Category Archives: Senior Tips

Claiming property Without Probate: The Small Estate Affidavit in Idaho

Tip – If the total value of an estate is under $100,000.00, you may be able to claim the property with an Affidavit instead of filing for probate.

Every so often, a client comes to my office after a parent has died. The parent didn’t have any real property—a home or acreage—but did have a checking account and savings account, and a car titled only in the parent’s name. The client has already gone to the bank, but even with a death certificate (and sometimes a Will naming the child as personal representative), the bank refused access to the accounts. The county assessor’s office then told them the car title can’t be transferred without probate. Understandably, the client doesn’t want to go through probate and asks
whether there is another way to reach the money and retitle the car.

The good news is that there is. Idaho Code § 15-3-1201 lets a person who claims to be the decedent’s successor collect property by Affidavit. The successor presents the Affidavit to any person or institution that owes money to the decedent or holds the decedent’s tangible personal property. Once it is presented, the bank must release the account funds, and anyone holding
tangible personal property must deliver it to the successor.

An Affidavit is a sworn statement signed in front of a notary. Under § 15-3-1201, it must state that:

The fair market value of the decedent’s entire probate estate, less encumbrances, does not exceed $100,000.
At least thirty days have passed since the decedent’s death.
No application for appointment of a personal representative is pending or has been granted in any jurisdiction.
The person claiming is entitled to payment or delivery of the property.

To transfer a vehicle title, the Idaho Transportation Department’s website offers a dedicated Affidavit form for vehicles.

Keep in mind that the successor, meaning anyone who receives money or property under the Affidavit, is accountable to the decedent’s creditors and to anyone else with a right to that money or property.

This statute gives small estates a simple way to collect property without going to court. In some situations, though, probate may actually be less of a hassle. Financial institutions are sometimes reluctant to release funds based only on an Affidavit and would rather deal with 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.

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.

September 2026

Personal Service Agreement

Tip – Caregiving children may want to consider a Personal Service
Agreement.

As elderly parents begin to need help with daily living, it’s often their adult children who step in. This support typically starts small — helping around the house, paying a few bills, picking up groceries, or preparing meals. To simplify financial management, many parents add an adult child to checking and savings accounts. Unfortunately, this arrangement often leads to poor record-keeping
and commingling of the parent’s and child’s funds.

When a parent is diagnosed with dementia or Alzheimer’s, care needs intensify, and so does the burden on the caregiving child. It’s common for that child to cut back work hours or leave a job entirely to provide care.

In these situations, most families don’t think they need a written agreement between parent and caregiving child — but that’s precisely what’s missing, if the parent transfers money to the caregiving child without a formal contract, it can jeopardize the parent’s Medicaid eligibility.

A Personal Service Agreement addresses these risks. Under the Idaho Administrative Procedures Act, payments to a child for personal care services will render the parent ineligible for Medicaid unless the arrangement meets these requirements:

• The written contract must be signed before any services are provided.
• Payment must be made only after services have been rendered.
• The contract must be dated, with signatures notarized.
• Either party must retain the right to terminate the agreement.
• The contract must be signed by the care recipient or their legally authorized representative (via power of attorney, guardianship, or conservatorship).
• If a representative signs on the parent’s behalf, that person cannot also be the one providing the caregiving services.
• Compensation must reflect fair market rates for comparable services.

Caregiving children should maintain thorough records of the care they provide and any expenses they incur. Together, a properly executed contract and careful documentation protect the caregiving child from exploitation claims while also demonstrating that any payments to the child complied with Medicaid requirements.

August 2026

Be Prepared in Case of Incapacity

Consider putting a Financial Power of Attorney and a Healthcare Power of Attorney in place now, before you need them.

Many people take this step early, well before incapacity ever becomes a concern. Doing so typically means the courts won’t need to step in and appoint a guardian or conservator — a court-supervised individual who manages another person’s affairs.

