Idaho Wills

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Idaho Will Requirements

Making a Will in Idaho? See what the statute requires. The legislation governing Idaho Wills is contained in Title 15 Uniform Probate Code.

Who can make an Idaho Will?

The person who makes a Will is called a testator. Any person aged 18 years or older or any emancipated minor may make an Idaho Will and Testament. The testator must also be of sound mind. Idaho states that married women may also dispose of their property by Will. 15-2-501

How does the Idaho Last Will and Testament need to be signed?

Idaho Wills need to be in writing and signed by the testator. If the testator is unable to sign, then he/she may direct a person to sign on their behalf. The signature needs to be attested by at least two persons. 15-2-502

Who can witness my Idaho Will?

Any person 18 years or older, who is generally competent to be a witness. This can be a spouse or any other person having an interest in the Will. Unlike some states, if a beneficiary acts as witness, this does not automatically invalidate the Idaho Will or any provisions benefiting the witness. 15-2-505

What if the Will hasn’t been witnessed?

Idaho recognizes holographic Wills (where the material provisions and signature are in the testator’s handwriting). These Wills are recognized as a valid Idaho Will regardless of whether they have been witnessed or not. However, diverting from the formal execution requirements can cause problems and is never advisable. 15-2-503

How to cancel or change an Idaho Last Will

To change your Will, it’s best to make a new one and revoke the old Will. You can also make a Codicil, which is a document which amends parts of a Will. In order to validly revoke (cancel) an Idaho Last Will, you need to:

  • Make a new Will which expressly revokes the prior Will; and

 

  • Burn, tear, cancel, obliterate or destroy the former Will.

 

If you executed the Will in duplicate, it may be revoked by destroying only one of the duplicates. However, it’s best to always destroy all prior Wills which you no longer wish to apply. 15-2-507

Will a divorce cancel my Will?

Unless your Will expressly provides otherwise, a divorce or annulment of marriage revokes any provision appointing or benefiting your former spouse. This includes appointment of your spouse as executor, guardian, trustee or conservator. A separation does not cancel these provisions. No other change in circumstances cancels an Idaho Will and Testament. 15-2-508

What is the Will Registry?

The Will Registry is simply a register of Wills kept by the Idaho secretary of state. It records the testator’s full name, the date the Will was made and sufficient identification of the Will’s location. The registration fee is $10. Registration is not compulsory, so a Will may be in existence and valid even though it’s not mentioned in the register. Only interested persons and their attorneys are entitled to search the register. 15-2-1001

Probating an Idaho Will

This section deals with the Idaho probate process. Submitting a decedent’s Will to probate is a technical process. Fortunately, Idaho provides simplified procedures for smaller estates.

I have the original Will, what are my obligations?

You must deliver the Idaho Last Will and Testament to a person able to secure its probate or to the appropriate court with reasonable promptness. 15-2-902

What probate process do I need to use?

You don’t need probate in order to transfer title of community property when a spouse dies if there is a recorded community agreement in place.

Collecting Property without Probate

If the fair market value of the estate is less than $100,000, title documents, personal property and debts owed to the decedent can simply be collected using an Affidavit. Thirty days must have elapsed since the death. 15-3-1201

Small Estates

A personal representative can disburse and distribute small estates immediately without giving notice to creditors. An estate is considered to be small where “the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent”. 15-3-1203

Where Spouse is Sole Beneficiary or Heir

If the surviving spouse entitled to the entire estate under the decedent’s Idaho Will or under the rules of intestacy, he/she may file a petition to that effect. The probate court will set down a hearing. Notice will need to be given. If there are no objections, the court will not require administration of the estate. If the spouse proceeds under this process, then he/she assumes all debts and liabilities against the estate. 15-3-1205

Informal Probate and Appointment

If there is an original Idaho Will, the informal probate process may be used. Notice does not need to be given to creditors (unless they have filed a demand for notice) 15-3-306. An application for any of the following may be directed to the registrar by an interested person: 15-3-301

  • Informal Probate

 

  • Informal Statement of Intestacy where the estate is community and there is a surviving spouse; or

 

 

  • Informal appointment.

