How Can I Update My Will?

So, you have just read “How Often Do I Need to Update My Will?” and you have decided that a few changes need to be addressed in your Will.

However, the changes are small and you don’t believe it requires a brand new Will.

Are there options for those in your situation? Yes. You can have your attorney draft a codicil to your Will.

A "codicil" is will-speak for an amendment to your Will. If you do not want to rewrite your entire Will, you can use a codicil to change certain provisions (or paragraphs).

The probate court will read the Will and all codicils together to determine the final intent of the deceased.

A codicil is, in essence, a mini-Will. It is prepared, signed and witnessed in the same manner as an ordinary Will; this is why I highly encourage contacting Jeppesen Law to draft your codicil. This helps to ensure that your codicil meets the same high standards as your Will, (these notes also apply to your Revocable Living Trusts as well).

Specific detail must be taken in writing your codicil to define exactly what changes need to be made in your Will. If an heir is to be removed or added, it must be clearly stated, not just hinted at. This is because the State of Idaho’s laws have protections for people believed to be “forgotten” about during the writing of a Will.

Your codicil should be kept together with your Will to assure that it will be included in the Probate process. A codicil is governed by the same rules as a Will. Therefore, if a codicil is missing, it will be presumed to have been previously revoked unless conclusively proven otherwise.

All changes to your Will must comply to the same formalities used in making a new Will. A person who simply deletes old provisions or inserts new clauses brings the validity of the Will into question.

A person can revoke his Will at any time by another Will or simply by destroying the old Will. Some states would consider the writing of the new clauses an effective revocation of the old Will, yet ineffectual in creating a new Will. So, PLEASE, do not write on your Will.

A person should never write a change on the face of a Will (this refrain includes crossing out sections). All changes to a Will should be by a valid codicil or a new Will in accordance with the requirements of the state where you live.

Given the ease with which new Wills can be created, there is no reason to risk invalidation of an existing Will by writing on it. Just prepare a new Will or a codicil.

Jeppesen Law can provide you with a comprehensive Estate Planning. With our Free Initial Consultation we help our clients explore their own situations and plan for their futures. If you have more questions, we'd love to help! Contact Jeppesen Law now. We wish you all the best. (208) 477-1785.

How Often Do I Have to Redo My Will

Creating your Will or Living Trust is a very important decision you should make. However, it is not something you can do once and forget about.

Your Will or Trust is a “snapshot” of right now. Too much life tends to happen going forward that often makes it necessary for you to periodically update your Will or Trust. An update is generally desired after the 5 to 10 year mark.

However, if nothing has changed in your life since you drafted your Will, there is usually no need to update your Will. Unless changed, once your Will is drafted, it is valid forever.

Typically, over time your needs, wants and circumstances will change. A Will created many years earlier may no longer reflect your current desires, or needs.

Another change in circumstance to consider are the laws. Since your first Will or Trust was created, the laws and other public developments may have changed or been created. These changes can have an impact on your Will. The possible changes, creation, or update in law, is not a cause for concern, but something to be aware of. This is also a good reason to work with an attorney who focuses on estate planning.

The following changes in your life should immediately cause a review of your Will:

1. A change in marital status. Marriage makes the new spouse a pretermitted heir. A divorce might not cut the ex-spouse out of the Will.

2. Children are born or adopted. State laws allow unmentioned children to claim a portion of an estate as pretermitted heirs. These children, however, might not receive under state law what the decedent would have given them.

3. Step-children. In most states, step-children of a deceased person have no rights to inherit under a step-parent's estate. Therefore, if a step-parent, or commonly, if a step-grandparent, wishes to make dispositions to a step-child, that intent must be specifically stated in a Will.

4. Estate Value. The value of the estate changes and the earlier gifts were too much, too little or there is now enough to give to others as well.

5. Death-or- Health Changes. The intended heirs, executors, guardians or trustees have died or he or she are no longer in good health to be able to carry out this role.

6. Laws. Changes in estate or inheritance tax laws that make changing the Will advisable. Also, HIPAA laws are becoming much more stringent and your Powers of Attorney should reference them. Or, have you moved from one State to another? Are the laws of the new state similar or not? Would updating your Will or Trust benefit you after a move?

