Author Archives: Jonathan Swain

Affidavit of Heirship

What if I didn’t probate my parent’s estate? What do I do now?

Sometimes when a son or daughter tries to sell the home of a parent who has passed away, he or she discovers that the home cannot be sold because the parent’s name is still on the title to the property. A realtor may tell them that they need to probate to get the names off the title; however, often when the son or daughter talks to me about probating their parent’s estate, I discover that the
parent died more than three years ago.

Idaho Code §15-3-108 provides that no probate proceeding may be commenced more than three years after the decedent’s death. Since the parent died over 3 years ago, probating the estate is not available. What can be done to get the parent’s name off the title to the property, so it can be sold?
The solution is to prepare and record an affidavit of heirship. Pursuant to Idaho Code §55-816, §15-3-101, §15-3-901 an affidavit is made for the purpose of establishing that any real property in Idaho owned by the parent at the time of his or her death, eventually devolved to the children of the parent. The affidavit is recorded in the county where the property is located. Title companies will accept the affidavit of heirship and issue title insurance, allowing the property to be sold.

When buying property, buyers need certainty that the property has a good title. When a spouse dies, the couple’s house does not automatically pass to the surviving spouse, unless the property is held as “community property with a right of survivorship.” The house does not automatically pass to the persons named in a will. Probate, an affidavit of heirship, or some other legal process is required to
clear the title to the property.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

August 2022

Do I Need to Probate?

This is a common question after a loved one passes away.

When a person dies, the surviving spouse or children ask, what do I need to do? Do I need to probate? The answer depends, in part, on the answer to the following questions: 1) Was the decedent’s property being held as joint tenants, community property, or community property with a right of survivorship? 2) Was the total value of the decedent’s probate estate minus any liens against the property less than $100,000?

1. How was the decedent’s property held?

  • Joint tenants – Many times, property is held in joint tenancy, where on the death of one of the tenants, the property passes automatically to the survivor. A common example of this is bank accounts that are held as joint tenants. When one person dies that money in the account passes to the survivor.
  • Community property – Community property (property obtained after a couple is married) belongs equally to the members of the couple. When one of the members of the couple passes, his or her interest in the property passes to their estate and not to the surviving spouse. A common
    misconception is that when a spouse passes away, his or her interest in the couple’s home will automatically pass to the surviving spouse. Instead, to remove the decedent’s name off the title to the home held as community property, probate would be required.
  • Community property with a right of survivorship –To avoid having to probate on the death of a spouse, couples can record a deed that gives a right of survivorship on their real property. Then the surviving spouse only needs to record a death certificate at the courthouse.

2. Is the total value of the probate estate, minus the liens against it, less than $100,000?

  • Property in estates that are worth less than a $100,000 can be collected using an affidavit of heirship instead of filing for probate. For example, if the only property the decedent had at his or her death was a vehicle, the spouse or children of the decedent can go to the Department of
    Transportation website, fill out their Affidavit (they call it an Affidavit of Inheritance), submit it to the county assessor along with the title to the vehicle, and they will be able to transfer the title without having to file for probate.
  • Sometimes, spouses will open a bank account in just one of their names. Even though the money in the account is community property, banks will not give the surviving spouse access to the account. If that spouse dies and their probate estate is less than $100,000, the money in the account can be collected with an affidavit of heirship. However, Financial institutions prefer
    to receive letters testamentary or letters of administration (which are used in probate) rather than an affidavit of heirship, and initially they often will not accept an affidavit. Idaho Code § 15-3-1201 clearly provides for property to be collected by an affidavit. With a little persistence and a call to the banks legal counsel, the bank eventually will turn the money in the
    account over to the spouse or children pursuant to the affidavit.

Deciding whether you need to file for probate is not as complicated as it seems, and there are many things you can do in estate planning that can help things run smoothly and can avoid problems.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

July 2022

Community Property

Tip – After a couple marries, any property they acquire belongs to both.

Idaho is a community property state. This means that when a couple marries, any property that an individual brings into the marriage is his or her separate property, and any property that is acquired during their marriage is community property and belongs equally to both.

