Tip: Here are 10 important things you can do.

Most of us understand that estate planning is important, even though we frequently put it off because it is hard to think about leaving our loved ones. Still, having a plan for the future is essential and can prevent family conflicts.

When we talk about estate planning, usually we are referring to how we are going to distribute our property after we have passed. However, it is also essential, before we become incapacitated, that we sign a Financial Power of Attorney and a Durable Power of Attorney for Health Care to give a trusted person authority to help us with our finances and to make Medical decisions for us if we cannot make them for ourselves. By completing these documents, our family will know our wishes, and we can avoid the need for costly guardianship and conservatorship proceedings.

Here are 10 things you can do to plan for your future:
1. Write a Will naming a Personal Representative for your estate and indicate to whom your estate is to go rather than have it go to the persons designated by Idaho law.
2. Prepare an advance medical directive and a healthcare power of attorney naming an agent to make medical decisions for you if you are unable to make them for yourself.
3. Prepare a financial power of attorney giving a trusted person the authority to make decisions if you need help managing your finances.
4. For married couples, sign a deed that creates a right of survivorship on real property—such as your house—which will avoid the need to probate on the passing of the first spouse.
5. Make a tangible personal property list indicating to whom you would like your property to go, such as heirlooms, furniture, guns or jewelry, etc.
6. Name guardians or conservators for minor or incapacitated children.
7. If applicable, set up a Special Needs Trust for an incapacitated child to supplement their needs without affecting their eligibility for Social Security and Medicaid.
8. Make sure you have named beneficiaries for your life insurance policies, 401Ks, and IRAs.
9. In some cases, set up Pay on Death on your checking and savings accounts.
10. If you own a business, make sure it has an orderly succession plan.

In conclusion, by establishing goals and having a plan in place, we will be prepared for whatever the future holds for us.

For more information, click on the link “A Senior’s Guide To A Well-Planned Future” to view a fun booklet – it will bring up an easy to understand, colorful booklet full of helpful information.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

July 2024

Use a tangible personal property list to clearly specify who you want to receive your personal property.

Idaho Code Section 15-2-513 expressly permits the use of a statement separate from your Will to dispose of non-business, tangible personal property upon your death. If you want to use such a separate written statement rather than itemize the disposition of tangible personal property in your Will, you should know and follow the requirements set forth below:

1. No duplication. The separate written statement should not include items already specifically disposed of by you in your Will.

2. Assets that may be disposed of by written statement. Common examples of property that may be disposed of include personal effects, jewelry, family heirlooms, furniture, antiques, artwork, books, household items, sporting equipment, automobiles, etc.

3. Assets that may not be disposed of by written statement. A separate written statement cannot be used to dispose of money, evidence of indebtedness, documents of title, interests in real property, securities, or property used in a trade or business.

4. Date and sign written statement. Each page of the statement should be dated and must be signed by you.

5. Clearly describe each item. Clearly describe each item so that it is easily identified and not confused with another similar item.

6. Designation of beneficiary (devisee). Each beneficiary (also referred to as a “devisee”) should be identified by his or her proper name and relationship to you. The address of the beneficiary should be added if the beneficiary is not closely related to you so that proper identification is
assured.

7. Alternate Beneficiary. You may wish to consider providing for an alternative beneficiary if the first-named beneficiary does not survive you, although this is not necessary.

8. Change in designation of beneficiary or property. You may change the devisees or property designated in the separate written statement from time to time or revise or revoke the entire statement. Changes should be made only by preparing a new statement patterned after the original form. The old statement should be destroyed. Changes should never be made by alternation on the face of an executed statement; your intent will inevitably be unclear.

9. Retain written statement in safe place. The separate written statement should be kept in a safe place where it can be easily found, preferably with your original Will.

10. Notice to Personal Representative. We recommend that you notify the personal representative named in your Will regarding the location of the written statement.

11. Periodic review. The written statement should be reviewed periodically and kept current.

Families often fight more over mom’s wedding ring or dad’s hunting rifle than they do over the distribution of a 401K. A tangible personal property list is often overlooked but is an important document to prevent disputes between family members when settling an estate.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

June 2024

Tip – When I pass away, who will care for my pets?

Here is an amusing quote by Winston Churchill: “I like pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals.”

On a more serious note, pets offer us companionship and bring joy into our lives. In return, we want to make sure they are cared for if we become incapacitated or after we have passed away.

There are several options for placing pets, including family members, friends, the Idaho Humane Society, and other foster, adoption, and Rescue Programs. Local organizations like the Bannock Humane Society will strive to find a good home for your pets if no other options are available.

If it becomes difficult during your lifetime to care for your pets, you can prepare a “Pet Power of Attorney” which gives someone the authority to care for your pet if you become incapacitated or if you are gone on a trip.

If you plan to leave your pet with an individual after you have passed away, you should discuss with the prospective caretaker if they are willing to care for your pet. If they accept, you can leave your pet to that person in your Will. You may also want to leave some money or other pet care items to that person, asking the person to use the money and items to care for your pet. Your request expresses your desires, but it is nonbinding on your caretaker. You cannot leave money or other property directly to an animal.

