-6

chapter the inheritance is directed to go by moieties to the intestate's paternal and maternal

2-7

kindred, if there are no such kindred on the one part, the whole shall go to the other part; and if

2-8

there are no kindred either on the one part or the other the whole shall go to the husband or wife

2-9

of the intestate, and intestate's surviving spouse or if the husband or wife is dead spouse did not

2-10

survive the intestate, it shall go to his or her the spouse's kindred in the like course as if such

2-11

husband or wife he or she had survived the intestate and then died entitled to the estate.

2-12

     33-1-5. Life estate descending to spouse. -- Whenever the intestate dies without issue

2-13

and leaves a husband or wife surviving spouse, the real estate of the intestate shall descend and

2-14

pass to the husband or wife surviving spouse for his or her natural life. The provisions of sections

2-15

33-1-1 and 33-1-2 shall be subject to the provisions of this section and section 33-1-6.

2-16

     33-1-6. Widow's or husband's allowance of real estate in fee. -- The probate court

2-17

having jurisdiction of the estate of the intestate, if a resident of this state, or the probate court of

2-18

any city or town in which the real estate of the intestate is situated if not a resident of this state,

2-19

may also, in its discretion if there is no issue as aforesaid, upon petition filed within six (6)

2-20

months from the date of the first publication of notice of the qualification of the administrator of

2-21

the estate of the intestate, allow and set off to the widow or husband intestate’s surviving spouse

2-22

in fee real estate of the decedent intestate situated in this state to an amount not exceeding

2-23

seventy-five thousand dollars ($75,000) one hundred fifty thousand dollars ($150,000) in value,

2-24

over and above all incumbrances, if not required for the payment of the debts of the decedent

2-25

intestate; provided that if the real estate shall be in a single parcel of greater value over and above

2-26

incumbrances than seventy-five thousand dollars ($75,000) one hundred fifty thousand dollars

2-27

($150,000) and shall be deemed by the court, because of such condition and value, to be

2-28

incapable of being allowed and set off hereunder, either as a whole or by partition, without

2-29

unreasonable diminution in the value thereof, the court may order the parcel to be sold by the

2-30

administrator, the administrator giving bond as in other cases of the sale of real estate, and from

2-31

the proceeds of such sale may allow and set off the sum of seventy-five thousand dollars

2-32

($75,000) one hundred fifty thousand dollars ($150,000) to the widow or surviving husband

2-33

intestate's surviving spouse for his or her own use and any surplus of the proceeds of sale shall be

2-34

deemed to be real estate for the purposes of descent and distribution; provided, however, that title

3-1

to real estate situated in any town or city of this state shall not pass by the decree of the probate

3-2

court setting off and allowing such real estate, for the purpose of conveyance by the widow or

3-3

surviving husband intestate's surviving spouse until a copy of such decree as entered, duly

3-4

certified by the probate clerk, is recorded in the records of land evidence in the town or city

3-5

where the land is situated. The allowance and set off under this section shall be in addition to the

3-6

life estate pursuant to section 33-1-5.

3-7

     33-1-7. Descendants of deceased heirs. -- The descendants of any person deceased shall

3-8

inherit the real and personal estate which the person would have inherited had the person survived

3-9

the intestate, subject to the express provisions of these canons of descent and distribution.

3-10

     33-1-11. Advancements Advancements and debts of decedent. -- If real estate shall be

3-11

conveyed by deed of gift, or personal estate shall be delivered to a child or grandchild, and

3-12

charged, or a memorandum made thereof in writing by the intestate or by his or her order, or shall

3-13

be delivered expressly for that purpose in the presence of two (2) witnesses, who were requested

3-14

to take notice thereof, the real estate or personal estate shall be deemed an advancement to the

3-15

child to the value of the real or personal estate. (a) If a person dies intestate as to all or a portion

3-16

of the decedent's estate, any property given by the decedent during his or her lifetime to an

3-17

individual who, at decedent's death, is an heir shall be treated as an advancement against the heir's

3-18

intestate share only if:

3-19

     (1) The decedent declared in a contemporaneous writing or the heir acknowledged in

3-20

writing that the gift is an advancement; or

3-21

     (2) The decedent's contemporaneous writing or the heir's written acknowledgment

3-22

otherwise indicates that the gift is to be taken into account in computing the division and

3-23

distribution of the decedent's intestate estate.

3-24

     (b) For purposes of subsection (a), property advanced is valued as of the time the heir

3-25

came into possession or enjoyment of the property or as of the time of the decedent's death,

3-26

whichever first occurs.

3-27

     (c) If the recipient of the property fails to survive the decedent, the property is not taken

3-28

into account in computing the division and distribution of the decedent's intestate estate, unless

3-29

the decedent's contemporaneous writing provides otherwise.

3-30

     (d) A debt owed to decedent is not charged against the intestate share of any individual

3-31

except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in

3-32

computing the intestate share of the debtor's descendants.