Occasionally, when a couple buys a house, one spouse will put the mortgage and the title to the house just in his or her name. However, if that spouse whose name is not on the title did not make an agreement to give the other spouse his or her interest in the property, the house belongs to both, even though the property is titled in just one of their names. When one spouse passes away, half the value of the house belongs to the surviving spouse; the other half passes according to law or according to the decedent’s Will. This is true of all community property, regardless of whose name the property is in.

Sometimes when a house acquired during a second marriage is in the name of just one spouse, that spouse believes he or she can give the house in a Will to the children from a prior marriage—not acknowledging his or her spouse’s 50% interest in the house. This can lead to unnecessary conflict between the surviving spouse and the children.

There are many factors in these situations that must be understood to know what everyone’s rights are. But remember if you acquire property after you are married, with the joint assets of the couple, the property will be community property belonging equally to both members of the couple.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

June 2022

Qualifying for Medicaid in Idaho

Tip – To qualify for Medicaid, a person must meet Medicaid’s health,
income and asset eligibility requirements.

Medicaid is a federal program administered by the Idaho Department of Health and Welfare (IDHW). The focus of this tip is Medicaid eligibility for seniors, age 65 and over, needing long-term care. For those that qualify, Medicaid will help pay for care provided to seniors in skilled-nursing facilities, assisted-living facilities, adult foster care, and home-based services for seniors in their homes.

To qualify for Medicaid, a person must meet Medicaid’s health, income, and asset eligibility requirements:

To determine if a senior meets the health requirement, a nurse from IDHW does an evaluation of the senior’s need for assistance with their activities of daily living.

To determine if a senior meets the income requirement, you look to see if their monthly income exceeds Medicaid’s income limit. In 2022 to qualify for Medicaid, the senior’s monthly income cannot exceed $2,543 a month. If their income exceeds this, they may set up a Qualified Income Trust, also known as a Miller Trust, and divert some of their income to the Trust to reduce their income thereby qualifying them for Medicaid. The Trust funds can only be used to pay for longterm care or medical expenses incurred by the senior. The Trust must be irrevocable and any Trust funds remaining in the Trust at the person’s death, must be paid to estate recovery.

To determine if a senior meets the asset requirement you look at their countable assets. In 2022, a single person’s countable asset limit is $2,000. The value of the senior’s home, one vehicle, and a prepaid funeral are not counted toward the asset limit. If a couple is applying for Medicaid, the asset limit is $3,000. For a couple with a spouse receiving long-term care and the other one remaining in their home, the asset limit for the applicant is $2,000 and the asset limit for the senior remaining in their home is $137,400.

If a senior is over the asset limit, the excess funds cannot be given away but may be spent down. For example, some excess money can be used to pay off their mortgage, repair their home, upgrade their vehicle, or prepay their funeral.

There is a lot of confusion about how Medicaid works. Here are two facts that you need to understand:
• First, if a senior qualifies for Medicaid, their monthly income is paid to the long-term care provider  or their care. The difference between the senior’s income and the cost of their care each month is aid by Medicaid. The senior is allowed to keep a modest personal needs allowance each month.
• Second, long-term care paid by Medicaid is a loan. It reminds me of my student loan from law school. When I was in school, I borrowed money. When I graduated from school, I received a letter  stating that it was time to start paying back the loan. Similarly, Medicaid helps pay for a senior’s care during their lifetime. When the senior dies, Estate Recovery will send a letter that the money paid by Medicaid for their care must be paid back out of their estate. For a couple, the letter is not sent until the passing of the second member of the couple.

Applying for Medicaid can be a complicated process. You may want to consider consulting an attorney familiar with Medicaid rules.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

May 2022

Beneficiary Designations

Tip – Remember to check your beneficiary designations on insurance policies, IRAs, 401Ks, and investments.

The daughter of one of my clients came to see me about her mother’s estate after her mother had passed away. She said that her mother had several investment accounts and that her mother’s investment advisor had told her to talk with me because she needed to file for probate. She began by explaining that her mother had named her children as the beneficiaries on her accounts. At this point, I stopped her to explain that if the children are named as beneficiaries, there was no need to probate. All that the daughter needed to do was contact the company, fill out their form, and provide them with a death certificate.

