Category Archives: Legal Senior Tips

Estate Planning for Blended Families

Tip – Planning for your spouse and children in a second marriage.

Question: What happens after a second marriage if you die without a will or trust
in place?

Answer: Under Idaho Code § 15-2-102 your half of the community property (property you acquire during your marriage to your spouse) would pass to your surviving spouse and one-half of your separate property (property you bring into your marriage or receive as a gift) would pass to your spouse and one-half would pass to your children.

In addition, Idaho Code § 15-2-402 and Idaho Code § 15-2-403 provides that your surviving spouse may be entitled to a Homestead allowance of $50,000 and an Exempt property allowance of $10,000 respectively. These allowances can be taken by your spouse from property in your estate before any distributions are made to the persons you have designated in your will to receive your property.

You can see that in a second marriage, if you do not have a will or trust, the bulk of your estate could go to your spouse, and not to your children. Rather than letting the laws of the state determine how your estate is distributed, it makes sense to have an estate plan to distribute your property to whom you want it to go.

No matter who you decide to leave your property to, you need to make sure your wishes are clear and binding. Avoiding the misunderstandings and fights that can come from a lack of planning is maybe the best gift you can give your spouse and children.

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.

December 2023

Be Prepared

Tip – Give a trusted individual authority to act on your behalf, give them instructions on what to do, and give them the information they need.

When I turned 12 years old—nearly 60 years ago—I became a Boy Scout. I learned the Scout Motto, “Be Prepared.” It made sense to me. Being prepared helped me to avoid problems and to handle challenges when they arose. As an attorney who works with seniors, my advice to them is to be prepared. As we age, being prepared can be a big help to our families. Through my
experience, I have found that there are three components to being prepared.

First, put legal documents in place that give someone you trust the authority to act for you. These documents can include a Will that names a personal representative to administer your estate; a Power of Attorney for Finances and for Healthcare that names agents that can step in and help when needed; and a document designating someone to make funeral arrangements.

Second, give that person instructions, so he or she will know what you want them to do. This can be done by having conversations with them about your financial situation, your healthcare wishes, and how to handle your estate. Even better, I like the idea of preparing written instructions that you can keep with your documents. These instructions are not legally binding, but they explain what you
would like your agents to do.

Third, give information to the people that you have named in your documents. For your personal representative, how do you want your estate handled? For finances, what are your retirement accounts, where are your insurance policies and investments and where are your bank accounts located? For healthcare, what medications are you taking, who is your doctor, and what kind of care do you want to receive?

My Dad had a stroke in his later years. He recovered but lost most of his speech, only being able to say a few words. One day he came to me and said, “Insurance.” I asked, “Do you have a life insurance policy?” “Find out,” was his reply. I checked with all the insurance agents in town and none of them had a policy with my Dad. I have often wondered if he had an insurance policy that I never found that would have paid a benefit at his death. I was my Dad’s power of attorney for finances. I
had the authority to act for him; however, I didn’t have the information I needed to take care of his affairs properly.

Being prepared for the future will bring you peace of mind and will be a gift to
your family.

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 2023

To Probate or Not to Probate

Tip – Depending on current circumstances, you may not need to probate.

Whether you have a Will or don’t have a Will, your estate must be probated if there is property in your estate that someone needs to take care of and distribute to your heirs—such as a home, a bank account, an investment, etc.

When there is a couple, after the first spouse dies, if the surviving spouse wants to stay in the home, he or she doesn’t have to probate unless the house needs to be sold or the spouse wants to take out a mortgage or home equity loan. In that case, there are various legal procedures that can be followed to transfer the deceased spouse’s interest in the home to the surviving spouse. If nothing is done, when the second spouse passes away, then a joint probate is filed.

If the surviving spouse’s circumstances change, the estate of the surviving spouse may not need to be probated. For instance, if the surviving spouse sells the house to live in a facility or to live with someone else, and if the value of the estate is less than $100,000 probate may not be necessary. To accomplish this, you can put a Pay on Death (POD) on your bank account and make sure that you have named beneficiaries on your financial investments and insurance policies.

