Tip – Holographic Wills are frequently ambiguous and are often challenged by heirs.

A Holographic Will is a Will written in a person’s own handwriting. In Idaho, a Holographic Will is valid, whether or not it is witnessed, if the signature and the material provisions are in the handwriting of the testator—the person making the will. (Idaho Code §15-2-503) Even though Idaho recognizes Holographic Wills, they frequently have problems.

A brief example illustrates this point. A woman brought in a Holographic Will of her friend who had recently passed away. The woman who made the Will had no children to leave her property to. Because of ill feelings toward her siblings, the woman had left her entire estate to the friend
who had brought in the Will, leaving nothing to her 2 siblings.

When the Will was filed for probate, it was quickly challenged as invalid by the excluded siblings. The Will was clearly invalid because she had not written the entire Will in her own handwriting but had used a filled in-the-blank form. Some of the Will was in her handwriting and some was typed, so the material provisions were not completely in the woman’s handwriting as required by the statute. Since the Will was invalid, the friend received nothing and the estate was divided equally between the 2 siblings under Idaho’s Intestate Laws—even though the woman who brought in the Will claimed she had many witnesses who would testify that her friend intended to leave her everything.

Sometimes another person will write a Will for an individual who is unable to write and then have him or her sign it. This is invalid also. The person making the Will must write it in its entirety and then sign it.

In conclusion, Holographic Wills are frequently ambiguous, done incorrectly, challenged by potential heirs and result in costly litigation.

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 2023

Tip – Consider taking time now to organize your records and give your
agents appropriate instructions.

Many people understand the importance of keeping their estate planning documents—Will, Trust and Powers of Attorney—in a safe place. People should also consider gathering all their personal information and put it into a binder, where it will be in one place. A planner or binder provides the framework that your agents will need to carry out their eventual responsibilities in an orderly, informed way.

To get started, begin gathering biographical information—birth certificates, marriage certificates, insurance policies, financial/investment information, social security cards, retirement/pension information, personal/family information, etc. It’s also beneficial to have a list of real estate assets, tax information, credit cards, automatic bill-pay, safe deposit boxes and password-protected software or devices.

Next, begin to organize your planner. It’s a good idea to have labeled tab dividers and plastic sheets for inserting related documents. Place your estate planning legal documents in your binder along with instructions for your agents. This keeps all your important information at the fingertips of the people that will be assisting you.

Assembling the rest of your information will take time, don’t expect to do it in one or two sittings. To accomplish this, set aside one-or two-hour windows to work on your planner until you’re done. Make short lists of follow-up tasks and check off each item as you finish it. Pacing yourself will help you make progress without becoming discouraged. (See Nolo “Get it Together, Organize your Records So Your Family Won’t Have to.”)

Having a complete planner with all the important information in one place can avoid the perils of incomplete planning. For example, one lady had everything her family needed, including information about a safe deposit box—with the key taped to an index card, but unfortunately forgot to include where the box was located! She had moved several times, and the family had no idea where the safety box was, even though they had the key. By having all the necessary information and documents in place, your agents will then be ready to step in, in the case of incapacity or death.

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.

February 2023

Tip – Consider organizing your records so your family won’t have to.

A rather mundane aspect of estate planning is the organizing of your documents and records. Getting your legal documents, financial plans, important personal information, and healthcare directives arranged in a way that makes sense to those who will be handling your affairs is a wonderful gift to your family.

When we don’t plan, it places a burden on our families and can lead to unintended consequences. Here are two examples. First example, after a man passed away, his personal representative went into his home to try to figure out what needed to be done. When he walked into the kitchen, he saw papers piled high, covering the whole table. There were bank statements, insurance policies, investment and pension information, etc.

The personal representative proceeded to call and verify the status of all the accounts he found in the papers. After spending over 100 hours, the personal representative determined that only three bank accounts and one insurance policy were still active. Had the man organized his papers and gotten rid of any papers that were no longer current, he would have saved the personal representative a lot of time and his estate a lot of money.

