Estate Planning

— Wills —

What is a Will?

A Will is a written instrument containing directions for how the property of the person making the Will (called the testator) shall be divided on his or her death. Idaho law generally requires that the Will be signed by the testator and by two witnesses who have no interest in the property passing under it. The testator must state in the presence of the witnesses that the instrument is his or her Will. He or she must also be competent (not insane, senile or mentally disabled) and not acting under duress or under the controlling influence of any person. A signed instrument purporting to be someone’s Will is not officially recognized until the court having jurisdiction over the instrument declares it to be a valid Will after examining it and the circumstances surrounding its execution. The process by which a court determines whether a Will is valid is known as probate.

What is a Living Will and how is it different from a Will?

A Living Will, also known as a Physician’s Directive, is a separate document from a Will. A Living Will designates how you wish to be cared for regarding your medical care and treatment while you are still alive if you are unable to specify those wishes yourself. For example, you can designate whether you wish to be kept on life prolonging machines if there is no longer any hope that you will recover from an accident or long-term terminal medical condition.

The difference between a Will and a Living Will is that the Living Will dictates how you will be cared for while you are still alive and a Will dictates how your assets will be divided after you pass away.

The remaining discussions on the topic of Wills relate to those wills addressing the division of property on the death of a person.

Who can prepare a Will?

Anyone of sound mind and body can prepare a Will. This generally means someone who is an adult-over the age of eighteen-as well as someone who is not declared to be legally incompetent by a state or federal court. A minor cannot prepare a Will, nor can anyone who has a guardian appointed for them.

What happens if a person dies WITHOUT a Will?

If a person dies without a Will, he/she will be considered to have died intestate. In this case, property will be distributed by the states laws. If a person dies without a Will and without any heirs, all property will escheat (be turned over) to the state.

What happens if a person dies WITH a Will?

In general, after the testator (the person with the Will) dies, the person named in the Will to carry out its terms (a personal representative) files the original Will and other legal papers in a probate court, which is located in the county where the testator lived. The personal representative signs a petition to the probate court describing the circumstances under which the testator executed the Will, naming his or her heirs (the persons who would receive the decedent’s estate), describing the property interests passing under the Will, the legacies received by the beneficiaries and asking the court to admit the Will to probate. Unless they specifically agree to waive notice, each of the heirs must receive formal legal notice that a document purporting to be the Will has been offered for probate. The family members are given an opportunity to appear in court to contest (object to the Will); if they do not contest the Will and the probate judge finds the Will to be in order, he/she generally admits it to probate and formally appoints the personal representative. After probate, it is usually difficult for family members to upset a Will. It is possible for small estates to be distributed through summary administration or small estates procedures. These procedures are quick and inexpensive.

What is a personal representative?

A personal representative is the person who makes a list of all the assets and debts of the estate and seeks to carry down the directives of the Will.

Do personal representatives get paid?

A personal representative may be paid according to the provisions of the state laws. They may be paid an amount based on the courts assessment of reasonable compensation. If a person expects their personal representative to serve without compensation that should be stated in the Will.

What are some of the disadvantages of using pre-printed will forms?

Pre-printed will forms usually do not fulfill the needs of the person writing the will. Also, if part of the form is pre-printed, part of it is typed and another part of it is handwritten someone might be able to contest the will claiming part of it had been forged. This is because any change in a will leaves room for doubt as to whether the testator, who is the person writing the will, made the changes or if someone else did. People tend to cross out, delete or add words to these pre-printed forms. It can be hard to ascertain who made these changes and why. This problem also puts the will in jeopardy of being contested. Also, these pre-printed forms are general forms and do not take into account the specific needs of the estate. Therefore, property may accidentally be left out, inheritors might not be included, and possible tax advantages not taken into account.

What is the difference between a Will and a Trust?

