By Lane V. Erickson, Idaho Estate Planning Attorney
When it comes to estate planning, most people are familiar with one of the most important documents which is the last will and testament. The reason for this is that wills are a common theme in movies and television programs. Additionally, most individuals have had family members or other loved ones pass away and have seen how a will controls the distribution of the money, property, and other assets that were owned by the person who died. While most people seem to understand the basics about a last will and testament, we are often surprised by some of the things people don’t understand about them. The purpose of this article is to give you a basic understanding of a last will and testament.
At the Racine Law Office our premier team of Pocatello estate planning attorneys have assisted clients for over seventy years in creating and customizing their own estate plans including a last will and testament. We are confident that we can answer your questions and help you with all of your estate planning needs. Our Pocatello estate planning team who have each earned the highest ratings possible from AVVO, Justia and Martindale and Hubbell, includes partners Randy Budge, and Lane Erickson, and attorneys Nathan Palmer and Dave Bagley. With our team’s help you can be assured that there will always be someone available to answer your questions and to assist you.
Our goal is to help each of our clients understand what the specific documents included in there Pocatello estate plan can do for them you’re protecting them while they are alive and making sure that their wishes are carried out after they pass away. When it comes to your Pocatello last will and testament, here are three basic things that you should understand.
Following All Legal Requirements for Your Will to be ValidThe most important thing that you need to understand is that not all last will and testament documents are valid or enforceable under Idaho law. In order to be valid, the law in Idaho requires a last will and testament to follow all necessary formalities. To be specific, there are really three kinds of Wills that Idaho law will consider to be valid.
The first type of will that is valid under Idaho law is a valid out-of-state will. Idaho law declares that if an individual receives a valid last will and testament in a different state that they reside in, and then they move to Idaho, the will that was valid in the state they came from will also be considered valid in Idaho. This is important because many states have different requirements for a will to be valid than Idaho does. The good news is that if you had a competent estate planning attorney help you get your last will and testament completed in a different state, it will almost always be considered valid under Idaho law even if it doesn’t meet Idaho’s own specific requirements for validity.
The second type of will that is valid in Idaho is known as a holographic will. Essentially, a holographic will is one that is written by the individual themselves without having a lawyer help them. The requirements for a valid holographic will are that the will must be in the handwriting of the individual, it must be signed, and it also must be dated. Additionally, the will that is written by an individual must have some sort of testamentary intent, which means it specifically gives items of property to two other individuals. The final requirement is that there can be no ambiguities about the gifts that are given.
While a holographic will is considered valid under Idaho law, it is not the ideal last will and testament for most individuals. The reason for this is that most individuals do not understand the legal terms, conditions, or language that are sometimes necessary to provide clear intent of what needs to be done. It’s for this reason that we recommend to each of our clients that even if they do a holographic will they should bring it into an attorney to review to make sure that it will accomplish what it is they want.
The third type of valid will in Idaho is a formal will that is usually written up by an estate planning attorney. The reason we state that an estate planning attorney is involved is that there are other services out there that provide written or typed up wills. These can include online services, or software that you may buy at an office supply store. However, the problem with these kinds of documents is that they are often incomplete. Because of this, they are often considered invalid under Idaho law.
When an attorney assists you in completing your written last will and testament, you can be assured that all formal requirements under Idaho law are being met and that your last will and testament will be valid. This is important because obviously if you are creating a last will and testament you have a desire for specific property to be given to specific individuals and for other items to be completed based on your written instructions. If you go to this effort to create a will, you should make sure that it will be valid. This leads us to the next section which is when your will actually becomes legally effective.
When Your Will Becomes Legally EffectiveMost people are surprised to learn that their last will and testament is not a legally valid document, and that it does not become effective under Idaho law, until they actually die. This is true regardless of which type of will you have. The reason for this is because until you die, you have the ability to do whatever you want with the property that you own. Additionally, you have the ability to alter or change your last will and testament any time you choose while you are alive. In fact, if you chose to you could change your last will and testament every day of your life up into the day that you died. You could have hundreds of last wills and Testaments in your file system. However, it will only be the most recent last will and testament that will be valid upon your death.
The reason your last will and testament does not become valid until you die is because you have the freedom to do whatever it is you choose with the property you own, and with who receives that property after you die. You may change your mind given the circumstances of your life and the relationships you have with your family members and other loved ones. This leads us to the next section of what property is actually controlled by your will.
What Property is Controlled by Your WillThe next most important thing for you to understand about your last will and testament is the property that is actually controlled by it. Again, this is usually controlled by when you die. The reason for this is that your last will and testament can only give away property that you have an ownership interest in when you pass away. An example might help.
Suppose for a moment that you have a valuable Maserati that you state in your last will and testament that you want to go to one of your sons. However, during your lifetime, you decide to sell the Maserati and take the money to go on a vacation. Then when you die your last will and testament is read and your son will see that you originally intended to give him the Maserati. However, the Maserati is no longer part of your estate because you sold it. Because the Maserati is not property of your estate any longer, your last will and testament will have no control over it.
Similarly, Idaho is a community property state. What this means is if a person is married, they actually only personally own half of the property that is included in the marriage. For example, if a husband and wife purchase a house together, then the husband owns 1/2 of the home and the wife owns what happen the home. As a result of this, and other estate planning, probate, and community property laws, an individual can only give away certain assets when they are married. Because of this, even if a last will and testament stated that the home was going to be given to somebody other than the surviving spouse, this part of the last will and testament would be considered invalid because the decedent is trying to give away property that he does not personally own.
Enlist a Pocatello Estate Planning Attorney to Help YouOur team of Pocatello 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 consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lve@racinelaw.net. We will answer your questions and help you solve your Pocatello Estate Planning problems.