By Lane V. Erickson, Idaho Estate Planning Attorney
As the saying goes those who do not learn from the past are doomed to repeat it. After nearly 20 years as an Idaho estate planning attorney I have seen many problems That have occurred due to the lack of planning or the failure to complete a plan. I called these Idaho estate planning horror stories. Without providing any names or dates, and by making these more generic here are three situations that I have seen and which have happened on a regular basis.
1. Creating an Invalid Will
The first thing that I see happen on a regular basis is that an individual fails to create a valid last will and testament. The laws in Idaho about creating a valid last will and testament are not that stringent. A last will and testament in Idaho can be formal, which requires the document to be typed, signed and dated by the individual, witnessed and notarized. Additionally a last will and testament in Idaho could be holographic, which simply means that it is in the person’s own handwriting and is dated and signed. It does not require any witnesses or a notary to be valid.
There have been countless times when family members will bring to me a last will and testament that they want to have probated. The individual may have gone to some effort and trouble to use a software program or an online service to create a document that lists their intentions. Sometimes these individuals were very specific about gifts of money or property they want to go to specific individuals. The problem is, I have seen several instances where these last wills and testaments are invalid because they do not meet Idaho’s requirements.
2. Failing to Update Your Estate Plan after Divorce
The second horror story that I have seen occur in Idaho is when there is a divorce, but the person does not update their last will and testament or other estate planning documents. When this occurs, the individual’s ex-spouse is usually still listed as a beneficiary to receive money or property. Additionally, the ex-spouse may be named as the person who holds the power of attorney or some other responsibility like this.
Just because a person has divorced, doesn’t mean that they are automatically no longer a part of a deceased person’s estate planning. Even with a divorce, the individual creating the last will and testament may still want their ex-spouse to receive money or property or they may want them to be the personal representative. The intent of the decedent is determined by the written last will and testament itself and nothing else.
Usually, a divorce changes these decisions. Most people wouldn’t dream of keeping their ex-spouse named as a recipient of property or money from their estate. The problem is if you fail to make changes to your estate planning after a divorce, you are last will and testament will still be binding on your heirs and on your estate. For this reason, if you or a loved one has gone through a divorce, this is an automatic reason to review your last will and testament and make sure that it still does what you want. If it doesn’t, then make changes as quickly as you can.
3. Failing to Fund a Trust
The next horror story I see is when a person creates a trust but they fail to fund it before they die. A trust is an estate planning tool that is used to give away property and assets when you die without having to go through probate. A trust may also be used to provide support and maintenance for individuals who cannot provide it for themselves during their lifetime because of their age or due to a disability.
A trust is created when the documents are valid and when they are properly signed. However a trust could be empty if nothing is ever transferred into it to fund it. When a trust remains unfunded, it is not a valid trust.
I’ve seen several trusts that were created by individuals that had good intentions. Perhaps it was for their children who were under the age of 18. Alternatively I’ve seen trusts created for individuals who have special needs such as disabilities. These trusts were designed to provide a great benefit to these individuals for a long period of time. However, as I stated above, when a trust is not funded then there is no trust.
Our team of estate planning attorneys has over 70 years of experience in helping clients create and update valid estate plans. I’m confident that we can help you avoid these horror stories with your own estate planning.
ENLIST AN ESTATE PLANNING ATTORNEY TO HELP YOU
When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning problems.