A Will and a Trust serve different purposes. Most people don’t have either one. A Will and a Trust are similar in the effect that both let you designate exactly how you want your assets and other personal property to be distributed to your friends, family and other loved ones after you die. The difference between a Will and a trust is that a Will probates through probate court, but a trust doesn’t. A Trust is administered outside of the probate court after you die.

Some people prepare a trust to avoid paying these estate taxes. Generally, you would not need to prepare a trust to avoid probating your Will if you net assets amount to less than $675,000. In this case, a Will would serve the same purpose as a trust because the federal tax laws do not tax a person’s asset for the first $675,000 after they die.

If I set up a Living Trust, do I still need a Will?

Yes. Your Will serves as a back-up for assets that you either don’t or are not able to transfer to your Living Trust. Any asset not transferred to the Trust will not pass under the terms of the Trust document. However, in your Will, you can include a clause that names someone to inherit assets that you haven’t left to anyone else.

If you don’t have a Will, any asset that isn’t transferred by your Living Trust will go to your relatives in an order determined by the Idaho law of intestate succession. Thus, the law may not distribute your assets in the way you would have chosen. The Will is how you can assure that your assets that are not covered under the Trust are distributed according to your wishes.

What happens if a named personal representative is unable or unwilling to serve?

If the named personal representative is either unwilling or unable to serve when the Will goes to probate, the court will appoint a new personal representative. Beneficiaries of the Will can file a petition with the court suggesting a particular person as their choice for personal representative.

Should I prepare a short Will or a long one?

A non-complicated (short) Will is used to give all assets equally to one or more heirs.

A long Will provides much greater flexibility in how assets are divided, may include a disinheritance clause, and a Testamentary Trust provision (used to manage assets of minor beneficiaries so a guardianship does not have to be established). If you are a single person or one with uncomplicated asset disbursement issues, a short Will could possibly fulfill your needs. However, if you have many assets, are married, have minor children or have other more complicated asset disbursement issues, you may want to consider using the long Will instead.

What are some of the various types of wills?

There are various types of wills. An ambulatory will is a will that a person can change during that person’s lifetime. Holographic wills are ones that are entirely handwritten, dated and signed by the person whose will it is. A living will is one that authorizes the withholding or cessation of life-sustaining medical treatments from an individual, who has been too incapacitated due to a life threatening and debilitating illness to make that decision.

What is a holographic Will?

A holographic Will is a Will written entirely in the handwriting of the Testator (person preparing the Will). A single piece of paper that says nothing more than This is my last Will. I give everything I own at my death to XXXXX, that is dated and signed is considered to be a valid Will. However, if any part of this writing is not in Testator’ own handwriting, it is considered invalid. A holographic Will does not have to be witnessed. However, upon Probate of the holographic Will, the court will require a person familiar with the Testator’ signature to prove the genuineness of the Will.

Who should make a Will?

Each year a large number of people die without Wills leaving major decisions in the hands of the state. Every adult person should seriously think about making a Will. Wills are especially important for parents of children who are under eighteen, since they can name a guardian in a Will and make arrangements for the children’ financial support.

What circumstances dictate the need for a Will?

A person’s age, marital status, and financial holdings weigh heavily into the decision to draft a Will. In general, every adult should think about making a Will, and the need grows as your assets and family ties increase. Wills are especially crucial for parents with children who are minors (under 18 in Idaho), since you can name a guardian in a Will and make arrangements for financial support of children even past the age of 18.

Couples also have each other to think about. If your spouse dies without a Will, state law might force you to split some of the assets of the estate (the deceased’s non-community property) with your children, leaving you without enough assets to support yourself. Also, any property going to a minor child in such a situation would be subject to an expensive court-appointed guardianship, which could eat up any inheritance.

Do my children need a Will?

No. Minors are not allowed to execute a Will. Young, childless adults with few assets may be able to hold property in joint names or to pass property automatically at death to named persons. But, it is still a good idea for the young, childless adult to draft a Will to assure that his/her needs are carried out as they desire with as few complications as possible.

Who should witness the signing of my Will?