7. Needs. The necessity for testamentary trusts for surviving spouse and children no longer exists.

A Will should be reviewed every few years for possible changes. Tax laws change frequently and Wills should be reviewed to ascertain their effect on the estate.

An important and very likely change in our lives is moving from one state to another. I have covered whether or not to update an out-of-state will before here. If you have recently relocated, I encourage you to read that post. However, the short version is that just moving from one state to another does not necessitate an update to your Will. There generally are other factors involved, but the move alone is not one of them.

What is the Difference Between a Living Will and a Will?

A living will, despite its name, isn't at all like the Last Wills that people use to leave property at their death. A living will, which can also be called a directive to physicians or advance directive, is your legal document to tell your physicians your wishes for end-of-life medical care, in case you become unable to communicate your decisions. It has no power after death.

With that explanation in mind, one of the major differences between a will and a living will is the time they take effect. A Last Will and Testament has no legal authority until you've passed away, at which time it must be filed with a probate court. A living will, on the other hand, takes effect while you are still alive, but your health care situation has meet certain state requirements giving it authority. Generally, a living will does not go into effect until you are incapacitated, in Idaho, it is often because you're in a persistent vegetative state (brain dead) or your death is imminent, and you are incapable of communicating your end of life choice. Jeppesen Law recommends a living will as a useful way to avoid costly and time-consuming litigation among family members about your end-of-life treatment, if you don’t remember, please read about Ms. Terri Schiavo’s story.

The essential function of a living will is to provide instructions to your health care providers and express your preferences for treatment, which is why in some states it is referred to as an advanced healthcare directive. An advanced directive can signal whether you want to receive all possible life support treatment, including artificial respiration and intravenous feeding. Similarly, your living will can reflect the fact that you do not want to receive life support. You can also express preferences for or against other specific treatments and medical procedures.

Again, this is in sharp contrast to a regular “last will and testament,” which has no effect when the will-maker is alive but becomes legally binding at death.

What Does A Will Cost?

An attorney whose practice focuses on Wills and Trusts should be able to tell you how much yours will cost early in the conversation.  If he or she can’t or won’t give you that information early on, that is not a good sign.

Any time I have been the customer on the receiving end of a service, I don’t really care what the hourly rate of the service provider is.  

I just want to know how much the whole job was going to cost.  

And if I couldn’t be given a total, I would get fairly nervous.

Why shouldn’t lawyers operate similarly.  We should be able to ask a series of questions and then give a firm figure to anyone who asks “how much will this cost?”  

Yet almost all lawyers just shrug and tell potential clients how much per hour they charge.  No wonder clients are nervous about the magnitude of their fees becoming a moving target.

Realizing my own consumer desire for knowing what the total cost will be, I began the practice of quoting fixed fees whenever possible.  ***Fees located on the click through link***

Today, almost all of my work is done for a fixed fee that is specified in advance and only changes when the client desires something in addition or something else.

Sometimes jobs take less time than anticipated.  Sometimes more.  But overall, my years of experience result in a minimum of true surprises.

More importantly, the confidence it gives the client going into the relationship is irreplaceable.

Who Inherits When There Is No Will?

During a phone call this past week I was asked if the state of Idaho would take all of his possessions if the caller died without a Will.

Fortunately, the answer is “probably not.” However, in the highly limited circumstance where there were no remaining blood, or adopted, relatives, then the answer is yes.

Unfortunately, even though the state of Idaho probably will npt take your property for itself, it WILL control who inherits your assets if you pass away without a Will.  And, often times, you will not like who they choose as your beneficiaries.

So, if you want to determine who should receive your belongings, money, and important family items, and you don’t want Idaho to make that determination for you, it is important for you to have a Last Will and Testament prepared so that you make that call.  

Additionally, making the determination of who is to serve as your Executor or Personal Representative to make sure your wishes are followed is a seemingly insignificant assignment, but more issues arise over this one issue that any other I have come into contact with. You can make this determination in your Will. If you don’t have a Will you leave your family members to squabble over who will take this role on.

If you don’t make these decisions in writing, the state will make them for you.

As A Young, Single Person, Without Kids, Do I Need a Will?

You may have heard that it is important to create a Will or Trust. But, you don’t think that necessarily applies to you because you are young, single, and you don’t have children.

