Idaho Law Blog
By Lane V. Erickson, Attorney
In an ideal world a person who has completed their Last Will and Testament will keep the original deposited with their attorney. This makes it so easy for a family once that person passes away to get the original Last Will and Testament and to begin the probate process.
However, we don’t live in the ideal world. We live in the real world and this world, sometimes an original Last Will and Testament is put in a drawer or a filing cabinet, or in a safety deposit box in a bank. Sometimes a Last Will and Testament is given to a friend or another family member to hold and keep safe. So the question is, what is the obligation of a person who is holding an original Last Will and Testament for a person who has died?
According to applicable Idaho law:
After the death of the testator, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
Idaho Code § 15-2-902.
Next question then is what damages could be sustained by a failure to give a Last Will and Testament to the appropriate person or court so it can be probated. In Idaho, there is a three-year window of opportunity when a person passes away in which to probate a valid Last Will and Testament. If more than three years have gone by, and the Last Will and Testament has not been probated comment then the law will treat that Last Will and Testament as if it doesn’t exist.
So, for example, if a person would have received the decedent’s home under a valid Last Will and Testament, but the Last Will and Testament has lapsed because more than three years have passed since the decedent died, and as a result that person does not receive the house, you could be held liable to that person for the value of that home.
As with all areas of the law, we recommend that you do not delay in providing the valid last will and testament to end of the court or to a family member. If you have questions about what to do with a Last Will and Testament you are holding for another person, 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 Idaho Estate Planning questions and will help you solve your Idaho Estate Planning problems.
This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.