You should sign your Will before at least two people who are not family members or people designated in you Will as beneficiaries. You also should sign your Will before a notary as should both of the witnesses. This way it can be submitted to the probate court as a legally valid document after your death, and it will reduce the possibility of someone challenging the Will because it will be under the protection of the probate court.

What should I do with my Will after I sign it?

You will need to place the original Will in a safe place, and make several other copies to give to your personal representative and friends and/or family members for safekeeping in case the original gets lost. The important thing to remember is to keep at least one copy of your Will in a safe place your attorney and/or chosen personal representative can readily access, in case the original cannot be found. A good place to keep a Will is in a bank safe deposit box or at some other institution where there is less chance of your Will catching fire, being stolen or otherwise getting destroyed. Munther Law, Chartered maintains a safe deposit box for Will storage for any of our clients that would like to utilize the service.

Whom can I choose as the guardian of my minor children?

You can designate anyone you wish to be a guardian for your minor children as long as the designated person is an adult and legally fit to be a guardian for minor children. The guardian does not necessarily have to be a family member. However, after you are gone this person will be legally responsible for your minor children until they reach the age of majority. The guardian can be a man or a woman, and you can designate more than one person (e.g., a married couple). Most importantly, you should feel comfortable putting your children in the guardian’s care should the need arise. You specify your guardian(s) in you Will, like you would specify your personal representative or personal representative. You can even choose the same person to be both the personal representative and the guardian of your children.

Is it necessary for me to have the personal representative of my Will bonded?

The only time bonding your personal representative is necessary is if you do not totally trust him/her with all of your assets. If you have the personal representative bonded, it normally costs the estate about $200 to $400 in an estate of $200,000. Remember, it is the personal representative’s duty to consolidate the Estate, which usually means liquidating your assets into cash and eventually distributing them to the beneficiaries. At some time, the personal representative will have a substantial amount of cash available to him or her in the Estate bank account. Bonding is essentially an insurance policy for the protection of your beneficiaries because if the personal representative steals from the Estate, the beneficiaries can require the bonding company to reimburse their losses.

Can someone who is incapacitated write a Will?

For a Will to be valid, the person writing it must be legally competent. If there is any questions concerning legal competency you should consult an attorney and the person’s treating physician.

When should you change your Will?

You should always review and, where applicable, change your Will after any material change of circumstances relating to your family status (i.e., marriage, divorce, birth or adoption of a child, etc.). Also, other changed circumstances may require you to change a personal representative, guardian or trustee named under your Will.

Under what circumstances can an adopted child inherit from a parent when the parent left no will?

Adopted children are considered children of their adopted parents for purposes of inheriting from an estate where there was no will. Adopted children can only inherit from the child’s natural parents’ estate when the natural parent left no will, under the following circumstances:

(1) The natural parent and adopted child lived together at any time as parent and child or the natural parent was married to or lived with the other natural parent and then died before the adopted child’s birth.

(2) The adopted child was adopted by either of the natural parents’ spouses or after either of the natural parents had died. For more information as to whether a particular adopted person can inherit from a parent who left no will, please contact an attorney.

How can you change your Will?

The following are valid ways you can change your Will:

Write a new Will.The law presumes that by writing a new Will, the Testator wants to revoke the previous Will. However, to be safe, most Wills include a phrase similar to I revoke all previous Wills just in case it is not already assumed by the state that the new Will supersedes the old one.

Write a Codicil. To be effective, a Codicil should make specific reference to the existing and still effective Will, and makes additions, deletions, or amendments. As with Wills, a Codicil can be holographic if written entirely in the Testator’s own handwriting, or it can be witnessed, in which case it must follow all formalities of a witnesses Will. A witnessed Will may also be amended by a holographic Codicil.

What is a codicil?

A codicil is a document that is used to explain, change, add to, or take away from, the existing will. It is not meant to contain the entire will itself, nor is it meant to totally revoke a prior will. The codicil serves to make changes to the existing will without having to rewrite the will entirely.