”Why then did he tell me I needed to file for probate,” she asked. Not knowing, I called the advisor and asked him. He explained that the mother had 5 different accounts and that 4 of them named the children as the beneficiaries, but unfortunately there was one annuity with no beneficiary designation. The funds in that account could only be released to the personal representative of the
mother’s estate. My client had no other reason to file for probate other than this one annuity. This is a situation that I occasionally encounter.

In some cases, people intentionally name their Estate as the beneficiary of their investment accounts. They name their estate to provide funds to the estate to pay final expenses and creditors. However, if there is no need to fund the estate, by naming the beneficiaries correctly, probate can be avoided.

In Idaho, probate is efficient, timely, and inexpensive when compared to some other states. Nevertheless, it still can take several months to go through the process. Whereas if you name your children as the beneficiaries on insurance policies and investment accounts, the money goes straight to them without much delay.

Because I have had this experience repeatedly, I encourage my clients to review all their investment accounts and check their beneficiary designations to make sure their assets are going to the persons or entities that they want them to go to. Even if you are sure that the designations are correct, checking each one is worth the effort.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

April 2022

Ethical Wills

Consider leaving more than your property to your family.

A friend, who had been recently diagnosed in the early stages of Alzheimer’s disease, came to me for advice on how to get his legal and financial affairs in order. I explained that he needed to name agents to make medical and financial decisions for him. We discussed what government programs and benefits were available to help pay for his care. Knowing that my friend loved his family, I then encouraged him to write letters to his wife and children to let them know how much he cared for them.

Like a letter written to loved ones, there is something called an Ethical Will that gives us the opportunity to express our thoughts, love, and values in writing for those we love. Why should we leave something in writing for our family? Eric Weiner, PhD, the author of “Ethical Wills: Words from the Jewish HEART” gives the following reasons for people to express their values to their family and future generations in an letter or Ethical Will:

“It hit me like a strong punch to the gut. During a keynote address, the speaker asked us if we knew the names of our grandparents. Most in attendance raised their hands. He then asked us if we knew the names and something about all eight of our great-grandparents. Less than half responded. I knew one grandparent. I never met any of my great-grandparents and knew very little about almost all of them. Will my fate be the same? Will I be remembered by some descendent 50 years from now who happens to be named after me?

Jews have long pondered this and developed a tool that promotes intergenerational connections. The ethical will allows us to tell our story for current and future generations. For Jews, it is not enough to only leave a traditional Will. We also have a spiritual duty to guide the next generation, to
help brighten their way through life.

Where a traditional Will emphasizes money, possessions, real estate, and valuables, an Ethical Will describes our values, life stories, and blessings. While not a legal document, it adds something meaningful to the static, dry documents that rely on tax and legal language. Ethical Wills use the language of hope and immortality.

Ethical Wills have a long and rich tradition in Jewish history. They were first described 3,000 years ago in the Hebrew Bible when Jacob addressed his 12 sons on his deathbed. He told them stories, predicted their futures, and imparted his life lessons. . .

The main ingredient for writing an Ethical Will is to speak from the heart. You are constrained only by the limits of your imagination; just keep it positive. For example, here is an excerpt from an Ethical Will:

‘‘Respect life – yours and others. I’m a believer in the Golden Rule—treat other people the way you want to be treated. I hope you find a vocation that adds value to the world . . . I feel lucky to have worked in hospice. Trying to relieve suffering has been a worthwhile pursuit for me.’

By writing an Ethical Will, maybe 50 years from now, if asked, our descendants will know something about us – how we lived our lives, what we stood for and believed in.” (Ethical Wills: Words from the Jewish HEART)

As you consider taking the time to express your thoughts in writing, remember that this is a chance for you to leave something that will touch the hearts of your family and future generations.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

March 2022

Problems with Revocable Living Trusts

Tip: If you have a Revocable Living Trust, don’t forget to fund it.

A Revocable Living Trust is one way to transfer property at your death. To avoid probate is one of the primary reasons people set up a revocable living trust. Another good reason to set up a trust, is if you own property in multiple states. By having a trust, it is not necessary to probate in each state.

