PR 07215.015 Idaho

A. PR 00-037 Purchase of Property by Representative Payees on Behalf of Minor Children — Revised

DATE: May 14, 1999

1. SYLLABUS

In Region X (Seattle), the States of Alaska, Idaho, Oregon, and Washington generally allow a minor to hold legal title to real and personal property.

2. OPINION

You requested a formal legal opinion on a State-by-State basis addressing four issues relating to whether minors can hold title to certain types of property and how the property must be titled. My original response was submitted January 19, 1999. During a telephone conference on April 21, 1999, the regions were asked to revise their opinions. Below are the revised responses for the States in the Seattle Region (Alaska, Idaho, Oregon, and Washington).

IDAHO

1. Does Idaho permit a minor to hold title to real property or personal property such as an automobile?

A minor may hold title to real or personal property. See, e.g., Idaho Code § 68-609.

Where a minor's property is managed through a custodianship under the Idaho Uniform Transfers to Minor's Act, Idaho Code §§ 68-801-68-625, legal title to the property remains "indefeasibly vested" in the minor. Idaho Code § 68-811(2). However, the custodian has all the rights, powers, duties and authority provided in the Idaho UTMA, and neither the minor nor his/her legal representative has any right, power, duty or authority with respect to the custodial property except as provided in the UTMA. Id. The custodian distributes some property when the minor reaches age 18, and other property when the minor reaches age 21. Idaho Code § 68-820.

Custodial property is created and a transfer is made whenever securities, money, a life or endowment insurance policy or annuity contract, irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract, interest in real property, certificate of title to tangible personal property or an interest in any property is transferred, paid, recorded, delivered, or registered by a written instrument followed in substance by the words: "... as custodian for (name of minor) under the Idaho Uniform Transfers to Minors Act." Idaho Code § 68-809.

Where a conservator is appointed to protect the minor's property, Idaho Code §§15-5-201-15-5-433, the conservator holds legal title as trustee to all of the property. Idaho Code § 15-5-420. The property and legal title are transferred to the minor when he/she attains majority (age 18), unless a court extends the conservatorship to age 21. Idaho Code § 15-5-433.

Where a minor's property is managed under the terms of a trust document, Idaho Code §§ 68-104-68-113 (Idaho Uniform Powers of Trustees Act), or under a special needs trust, Idaho Code § 68-1403,1/ or under the Idaho's Uniform Custodial Trust Act, Idaho Code §§ 68-1301-68-1302, the trustee holds legal title to the property. Idaho Code § 15-5-420 (comment to official text); DBSI/TRI V v. Bender, 948 P.2d 151, 163-64 (Idaho 1997). The trustee distributes property and legal title in accordance with the terms of the trust document. Idaho Code § 68-105-68-106. If a trustee irrevocably transfers a minor's property to a custodianship under the Idaho UTMA, see Idaho Code §§ 68-805 and 68-806, legal title reverts to the minor under Idaho Code § 68-811(2).

Where a guardian is appointed to protect the minor's property, the minor retains legal title. Harbaugh v. Myron Harbaugh Motor, Inc., 597 P.2d 18, 20 (Idaho 1979). A guardianship continues until it is terminated, e.g., when the minor marries or attains the age of majority. Idaho Code §§ 15-5-201, 15-5-210.

2. Are there any restrictions in Idaho as to the age of the minor or the types of property that can be held?

A minor is a male or female under the age 18. Idaho Code § 32-101. An "emancipated minor" is any male or female who has been married. Idaho Code § 15-1-201(14).

For purposes of the Idaho Uniform Custodial Trust Act, a minor is an individual less than age 18. Idaho Code § 68-1301(1) (see also comment to official text). However, a minor for the purposes of the Idaho UTMA is "an individual who has not attained the age of twenty-one (21) years." Idaho Code § 68-801(11).

A minor is not capable of contracting. Idaho Code § 29-101. If a minor does contract, he/she may disaffirm the contract either before reaching the age of majority or within a reasonable time thereafter. Idaho Code § 32-103. A minor cannot disaffirm an otherwise valid contract "to pay the reasonable value of things necessary for his support, or that of his family." Idaho Code § 32-104. Nor can a minor disaffirm an obligation otherwise valid under the express authority or direction of a statute. Idaho Code § 32-105. For example, a minor not less than age 15 may contract for annuities or insurance upon his own life, body, health, property, liabilities or other interests. Idaho Code § 41-1807(2).

3. Are there any specific requirements in Idaho on how the property should/must be titled to show the minor as titleholder?

The Idaho Revenue Code states that the property held by a minor "shall listed by his/her guardian, or by the person having the property in charge." Idaho Code § 63306.

Under the Idaho UTMA, custodial property is held in the name of the custodian followed in substance by the words: "as custodian for (name of minor) under the Idaho Uniform Transfers to Minors Act." Idaho Code § 68-809.

Shares, deposits or thrift accounts may be issued in the minor's name. Idaho Code § 26-2125.

A minor's account in a financial institution may be in his/her name. Idaho Code § 26718.

4. If Idaho does not permit a minor to hold title to property, or does not permit the property to be titled/registered in the minor's name, what is the preferred method(s) of titling property to reflect or protect the minor's interest in the property and satisfy SSA's regulatory requirements?

As noted above, where a minor's property is managed through a conservatorship or a trusteeship, the conservator or trustee holds legal title. We were unable to find any preferred methods of titling the property in these situations.

1/ A court may transfer court-approved payments or awards into a special needs trust for the benefit of a minor, Idaho Code § 68-1403(1 and 4), or into an insured account in a financial institution, Idaho Code § 68-1403(3)(a), or into a custodianship under the Idaho UTMA, Idaho Code § 68-1403(3)(b)


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PR 07215.015 - Idaho - 10/09/2008
Batch run: 01/27/2009
Rev:10/09/2008