Depending on your situation, you might not feel the need to and that’s ok. If you decide you don’t need to create a Will or Trust, you should at least understand what you are facing in order to make an informed decision.

You have a different family dynamic than everyone else. Your dynamic changes what will happen if you die without a Will or Trust, which is called Intestate Succession. The Idaho Code (our law) describes the Intestate Estate as any part of the estate of a decedent (deceased person) not effectively disposed of by a valid Will. Idaho Code 15-2-101.

So, today, I am covering a single person without children.

First, if you do not have a spouse or children, then everything you own will be divided equally between your legal parents. Mom receives half and Dad receives half. This is true even if Mom and Dad are remarried to other people. For some, this is exactly what they would wanted to have happen. For many others, that is the last thing that they would want to have happen.

With intestate succession, the main idea to remember is that your wants and wishes are disregarded. They do not have a voice. So, you may know that Dad raised you and Mom was never around. Or, Mom raised you and you met Dad once or twice in your lifetime. Does not matter one bit, Mom receives half and Dad receives half.

Sometimes Mom or Dad die before you (predecease). What happens then? Since you have no spouse or children to give gifts to, your estate will go to Mom and Dad’s children evenly.

But, you were an only child from your Mom’s side and Dad had three other children with three other women. Does not matter. Dad’s three other children will evenly split your assets.

Last scenario. Mom and Dad predecease you and they did not have any other children. Your assets are now split evenly between Mom’s parents and Dad’s parents. In this case, the chances are that most grandparents will predecease everyone previously mentioned. What happens then? Your assets will end up in the hands of your Aunts and Uncles, or their children.

If this is ok with you, maybe having a Will is not necessary for distributing your assets. Just remember, your wishes and wants do not matter in Intestate Succession.

Still, what is the point of planning if Idaho already creates a plan for you? Answer, Idaho’s plan is limited. It only covers death and assets. There is more to planning than that. I will cover that in the next blog post.

Planning on a Vacation Without the kids? Put Your Concerns at Ease.

Each year I get to experience a new state with my wife for our anniversary. This being our 11th, we have visited every state that borders Idaho (we have even included a trip to Idaho in that number). This year, Arizona. What is the purpose of telling you this? We have kids and we aren’t taking them with us.

Despite my excitement about visiting a new state for our anniversary, and honestly getting some time away with just my wife, the parent and the estate planner portion of my brain goes into overdrive as the trip approaches. If I haven’t mentioned it before, I get a bit anxious travelling away from our kids, especially when both my wife and I are traveling together.

Yes, I know that the odds of being involved in a car accident are astronomically larger than being involved in a plane crash, but I still get nervous.  We are taking the same flight. So, if something does happen, it will happen to both of us. And, as opposed to a car accident, the few times a plane does crash, the wreckage is much more devastating.

With flight plans out of the way (wife’s duties), I took some other steps to ensure that our kiddos will be protected our absence. If you plan to leave your children in the custody of a friend and family member this summer, doing the following things may give you some peace of mind too.

Appointment of Guardian in Case of Death or Incapacity

I have previously appointed a guardian for our sons in the case of my incapacity or death, but the original of the document is stored in my fireproof safe in my home, along with my other estate planning documents. In the state of Idaho, you MUST have a Last Will and Testament to appoint a guardian in case of death.

The guardian I selected knows where the documents are located, but she also lives in another city and the logistics accessing it in case of an emergency would be challenging. So, I made a copy of the appointment to give her, along with a reminder of where the original is located. That way, she’ll at least have a copy in case of an emergency until she can get to the original.

Designation of Power of Attorney for Care and Custody of Minor Child

It’s unpleasant to consider that our sons might require medical care while we are away, but the chance does exist. So, I prepared a Designation of Power of Attorney for Care and Custody of Minor Child giving his grandma, and alternatively my sister-in-law, permission to make any and all health care decisions related to the welfare of our sons at all times while they are in their care and custody.

If you will be leaving your children with a caregiver for a period of time, a Designation of Power of Attorney for Care and Custody of Minor Child for them will ensure that the caregiver has the authority to seek medical care for them if the need arises.