Second example, a father had a stroke that left him with limited speech. The father recovered from the stroke but only had a vocabulary of about 50 words. One day the father came to his son and said, ”Insurance.” By asking a series of questions, the son determined that the father was concerned about life insurance. The son asked, “Do you have a life insurance policy?” The father replied, “Find out.” So, the son went to all the insurance companies in town and asked if they had a life insurance policy on the father. None of the agents said they had a policy. The father continued to indicate he had a life insurance policy but could not tell the son where it was. The man eventually passed away and no life insurance policy was ever found. The father’s family may have lost out on getting the death benefit from an insurance policy that the father may have paid premiums on for years.

Organizing your records and giving appropriate instructions to those who will handle your affairs is an important part of planning your estate. In the next tip, I will talk about how this can be done effectively.

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 2023

Tip – You may want to take Homestead Allowance and Exempt Property
claims into account when you do your estate plan.

Many people are not aware that Idaho law allows a surviving spouse to claim a Homestead Allowance and Exempt Property from the estate of a spouse who has passed away, in addition to any property that he or she will receive under the will.

Idaho Law states that the surviving spouse is entitled to a Homestead Allowance of $50,000.00 and to Exempt Property up to the value of $10,000 in tangible personal property—including automobiles, furniture, appliances, family heirlooms and personal effects—from the estate of his or her spouse at the spouse’s death.

This is significant in second marriages when one or both spouses have children from a prior marriage, and they want to ensure their children receive something from their estate. For example, a person may provide in a will that property goes to his or her children, but when the person passes away, the surviving spouse claims the Homestead Allowance and the Exempt Property, taking $60,000.00 from the estate that was intended to go to the children. In some cases, there may
not be sufficient assets left in the estate to make the distributions to the decedent’s children that were intended.

There is a way to limit the Homestead Allowance and Exempt Property claims. Idaho Code § 15-2-406 states that a person may state in his or her will, that a surviving spouse is not entitled to the Homestead Allowance or any Exempt Property. If the person states this in his or her will, it prevents the surviving spouse from making a Homestead or Exempt Property claim.

The bottom line is that with careful planning, you can draft your will, to make sure
your intent will be carried out.

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.

September 2022

What if I didn’t probate my parent’s estate? What do I do now?

Sometimes when a son or daughter tries to sell the home of a parent who has passed away, he or she discovers that the home cannot be sold because the parent’s name is still on the title to the property. A realtor may tell them that they need to probate to get the names off the title; however, often when the son or daughter talks to me about probating their parent’s estate, I discover that the
parent died more than three years ago.

Idaho Code §15-3-108 provides that no probate proceeding may be commenced more than three years after the decedent’s death. Since the parent died over 3 years ago, probating the estate is not available. What can be done to get the parent’s name off the title to the property, so it can be sold?
The solution is to prepare and record an affidavit of heirship. Pursuant to Idaho Code §55-816, §15-3-101, §15-3-901 an affidavit is made for the purpose of establishing that any real property in Idaho owned by the parent at the time of his or her death, eventually devolved to the children of the parent. The affidavit is recorded in the county where the property is located. Title companies will accept the affidavit of heirship and issue title insurance, allowing the property to be sold.

When buying property, buyers need certainty that the property has a good title. When a spouse dies, the couple’s house does not automatically pass to the surviving spouse, unless the property is held as “community property with a right of survivorship.” The house does not automatically pass to the persons named in a will. Probate, an affidavit of heirship, or some other legal process is required to
clear the title to the property.

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 2022

This is a common question after a loved one passes away.

When a person dies, the surviving spouse or children ask, what do I need to do? Do I need to probate? The answer depends, in part, on the answer to the following questions: 1) Was the decedent’s property being held as joint tenants, community property, or community property with a right of survivorship? 2) Was the total value of the decedent’s probate estate minus any liens against the property less than $100,000?

1. How was the decedent’s property held?

• Joint tenants – Many times, property is held in joint tenancy, where on the death of one of the tenants, the property passes automatically to the survivor. A common example of this is bank accounts that are held as joint tenants. When one person dies that money in the account passes to the survivor.
• Community property – Community property (property obtained after a couple is married) belongs equally to the members of the couple. When one of the members of the couple passes, his or her interest in the property passes to their estate and not to the surviving spouse. A common
  misconception is that when a spouse passes away, his or her interest in the couple’s home will automatically pass to the surviving spouse. Instead, to remove the decedent’s name off the title to the home held as community property, probate would be required.
• Community property with a right of survivorship –To avoid having to probate on the death of a spouse, couples can record a deed that gives a right of survivorship on their real property. Then the surviving spouse only needs to record a death certificate at the courthouse.

