Common-Law Marriages after 1996 are not recognized in Idaho.

Occasionally, I encounter couples that are living together, but have never gone through a formal marriage ceremony. This situation raises the issue of common-law marriage, which is widely misunderstood. Common-law marriages entered into before January 1, 1996 are recognized in Idaho. However, after January 1, 1996, Idaho does not recognize common-law marriage—consent to marry alone will not constitute a marriage; it must be followed by the issuance of a license and a solemnization ceremony. (Idaho Code  32-201)

If you are trying to prove that you have a common-law marriage, that was entered into prior to 1996, you would have to establish the following four requirements: (1) The man and the woman must both have been eighteen years of age or older; (2) they must have consented with each other to be husband and wife; (3) after they consented the parties both assumed marital rights, duties, and obligations to each other—this requires that they lived together as husband and wife, treated each other in a manner typical of married people, and held themselves out as husband and wife; and (4) this was done while living in the state of Idaho.

By abolishing common-law marriage in 1996, Idaho eliminated much of the uncertainty, ambiguity and inconsistencies that surrounded common-law marriage.

Living together in Idaho after 1996, without a solemnization of your marriage, may affect your eligibility for Social Security and Medicaid benefits. In addition, you will not inherit from your significant other unless they have made provisions for you in their Will.

Tom Packer is an Elder Law Attorney serving all of 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 2018

If you have a small estate, you can deed your house and still be able to live there until you pass away, and avoid probate.

If you have a simple estate, you might want to consider passing your house, using a Gift Deed and retaining a life estate. This type of deed conveys your house to a person or persons and reserves to you, the Grantor, the right to live in the house for the rest of your life. The ownership in the property is divided into two interests: a life estate and a remainder interest. The person who holds the life estate has the right to possess the property during his or her lifetime. The person who has the remainder interest has the right to possess the property after the life tenant passes away.

Example: John Smith, in consideration of the love that he has for his daughter, Laura, conveys his house to her as her sole and separate property reserving and excepting to John the right to all rents and profits on the property and the right to use the property for as long as John lives. At John’s death, the house passes to Laura simply by recording a Death Certificate, without having to go through probate.

If you want to use a deed retaining a life estate, there are a couple of things you should know. First, once your have deeded the property retaining a life estate, you can no longer sell the property without the signature of the person holding the remainder interest. For example, a woman deeded her home to her daughter and retained a life estate. Later, she had a falling out with her daughter. She wanted to sell her home and move, however, her daughter refused to sign the deed, so the woman was unable to sell her home. Second, if you deed your home and retain a life estate and later apply for Medicaid, your life estate interest may be counted as an asset towards eligibility for Medicaid.

A Gift Deed retaining a life estate is a way to transfer your property without going through probate and still retain the use of the property during your life time. Make sure you understand the risks before using this type of deed.

Tom Packer is an Elder Law Attorney serving all of 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 2018

Common sense, conscientiousness and honesty are the main requirements.

If you have been asked to be a Personal Representative, you may wonder what your responsibilities are. Essentially, your job is to gather and take care of the deceased person’s assets, pay valid debts and distribute what is left to the people who will inherit it. However, before you can act, you must file a petition with the Court to probate the estate and to be named the Personal Representative. The Court will issue Testamentary Letters to you—documents that evidence your authority to act on behalf of the deceased’s estate. During the administration of the estate, you may be required to present copies of these Letters to persons with whom you transact estate business.

You may have additional duties as the Personal Representative which might include setting up a bank account for the estate, paying current bills and completing a final tax return. You may also need to cancel services such as phone contracts and utility bills and notify Social Security and pensions.

In some cases, you may want to publish a Notice to Creditors in the local newspaper. By publishing a Notice to Creditors, creditors are put on notice that they must make their claims within 4 months of the date of the publication or their claims will be barred.

After all known debts, administration expenses, and taxes have been paid or provided for, a final report or account should be prepared. Copies of the report should be made available to all persons interested in the estate.

Normally, distribution of the assets will await the closing of the estate. However, depending on such factors as the size of the estate, the needs of the beneficiaries, tax considerations and the desirability of avoiding the payment of interest on specific bequests, earlier partial distributions may be made.

Being a Personal Representative is a significant responsibility. The decedent is depending on you to settle his or her estate and to distribute the remaining assets to the persons designated. Common sense, conscientiousness and honesty are the main requirements for being the Personal Representative.

Tom Packer is an Elder Law Attorney serving all of 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 2018

For those whose spouse has passed away and who are considering remarriage, a Prenuptial Agreement can assure that your estate will go to your children.

If your spouse has passed away and you are contemplating a second marriage, you may want to consider making a Prenuptial Agreement. With a Prenuptial Agreement and proper Wills, you can set out the duties and obligations that you and your new spouse will have upon death or divorce and assure that the property that you bring into the marriage will pass to your children.

A Prenuptial Agreement will typically include the following provisions:

• A disclosure of each party’s assets and income.
• A waiver of claim against each other’s assets.
• How daily expenses are to be paid.
• Whether the parties will file joint or individual income tax returns.
• Whether the surviving spouse may continue to live in deceased spouse’s home.