Document Listing Pertinent Information

You know your children’s doctors, dentist, orthodontist, and any medical regimen they are on, but a caregiver may not. So, it’s important to provide your caregiver this information, along with pertinent insurance information, so it is accessible if needed. Include things such as:

  1. The name of your health insurance provider and member identification number

  2. The name and phone number of your child’s physician

  3. The name and number of your child’s dentist and/or orthodontist

  4. Your name and address and a phone number where you can be reached

  5. Any medication your child may be taking regularly, along with instructions on when the medications must be taken and the dosage.

In case of an emergency, your caregiver will have all this information in one place and will be relieved of the stress of having to find it.

And then go on your trip, relax and enjoy a much needed break! I know we will be!

Justin Jeppesen: You Don't Have a Will to Name Guardians for Minor Children? The State of Idaho Will.

Idahoans typically think of estate planning as deciding how your assets should be distributed upon your death. Although this is wholly accurate, this is not always the main concern for parents with minor children.

For us, estate planning also allows us to decide who will raise our kids if we pass away while our kids are still minors.

For many of us, this is our biggest “What If” question. What if I were to pass away, who would raise my kids? Would my family fight over them? Who can afford the extra mouths to feed? Even worse, what if no one decided they wanted to raise my children?

Unfortunately, dying is not limited to people that have lived a long and full life. It can happen to anyone, at any time. In addition to the emotional loss, many times death proves to be a major organizational and financial hurdle for the family members left behind if you do not leave a detailed plan. If you do not have a Will the state will provide one for you, which we covered in this previous blog post.

The state of Idaho will decide who will get your assets if you die without a plan. For us parents of minor kids, more importantly, if we don’t create a plan Idaho will decide who will raise your minor children. That thought can be unnerving. Think about those people who are in your family. Is there someone that you absolutely know you would trust your children with? Would a judge for the state of Idaho, who does not know you, feel the same?

Many people also have family members, who on paper, look like a perfect fit. But, we know that we would never want our kids raised by them. There can be a multitude of reasons for our decision, but if we never legally voice that opinion, our decision is disregarded. Think about that.

Here are some key talking points if you decide you want to name Guardians for your children:

1.      Asking someone to be God-Parent means nothing legally without the proper documentation;

2.      Consider what factors are important to you that you would like to see in your Guardians, read this article on mistakes made while naming Guardians;

3.      Consider whether you like someone as a couple, or just one person as an individual as guardian. Consider how that dynamic would change if death or divorce were to occur;

4.      Don’t consider financial capability of a Guardian. You will take care of that. Even if you don’t have assets, term life insurance is generally very inexpensive. Be an adult, buy it;

5.      If the person(s) you want to raise your children are terrible managers of money, we can split those responsibilities up between Guardian of the child and Conservator of the child’s money, so please don’t consider financial capability of a potential Guardian;

6.      Do NOT feel obligated to “give” your children to anyone because you might hurt their feelings. You will be gone and you can rest assured your children are raised by those you feel will do the best job;

7.      Naming Guardians is the most effective way to stop a family feud before it arises. Families fight over children more than they fight over money;

8.      If you fail to name a Guardian, anyone in the world can apply for the position;

9.      If you fail to name a Guardian, anyone in the world can apply to be managers of your children’s inheritance;

10.  If you fail to name a Guardian and your child is 14 years old, the judge will heavily lean on that child’s preference for Guardian (Now re-read #7, scary thought); and

11.  These documents are private until you pass away. This means no one has a right to read them, so you do not have to worry about hurting anyone’s feelings.

Justin Jeppesen: Choosing a Guardian for Minor Children in Idaho

If you are like me, one of the most important reasons for estate planning is to ensure proper provisions are made for your young children.

 If you have minor children, dealing with all the issues involved can seem overwhelming. I understand, but the alternative is to risk making no provisions and having someone else make those decisions for you!

 When selecting a guardian, consider:

  • Would your parents really have the energy to raise more children?

  • Can you select a sibling or friend?

  • Do you have a sibling you absolutely would NOT want?

  • Will the guardian be able to raise your child like one of their own?

  • Can one person raise all of your children? Should it be a couple?

  • Do you want to name more than one potential alternate? (yes… you do.)

  • Does your primary choice live in another city or state? Would you want them to move to where your kids are? (entice them….)

  • Are you comfortable with the guardian’s parental style and moral beliefs?