In Idaho, probate is a quick and easy process. Nevertheless, as time goes by your situation may become more modest, and you may not have to probate if you put a few things in place. It’s a good idea to review your estate planning documents regularly, especially if events such as marriages, divorces, health problems, death of a spouse or significant financial changes occur. This could save you money and make things simpler for your posterity. It could be looked at as one more nice thing you can do for your loved ones.

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 2023

Keeping Wills Valid

Tip – Don’t “write in” changes on your original Will.

Your Will is an expression of your desires concerning who you want appointed to handle your estate after you pass away and to whom you want your property and other assets in your estate to go. Your Will is probated, which means that you file an application and your Will with the court, the court appoints your Personal Representative and issues Letters Testamentary, and your Personal Representative then inventories your property, pays your creditors, and distributes your estate to
the person or organizations you have named. Your original Will is filed with the court, so it is important that you take good care of it, and that those who will manage your affairs knows where it is at. Here are some of the problems that come up occasionally with a Will:

  1. People decide they want to make a change in their Will. Rather than write a new Will, they cross out and write in new information in their Will. This can invalidate the Will.
  2. When one spouse passes away the surviving spouse throws away the deceased spouse’s Will, thinking everything automatically goes to them, not realizing that some of the property in the estate may need to be probated now or when the second spouse dies. Without both of the
    original valid Wills, you must then go through a more complicated, formal process to probate the Will, which takes more time and money.
  3. Occasionally, even though a person has a valid Will, it cannot be located. You can request that a copy of the Will be probated, but you have to use a formal probate process which requires extra time and money and leaves the Will open to challenge.

In conclusion, put your Will in a safe place and let your Personal Representative know where it is at. Don’t throw away your spouse’s Will when they pass away—it will need to be probated at a future date. If you need to make changes or update your Will, have your attorney make the changes and then sign the new Will.

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 2023

Holographic Wills

Tip – Holographic Wills are frequently ambiguous and are often challenged by heirs.

A Holographic Will is a Will written in a person’s own handwriting. In Idaho, a Holographic Will is valid, whether or not it is witnessed, if the signature and the material provisions are in the handwriting of the testator—the person making the will. (Idaho Code §15-2-503) Even though Idaho recognizes Holographic Wills, they frequently have problems.

A brief example illustrates this point. A woman brought in a Holographic Will of her friend who had recently passed away. The woman who made the Will had no children to leave her property to. Because of ill feelings toward her siblings, the woman had left her entire estate to the friend
who had brought in the Will, leaving nothing to her 2 siblings.

When the Will was filed for probate, it was quickly challenged as invalid by the excluded siblings. The Will was clearly invalid because she had not written the entire Will in her own handwriting but had used a filled in-the-blank form. Some of the Will was in her handwriting and some was typed, so the material provisions were not completely in the woman’s handwriting as required by the statute. Since the Will was invalid, the friend received nothing and the estate was divided equally between the 2 siblings under Idaho’s Intestate Laws—even though the woman who brought in the Will claimed she had many witnesses who would testify that her friend intended to leave her everything.

Sometimes another person will write a Will for an individual who is unable to write and then have him or her sign it. This is invalid also. The person making the Will must write it in its entirety and then sign it.

In conclusion, Holographic Wills are frequently ambiguous, done incorrectly, challenged by potential heirs and result in costly litigation.

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 2023

Organize Your Important Information – Just Do It!

Tip – Consider taking time now to organize your records and give your
agents appropriate instructions.

Many people understand the importance of keeping their estate planning documents—Will, Trust and Powers of Attorney—in a safe place. People should also consider gathering all their personal information and put it into a binder, where it will be in one place. A planner or binder provides the framework that your agents will need to carry out their eventual responsibilities in an orderly, informed way.

To get started, begin gathering biographical information—birth certificates, marriage certificates, insurance policies, financial/investment information, social security cards, retirement/pension information, personal/family information, etc. It’s also beneficial to have a list of real estate assets, tax information, credit cards, automatic bill-pay, safe deposit boxes and password-protected software or devices.