3-33

     SECTION 2. Sections 33-10-1, 33-10-2 and 33-10-3 of the General Laws in Chapter 33-

3-34

10 entitled "Allowances to Families of Decedents" are hereby amended to read as follows:

4-1

     33-10-1. Wearing apparel and exempt personal property allowed to widow or

4-2

widower and children. -- The wearing apparel of the widow or widower surviving spouse and

4-3

minor children of a deceased person decedent shall belong to them, respectively. The widow or

4-4

widower surviving spouse shall be entitled, for herself or himself individually and for the family

4-5

under her or his care, to such furniture, furnishings, household effects, supplies, and, in addition

4-6

thereto, such other personal property of the husband or wife decedent exempt from attachment by

4-7

law, as the probate court shall deem necessary, having regard to all the circumstances of the case;

4-8

or, if there is no widow or widower surviving spouse, the minor children shall be entitled to the

4-9

furniture, furnishings, household effects, or the use thereof, in such manner as the court shall

4-10

direct.

4-11

     33-10-2. Property allowed not assets in hands of executor or administrator. -- Such

4-12

part of the decedent's personal property as the court shall allow to the widow, widower decedent's

4-13

surviving spouse or family of the deceased, although inventoried, shall not be assets in the hands

4-14

of the executor or administrator decedent's personal representative.

4-15

     33-10-3. Allowances for temporary support of family. -- The probate court shall make

4-16

reasonable allowance out of the decedent's probate estate of the deceased for the support of his or

4-17

her family, until the support can otherwise be provided for, for a period not exceeding six (6)

4-18

months from the date of the death, having regard to the situation of the family and the value and

4-19

circumstances of the estate. The allowance may be fixed at any time upon application of the

4-20

executor or administrator personal representative or of any party in interest, filed within six (6)

4-21

months after the first publication of notice of the qualification of the executor or administrator

4-22

personal representative. The court may, in its discretion, provided a final account has not been

4-23

allowed, make an additional allowance under like conditions for the support of the family for a

4-24

second period not exceeding six (6) months, the allowance to be fixed at any time after the first

4-25

six (6) months period has passed and within one year after the first publication of notice of the

4-26

qualification of the executor or administrator personal representative upon his or her application,

4-27

or upon the application of the personal representative or of any party in interest. After exhausting

4-28

the personal property, real estate may be sold to provide the amount of allowance decreed in the

4-29

same manner as for the payment of debts. An appeal from a decree granting letters testamentary

4-30

or of administration shall not prevent the allowance being made by the probate court or the

4-31

payment thereof. An appeal from a decree making any allowance shall not prevent the payment of

4-32

the allowance if a bond in such amount as may be fixed by the court but no less than the amount

4-33

of the allowance be given to the court by a widow or widower surviving spouse, if any, or by a

4-34

guardian of the minor children in case there be no widow or widower surviving spouse, with

5-1

surety or sureties approved by the court, and conditioned to repay all in excess of what is finally

5-2

determined to be a reasonable allowance or to return all of the allowance in case the decree

5-3

granting the allowance is finally reversed in the full amount. The bond required by the provisions

5-4

of this section and the remedies thereon shall be governed by the provisions of chapter 17 of this

5-5

title as far as the context thereof permits.

5-6

     SECTION 3. Chapter 33-1 of the General Laws entitled "Rules of Descent" is hereby

5-7

amended by adding thereto the following sections:

5-8

     33-1-12. Intestate estate. – (a) Any part of a decedent's estate not effectively disposed of

5-9

by will passes by intestate succession to the decedent's heirs as prescribed in this chapter, except

5-10

as modified by the decedent's will.

5-11

     (b) A decedent may by will expressly exclude or limit the right of an individual or class

5-12

to succeed to property of the decedent passing by intestate succession. If that individual or a

5-13

member of that class survives the decedent, the share of the decedent's intestate estate to which

5-14

that individual or class would have succeeded passes as if that individual or each member of that

5-15

class has disclaimed an intestate share.

5-16

     33-1-13. Survivorship. – An individual who fails to survive the decedent by one hundred

5-17

twenty (120) hours is considered to have predeceased the decedent for purposes of homestead

5-18

allowance, exempt property, and intestate succession, and the decedent's heirs are determined

5-19

accordingly. If it is not established by clear and convincing evidence that an individual who

5-20

would otherwise be an heir survived the decedent by one hundred twenty (120) hours, it is

5-21

considered that the individual failed to survive for the required period. This section is not to be

5-22

applied if its application would result in escheat of intestate estate to the state.