  • Have you talked to your selected guardian?

 Once you’ve settled on a guardian, discuss your decision with that person to make sure he or she is willing to take on the responsibility. You should name as many contingent guardians as you can muster, in case your first choice is unable to serve.

 Then – consider money:

  • Are there adequate financial arrangements so that the child’s presence will not be resented? Ie - Term Life Insurance!

  • Should the person who has physical custody also handle their finances? Quick answer, No!

 You may, and in my opinion should, name one person or couple to be your child’s guardian and name another person to handle the child’s finances (called a conservator, custodian, or Trustee).

 Also, you can decide if trusts should be set up and how money should be distributed when your children reach adulthood. I am a huge fan of this strategy. I have had too many conversations with young twenty-somethings that have received a life insurance policy and spent that money trying to cover up the loss of a parent.

 Finally, just because you’ve previously selected a guardian doesn’t mean that person is still the best choice. As your children grow, review your guardian choice every couple of years.

Justin Jeppesen: Estate Planning Tips for Parents of Minor Children

Kids bring with them a lot of added responsibility. If you have kids you already know this. If you are about to have kids, you will find this out shortly.

Of these added responsibilities, protecting them is an obvious one. But when you think of protecting your little ones, has the idea of protecting them after you have passed away, or become permanently disabled, ever crossed your mind?

(I will let you in on a little secret of mine. I never dwelt on the potential of my own death until I had a child.)

One of the responsibilities of having minor kids that you need to add to your list is to create a Will or a Trust. I understand that creating a Will or Trust causes you to think about and plan for death. But, you are already thinking about it anyway. Why not answer your “What-if” questions?

A Will or Trust can provide you with some certainty in the face of life’s complexities, such as who will have the right to be a guardian of your children if they are still minors. Or, dictating who will receive your assets and how those assets will be distributed.

If you have decided to answer your “What-If” question, I am providing a few tips to help:

 

  1. Consider Potential Guardians for your Minor Children. For the majority of parents, this is the first and hardest step to complete. Whether it is due to difficulty imagining someone else raising your children, deciding on one person over another, not feeling like you have available options, not wanting to “burden” someone with your kids, not wanting to hurt someone’s feelings, or not having someone physically near you to care for the, this can prove to be the step that stops you from completing your Guardian Nomination in your Will. The problem is, this problem is still there and unanswered in the event that you pass away.

  2. Consider Your Child’s Financial Needs after Your Death. Using a Trust in your plan prevents a child’s inheritance from being placed in a locked account controlled by the court. You have the opportunity to name a trustee of the trust, who will be responsible for managing the funds that will be used to raise your child. The Trustee will manage the funds how you decide. I help you with this, but think about the things you would financially assist your child with if you were present. Put this in the Trust. In addition to the specifics you provide, the trust assets will be used to pay for your child’s health, education, maintenance and support. Finally, you can designate ages you would like your adult child to inherit the assets in the trust outright. For example, some parents find that 35 is a more appropriate age to inherit a lump sum of money than age 18, Idaho’s prescribed age.

  3. Update Beneficiary Designations. Make sure that your beneficiary designations are up to date on life insurance policies, retirement accounts, or other beneficiary-designated assets, and that these designations match the intent of your will or trust. When considering beneficiary designations and minor children, no designations or a designation directly to the child will result in that account falling outside of your plan and going directly into the child’s hands at age 18.

  4. Create a Durable Power of Attorney for Care and Custody of Minor Children. If you are traveling, of your child is traveling, or you become disabled or incapacitated, a Durable Power of Attorney gives the person you designate the power to make medical and financial decisions on your behalf for the child. Absent this document, and without a spouse present to make the decisions for you, the only alternative to naming someone to take on medical or financial decisions for your child is through a court-appointed guardian.

How long should this all take? It depends on how to decide to tackle the planning, ie a Will or a Trust, but at my office, plan on taking time at home to fill out a questionnaire, one planning meeting that lasts 40 - 75 minutes. I will then draft and you will review your documents, followed by a short meeting to finalize your documents. Not so painful. Often the time it takes you to make decisions about guardianship far exceeds the time it takes to get the documents in place once those decisions are made.

Issues With Owning Out of State Property

If you own real property in more than one state, additional planning requirements are necessary during the Probate process.