That said, a conservatorship or guardianship can still become necessary even when powers of attorney already exist. This might happen if the named agent (or “attorney-in-fact”) is unable or unwilling to serve or has been disqualified due to misconduct; if the incapacitated person poses a danger to themselves or others; or if family members can’t agree on who should be making decisions — or disagree with the decisions being made. In these circumstances, the court, appointing a conservator or guardian may be the only path forward. (A Guide to Elder Law Practice, Timothy L. Takacs, 2007.)

When a court decides a conservator is needed, Idaho Code § 15-5-410 sets out who should be considered, in this order:

someone nominated by the incapacitated person in a financial power of attorney;
the incapacitated person’s spouse;
an adult child;
a parent; or
a relative the person has lived with for at least six months before the
petition was filed.

The court has discretion to depart from this order — or choose someone else entirely — if doing so serves the incapacitated person’s best interest.

Court-appointed conservatorship or guardianship has trade-offs:

1. Advantage — Guardians and conservators operate under court supervision and must file annual accountings.
2. Disadvantage — The process can be costly, involving court costs, visitor fees, and attorney’s fees.

Planning ahead means you get a say in the decisions that matter most for your life.

Visit our website to read our booklet, “A Senior’s Legal Guide,” or stop by our office to pick up a copy in person. It walks you through what you need to have in place in case of incapacity.

July 2026

Beneficiary Designations

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

Individuals named as beneficiaries on insurance policies and financial accounts can receive those funds directly upon someone’s death, without waiting for the estate to go through probate. The following example shows what can happen when beneficiary designations aren’t kept up to date:

After her husband passed away, one of my clients came to see me about her husband’s estate. She said that her husband had named her as his beneficiary on several investment accounts but that he had failed to name her on one account that he had before they were married. When she contacted the financial institution, they told her that she needed Letters Testamentary before they would
release the funds to her.

I explained to her that she would need to probate her husband’s estate to obtain Letters Testamentary. But as we talked, we determined that her husband had written a Will, leaving everything to her and that his estate was less than $100,000, so she could request the funds using a Small Estate Affidavit, instead of having to probate.

Some people intentionally name their Estate as the beneficiary, so the Estate has funds to pay creditors and final expenses and can then distribute the remainder to designated individuals. In many cases, though, it’s better to name individuals directly as beneficiaries, so the money passes to them outright rather than going through probate.

Having seen this issue come up again and again, I encourage clients to review all their investment accounts and confirm that their beneficiary designations actually reflect who they want their assets to go to. Even if you’re confident the designations are correct, it’s worth taking the time to check each one.

June 2026

Get A Senior’s Legal Guide: Planning for the Future – whatever it holds

Estate Planning can seem daunting, confusing, and overwhelming, but it doesn’t have to be. I have designed a small booklet that answers many common questions in an easily understandable way. Below is a copy of one of the pages.

To view a full copy of our informational booklet, click here: A Senior’s Legal Guide: Planning for the Future – whatever it holds. Please contact our office if you’d like a free paper copy.

May 2026

Even the oldest tree some fruit may bear

Tip – Even the oldest tree some fruit may bear.

Just for fun, this month’s tip is from Paul Harvey’s “The Rest of the Story.”

Maybe all his life Harlan had been in too much of a hurry. He was five when his Hoosier farmer daddy had died. At fourteen he dropped out of Greenwood School and hit the road. He tried odd jobs as a farm hand, hated it. Tried being a streetcar conductor and hated that. At sixteen he lied about his age and joined the Army and hated that, too. When his one-year enlistment was up he headed
for Alabama, tried blacksmithing, and failed.

He became a railroad locomotive foreman with the Southern Railroad. He liked that. Figured maybe he had found himself. At eighteen he got married, and within months, wouldn’t you know she announced she was pregnant the day he announced he’d been fired again? Then one day while he was out job hunting, his young wife gave away all their possessions and went home to her parents. Then came the depression. Harlan couldn’t win for losing, as they say. He really tried.

