Who Will Inherit My Estate

By Lane V. Erickson, Idaho Estate Planning Attorney

One of the best parts about being an estate planning attorney is answering questions my clients have. I have found that most people have questions that stress them out. The fear of the unknown is often far worse than what people do not know. Because of this, I like to provide an opportunity to my clients to ask any and all questions they have about their estate plan, the probate process, and the options they can consider for themselves, for their family members, and their loved ones.

Recently, I have had several clients ask me the same question. It is a simple one, and one that I’m glad they’ve asked. Their question is: “Who will inherit my estate?”

I like this question because it leads to a discussion about estate planning and how having a well-thought-out plan can help my clients. This question also gives me the opportunity to present my clients with the free Estate Planning Questionnaire we use to help each client write down the information they should be thinking about when it comes to creating their own plan. We use the information on the questionnaire during a free 30-minute consultation to answer my clients’ questions and help them understand the options available to them.

When asked this question I usually provide the following information:

If you do not have a written Will, then the people who will inherit your estate will be determined by Idaho’s statutes. In other words, without a written Will, the law in Idaho will decide who your beneficiaries are rather than allow you to decide who you want to receive your estate.

These statutes are called the laws of intestacy. Intestacy is a fancy legal word lawyers and judges use that simply means a person did not have a written last will and testament. In other words, this person died intestate.

Under the laws of intestacy, there is a list of persons who are prioritized into categories who will inherit your estate when you die. When it comes to community property, which is property that is owned equally between a husband and a wife, the surviving spouse is first in priority and is entitled to inherit all this property. If there is no surviving spouse, then the next level of priority is the surviving children of the deceased person. If there are no surviving children, then it goes to the surviving grandchildren of the deceased person. This continues down the line of what is known as “issue of the decedent”, which are blood relatives who are the descendants of the decedent.

If there are no surviving issue, then the estate would go to the parent or parents of the deceased person. If there are no surviving parents, then it goes to the siblings of the deceased person. If none of them have survived, then it goes to the grandparents. If they aren’t alive then ½ of the estate goes to the paternal grandparents side of the family and ½ of the estate goes to the maternal grandparents side of the family. In other words, we continue going forward until we find your next closest level of living relatives.

When you have a written will, you are in complete control of who will receive your estate, for the most part. Because Idaho is a community property state, which means that the property is owned jointly between the husband and the wife, a spouse cannot gift away their community property interest to anyone other than the surviving spouse. However, when it comes to any separate property that they own, they can gift or give this to whoever they would like.

In a written Will, a person identifies who their beneficiaries are. These individuals are the persons who will receive money, property, assets, or other gifts from the person’s estate after that person dies. In a written Will you can name whoever you would like as your beneficiary. This could be a relative, a close family friend, or even a charity. In other words, a written Will leaves you in complete control of who you gift or give your estate to after you die.

There are, however, some exceptions to this. We will focus mainly on how this affects children. If you have a written Will, and you have failed to mention a child in the written Will, then that child may be what is known as a “pretermitted child”. This simply means that you forgot that child. If a child is pretermitted, they are entitled to receive a share of the estate equal in value to that which they would have received if you had died intestate unless it appears from your written Will that you intentionally omitted that child.

This brings us to the next category of children. This would be those children that are disinherited by you. The law in Idaho requires all parties, including a court, to carry out your intentions so long as they are understandable and are legal. As a result, if you intend to disinherit a child, the law will carry that out as part of your plan. To disinherit a person, you have to be specific about who they are and the fact that you intend to disinherit then. If your written Will is clear and unambiguous about the disinheritance of a child, then that is what will happen.

Finally, it is important for you to understand that if you have legally adopted a child, then they are treated the same as any naturally born children that you have in your family. In other words, the law does not differentiate between an adopted child or a naturally born child. As a result, you should treat your adopted child the same as you would any other child for purposes of how you deal with them in your written Will. If your written Will says that you give your estate equally to your surviving children, this will include any adopted children. However, it will not specifically include stepchildren. If you want stepchildren to inherit part of your estate, you have to name them specifically.

If you have questions about who will inherit your estate when you die, or if you have concerns about creating your own written estate plan, we can help. We have assisted numerous clients in the creation and updating of their own plan and we are confident that 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.