Unless special arrangements have previously been made, when a person passes away with property in more than one state, the personal representative of the deceased will have to initiate Probate proceedings in State where the deceased person lived, and then they will be required to initiate an ancillary probate in each other state where the deceased person owned other properties.

The requirement to initiate ancillary probates can substantially increase the cost of administering one’s estate when he or she passes away.

If you own property in more than one state, creating a Living Trust or Family Trust not only avoids probate in the state where the deceased person lived, but they also avoid the requirement of ancillary probates in the others states.

In most cases, the cost of creating a trust is minimal when compared to the cost of having to administer an estate in multiple states.

Avoiding Probate in Idaho with a Small Estate Affidavit

Is Probate required to transfer assets when I pass away? Is there an option if I don’t have much?

Probate is required under one of two circumstances in the state of Idaho. One, you personally own any interest in real property. Or, two, you own more than $100,000.00 in probate-able assets.

So, what if your estate does not meet either of these criteria? Is Probate required?

In Idaho, the law allows for the collection and disposition of assets through a Small Estate Affidavit, found under Idaho Code 15-3-1201. In addition to the asset requirement, the affiant must swear to additional information as well.

The law does allow for the avoidance of Probate, but that may not always be your best option. Consider three potential outcomes.

First, did the deceased person have a Will? If so, the provisions of that Will must be carried out. By avoiding Probate, you also avoid the neutral party in the Judge of ensuring that the provisions of your Will are followed. That way your last wishes still have a voice. Otherwise, a potential arises of someone filing a contest.

Second, did the deceased person have debts? If so, the Probate process can allow for the elimination of some of those debts through a notice to creditors and the 4-month limitation on claims that accompanies the notice. If you proceed with the Small Estate Affidavit, you do not benefit from this limitation on filing a claim. Also, if you collect and spend all of the assets in which a creditor has priority, you may be required to refund the creditor long after you spent the money.

Third, did the deceased person have assets outside of the State of Idaho? The other state might not acknowledge the Idaho Small Estate Affidavit.

I understand that the popular thought is to avoid Probate. There are options available to you, including the Small Estate Affidavit. However, I urge you to have a better understanding on the topic of Probate before proceeding. If you believe the estate of a loved one is eligible to avoid Probate, call Jeppesen Law today at 208-477-1785 for a free consultation and we can discuss your options.

How to Avoid Probate in Idaho

If you have ever heard of Probate, or heard someone talking about Probate, it is usually in a negative light and in terms of avoiding it (or wishing they had avoided it).

Recently, I have shared some information on what Probate is, when Probate is required, the typical cost of going through Probate, and the most surprising bit of news I ever get to share, when a surviving spouse is required to go through Probate.

But, how do you (or I) avoid Probate? I will offer three potential different paths to avoiding Probate to chew on.

First, don’t own enough assets that would “require” Probate. Typically, if you have less than $100,000 of Probate-able assets and you do not owe any real estate, you can, and might want to avoid going through Probate. Although initially, this does not sound ideal, a large portion of our population fall into this category.

Second, you can try to piecemeal a plan together to avoid Probate. Update the Beneficiary Designations for ALL of your financial accounts, update all of your title-able personal property into an ownership status called community property with rights of survivorship, and update the ownership of all real estate into the ownership status of community property with rights of survivorship. This step typically only helps avoid Probate for the first spouse to pass away in a married couple. Also, this step has severe inheritance consequences that are too complex to cover in a simple blog post. Please know that I recommend against updating your ownership of these assets without first consulting an estate planning attorney to discuss the consequences of your potential decision.

Third, is a Living Trust or sometimes called a Family Trust. A Trust is a universal solution that covers all types of property upon the death of both spouses. In my opinion, this is the best option available to avoid Probate.  A Trust that is properly established and maintained (not difficult, but certain actions will need to happen in the future), it will avoid probate entirely, including the delay and the expense, upon the death of both spouses.

That’s why so many people understand that a Living Trust or Family Trust is the best option for avoiding the time and delay of probate.

Is Probate Required for a Surviving Spouse?

The unthinkable just happened. Your husband or wife just passed away, either expectedly or unexpectedly. Your spouse had everything updated and had a Will. So are you, the surviving spouse, required to go through Probate?

