§ 15-8-305 — SPECIAL REPRESENTATIVE

(1) (a) The personal representative or trustee may petition the court having jurisdiction over the matter for the appointment of a special representative to represent a person who is interested in the estate or trust and:
(i) Who is a minor;
(ii) Who is incompetent or disabled;
(iii) Who is yet unborn or unascertained; or
(iv) Whose identity or address is unknown.
The petition may be heard by the court without notice.
(b) In appointing the special representative, the court shall give due consideration and deference to any nomination(s) made in the petition, the special skills required in the representation, and the need for a representative who will act independently and prudently. The nomination of a person as special representative by the personal representative or trustee and the person’s willingness to serve as special representative are not grounds by themselves for finding a lack of independence; provided however, the court may consider any interests that the nominating fiduciary may have in the estate or trust in making the determination.
(c) The special representative may enter into a binding agreement on behalf of the person or beneficiary. The special representative may be appointed for more than one (1) person or class of persons if the interests of such persons or class are not in conflict. The petition shall be verified. The petition and order appointing the special representative may be in the following forms:
CAPTION OF CASE PETITION FOR APPOINTMENT OF
SPECIAL REPRESENTATIVE UNDER
/SECTION 15-8-305, IDAHO CODE
The undersigned petitioner petitions the court for the appointment of a special representative in accordance with section 15-8-305, Idaho Code, and represents to the court as follows:
1. Petitioner. Petitioner …………… is the qualified and presently acting (personal representative) (trustee) of the above (estate) (trust) having been named (personal representative) (trustee) under (describe will and reference probate order or describe trust instrument.)
2. Issue Concerning (Estate) (Trust) Administration. A question concerning administration of the (estate) (trust) has arisen as to (describe issue, for example, "Related to interpretation, construction, administration, distribution.") The issues are appropriate for determination under section 15-8-305, Idaho Code.
3. Beneficiaries. The beneficiaries of the (estate) (trust) include persons who are unborn, unknown, or unascertained persons, or who are under eighteen (18) years of age: (list, with status of each.)
4. Special Representative. The nominated special representative ……….. is a lawyer licensed to practice before the courts of this state or an individual with special skills or training in the administration of estates or trusts. The nominated special representative does not have an interest in the affected estate or trust and is not related to any person interested in the estate or trust. The nominated special representative is willing to serve. The petitioner has no reason to believe that the nominated special representative will not act in an independent and prudent manner and in the best interests of the represented parties. (It is recommended that the petitioner also include information specifying the particular skills of the nominated special representative that relate to the matter in issue.)
5. Resolution. Petitioner desires to achieve a resolution of the questions that have arisen concerning the (estate) (trust). Petitioner believes that proceeding in accordance with the procedures permitted under sections 15-8-301 through 15-8-305, Idaho Code, would be in the best interests of the (estate) (trust) and the beneficiaries.
6. Request of Court. Petitioner requests that (……………, an attorney licensed to practice in the state of Idaho,) (OR) (…………….., an individual with special skills or training in the administration of estates or trusts,) be appointed special representative for those beneficiaries who are not yet adults, as well as for the unborn, unknown, and/or unascertained beneficiaries, as provided under section 15-8-305, Idaho Code.
DATED this ……. date of ……………, ………….
VERIFICATION
I certify under penalty of perjury under the laws of the state of Idaho that the foregoing is true and correct.
DATED ………….., ……….., at …………………., Idaho.
CAPTION OF CASE ORDER FOR APPOINTMENT OF
SPECIAL REPRESENTATIVE UNDER
/SECTION 15-8-305, IDAHO CODE
THIS MATTER having come on for hearing before this Court on Petition for Appointment of Special Representative filed herein, and it appearing that it would be in the best interests of the (estate) (trust) described in the Petition to appoint a special representative to address the issues that have arisen concerning the (estate) (trust) and the Court finding that the facts stated in the Petition are true, now, therefore,
IT IS ORDERED that ………………….. is appointed under section 15-8-305, Idaho Code, as special representative for the (estate) (trust) beneficiaries who are not yet adult age, and for unborn, unknown, or unascertained beneficiaries to represent their respective interests in the (estate) (trust) as provided in section 15-8-305, Idaho Code. The special representative shall be discharged of responsibility with respect to the (estate) (trust) at such time as a written agreement is executed resolving the present issues, all as provided in that statute, or if an agreement is not reached within six (6) months from entry of this Order, the special representative appointed under this Order shall be discharged of responsibility, subject to subsequent reappointment under section 15-8-305, Idaho Code.
DONE IN OPEN COURT this …….. day of ………………., ………
(2) Upon appointment by the court, the special representative shall file a sworn certificate made upon penalty of perjury that he or she:
(a) Is not interested in the estate or trust;
(b) Is not related to any person interested in the estate or trust;
(c) Is willing to serve; and
(d) Will act independently, prudently, and in the best interests of the represented parties.
(3) The special representative must be a lawyer licensed to practice before the courts of this state, or an individual with special skills or training in the administration of estates or trusts. The special representative may not have an interest in the affected estate or trust, and may not be related to a person interested in the estate or trust. The special representative is entitled to reasonable compensation for services, which must be paid from the principal of the estate or trust whose beneficiaries are represented.
(4) The special representative shall be discharged from any responsibility and shall have no further duties with respect to the estate or trust or with respect to any person interested in the estate or trust, on the earlier of:
(a) The expiration of six (6) months from the date the special representative was appointed, unless the order appointing the special representative provides otherwise; or
(b) The execution of the written agreement by all parties or their virtual representatives.
(5) Any action against a special representative must be brought before the earlier of:
(a) One (1) year from the discharge of the special representative; or
(b) The entry of an order by a court of competent jurisdiction under section 15-8-304, Idaho Code, approving the written agreement executed by all interested parties in accordance with the provisions of section 15-8-302, Idaho Code.

Legislative History

[15-8-305, added 2005, ch. 122, sec. 1, p. 404.]