Once, while working at a succession of railroad jobs, he tried studying law by correspondence. But he dropped out of that too. He tried selling insurance, selling tires. He tried running a ferryboat, running a filling station. No use. Face it-Harlan was a loser. Late in life he became chief cook and bottle washer at a restaurant in Corbin. He did all right until the new highway bypassed the restaurant. His restaurant customers in Corbin said they’d miss him.

He’s not the first man nor will he be the last to arrive at the twilight of life with nothing to show for it. The bluebird of happiness, or whatever, had always fluttered just out of reach. He’d stayed honest, but now the years had slid by, and a lifetime was gone and he had nothing. He had not really felt old until that day the postman brought his first Social Security Check.

He took that $105 check, said “Nuts” and started a new business. His new business prospered and so did he.

For the man who failed at everything save one thing, the man who never got started until it was time to stop, was Harlan Sanders. Colonel Harlan Sanders. The new business he started with his first Social Security check was Kentucky Fried Chicken. Now you know the rest of the story.

April 2026

Affidavit of Inheritance

Tip – If a person dies and has a small estate, the Idaho Department of Transportation provides an Affidavit of Inheritance that can be filled out by an heir to make a non-probate transfer of the vehicle title.

In Idaho, when a vehicle owner dies and has an estate worth less than $100,000, Idaho law allows heirs to transfer a vehicle title using an Affidavit of Inheritance (Form ITD 3414). This process avoids the time and expense of probate for low-value estates.

This process may be used when all the following conditions are met:

Thirty days have elapsed since the death of the decedent.
The claimant is an heir of the deceased.
The decedent died intestate (without a will).
The decedent did not leave other property necessitating probate.
The decedent has no remaining creditors.
No other heirs have prior right to the named vehicle.
The decedent was the titled owner of the vehicle, and the claimant has a right to succeed to the motor vehicle.

Here is the process you would follow:

Obtain Form ITD 3414. Download the Affidavit of Inheritance from the Idaho Transportation Department (ITD) website at itd.idaho.gov or pick it up at any county Department of Motor Vehicles (DMV) office.
Complete the affidavit. Fill in the decedent’s full name, date of death, vehicle information (year, make, VIN), and the heir’s relationship to the deceased. All heirs must be listed.
Gather supporting documents. Bring the original certificate of title (if available), the death certificate, and a valid government-issued photo ID to the county DMV.
Submit to the county DMV. Present the completed affidavit and supporting documents at your local county assessor’s motor vehicle office. Pay the applicable title transfer fee.
Receive new title. The DMV will process the transfer and issue a new certificate of title in the heir’s name, typically within 4–6 weeks.

You should be aware of the following:

The affidavit is attached to and made part of the application for Idaho Certificate of Title to the vehicle.
If a lienholder is listed on the existing title, the lien must be released before the transfer can be completed.
For estates exceeding $100,000, formal probate may be required. Consult an attorney.
Here is the contact information for ITD.
Idaho Transportation Department: itd.idaho.gov | (208) 334-8000.

March 2026

Medicaid Estate Recovery

Tip – Putting your home into a revocable trust does not protect it from Medicaid estate recovery.

A common misconception in Medicaid planning is that placing a home or other real property into a revocable living trust will shield it from Medicaid estate recovery. In Idaho, this is not the case. These trusts do not provide the protection many people expect, and they can actually complicate the Medicaid application process.

Trusts and Medicaid Estate Recovery

Idaho participates in the Federal Medicaid Estate Recovery Program, which requires the state to seek reimbursement from a deceased Medicaid recipient’s estate for long-term care costs paid on their behalf. Under Idaho law, the definition of “estate” for recovery purposes is broad and extends beyond probate assets. Property held in a revocable living trust remains subject to estate recovery because the Medicaid recipient retained control over the trust during their lifetime.

A Home in a Trust Is a Countable Asset

Beyond the estate recovery issue, placing a home in a revocable living trust can create a significant problem during the Medicaid eligibility determination. In Idaho, primary residence is generally considered an exempt (non-countable) asset for Medicaid purposes when the applicant lives in the home or intends to return to it. However, once a home is transferred into a revocable living trust, Idaho Medicaid may treat it as a countable asset, potentially disqualifying the applicant from receiving benefits until the asset is spent down. This is the opposite of what most clients intend when they create a trust.