But  creating the trust is only the first step; the next step is to fund the trust. To fund the trust means you  must transfer your property into the trust. How you transfer property into the trust depends on what type of property it is. For example, if you want to transfer your home into the trust, you must sign and record a deed.

You don’t just fund the trust once, but every time you procure additional property or accounts—during your entire lifetime—you must take the steps to put them into your trust. Twenty years down the road, if you sell your house and buy a new one, you must deed the new house into the trust. Often, lives get busy, and people simply forget to put newly acquired property into the trust.

And therein lies the problem. Sometimes people will set up a trust, but for some reason, they never transfer their property, or they forget to transfer newly acquired property into the trust; so, at their death, their estates end up being probated anyway.

Most people who create a revocable living trust will also write a pour over will. These wills provide if the person failed to transfer property into the trust, the property is transferred into the trust by their will at their death.

I recently saw a case where a couple set up a revocable living trust, but never put their property into the trust and then passed away. This couple only had one son, and everything went to him. However, they had a pour over will that accompanied the trust, which said their property had to first be transferred into the trust, and then the trust said their property went to the son. This created an expensive, absurd result that was caused by not properly funding the trust.

In conclusion, managing a trust properly can be complicated. If you are going to
have a trust, seek competent legal advice, make sure to put your property into the trust, and then review it with your attorney periodically to make sure
everything is in order.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

February 2022

Gifting Real Property to Your Children

Tip: Gifting your home and other real property to your children can create several problems that you should be aware of.

I frequently have clients who want to gift their home, recreational property, farm ground or other real property to their children. I always try to understand why they want to gift their property and review with them if there is a better way to accomplish their objective. I then explain to them that gifting property can create several problems. Here is a list of things you would want to consider if you are contemplating gifting your home or other real property to you children:

  1. As of 2022 under IRS rules, if you gift property with a value of over $16,000, you are required to file a gift tax return.
  2. If you gift your home to you children, but you continue to live in your home, you will lose the homeowner’s exemption on your home and your property taxes will increase dramatically. You can, however, deed your home to your children and retain a life estate. By retaining a life estate, you will continue to receive the homeowner’s exemption, and you can stay in your home until you pass away, and then it goes to your children.
  3. If you gift property while you are alive that has appreciated since you bought it, your children will lose the step-up in basis that is available to them if you had waited and given the property to them at your death. This could result in your children paying capital gains tax on the proceeds if they sell the property.
  4. If you need to apply to Medicaid to help pay for your care, you will have a period of ineligibility for the Medicaid Program.
  5. And perhaps the most obvious reason to not gift your home to your children is that once you have deeded your home or property to them, it is no longer yours. Consider what would happen to your property if you have given it to a child and they take out bankruptcy, get a divorce, or die and the property is passed down to their children.

Persons who are gifting their home to their children to simplify their lives, often find out that they have complicated things instead. If you are contemplating gifting your property to your children, be careful and talk with an attorney who can help you understand all the ramifications of making a gift.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

January 2022

Aging With Grace and Dignity

Here are 7 keys to a long, healthy life.          

Another year has come and gone, but with it have come memories, and an appreciation for the opportunity to live, grow and spend time with loved ones.

Growing older can bring challenges. Often, we are not prepared for the natural progression of aging. Eric Shapira, DDS, in his book entitled A New Wrinkle, stated: “(Aging) is a subtle experience for some, but for others it can happen in an instant and is more of a shock. So how do we define aging? How do we adapt to it? How do we embrace this transition with love and acceptance to make the change with grace and dignity? How do we make this the most exciting and rewarding time in our lives?”

“Whether you’re ready for this next stage in life or not, there are ways to handle new challenges. Grace is the ability to accept things in a manner that is calm, considerate, loving, and reflective. Dignity is one’s ability to maintain a positive sense of self—taking pride in being able to do things for ourselves and others, to stand up for ourselves, and to be independent as well.” (A New Wrinkle)

So, with all this in mind, what can one do to make this the most rewarding time of their life? According to Eric Shapira, the 7 keys to living a long, healthy life are:

  1. stimulating the mind;
  2. staying social;
  3. eating right;
  4. getting enough rest;
  5. experiencing closeness with others;
  6. remaining ambulatory; and
  7. last but not least, getting out of yourself.

