By Lane V. Erickson, Idaho Estate Planning Attorney
The question of whether your family will actually honor your instructions set forth in your last will and testament is a good one. The purpose of a last will and testament is to give you the ability to leave specific instructions to your family and loved ones about several things. First, you have the ability to identify who your family members are and to specifically list who you want to give you estate to. Second, you have the ability to describe what each person will receive from your estate. Third, you have the ability to name a personal representative, sometimes known as an executor, whose job it is to make sure that your stated intentions are carried out.
At the Racine law office, our team of Idaho estate planning lawyers have experience and can help you with any questions you have about your own estate-planning. Our knowledgeable and skilled Idaho estate planning team includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys has received the highest ratings possible on all of the major legal ranking services. We’ve also received high marks from our clients and other legal professionals we work with.
Back to the question that is the title of this article which is, will my family honor my will? In this article, we will talk about the law of intent as it applies in Idaho estate plans. We will also talk about whether a will can be changed by one person or by more than one person.
The Law of IntentThe first and best place to start is with the law of intent. Idaho Code § 15-2-603 specifically defines the law of intent which says that “the intention of a testator as expressed in his will controls the legal effect of his dispositions.”
In reviewing this specific statute, the Idaho Supreme Court declared, “if the language of a will is clear and unambiguous, the intent of the testator is derived from the will as it reads on its face.” Wilkins v. Wilkins, 137 Idaho 315, 319, 48 P.3d 644, 648 (2002), citing, Allen v. Shea, 105 Idaho 31, 34, 665 P.2d 1041, 1044 (1983). Further, the Idaho Supreme Court has made it clear that when “the testator’s intent can be determined from the face of his will, that intent, unless it is in contravention of some established rule of law or public policy, must be given effect.” Allen v. Shea, 105 Idaho 31, 34, 665 P.2d 1041, 1044 (1983), citing, White v. Conference Claimants Endowment Commission, 81 Idaho 17, 27, 336 P.2d 674, 679 (1959); In re Heazle’s Estate, 72 Idaho 307, 240 P.2d 821 (1952).
To sum up the applicable statutes and cases, family members, and if need be, Idaho Courts, are required to do what a person’s will specifically states is to be done. The money, property and assets a person lists in their will is how those items should be given away to others.
Can a Will be Changed by one Person?But what happens when a person’s will really doesn’t state what their intent is. In other words, what happens if a person has dementia and really doesn’t know what they are doing. Alternatively, what happens if someone threatens or influences or provides pressure to someone to do something in their will they don’t want to do. In these circumstances, can the will be changed by one person?
The short answer is yes. If that person has concrete evidence that the will really does not state the true intent of the person who wrote it, then that one person can challenge the will and can seek to have it be changed or declared invalid. This circumstance arises most often when there is a parent or another family member who is frail, has dementia, or has other physical, mental, or emotional limitations.
The law of intent as set forth above requires that a person actually have intent. In other words, a person must know and understand what it is they are doing for the intent to actually exist. If a person has no capacity, which is the legal word lawyers used to say they don’t know what they are doing, they cannot have intent. If evidence exists that a person lacked capacity, or that they were unduly influenced or coerced then the will is likely not valid.
Can a Will be Changed by Everyone?What about a circumstance where a will is valid, and states the intent of the person clearly but everyone who is listed as a recipient in the will wants to do something different? The law in Idaho provides a way for family members to do this. The specific statute is the Idaho Trust and Estate Dispute Resolution Act also known as TEDRA located at Idaho Code 15-8-101 et seq.
Under this statute, even if there is no dispute that exists between family members, and intent is clear, all persons involved in an estate can still reach an agreement to do something different than what the Decedent’s will states. In other words, suppose that there are two sons whose father’s will says that all the real estate he owns goes to one brother and all the bank accounts he owns go to another brother. However, let’s say that the father lived a long time and that the bank accounts were mostly depleted. In this instance, after the father dies, the two brothers, who are now not treated equally, could get together and change the distribution of the estate assets through a TEDRA agreement so that the distribution is equal.
A TEDRA agreement must set for specifically what the will says should happen. Then the agreement must describe the changes will be that are made through distributions. All affected parties must date and sign the agreement. Finally, the agreement must be filed with and approved by the Court. Once that is completed then the personal representative has the authority to make a distribution different than what the will actually states.
The purpose of this article is not to be exhaustive on this subject but rather is to provide a starting place for you to think about what you may need to do. We have assisted numerous clients in creating and dealing with estates. If you have questions, we are confident we can help you too!
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.