If you do not have a Prenuptial Agreement or a Will, upon your death your property will pass under the intestate laws of Idaho. Idaho Code              § 15-2-102 provides that the surviving spouse will receive the following share of the deceased spouse’s estate:

• As to separate property if there are surviving issue (posterity), the surviving spouse will receive one-half of the separate property and the deceased spouse’s issue will receive one-half of the separate property.
• As to community property—property that has been acquired during the marriage or separate property that has been comingled—allthe community property goes to the surviving spouse.

In addition, if you do not have a Prenuptial Agreement or a Will that provides otherwise, when you die your spouse has a right to receive $60,000 from your estate—a homestead allowance of $50,000 and an exempt property allowance of $10,000.

A Prenuptial Agreement entered into before marriage establishes property rights after marriage. When you have made your intentions clear and your estate plan is carried out, your property will go to those you have designated, not to someone your never intended.

Tom Packer is an Elder Law Attorney serving all of 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 2018

It’s better to sign powers of attorney before you have a crises.

Here is a story frequently recounted to me by families: Mom and dad have lived a full life together, but recently things have started to change. Dad has been diagnosed in the early stages of Dementia and mom has developed some physical limitations. Together they manage, but alone they are not able to care for themselves. This recently became apparent when mom got pneumonia and went to the hospital, and dad could not remain at home alone.

Wondering what to do to help their parents, adult children often come to me for advice on how to prepare their parents for the future. I always ask if their parents have financial and healthcare powers of attorney, knowing how important it is for them to have someone who can step in and help them if they need. This is even more important if they are considering facility placement or a Medicaid application.

Often, learning that they do not have powers of attorney, I ask if their parents are competent, or if they have the capacity to understand and sign documents. This question opens a can of worms, because the children don’t know the answer, and I am forced into making a capacity determination—something I try to avoid when possible. If only the parents had planned for this possibility and prepared the documents when they were competent, thinking clearly and knew what they wanted. Needless to say, a person should make these decisions when they are at their best, not at their worst.

As a lawyer, sometimes I must assess the capacity of the person needing to sign documents. Capacity is determined in the areas of their cognitive, emotional and behavioral abilities. Possible signs of cognitive incapacity include short term memory loss, communication problems, comprehension problems, lacking the capacity to understand multiple alternatives, problems with mathematical calculations, and disorientation. Emotional signs of incapacity include significant emotional distress and emotional inappropriateness. And behavioral signs include delusions, hallucinations or poor grooming and hygiene. Knowing the person’s abilities and deficits in all these areas, rounds out the total picture. It is not easy to determine when someone has crossed the line and is incapacitated.

Unfortunately, it is in this crises stage that I see many of my clients, and I must make the determination if the person has the capacity and understanding to sign documents, which hands their right to make decisions over to someone else. This decision becomes increasingly difficult if the children of the parents have differing opinions about what is best. In that case, I must also make the determination if any of the children are exerting undue influence on the parent.

In conclusion, Seniors lives take many turns. Events sometimes change one’s ability to live life in the way that he or she had hoped for. It is better to prepare powers of attorney early when one is competent, and there will less chance that the decisions made will be challenged on the grounds of incapacity.

Tom Packer is an Elder Law Attorney serving all of 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 2018

In Idaho, probating a Will is a simple process.

Probate of a Will is generally necessary when title to property must be transferred at a person’s death. Probate allows for supervision of the estate by the Court, gives notice to heirs of the proceedings, and provides an opportunity to settle creditor claims.

Probate can be informal or formal. In Idaho, informal probate is a simple and efficient process that does not require Court hearings or judicial supervision. The estate can be distributed in a few weeks to a few months depending on the assets, creditors and heirs of the estate.

There is a 5-day waiting period after a person has passed away before an application for probate can be filed with the Court and the Personal Representative appointed. Once appointed, the Personal Representative inventories the property of the estate, identifies and pays creditors and then distributes the money and property in the estate according to the Will.

Formal probate involves a judge and is recommended when the Will is being contested. Will contests are usually raised for the following reasons: lack of testamentary capacity, undue influence, failure to witness or execute the Will properly or ambiguity in the Will concerning the decedent’s wishes. When writing a Will it is important to recognize and avoid these problems.

Recently, I had an adult child call me about his mother’s Will. He felt that he would be treated unfairly in the Will. He demanded that his mother change the Will and threatened to challenge the Will if she didn’t disrupting the family peace. This may not have raised to the level of undue influence, but it was certainly inappropriate.

Another client brought me his parent’s Wills to be probated after his parents had passed away. The Wills had been printed off the internet and signed. As I reviewed them, I determined that the Wills had not been properly witnessed or notarized, leaving their validity open to challenge.

You work a lifetime to accumulate your estate. You should take great care when writing your Will and seek expert advice when appropriate. The Will contests that I have done in my career have involved Wills drafted by individuals, their friends or their family.

Tom Packer is an Elder Law Attorney serving all of 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.

October 2017