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S.B. 246
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UTAH UNIFORM PROBATE CODE - NOTICE,
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PARTIES, REPRESENTATION AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Lyle W. Hillyard
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AN ACT RELATING TO THE UNIFORM PROBATE CODE; ADOPTING LANGUAGE
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FROM THE PROPOSED UNIFORM TRUST ACT CLARIFYING NOTICE, CONSENT, AND
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REPRESENTATION REQUIREMENTS FOR INTER VIVOS AND TESTAMENTARY
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TRUSTS.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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75-1-403, as last amended by Chapter 142, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
75-1-403
is amended to read:
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75-1-403. Pleadings -- When parties bound by others -- Notice.
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In formal proceedings involving inter vivos or testamentary trusts [or], including
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proceedings to modify or terminate a trust, estates of decedents, minors, protected persons, or
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incapacitated persons, and in judicially supervised settlements, the following apply:
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(1) Interests to be affected shall be described in pleadings which give reasonable
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information to owners by name or class, by reference to the instrument creating the interests, or
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in any other appropriate manner.
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(2) Persons are bound by orders binding others in the following cases:
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(a) [Orders binding the sole holder or all co-holders of a power of revocation or a
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presently-exercisable general power of appointment, including one in the form of a power of
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amendment, bind other persons to the extent their interests (as objects, takers in default, or
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otherwise)] To the extent there is no conflict of interest between the holder of a general
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testamentary power of appointment and the persons represented with respect to a particular
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question or dispute, the holder may represent and bind persons whose interests, as permissible
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appointees, takers in default, or otherwise, are subject to the power.
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(b) To the extent there is no conflict of interest between [them or among persons
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represented, orders binding a conservator] the representative and the person represented with
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respect to a particular question or dispute:
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(i) a conservator may represent and bind the person whose estate he controls; [orders
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binding]
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(ii) a guardian may represent and bind the ward if no conservator of [his estate has been
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appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will
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establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in
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proceedings involving creditors or other third parties; and orders binding a personal representative]
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the ward's estate has been appointed;
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(iii) an agent having authority to do so may represent and bind the principal;
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(iv) a trustee may represent and bind the beneficiaries of the trust;
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(v) a personal representative of a decedent's estate may represent and bind persons
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interested in the [undistributed assets of a decedent's estate in actions or proceedings by or against
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the estate. If there is no conflict of interest and] estate; and
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(vi) if no conservator or guardian has been appointed, a parent may represent [his minor]
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and bind the parent's minor or unborn child.
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(c) [An unborn or unascertained person who is not otherwise represented is bound by an
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order to the extent his interest is adequately represented by another party] Unless otherwise
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represented, a minor, incapacitated or unborn person, or a person whose identity or location is
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unknown and not reasonably ascertainable, may be represented and bound by another person
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having a substantially identical interest [in the proceeding] with respect to the particular question
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or dispute, but only to the extent there is no conflict of interest between the representative and the
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person represented.
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(3) Notice is required as follows:
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(a) Notice as prescribed by Section
75-1-401
shall be given to every interested person [or
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to one who can bind an interested person as described in Subsection (2)(a) or (2)(b)]. Notice may
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be given both to a person and to another who may bind him.
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[(b) Notice is given to unborn or unascertained persons, who are not represented under
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Subsection (2)(a) or (2)(b), by giving notice to all known persons whose interests in the
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proceedings are substantially identical to those of the unborn or unascertained persons.]
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(b) Whenever notice to a person is required or permitted under this chapter, notice to
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another person who may represent and bind the person represented under this section constitutes
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notice to the person represented.
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(4) [At any point in a proceeding, a] Even if there is representation under this section, if
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the court determines that representation of the interest might otherwise be inadequate, the court
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may appoint a guardian ad litem to represent the interest of [a minor, an], and approve an
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agreement on behalf of, a minor, incapacitated[,] or unborn[, or unascertained] person, or a person
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whose identity or [address is unknown, if the court determines that representation of the interest
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otherwise would be inadequate] location is unknown.
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(5) If not precluded by conflict of [interests] interest, a guardian ad litem may be appointed
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to represent several persons or interests. [The court shall set out its reasons for appointing a
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guardian ad litem as a part of the record of the proceeding] In approving an agreement, a guardian
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ad litem may consider general family benefit accruing to the living members of the family of the
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person represented.
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(6) Whenever consent may be given by a person pursuant to this chapter, the consent of
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a person who may represent and bind the person represented under this section is the consent of,
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and is binding on, the person represented unless the person represented objects to the
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representation before the consent would otherwise become effective.
Legislative Review Note
as of 2-8-00 12:19 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.