5-23

     SECTION 4. Title 33 of the General Laws entitled "PROBATE PRACTICE AND

5-24

PROCEDURE" is hereby amended by adding thereto the following chapter:

5-25

     CHAPTER 28

5-26

ELECTIVE SHARE

5-27

     33-28-1. Elective share. – (a) The surviving spouse of a decedent who dies domiciled in

5-28

this state has a right of election, under the limitations and conditions stated in this chapter, to take

5-29

an elective-share equal to the life estate and allowance of an intestate's real estate pursuant to

5-30

sections 33-1-5 and 33-1-6 and share of an intestate's personal estate pursuant to section 33-1-10.

5-31

The elective share may be taken in kind or the value thereof.

5-32

     (b) If the right of election is exercised by or on behalf of the surviving spouse, the

5-33

surviving spouse's allowances pursuant to chapter 33-10, if any, are not charged against but are in

5-34

addition to the elective share.

6-1

     (c) The right, if any, of the surviving spouse of a decedent who dies domiciled outside

6-2

this state to take an elective share in property in this state is governed by the law of the decedent's

6-3

domicile at death.

6-4

     33-28-2. Right of election personal to surviving spouse – Incapacitated surviving

6-5

spouse. – (a) The right of election may be exercised only by a surviving spouse who is living

6-6

when the petition for the elective share is filed in the probate court pursuant to subsection 33-27-

6-7

4(a). If the election is not exercised by the surviving spouse personally, it may be exercised on

6-8

the surviving spouse's behalf by the surviving spouse's conservator, guardian or agent under the

6-9

authority of a power of attorney.

6-10

     (b) If the election is exercised on behalf of a surviving spouse who is an incapacitated

6-11

person, the probate court may authorize transfer of property in kind or payment of the value

6-12

thereof to the spouse's personal representative upon such terms and conditions as the court

6-13

determines to be in the spouse's best interest.

6-14

     33-28-3. Waiver of right to elect and of other rights. -- (a) The right of election of a

6-15

surviving spouse and the rights of the surviving spouse to allowances pursuant to chapter 33-10

6-16

may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or

6-17

waiver signed by the surviving spouse. The written contract, agreement, or waiver is enforceable

6-18

without consideration.

6-19

     (b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that: (1)

6-20

The surviving spouse did not execute the waiver voluntarily; or (2) The waiver was

6-21

unconscionable when it was executed and, before execution of the waiver, the surviving spouse:

6-22

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of

6-23

the decedent; (ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of

6-24

the property or financial obligations of the decedent beyond the disclosure provided; and (iii) Did

6-25

not have or reasonably could not have had an adequate knowledge of the property or financial

6-26

obligations of the decedent.

6-27

     (c) An issue of unconscionability of a waiver is for decision by the probate court or other

6-28

court of competent jurisdiction as a matter of law.

6-29

     (d) Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in

6-30

the property or estate of a present or prospective spouse or a complete property settlement entered

6-31

into after or in anticipation of separation or divorce is a waiver of all rights to elective share and

6-32

allowances pursuant to chapter 33-10 by each spouse in the property of the other and a

6-33

renunciation by each of all benefits that would otherwise pass to that spouse from the other by

6-34

intestate succession or by virtue of any will executed before the waiver or property settlement.

7-1

     33-28-4. Proceeding for elective share – Time limit. – (a) If any estate, real or personal,

7-2

be devised or bequeathed to a surviving spouse, the devise or bequest shall bar the elective share

7-3

unless the surviving spouse shall, within six (6) months after the date of the first publication of

7-4

the qualifications of the fiduciary of the estate of the deceased spouse, file in the probate court a

7-5

written statement waiving and renouncing the devise and bequest and petitioning for the elective

7-6

share. If any of the deceased spouse's real estate is located in any city or town other than that in

7-7

which the will of the decedent is probated, the waiver and petition shall also be filed in the

7-8

records of deeds in each city and town where the real estate is located. The surviving spouse

7-9

shall give notice of the time and place set for hearing to persons interested in the estate and to

7-10

those whose interests will be adversely affected by the taking of the elective share.

7-11

     (b) Within six (6) months after the date of the first publication of the qualifications of the

7-12

fiduciary of the estate of the deceased spouse, the surviving spouse may petition the probate court

7-13

for an extension of time for making an election not to exceed nine (9) months after the decedent's

7-14

death, upon notice of the time and place set for hearing to persons interested in the estate and to

7-15

those whose interests will be adversely affected by the taking of the elective share.

7-16

     (c) The surviving spouse may withdraw a waiver and petition for an elective share at any

7-17

time before entry of a final determination by the probate court.

7-18

     (d) The order or judgment of the probate court may be enforced as necessary in suit for

7-19

contribution or payment in other courts of this state or other jurisdictions.

7-20

     SECTION 5. This act shall take effect upon passage.

=======

LC00758

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE

***

8-1

     This act would make several amendments to the statutes regarding rules of descent and

8-2

would also provide for an elective share to the surviving spouse of a decedent domiciled in this

8-3

state.

8-4

     This act would take effect upon passage.

=======

LC00758

=======