Next, begin to organize your planner. It’s a good idea to have labeled tab dividers and plastic sheets for inserting related documents. Place your estate planning legal documents in your binder along with instructions for your agents. This keeps all your important information at the fingertips of the people that will be assisting you.

Assembling the rest of your information will take time, don’t expect to do it in one or two sittings. To accomplish this, set aside one-or two-hour windows to work on your planner until you’re done. Make short lists of follow-up tasks and check off each item as you finish it. Pacing yourself will help you make progress without becoming discouraged. (See Nolo “Get it Together, Organize your Records So Your Family Won’t Have to.”)

Having a complete planner with all the important information in one place can avoid the perils of incomplete planning. For example, one lady had everything her family needed, including information about a safe deposit box—with the key taped to an index card, but unfortunately forgot to include where the box was located! She had moved several times, and the family had no idea where the safety box was, even though they had the key. By having all the necessary information and documents in place, your agents will then be ready to step in, in the case of incapacity or death.

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 2023

Estate Planning and Organization

Tip – Consider organizing your records so your family won’t have to.

A rather mundane aspect of estate planning is the organizing of your documents and records. Getting your legal documents, financial plans, important personal information, and healthcare directives arranged in a way that makes sense to those who will be handling your affairs is a wonderful gift to your family.

When we don’t plan, it places a burden on our families and can lead to unintended consequences. Here are two examples. First example, after a man passed away, his personal representative went into his home to try to figure out what needed to be done. When he walked into the kitchen, he saw papers piled high, covering the whole table. There were bank statements, insurance policies, investment and pension information, etc.

The personal representative proceeded to call and verify the status of all the accounts he found in the papers. After spending over 100 hours, the personal representative determined that only three bank accounts and one insurance policy were still active. Had the man organized his papers and gotten rid of any papers that were no longer current, he would have saved the personal representative a lot of time and his estate a lot of money.

Second example, a father had a stroke that left him with limited speech. The father recovered from the stroke but only had a vocabulary of about 50 words. One day the father came to his son and said, ”Insurance.” By asking a series of questions, the son determined that the father was concerned about life insurance. The son asked, “Do you have a life insurance policy?” The father replied, “Find out.” So, the son went to all the insurance companies in town and asked if they had a life insurance policy on the father. None of the agents said they had a policy. The father continued to indicate he had a life insurance policy but could not tell the son where it was. The man eventually passed away and no life insurance policy was ever found. The father’s family may have lost out on getting the death benefit from an insurance policy that the father may have paid premiums on for years.

Organizing your records and giving appropriate instructions to those who will handle your affairs is an important part of planning your estate. In the next tip, I will talk about how this can be done effectively.

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 2023

Homestead Allowance and Exempt Property Claims

Tip – You may want to take Homestead Allowance and Exempt Property
claims into account when you do your estate plan.

Many people are not aware that Idaho law allows a surviving spouse to claim a Homestead Allowance and Exempt Property from the estate of a spouse who has passed away, in addition to any property that he or she will receive under the will.

Idaho Law states that the surviving spouse is entitled to a Homestead Allowance of $50,000.00 and to Exempt Property up to the value of $10,000 in tangible personal property—including automobiles, furniture, appliances, family heirlooms and personal effects—from the estate of his or her spouse at the spouse’s death.

This is significant in second marriages when one or both spouses have children from a prior marriage, and they want to ensure their children receive something from their estate. For example, a person may provide in a will that property goes to his or her children, but when the person passes away, the surviving spouse claims the Homestead Allowance and the Exempt Property, taking $60,000.00 from the estate that was intended to go to the children. In some cases, there may
not be sufficient assets left in the estate to make the distributions to the decedent’s children that were intended.

There is a way to limit the Homestead Allowance and Exempt Property claims. Idaho Code § 15-2-406 states that a person may state in his or her will, that a surviving spouse is not entitled to the Homestead Allowance or any Exempt Property. If the person states this in his or her will, it prevents the surviving spouse from making a Homestead or Exempt Property claim.

The bottom line is that with careful planning, you can draft your will, to make sure
your intent will be carried out.

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.

September 2022

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