Tip – A husband and wife may prepare a deed for their real property that
provides for a right of survivorship, which will keep them from having to
probate after the first spouse dies.

The key rules regarding property transfer upon the death of a spouse in Idaho are the following:

NAMED BENEFICIARY DESIGNATIONS. Assets with specifically named beneficiaries (such as life insurance policies, retirement accounts, and certain investment accounts) transfer directly to the designated beneficiary upon death. These assets bypass the estate and probate process entirely.

BANK ACCOUNTS. Joint bank accounts typically include an automatic right of survivorship. This means the surviving spouse immediately becomes the sole owner of the account upon the death of their spouse, without the need for probate proceedings.

VEHICLES. When both spouses’ names appear on a vehicle title using the word or, the surviving spouse can typically transfer the title to their name alone or to another party through a straightforward process at the county assessor’s office.

REAL PROPERTY. Real estate owned by the deceased spouse becomes part of their estate and generally must go through probate, even if the surviving spouse resides in the property. However, Idaho Code Section 15-6-401 allows a husband and wife to create an estate in community property with a right of survivorship by deeding the property to themselves as an estate in community property with a right of survivorship. This allows the property to transfer to the surviving spouse without having to probate simply by recording a death certificate with the county recorder.

This tip provides general guidance only. Individual circumstances may vary, and consultation with a qualified legal professional is recommended for specific situations.

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.

January 2025

Tip – Wills and Powers of Attorney are Safety Nets

Having a Will and Power of Attorney are crucial legal documents that protect both you and your loved ones in times of crisis. A Will ensures that your property, money, and possessions go to the people you choose after your death, rather than letting the government dictate by statute to whom your belonging will go. Without a Will, your family members might end up fighting over your assets, or
your belongings could go to relatives you never intended to inherit them.

A Power of Attorney is equally important because it allows someone you trust to make decisions on your behalf if you become too sick or injured to make them yourself. These documents can cover both financial and medical decisions. For example, if you were in a serious car accident and couldn’t communicate, your chosen representative could pay your bills, manage your bank accounts, and
make critical healthcare decisions based on your previously stated wishes. Without these documents, your family might need to go through a complicated court process to help you, wasting precious time and money when quick decisions might be needed.

These legal documents aren’t just for older people or those with serious illnesses – they’re important for everyone over 18. Think of them as a safety net, similar to how you wouldn’t drive a car without insurance. While it might feel uncomfortable to think about these scenarios, having these documents in place is a responsible way to protect yourself and show your family you care about their well-being. The small investment of time and money to create these documents now can save your loved ones significant stress, expense, and heartache in the future.

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.

November 2024

Tip – Idaho recognizes Holographic Wills.

When I present seminars on estate planning, I almost always get asked the question, “Can I just handwrite my own will?” The answer to this question is yes. It is called a Holographic Will.

Idaho Code § 15-2-503 states, “A will…is valid as a Holographic Will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator,” the person writing the will.

The Idaho Supreme Court in the case of In re Estate of Webber, 97 Idaho 703, (1976), added that the person making a Holographic Will must have testamentary intent. The Court defined testamentary intent as follows: The test of the testamentary character of an instrument “is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest. In other words, while the testator is alive the property remains his. It only passes to his beneficiaries after his death.

There are three elements to a valid Holographic Will—the will must be signed, the signature and the material provisions must be completely in the testator’s handwriting, and the testator must have testamentary intent. If you are considering writing a Holographic Will, here are some of the mistakes I have seen made over the years.

1. People will download a will from the internet and fill in the blanks. This can be a valid will if you comply with all the statutory will requirements, but it doesn’t qualify as a Holographic Will because the material provisions are not in the testator’s handwriting. A related mistake is when a friend or child writes the material provisions of the Will and has the testator sign it.

2. Another common problem with Holographic Wills is they are frequently ambiguous. Here is an example: A man married to his second wife wrote in his Holographic Will, “I give the house to my children after we have passed away.” The first problem is that he doesn’t have authority to dispose of the house. He only has a 50% interest in the house since it is community property. His wife has the other 50% interest in the house. Second, when is the gift to go into effect, at his death or after both have died? If it is after both have died do the kids have any rights to protect their interest while his
wife is still living in the house? These kinds of questions frequently lead to expensive litigation.

If you decide to write a Holographic Will, remember, you must sign and write the material provisions of the will in your own handwriting and do so with testamentary intent. Also make sure that you are clear in naming your personal representative and to whom you want your property distributed after you pass.

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.

August 2024

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