Recommendation

In Idaho, a revocable living trust is rarely the appropriate tool for Medicaid asset protection, and doing so can result in delayed benefits, unexpected asset spend- downs, and estate recovery exposure. Other planning strategies may be more effective and should be evaluated on an individual basis.

February 2026

US Federalism

Tip – Each different state has its own Probate Code that governs how
an estate is administered after someone dies.

The United States operates under a system called Federalism, which divides power between the national (federal) government and the state governments. This creates two layers of sovereignty operating simultaneously over the same territory and people.

The federal government has powers enumerated in the Constitution to handle matters of national concern—things like defense, foreign policy, interstate commerce, and immigration.

State governments retain broad authority over most day-to-day matters that affect people’s lives: education, local law enforcement, property laws, marriage and divorce, professional licensing, and most criminal law.

Probate laws are almost entirely a matter of state jurisdiction, which means they vary significantly from state to state. Each state has its own probate code that governs how estates are administered after someone dies. The differences between states can be substantial. Some states use their own traditional probate systems that can be complex and time-consuming.

In states with complex systems, attorneys have used Trusts to circumvent probate. When you create a Trust (revocable living trusts are the most common), you transfer ownership of your assets into the Trust. Legally, the Trust owns your assets, not you.

When you die, the Trust doesn’t die with you. The assets simply continue being held by the Trust, and a successor trustee you’ve named steps in to manage and distribute them according to your instructions. Since the Trust still owns the assets and the Trust didn’t die, there’s nothing that needs to go through probate court.

Idaho has adopted the Uniform Probate Code (UPC), which streamlines and simplifies the probate process. Probate costs are relatively inexpensive in Idaho when compared to other states. Using an estate planning strategy that makes sense in California may be unnecessary or even counterproductive in Idaho.

Given Idaho’s simplified probate procedures and lower costs under the Uniform Probate Code, creating and maintaining a Trust may actually be more expensive and complicated than simply using a Will, and proceeding through Idaho’s efficient probate system.

January 2026

Family Stories

Tip – Ask an older family member or friend about their life.

My dad graduated from the University of Utah Medical School in 1946. After looking at different towns in Southeast Idaho, he chose to open his medical practice in Blackfoot. He started the Blackfoot Medical Clinic and for forty years cared for his patients delivering over 6,500 babies. I did the math once—that’s one baby every single day for almost 18 years. Many of my clients tell me, “Your dad delivered me” or “Your dad delivered five of my children.”

One of the best parts of having my law practice in Blackfoot is hearing stories about my dad from people who knew him. Here’s a story one of myclients told me. She was scheduled for a hysterectomy. On the morning of the surgery, she was waiting to go into the operating room when dad came to check on her. As they talked, dad suddenly stopped and seemed to be thinking about something. He then said, “Before we do the surgery, I’m going to have a pregnancy test done.” They did the test, and it came back positive—she was pregnant! The surgery was cancelled, and months later she had a baby boy. Years later, I became that boy’s Scout leader.

Another time, I was having lunch at the Bingham County Senior Center. As I was leaving, a woman saw me and waved me over. I walked to her table, and she said, “I just wanted you to know that your dad could heal you with a hug.”

When dad was 67 years old, he had a stroke that took away his ability to speak. He could only say a few words. He would say things like, “Mind good, can’t talk.” One of my clients told me she was at a basketball game watching her brother play. My dad was sitting next to her at the game. He pointed to her brother, then pointed to himself and said, “Me.” My client realized dad was telling her, “I delivered your brother.” Dad often saw articles in the newspaper about people, and he would point to himself and say, “Me.” I was always impressed by how much he cared about his patients personally. I’ve tried to follow that example in my law practice.

Hearing these stories has helped me understand my dad better. These stories have taught me important things about life. Next time you’re with an older family member or friend, take time to ask them about their life—it will make your life richer.

December 2025