 

If the registrar makes the relevant findings, he/she shall issue a written statement of informal probate if at least five days have elapsed since the death. This statement may be superseded by an order in formal testacy proceedings (15-3-302). The applicant must give notice to all heirs and devisees of the admission of the Idaho Will to probate. 15-3-303A

Idaho Estate Tax

Idaho no longer imposes estate tax. An Idaho Tax Return (Form 33) is only required to be filed for the estate if the deceased:

  • Died prior to January 1, 2005,

 

  • Owned property in Idaho, and

 

 

  • Is required to have a Federal Estate Tax Return filed.

 

The return must be filed by the personal representative of the estate. “Personal representative” means the personal representative of the decedent or, if there is no personal representative appointed, any person who is in actual or constructive possession of any property included in the gross estate of the decedent. It is due and any tax liability is payable within nine months from the date of death.

Contesting an Idaho Last Will and Testament

If there is a dispute as to the validity of an Idaho Will, then an interested person may institute formal probate proceedings by filing a petition. A hearing will be set down and notice is required to be given. 15-3-401 Persons wishing to challenge the Idaho Last Will & Testamentfile a petition requesting any of the following orders:

  • Setting aside or preventing Informal Probate of the Idaho Will;

 

  • Setting aside a determination that the entire estate is community and there is a surviving spouse;

 

 

  • That the decedent died intestate.

 

After the hearing, the court may make any of the above orders or may order probate of the Will. The Last Will may be disputed on the grounds of lack of testamentary intent or capacity, fraud, undue influence, duress, mistake or revocation. 15-3-407

Excluding Spouse or Children from my Idaho Will

This section deals with disinheriting a spouse or child from an Idaho Will. What are the statutory entitlements for omitted family members and how can you prevent their inheritance?

Spouse’s Entitlements

Whether you make an Idaho Willor not, in addition to any benefits passing to your spouse under your Will, your spouse has various entitlements if you die (as a resident of this State) including:

  • ½ of the augmented estate and ½ of the quasi-community property. If you did not make a Will, your spouse will also receive the other ½ of the quasi-community property. This entitlement is reduced by the allocated portion of general administration expenses, homestead allowance, family allowance, exempt property and enforceable claims. 15-2-206

 

  • Homestead allowance in the sum of $50,000. 15-2-402

 

 

  • Exempt property up to $10,000 in value. This includes tangible personal property such as household furniture, automobiles, furnishings, appliances, family heirlooms and personal effects. 15-2-403

 

The Idaho Probate Code allows a testator to state in his/her Idaho Last Willthat the spouse is not entitled to any exempt property or the homestead allowance or is only entitled to a limited share of each. 15-2-406 Also, if you made a Will prior to your marriage and such Will excludes your spouse, then your spouse is entitled to a share of your estate (as though you had died intestate). This is unless:

  • It’s clear from the will that the omission was intentional; or

 

  • You had already provided for your spouse outside the Will in lieu of testamentary provision (this needs to be evidenced). 15-2-301

 

Always seek expert legal advice if you wish to exclude a spouse from your Will. A lawyer can provide the appropriate clauses to be inserted your Idaho Will and can advise what other actions you need to take.

Excluding Children

  • A testator is entitled to exclude a child from his/her Will. Consult an attorney on how to do this. It’s not as simple as merely excluding the child from your Idaho Last Will and Testament.

 

  • The Idaho statute provides various entitlements to omitted children.