2. Is the total value of the probate estate, minus the liens against it, less than $100,000?

• Property in estates that are worth less than a $100,000 can be collected using an affidavit of heirship instead of filing for probate. For example, if the only property the decedent had at his or her death was a vehicle, the spouse or children of the decedent can go to the Department of
  Transportation website, fill out their Affidavit (they call it an Affidavit of Inheritance), submit it to the county assessor along with the title to the vehicle, and they will be able to transfer the title without having to file for probate.
• Sometimes, spouses will open a bank account in just one of their names. Even though the money in the account is community property, banks will not give the surviving spouse access to the account. If that spouse dies and their probate estate is less than $100,000, the money in the account can be collected with an affidavit of heirship. However, Financial institutions prefer
  to receive letters testamentary or letters of administration (which are used in probate) rather than an affidavit of heirship, and initially they often will not accept an affidavit. Idaho Code § 15-3-1201 clearly provides for property to be collected by an affidavit. With a little persistence and a call to the banks legal counsel, the bank eventually will turn the money in the
  account over to the spouse or children pursuant to the affidavit.

Deciding whether you need to file for probate is not as complicated as it seems, and there are many things you can do in estate planning that can help things run smoothly and can avoid problems.

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 2022

Tip – After a couple marries, any property they acquire belongs to both.

Idaho is a community property state. This means that when a couple marries, any property that an individual brings into the marriage is his or her separate property, and any property that is acquired during their marriage is community property and belongs equally to both.

Occasionally, when a couple buys a house, one spouse will put the mortgage and the title to the house just in his or her name. However, if that spouse whose name is not on the title did not make an agreement to give the other spouse his or her interest in the property, the house belongs to both, even though the property is titled in just one of their names. When one spouse passes away, half the value of the house belongs to the surviving spouse; the other half passes according to law or according to the decedent’s Will. This is true of all community property, regardless of whose name the property is in.

Sometimes when a house acquired during a second marriage is in the name of just one spouse, that spouse believes he or she can give the house in a Will to the children from a prior marriage—not acknowledging his or her spouse’s 50% interest in the house. This can lead to unnecessary conflict between the surviving spouse and the children.

There are many factors in these situations that must be understood to know what everyone’s rights are. But remember if you acquire property after you are married, with the joint assets of the couple, the property will be community property belonging equally to both members of the couple.

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 2022

Tip – Remember to check your beneficiary designations on insurance policies, IRAs, 401Ks, and investments.

The daughter of one of my clients came to see me about her mother’s estate after her mother had passed away. She said that her mother had several investment accounts and that her mother’s investment advisor had told her to talk with me because she needed to file for probate. She began by explaining that her mother had named her children as the beneficiaries on her accounts. At this point, I stopped her to explain that if the children are named as beneficiaries, there was no need to probate. All that the daughter needed to do was contact the company, fill out their form, and provide them with a death certificate.

”Why then did he tell me I needed to file for probate,” she asked. Not knowing, I called the advisor and asked him. He explained that the mother had 5 different accounts and that 4 of them named the children as the beneficiaries, but unfortunately there was one annuity with no beneficiary designation. The funds in that account could only be released to the personal representative of the
mother’s estate. My client had no other reason to file for probate other than this one annuity. This is a situation that I occasionally encounter.

In some cases, people intentionally name their Estate as the beneficiary of their investment accounts. They name their estate to provide funds to the estate to pay final expenses and creditors. However, if there is no need to fund the estate, by naming the beneficiaries correctly, probate can be avoided.

In Idaho, probate is efficient, timely, and inexpensive when compared to some other states. Nevertheless, it still can take several months to go through the process. Whereas if you name your children as the beneficiaries on insurance policies and investment accounts, the money goes straight to them without much delay.

Because I have had this experience repeatedly, I encourage my clients to review all their investment accounts and check their beneficiary designations to make sure their assets are going to the persons or entities that they want them to go to. Even if you are sure that the designations are correct, checking each one is worth the effort.

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 2022

Consider leaving more than your property to your family.

