Monday, April 20, 2015


[(a)]* The moving party must give notice as described by Section 1-401 of his application for informal probate to any person demanding it pursuant to Section 3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of

informal probate is required.
[(b) If an informal probate is granted, within 30 days thereafter the applicant shall give

written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 3-705. An applicant’s failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.]
* This paragraph becomes subsection (a) if optional subsection (b) is accepted.
This provision assumes that there will be a single office within each county or other area of jurisdiction of the probate court which can be checked for demands for notice relating to estates in that area. If there are or may be several registrars within a given area, provision would need to be made so that information concerning demands for notice might be obtained from the chief registrar’s place of business.
In 1975, the Joint Editorial Board recommended the addition, as a bracketed, optional provision, of subsection (b). The recommendation was derived from a provision added to the Code in Idaho at the time of original enactment. The Board viewed the addition as interesting, possibly worthwhile, and worth being brought to the attention of enacting states as an optional addition. The Board views the informational notice required by Section 3-705 to be of more importance in preventing injustices under the Code, because the opening of an estate via appointment of a personal representative instantly gives the estate representative powers over estate assets that can be used wrongfully and to the possible detriment of interested persons. Hence, the Section 3-705 duty is a part of the recommended Code, rather than a bracketed, optional provision. By contrast, the informal probate of a will that is not accompanied or followed by appointment of a personal representative only serves to shift the burden of making the next move to disinterested heirs who, inter alia, may initiate a Section 3-401 formal testacy proceeding to contest the will at any time within the limitations prescribed by Section 3-108. 

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