Should I witness a Will if I am a beneficiary?

No. The reason for this is that a witness may not be truthful in his or her statements regarding the execution of the Will if the witness is also a beneficiary (e.g., they may not be truthful about whether the Testator was of sound mind and body, etc.). In this light, be sure that if you are, or may be, a beneficiary under the Will, you do not witness it. Instead, have another person who definitely is not a beneficiary witness the Will or you will most likely be disinherited from the Will.

Can spouses write a joint Will?

Spouses can write a joint Will. However, it may not be the best option because of the limits it could put on the surviving spouse.

Can I disinherit relatives I don’t like?

Yes, Idaho allows you to disinherit anyone from your Will, but surviving spouses and minor children may be able to receive support from the estate outside the Will. It would probably be in your best interest to consult with an attorney on this matter.

What are some of the basic requirements for a Will to be valid?

A valid Will must be a written form. It must be signed that person making the Will. And it must be witnessed by two or three competent persons, unless it’s a holographic Will (written entirely in testator’s own handwriting).

Does the Will have to be in a certain form?

In general, the Will must be in writing and signed by the testator. Valid Wills have been executed on pieces of scrap paper. Meeting the signing and witnessing standards established by state law is more important than the appearance of a Will. A Will scribbled on a napkin can be admitted to probate as long as it contains all of the elements of a valid Will.

What does it mean to take against the Will?

A procedure under state law that gives a surviving spouse the right to demand a certain share (usually one-third to one-half) of the deceased spouse’s property. The surviving spouse can take that share instead of accepting whatever he or she inherited through the decedent’s Will. If the surviving spouse decides to take the statutory share, it’s called Taking Against the Will. Dower and Curtesy is another name for this process.

What is an ademption?

The failure of a bequest of property in a Will. The gift fails (is adeemed) because the person who made the Will no longer owns the property when he or she dies. Often this happens because the property has been sold, destroyed or given away to someone other than the beneficiary named in the Will. A bequest may also be adeemed when the Testator, while still living, gives the property to the intended beneficiary (called ademption by satisfaction). When a bequest is adeemed, the beneficiary named in the Will is out of luck unless he/she has already received the property while the Testator was alive. However, beneficiaries may challenge an ademption in court, especially if the property was not clearly identified in the first place.

What is an alternate beneficiary?

A person, organization or institution that receives property through a Will, Trust or Insurance Policy when the first named beneficiary is unable or refuses to take the property. In insurance law, the alternate beneficiary, usually the person who receives the insurance proceeds because the initial or primary beneficiary has died, is called the secondary or contingent beneficiary.

Does filing for a divorce end a spouses right to a share of the estate?

Simply filing for divorce or legal separation does not automatically disinherit a spouse. A final divorce decree does end spousal rights.

What is an Augmented Estate?

An augmented estate is property left by the decedent’s Will plus certain property transferred outside of the Will by gifts, joint tenancies, living trusts and other documents. The value of the augmented estate is calculated only if the surviving spouse declines whatever he or she was left by the Will and instead claims a share of the estate (taking against the Will). The amount of this statutory share depends on state law. A surviving spouse can generally claim one-third to one-half of the augmented estate.

What is a Bequest?

The legal term for any personal property, with the exception of real estate, left to a beneficiary in a Will.

What happens to my Will after I die?

After you die your Will is administered by the personal representative or personal representative whom you designated in your Will. Your personal representative will then retain an attorney for the purpose of filing your Will with the probate court. The attorney and clerk of the court will then proceed to close out your affairs by notifying all of you creditors and closing your various accounts. After all this is done, your assets will be transferred to your heirs according to your wishes.

How can I provide for my pet after my death?

A will maker cannot leave the estate directly to a pet. If you want to leave money to care for a pet, you must assign a trustee and then instruct the trustee to use the money for the pet’s care. For more information, please contact an attorney.