Wills
What is a will? A will is a written (typed or handwritten) document that directs the disposition of a person’s property after death.
Does everyone need a will? Virtually every adult needs a will, even if they don’t have money or own much property. In addition to determining how your property should be distributed, a will allows you to name a “personal representative” (the person who administers your estate) and nominate a guardian for your minor children, upon your death.
What happens when someone dies without a will? If you die without a will (intestate), the laws of Idaho dictate how and to whom your property passes. Generally, a surviving spouse receives all of the community property and the spouse and children share the decedent’s separate property. If there is no surviving spouse, the decedent’s property is equally divided among the decedent’s children, with special rules for deceased children. This may require selling assets of the estate in order to create equal shares.
What are the advantages of having a will? Most importantly, you get to decide who the beneficiaries will be, instead of the state. Additionally, you choose the person or bank who will manage and settle your estate.
How do I make my will? It is best to secure the advice of an attorney. Something as important as your will should be done with great care, in a document tailored to your needs. Besides, an attorney supervises the signing and witnessing of your will. Without the proper formalities, your will may be invalid.
In Idaho, two people need to witness you signing your will. Preferably the witnesses should not be beneficiaries under the will. Idaho law allows for a “self-proved” will, which requires a notary public. This means your witnesses won’t have to testify as to your proper signing of the will at probate proceedings. You can have your attorney draw up your will to be self-proved.
You can prepare what is known as a holographic will. A holographic will is an instrument, whether or not witnessed, in which the signature and the material provisions are in the handwriting of the testator. Caution should be used since the testator typically does not seek the advice of a competent attorney. For more information on the dangers of drafting your own will or using forms visit our Estate Planning Blog.
How much does a will cost? Our attorneys typically charge a fixed fee for estate planning documents. The estate planning needs of each person will be different; therefore, the cost of a will is affected by the complexity of your individual circumstances.
Who can make a will? Anyone who is at least 18 years of age and of sound mind can make a will.
Is a will that has been executed in another state valid in Idaho? A will that is valid in the state where it was executed will be valid in Idaho. However, if your will was prepared in another state it should be reviewed by an attorney to ensure that the language used in the other state will be given the same interpretation under Idaho law. In addition, death tax and probate laws vary from state to state; therefore, your will should reflect the laws that would apply to your estate when you die. If you move to another state, your Idaho will should be reviewed by an attorney in the new state in order to determine if any changes are necessary or desirable under that state’s laws.
Do I have to list all of my personal property in my will? No. In Idaho, one is allowed to make a separate written statement or list, outside of a will, to dispose of items of tangible personal property (Idaho Code 15-2-513). This written statement must be in the handwriting of the person wishing to give the property at death or signed by him/her, and must describe the property with reasonable detail. Often, this type of personal property list is attached to a person’s will for the convenience of the personal representative. To be effective, reference must be made within the will to the personal property list itself.
Can a will provide for anatomical gifts? A will may include specific directions for the disposition of your body and funeral. Because your will may not be reviewed immediately after death, such directions should be communicated to family members so they are aware of your wishes at the time of your death. Additionally, you can prearrange the disposition of your body and funeral with a funeral home. However, you should review carefully any prepaid arrangements offered to you by a funeral home. Idaho has adopted the Uniform Anatomical Gift Act which requires certain formalities regarding any anatomical gift. If you wish to donate your body for research or transplantation, you should also notify family members and carry an organ donor card or note your wishes on your Idaho driver’s license. We typically include any organ donation directions in a Living Will.
When are the contents of a will made known to relatives? You do not have to reveal the contents of your will to anyone while you are alive. After your death, the person who had custody of the will may disclose its contents to family members. The original will must be filed with the appropriate court where it will be admitted to probate. All beneficiaries named in the will and family members who would receive probate assets, if no will existed, will be notified of the opening of the estate upon your death.
Who should be the personal representative? A personal representative is the person who will act to settle the estate and distribute the assets to your heirs through a probate. Many people appoint their spouse or an adult child to be the personal representative. Consider your selection of a personal representative carefully and discuss your desire to appoint a person as Personal Representative with that individual to ensure they are willing to serve in such a role.
Can a will be changed? So long as you are competent, you may change your will at any time by signing a document called a “codicil” or by having a new will prepared. A codicil or a new will must be executed with the same formal requirements as the original will. You should never attempt to change your existing will by writing on it.
When should a will be changed? Review your will periodically. A significant change in personal or financial circumstances may mean that your will should be revised or replaced. For example, births, deaths or a change in marital status warrant a review of your will. Changes in federal or state tax laws may also necessitate revisions in your will.
How is a will affected by subsequent marriage or divorce? In Idaho, a will is not affected by a subsequent marriage. However, a spouse, and children born after the will is executed, may have some rights under Idaho’s law regarding an omitted spouse and pretermitted children. A divorce will automatically revoke the provisions of the will that pertain to your former spouse, but it does not affect other provisions of the will. Therefore, provisions benefitting family members of your former spouse would remain in force. However, a former spouse may still receive property under a beneficiary designation that was never changed after a divorce. For example, a former spouse named as the primary beneficiary of a life insurance policy, and never changed after a divorce, may still receive the death benefit proceeds from the policy.
Where should a will be kept? A will should be kept in a safe place to avoid accidental loss or destruction. Executed wills may be kept in a safe box or in any other secure location. However, it is important that another person, such as the personal representative named in the will, be authorized to enter the safe deposit box and knows where the key to the safe deposit box is located.