A friend, who had been recently diagnosed in the early stages of Alzheimer’s disease, came to me for advice on how to get his legal and financial affairs in order. I explained that he needed to name agents to make medical and financial decisions for him. We discussed what government programs and benefits were available to help pay for his care. Knowing that my friend loved his family, I then encouraged him to write letters to his wife and children to let them know how much he cared for them.

Like a letter written to loved ones, there is something called an Ethical Will that gives us the opportunity to express our thoughts, love, and values in writing for those we love. Why should we leave something in writing for our family? Eric Weiner, PhD, the author of “Ethical Wills: Words from the Jewish HEART” gives the following reasons for people to express their values to their family and future generations in an letter or Ethical Will:

“It hit me like a strong punch to the gut. During a keynote address, the speaker asked us if we knew the names of our grandparents. Most in attendance raised their hands. He then asked us if we knew the names and something about all eight of our great-grandparents. Less than half responded. I knew one grandparent. I never met any of my great-grandparents and knew very little about almost all of them. Will my fate be the same? Will I be remembered by some descendent 50 years from now who happens to be named after me?

Jews have long pondered this and developed a tool that promotes intergenerational connections. The ethical will allows us to tell our story for current and future generations. For Jews, it is not enough to only leave a traditional Will. We also have a spiritual duty to guide the next generation, to
help brighten their way through life.

Where a traditional Will emphasizes money, possessions, real estate, and valuables, an Ethical Will describes our values, life stories, and blessings. While not a legal document, it adds something meaningful to the static, dry documents that rely on tax and legal language. Ethical Wills use the language of hope and immortality.

Ethical Wills have a long and rich tradition in Jewish history. They were first described 3,000 years ago in the Hebrew Bible when Jacob addressed his 12 sons on his deathbed. He told them stories, predicted their futures, and imparted his life lessons. . .

The main ingredient for writing an Ethical Will is to speak from the heart. You are constrained only by the limits of your imagination; just keep it positive. For example, here is an excerpt from an Ethical Will:

‘‘Respect life – yours and others. I’m a believer in the Golden Rule—treat other people the way you want to be treated. I hope you find a vocation that adds value to the world . . . I feel lucky to have worked in hospice. Trying to relieve suffering has been a worthwhile pursuit for me.’

By writing an Ethical Will, maybe 50 years from now, if asked, our descendants will know something about us – how we lived our lives, what we stood for and believed in.” (Ethical Wills: Words from the Jewish HEART)

As you consider taking the time to express your thoughts in writing, remember that this is a chance for you to leave something that will touch the hearts of your family and future generations.

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 2022

Tip: If you have a Revocable Living Trust, don’t forget to fund it.

A Revocable Living Trust is one way to transfer property at your death. To avoid probate is one of the primary reasons people set up a revocable living trust. Another good reason to set up a trust, is if you own property in multiple states. By having a trust, it is not necessary to probate in each state.

But  creating the trust is only the first step; the next step is to fund the trust. To fund the trust means you  must transfer your property into the trust. How you transfer property into the trust depends on what type of property it is. For example, if you want to transfer your home into the trust, you must sign and record a deed.

You don’t just fund the trust once, but every time you procure additional property or accounts—during your entire lifetime—you must take the steps to put them into your trust. Twenty years down the road, if you sell your house and buy a new one, you must deed the new house into the trust. Often, lives get busy, and people simply forget to put newly acquired property into the trust.

And therein lies the problem. Sometimes people will set up a trust, but for some reason, they never transfer their property, or they forget to transfer newly acquired property into the trust; so, at their death, their estates end up being probated anyway.

Most people who create a revocable living trust will also write a pour over will. These wills provide if the person failed to transfer property into the trust, the property is transferred into the trust by their will at their death.

I recently saw a case where a couple set up a revocable living trust, but never put their property into the trust and then passed away. This couple only had one son, and everything went to him. However, they had a pour over will that accompanied the trust, which said their property had to first be transferred into the trust, and then the trust said their property went to the son. This created an expensive, absurd result that was caused by not properly funding the trust.

In conclusion, managing a trust properly can be complicated. If you are going to
have a trust, seek competent legal advice, make sure to put your property into the trust, and then review it with your attorney periodically to make sure
everything is in order.

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.

February 2022