 

 

  • Any children born or adopted after your Last Will and Testament are entitled to a share of your estate (calculated on the assumption that you had died intestate; without making a Will). Exceptions apply for example if the omission appears intentional from the Will or if you had made an outside transfer to the child or the child’s parent. 15-2-302

 

 

  • If there is no surviving spouse, then your children will be entitled to the homestead allowance of $50,000 if they are under the age of twenty one (21) years and you were obligated to support or if they are a disabled chid and you were in fact supporting that disabled child. If more than once such child survives you, then they will share the homestead allowance equally. 15-2-402

 

 

  • If there is no surviving spouse, then your children will also be entitled to the exempt property jointly.

 

 

  • Your will may exclude or limit your children’s (but not minor or disabled children’s) right to the homestead allowance and exempt property. 15-2-406

 

 

  • Due to the complex nature of the Probate Code, always consult an attorney when drafting your Idaho Will to exclude any children.

 

Who can inherit if there is no Idaho Will? The Rules of Intestacy

If you die without an Idaho Will, then the state succession laws determine who receives your assets. In Idaho, the intestacy rules make a distinction between separate and community property.

What does my spouse get?

  • If you have no surviving issue or parents – all your separate property and ½ of the community property

 

  • If you left issue (or if no surviving issue, then a parent or parents) – ½ of your separate property and ½ of your community property.

 

Other Heirs

The balance not going to your spouse is distributed as follows:

  • Divided equally between your issue (grandchildren take by representation);

 

  • If you have no surviving issue, your parents take equally (or the survivor takes all);

 

 

  • If there are no surviving issue or parents, then to your parents’ issue by representation.

 

 

  • If you have no other relatives such as grandparents, their issue or relatives of your grandparents, then your estate escheats to the State of Idaho.

 

Case Studies of How Intestate Succession Works in Idaho

Here are some examples of what happens to a resident’s property if they die without making an Idaho Will. Alt for the case studies: Intestate succession – husband passed away, no Will, wife & children: Ross passed away without a will. He had two children to his wife Phoebe. Ross had $100,000 in separate property and $100,000 in community property. Who gets what? Phoebe: $50,000 separate property + all community property, Children: $25,000 separate property each. Intestate distribution – wife died, no children, husband & parent’s share where no Will: Liz died leaving an estate of $100,000 in separate property + $100,000 in community property. She has a husband, does not have children but left surviving parents. She had no will. Who gets what? Husband: $50,000 separate property + all community property, Liz’s Parents: $50,000 separate property. Husband died without a Will, intestate distribution to wife, children & stepchild: Bob died leaving an estate of $100,000 in separate property + $100,000 in community property. He had no will. He had two children to his wife Lauri. Lauri has a child from a former partner. Who gets what? Lauri: $50,000 of separate property + all community property, Bob & Lauri’s 2 children: $25,000 each in separate property, Lauri’s child from former partner: Nil. Wife passed away, no last Will & Testament, husband, children and grandchildren’s share of intestate estate: Juliet died without a will. Her estate is worth $100,000 in separate property + $100,000 in community property. She had 3 children with her husband Felix. Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Felix: $50,000 in separate property & $100,000 in community property, Juliet & Felix’s surviving child: $16,666 (1/3 of the balance separate property), Granddaughter (single child): $16,666 (1/3 of the balance separate property), Grandsons (brothers): $8,333 each (1/3 of the balance separate property divided equally).

What is separate property?

A husband or wife’s sole and separate property including property he/she:

  • owned prior to the marriage;

 

  • acquired after marriage by gift, bequest, devise or descent; or

 

 

  • obtained using the proceeds of his/her separate property. 32-903

 

What is community property?

All other property acquired after the marriage by the husband or wife. 32-906

Idaho Will Forms

Note: Before making an Idaho Last Will and Testament, you should obtain legal advice on making a Will including:

  • Preparing, signing and witnessing a last Will
  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Idaho Will Form: Married with adult children
Idaho Will Form: Married with adult and/or minor children, includes a trust for minor children
Idaho Will Form: Married with no children

Idaho Will Form: Single with adult children
Idaho Will Form: Single with adult and/or minor children, includes a trust for minor children
Idaho Will Form: Single with no children

Idaho Will Form: Statutory Will

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