Following these keys, using your talents, sharing your expertise with others, will add longevity, happiness, and satisfaction to your life.

Senior Citizen Centers, located in your community, help us accomplish many of these keys. Recently, I have been participating in what we call “Chair Volleyball” at my senior center. To play, we have six people sitting on chairs on each side of a low net. We hit a beach ball back and forth over the net following the rules and scoring used when playing volleyball. If you rise off your chair, it’s a foul and you lose the point, but the court is quite a bit smaller than regular size, so it is easier to reach. We play once a week, and we look forward to the laughter that accompanies the different things that happen as we battle to get the ball to the other side. Some people are limited in their mobility, but they find great satisfaction in taking part in the team effort, and they enjoy sharing in the teasing and joking that arises from it. One participant stated, “It’s just fun to come and laugh!” Chair Volleyball is played every Wednesday at 9:00 a.m. at the Bingham County Senior Citizen’s Center in Blackfoot. Come join the fun!

Many other activities are offered at Senior Centers that might catch your interest—nutritional meals are served, exercise classes are provided, and service opportunities are available that gives us a place to get up and get out.

Seniors can take pride in their status as seasoned individuals with knowledge to share, and they can help others be successful by providing a little coaching from their perspective. One ‘seasoned’ individual noticed that her teenage grandson was not wanting to help the family by emptying the dishwasher. Instead of scolding or telling him he should help, she used her wisdom and simply said, “Do you know how much that little act of kindness can help your mom? It makes her job so much easier to be able to just load the dishes and not have to put them away first.” This helped her grandson see things differently and be more willing to help.

And that is another secret to a long and happy life—not just doing for ourselves but doing for others.

December 2021

Small Estate Affidavit

In some cases where the total value of an estate is less than $100,000, you may claim property with an Affidavit and not file for probate.          

Once in a while, a client will come to my office because their parent has passed away. My client explains that their parent had a checking and savings account and a car that was titled only in the parent’s name.

They tell me that they have gone to the bank and the bank won’t give them access to the bank accounts even though they presented them with a death certificate and sometimes with a Will nominating the child to be the personal representative. Then when they went to the assessor’s office, the clerk told them that they would have to probate before they could transfer the car title. My client complains that they do not want to probate the estate and asks if there is some alternative to access the money in the bank and get a new title to the car.

The good news is that there is an alternate way. Idaho Code § 15-3-1201 establishes a procedure whereby property can be collected by an Affidavit. A person claiming to be the successor of the decedent may present an Affidavit, containing the information listed below, to any person or financial institution owing the decedent money or having possession of tangible personal property belonging to the decedent. Once they have been presented with an Affidavit, the bank is required to turn over the money in the accounts and any person holding tangible personal property must deliver it to the successor.

An Affidavit is a sworn statement signed before a Notary. Idaho Code                § 15-3-1201 provides that the Affidavit must state the following:

  • The fair market value of the entire estate of the decedent, which is subject to probate, less encumbrances, does not exceed $100,000;
  • That thirty days have elapsed since the death of the decedent;
  • No application for the appointment of a personal representative is pending or has been granted in any jurisdiction; and
  • That the claiming successor is entitled to payment or delivery of the property.

If you need to transfer the title of a vehicle, an Affidavit form for vehicles can be found on the Idaho Department of Transportation’s website.

The successor—any person to whom payment has been made or to whom property has been transferred—is accountable to any creditor of the decedent and to any other persons with a right to the money or property.

This section of the Idaho Code provides an easy method for the collection of property for small estates without having to file for probate with the court. However, in some cases going through probate may be less troublesome than trying to collect property with a small estate Affidavit. For example, sometimes financial institutions are reluctant to give money to a person solely on an Affidavit and prefer to give it to a Personal Representative appointed by the probate court.

If you have questions about when it would be appropriate to use an Affidavit, we would be happy to answer them.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

November 2021