Use a tangible personal property list to clearly specify who you want to receive your personal property.

Idaho Code Section 15-2-513 expressly permits the use of a statement separate from your Will to dispose of non-business, tangible personal property upon your death. If you want to use such a separate written statement rather than itemize the disposition of tangible personal property in your Will, you should know and follow the requirements set forth below:

1. No duplication. The separate written statement should not include items already specifically disposed of by you in your Will.

2. Assets that may be disposed of by written statement. Common examples of property that may be disposed of include personal effects, jewelry, family heirlooms, furniture, antiques, artwork, books, household items, sporting equipment, automobiles, etc.

3. Assets that may not be disposed of by written statement. A separate written statement cannot be used to dispose of money, evidence of indebtedness, documents of title, interests in real property, securities, or property used in a trade or business.

4. Date and sign written statement. Each page of the statement should be dated and must be signed by you.

5. Clearly describe each item. Clearly describe each item so that it is easily identified and not confused with another similar item.

6. Designation of beneficiary (devisee). Each beneficiary (also referred to as a “devisee”) should be identified by his or her proper name and relationship to you. The address of the beneficiary should be added if the beneficiary is not closely related to you so that proper identification is
assured.

7. Alternate Beneficiary. You may wish to consider providing for an alternative beneficiary if the first-named beneficiary does not survive you, although this is not necessary.

8. Change in designation of beneficiary or property. You may change the devisees or property designated in the separate written statement from time to time or revise or revoke the entire statement. Changes should be made only by preparing a new statement patterned after the original form. The old statement should be destroyed. Changes should never be made by alternation on the face of an executed statement; your intent will inevitably be unclear.

9. Retain written statement in safe place. The separate written statement should be kept in a safe place where it can be easily found, preferably with your original Will.

10. Notice to Personal Representative. We recommend that you notify the personal representative named in your Will regarding the location of the written statement.

11. Periodic review. The written statement should be reviewed periodically and kept current.

Families often fight more over mom’s wedding ring or dad’s hunting rifle than they do over the distribution of a 401K. A tangible personal property list is often overlooked but is an important document to prevent disputes between family members when settling an estate.

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 2024

Tip – When I pass away, who will care for my pets?

Here is an amusing quote by Winston Churchill: “I like pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals.”

On a more serious note, pets offer us companionship and bring joy into our lives. In return, we want to make sure they are cared for if we become incapacitated or after we have passed away.

There are several options for placing pets, including family members, friends, the Idaho Humane Society, and other foster, adoption, and Rescue Programs. Local organizations like the Bannock Humane Society will strive to find a good home for your pets if no other options are available.

If it becomes difficult during your lifetime to care for your pets, you can prepare a “Pet Power of Attorney” which gives someone the authority to care for your pet if you become incapacitated or if you are gone on a trip.

If you plan to leave your pet with an individual after you have passed away, you should discuss with the prospective caretaker if they are willing to care for your pet. If they accept, you can leave your pet to that person in your Will. You may also want to leave some money or other pet care items to that person, asking the person to use the money and items to care for your pet. Your request expresses your desires, but it is nonbinding on your caretaker. You cannot leave money or other property directly to an animal.

A more complex and expensive method to provide for your pet is to set up a Pet Trust. Idaho Code § 15-7-601 allows for a Trust to be set up for a pet. Funds can be put into the Trust with instructions that are binding as to how the money is to be used and how your pet is to be cared for.

If you want to provide for your pet’s future, consider leaving specific instructions with your Will on how to care for your pet. Your pet has taken good care of you, so make sure your pet is taken care of after you are gone.

An example of a pet care instruction sheet is attached below.

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 2024

Tip – Idaho now recognizes four types of wills.

Idaho recognizes the following four types of wills:

• First, a paper will that is signed by the testator or testatrix (the legal names for male and female persons signing a will respectively) and signed by two persons each of whom witnessed the signing or the testator’s acknowledgement of the signature of the will.

• Second, a holographic will, which is a will with the signature and the material provisions written in the handwriting of the testator/testatrix. A holographic will may but does not have to be witnessed or notarized to be valid.

• Third, a will written in another state that complies with the laws of the state where it was written.

• Fourth, Idaho recently passed the Electronic Wills Act recognizing electronic wills and setting forth the rules for making an electronic will valid.

Any one of these four types of wills will be accepted by Idaho Court for probate.

Here are mistakes some people make when doing their own will. They print a will off the internet but don’t have it witnessed properly, or they do not clearly express to whom they want their property to go.

When writing a holographic will, some people dictate the will and have another person write it for them. Remember, the material provisions and the signature of a holographic will must be in the testator/ testatrix’s handwriting, or it will be invalid.

If you are considering writing a holographic will, keep your bequest (the disposition of property in a will) simple. If your will is ambiguous the court may not be able to carry out your wishes the way that you intended. Also, make sure to nominate who you want to be your personal representative.

When people live in another state and have property in that state and in Idaho, or if they move to Idaho after writing their will in the other state, Idaho will recognize their will and admit it to probate.

Finally, in March 2023 the Idaho Uniform Electronic Wills Act was enacted. The requirements for the validity of electronic wills are similar to paper wills but with some differences to account for the electronic signing and witnessing. An electronic will can be signed by the testator/testatrix and witnessed by the witnesses electronically, if everyone can see and hear the signing—presumably through a zoom meeting. The will must also be a tamper-evident electronic record to assure
that it has not been tampered with.

In conclusion, any of these wills are valid in Idaho. I anticipate most wills will continue to be paper wills, witnessed by two witnesses and notarized. Nevertheless, you can choose the type of will that best fits your circumstances.

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 2024

Tip – It’s vital that you take care of the original Will.

One thing to consider after you have prepared your Will is this—where do I keep it? If you have taken the time and made the effort to plan for the future by having a Will, it makes sense to do a couple of important things. It is vital that you take care of the original Will, and that the person who will act as your Personal Representative knows exactly where it is. Too many times, the Personal
Representative is forced to look all through the house trying to find the original Will, or worse yet, resort to calling local law offices to see if they might have it.

Many people think that if you have a Will, you don’t have to probate. This is a misconception. When you have a Will, the person you named as your Personal Representative must file your Will with the Court and be appointed as your Personal Representative. If your Personal Representative has your original Will, the Court uses an informal probate process, which in Idaho is quick and simple. However, if the original Will cannot be located, and your Personal Representative submits a copy of the Will, the Court will use a formal probate process, which entails many more steps and costs more money. In the formal probate process heirs are notified, a Court Hearing is held, and the heirs have the burden of establishing the facts to prove that the Will is valid or invalid.

In a formal probate process, the Court may determine that a copy of a Will is valid if the proceeding is unopposed. However, if the Court determines that the Will is not valid, the property in the estate will then be distributed according to the laws of the State of Idaho—not the terms of the Will. In that case, the property of the deceased may go to persons that he or she did not intend for it to go to.

I like to keep a Will in an Estate Planning Binder along with all other legal documents, deeds, information about your property, investments and insurance policies, and instructions to the Personal Representative. However you safeguard your Will, the important thing is to let the person who will be handling your affairs know where it is.

So, when it comes to your original Will, taking care of it will save you a lot of time, money, and headaches.

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 2024

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

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

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

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

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

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