A more complex and expensive method to provide for your pet is to set up a Pet Trust. Idaho Code § 15-7-601 allows for a Trust to be set up for a pet. Funds can be put into the Trust with instructions that are binding as to how the money is to be used and how your pet is to be cared for.

If you want to provide for your pet’s future, consider leaving specific instructions with your Will on how to care for your pet. Your pet has taken good care of you, so make sure your pet is taken care of after you are gone.

An example of a pet care instruction sheet is attached below.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

May 2024

Tip – Idaho now recognizes four types of wills.

Idaho recognizes the following four types of wills:

• First, a paper will that is signed by the testator or testatrix (the legal names for male and female persons signing a will respectively) and signed by two persons each of whom witnessed the signing or the testator’s acknowledgement of the signature of the will.

• Second, a holographic will, which is a will with the signature and the material provisions written in the handwriting of the testator/testatrix. A holographic will may but does not have to be witnessed or notarized to be valid.

• Third, a will written in another state that complies with the laws of the state where it was written.

• Fourth, Idaho recently passed the Electronic Wills Act recognizing electronic wills and setting forth the rules for making an electronic will valid.

Any one of these four types of wills will be accepted by Idaho Court for probate.

Here are mistakes some people make when doing their own will. They print a will off the internet but don’t have it witnessed properly, or they do not clearly express to whom they want their property to go.

When writing a holographic will, some people dictate the will and have another person write it for them. Remember, the material provisions and the signature of a holographic will must be in the testator/ testatrix’s handwriting, or it will be invalid.

If you are considering writing a holographic will, keep your bequest (the disposition of property in a will) simple. If your will is ambiguous the court may not be able to carry out your wishes the way that you intended. Also, make sure to nominate who you want to be your personal representative.

When people live in another state and have property in that state and in Idaho, or if they move to Idaho after writing their will in the other state, Idaho will recognize their will and admit it to probate.

Finally, in March 2023 the Idaho Uniform Electronic Wills Act was enacted. The requirements for the validity of electronic wills are similar to paper wills but with some differences to account for the electronic signing and witnessing. An electronic will can be signed by the testator/testatrix and witnessed by the witnesses electronically, if everyone can see and hear the signing—presumably through a zoom meeting. The will must also be a tamper-evident electronic record to assure
that it has not been tampered with.

In conclusion, any of these wills are valid in Idaho. I anticipate most wills will continue to be paper wills, witnessed by two witnesses and notarized. Nevertheless, you can choose the type of will that best fits your circumstances.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

April 2024

Tip – It’s vital that you take care of the original Will.

One thing to consider after you have prepared your Will is this—where do I keep it? If you have taken the time and made the effort to plan for the future by having a Will, it makes sense to do a couple of important things. It is vital that you take care of the original Will, and that the person who will act as your Personal Representative knows exactly where it is. Too many times, the Personal
Representative is forced to look all through the house trying to find the original Will, or worse yet, resort to calling local law offices to see if they might have it.

Many people think that if you have a Will, you don’t have to probate. This is a misconception. When you have a Will, the person you named as your Personal Representative must file your Will with the Court and be appointed as your Personal Representative. If your Personal Representative has your original Will, the Court uses an informal probate process, which in Idaho is quick and simple. However, if the original Will cannot be located, and your Personal Representative submits a copy of the Will, the Court will use a formal probate process, which entails many more steps and costs more money. In the formal probate process heirs are notified, a Court Hearing is held, and the heirs have the burden of establishing the facts to prove that the Will is valid or invalid.

In a formal probate process, the Court may determine that a copy of a Will is valid if the proceeding is unopposed. However, if the Court determines that the Will is not valid, the property in the estate will then be distributed according to the laws of the State of Idaho—not the terms of the Will. In that case, the property of the deceased may go to persons that he or she did not intend for it to go to.

I like to keep a Will in an Estate Planning Binder along with all other legal documents, deeds, information about your property, investments and insurance policies, and instructions to the Personal Representative. However you safeguard your Will, the important thing is to let the person who will be handling your affairs know where it is.

So, when it comes to your original Will, taking care of it will save you a lot of time, money, and headaches.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2024

Tip – Planning for your spouse and children in a second marriage.

Question: What happens after a second marriage if you die without a will or trust
in place?

Answer: Under Idaho Code § 15-2-102 your half of the community property (property you acquire during your marriage to your spouse) would pass to your surviving spouse and one-half of your separate property (property you bring into your marriage or receive as a gift) would pass to your spouse and one-half would pass to your children.

In addition, Idaho Code § 15-2-402 and Idaho Code § 15-2-403 provides that your surviving spouse may be entitled to a Homestead allowance of $50,000 and an Exempt property allowance of $10,000 respectively. These allowances can be taken by your spouse from property in your estate before any distributions are made to the persons you have designated in your will to receive your property.

You can see that in a second marriage, if you do not have a will or trust, the bulk of your estate could go to your spouse, and not to your children. Rather than letting the laws of the state determine how your estate is distributed, it makes sense to have an estate plan to distribute your property to whom you want it to go.

No matter who you decide to leave your property to, you need to make sure your wishes are clear and binding. Avoiding the misunderstandings and fights that can come from a lack of planning is maybe the best gift you can give your spouse and children.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

December 2023