Idaho Estate Planning can You do an Oral Will in Idaho?

By Lane V. Erickson, Idaho Estate Planning Attorney

As an estate planning attorney for over 20 years, I often get phone calls from people who have questions about what happens to a certain estate or asset after a loved one has passed away. The first question I usually ask is whether the person who died had a written last will and testament. If they did, that document will control everything associated with the decedent’s estate. This includes identifying who will be named as the personal representative who oversees the estate. Additionally, it will also identify who is listed as the beneficiaries of the estate who will receive the decedent’s money, property, and other assets now that they have died.

If there was no written last will and testament, then the statutes and Idaho will control everything. These statutes will identify who can be named as the personal representative of the estate. Additionally, these statutes will identify who the beneficiaries of the estate are and what percentage of the estate assets that will be distributed to them.

Sometimes, whether there was or was not a written Will, the person who is calling tells me that their parents often told them that they would receive a certain asset when the parents died. In other words, the surviving child wants to rely on an oral statement made by the parent before they died as evidence that the child should be named as a beneficiary and receive certain assets. The real question they are asking is whether their parent’s oral statement created and oral last will and testament that is valid.

The short answer is that Idaho does not recognize oral Wills even though other states do. It used to be that Idaho did recognize oral Wills if there were ample evidence to show exactly what the decedent stated. However, in the Idaho Supreme Court case of Matter of Buffi’s Estate, 98 Idaho 354, 564 P.2d 150 (1977), the Court made it clear that when the Idaho legislature adopted the uniform probate code in 1971, Idaho no longer recognized any type of oral Will. After this date, all Wills had to be written to be valid.

As a result of this case, and the existing statutes, there are two types of written Wills that Idaho law recognizes as valid. The first is known as a holographic Will, and the second is known as a formal written Will.

According to the applicable Idaho statutes, “A will which does not comply with section 15-2-502 of this Part [concerning formal written wills] is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” See, Idaho Code § 15-2-503. In other words, if a person sits down with a pad of paper and writes out in their own handwriting a Will stating who they want to receive their estate, and then they sign that document, it constitutes a valid holographic Will.

After learning this, many of my clients ask me why is it necessary for a person to ever have an attorney help them with their Will. This is a good question, but it also has a good answer. The reason you need a qualified estate planning attorney helping you is to avoid mistakes and unintended consequences.

You are not an attorney. You do not have experience in seeing the many mistakes that are often made when it comes to drafting a written Will. Additionally, you may not have any experience in dealing with a family who fights over a written Will. By having a qualified estate planning attorney help you with your estate plan, you have the assurance that it is done correctly, it will avoid any unintended consequences or mistakes, and it will likely eliminate your family fighting over your estate.

For a valid written Will to exist, it has to be typewritten, it has to be signed by the person who is making the Will and has to have at least two witnesses sign saying they witnessed the person signing their Will, and it should also have a self-proving affidavit associated with it that is notarized.

In addition to these requirements, a basic Will should have other things associated with it as well. First, it should clearly identify who is being appointed as the personal representative. Second, it should have clearly listed and identified beneficiaries and the assets that will go to each of these beneficiaries. Further, it should have language concerning who the final or contingent beneficiary will be in case all the other named beneficiaries pass away before the decedent.

Depending on your own particular circumstances, you may also have other specific provisions as well. For example, if you are a parent of minor-aged children you may want to nominate a guardian for your children until they reach the age of 18 and become adults. Furthermore, you may want to have a testamentary trust as part of your written Will to care for your minor-aged children financially until they reach an age where you believe they would be mature and capable enough of handling their inheritance from your estate.

These are just some examples of why having a valid written Will is far better than having a holographic Will. The point being that your life and your circumstances are different than everyone else’s. Because of this, your estate plan, including your written Will, should consider your family, your relationships, and your circumstances and meet any of the needs these circumstances create.

If you do not know where to start, we can help. We provide a free Estate Planning Questionnaire to help individuals plan and create their own customized estate plan including a written Will. We also provide a free 30-minute consultation to discuss all aspects of estate planning that each person should consider.

If you have questions or concerns, contact us today. We have helped numerous clients create their own customized estate plans and we are confident we can help you too!

Our 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.