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Our newest Senior Tip:

Wills and Probate

In Idaho, probating a Will is a simple process.

Probate of a Will is generally necessary when title to property must be transferred at a person’s death. Probate allows for supervision of the estate by the Court, gives notice to heirs of the proceedings, and provides an opportunity to settle creditor claims.

Probate can be informal or formal. In Idaho, informal probate is a simple and efficient process that does not require Court hearings or judicial supervision. The estate can be distributed in a few weeks to a few months depending on the assets, creditors and heirs of the estate.

There is a 5-day waiting period after a person has passed away before an application for probate can be filed with the Court and the Personal Representative appointed. Once appointed, the Personal Representative inventories the property of the estate, identifies and pays creditors and then distributes the money and property in the estate according to the Will.

Formal probate involves a judge and is recommended when the Will is being contested. Will contests are usually raised for the following reasons: lack of testamentary capacity, undue influence, failure to witness or execute the Will properly or ambiguity in the Will concerning the decedent’s wishes. When writing a Will it is important to recognize and avoid these problems.

Recently, I had an adult child call me about his mother’s Will. He felt that he would be treated unfairly in the Will. He demanded that his mother change the Will and threatened to challenge the Will if she didn’t disrupting the family peace. This may not have raised to the level of undue influence, but it was certainly inappropriate.

Another client brought me his parent’s Wills to be probated after his parents had passed away. The Wills had been printed off the internet and signed. As I reviewed them, I determined that the Wills had not been properly witnessed or notarized, leaving their validity open to challenge.

You work a lifetime to accumulate your estate. You should take great care when writing your Will and seek expert advice when appropriate. The Will contests that I have done in my career have involved Wills drafted by individuals, their friends or their family.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity.  If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

October 2017