There are few scenarios that frustrated clients more than when they learn that the client has a 6-month long probate legal proceeding ahead of them, which is required to move the deceased spouse’s property and possessions into the name of the surviving spouse. Especially, when they believe that they had everything “taken care” of.

Most Idahoans believe that the living spouse is automatically entitled to all of the deceased spouse’s property and that the Probate process will NOT be required.

Unfortunately, that is not the case.  Unless the spouse who passed away took special steps to avoid the probate requirement, it will be necessary even if the surviving spouse is legally entitled to inherit everything. However, creating a Will is not a special step to avoid Probate.

A special step that is used most often, and is the most effective, to avoid probate is to set up a Revocable Living Trust or Revocable Family Trust.

Justin Jeppesen: When is Probate Required, When is it Not?

After the dust begins to settle when a person passes away, the dreaded thought that now you must go through Probate for their estate seeps into your thoughts. Often times you are correct to think this, but multiple times a week I talk with people that aren’t required to Probate a deceased person’s estate. So, when is Probate required?

In the state of Idaho, Probate will be required to administer a deceased person’s estate if he or she meets one of the following two factors, or both: 1) $100,000.00 or more of personal assets; and/or 2) any interest in real property (ie personal residence, condo, undeveloped land, oil interests, etc.).

If you have a house, even if there is a mortgage on it, you will go through Probate. If you have a large collection of jewelry, tools, or guns chances are you will go through Probate. If you have a life insurance policy, retirement account, CD, investment account, or checking and savings account that does not have a beneficiary designation on it, you are probably going through Probate.

Is Probate required for you? That depends on whether or not you meet one of the two Probate triggering factors. The real property factor is easier to understand than the $100,000.00 personal asset factor. Either you own a home, or land, or don’t.

If you don’t meet either factor, Probate is not required for you. Yay! Having stated when Probate is required, please understand that a skilled, competent, and experienced estate planning attorney can explain to you the ways to avoid Probate, even if you meet the requirements under the law.

Ultimately, if a person owns property worth more than $100,000.00, or if he or she owns any real estate, the most effective means of avoiding Probate is through the use of a Living Trust.  A Trust, properly prepared and funded with the assistance of a lawyer, it is the best way to avoid probate.

Justin Jeppesen: Cost of Idaho Probate

If you find yourself having to Probate the estate or Will of a loved one, among the chief-est of concerns is the Cost? Let alone all of the other unknowns involved with Probate, the cost is often the one question most people in my office want to know.

While I can’t guarantee you a cost, I can provide general guidelines. If everything went well, with no surprises, you can expect to spend somewhere in the neighborhood of $2K - $5K throughout the entire Probate process on Attorney’s fees. Again, only if everything goes off without a hitch.

Jeppesen Law charges a flat rate of $2,000 to proceed with an informal probate. Often, this is the only charge for Attorney’s Fees that the clients incur. However, my Representation Agreement has built in per hour price contingencies if an unexpected Creditor Claim or Will Contest arises, but that seldom occurs.

What does that $2,000 include? An informal probate proceeding (no court, yay!), Office Consultation regarding probate of decedent’s estate, Prepare of Application for Informal Probate and Informal Appointment, Preparation of Statement of Informal Probate and Appointment, Preparation of Letters Testamentary, Prepare of letters to the Probate Magistrate Judge in the Venue county, Preparation of the Notice to Creditors to be Published with the local Newspaper, Filing the Application and other pleadings with the County Probate Court, Real Estate Transfer Documents, Publication Fees, and County Probate Court Filing Fees. Whew, that was a mouth full.

As a reminder, it is always a good idea to ask your attorney early on in the process of estimated costs. After ask a number of specific questions that can lead to pitfalls, the attorney should be able to provide an estimated cost. Better yet, hopefully he/she can offer you a fixed fee plan. This approach encourages efficiency and economy that ultimately works to the benefit of the clients.

However, to avoid both the cost and the time delay of probate, a Living Trust or Family Trust is often the best option available.

Justin Jeppesen: Idaho Probate Explained

In a very basic description, probate is the court process to oversees that the correct people inherit  property when someone passes away.

With or without a Will, Probate is initiated with a petition.  And, by law, the Probate process must last at least 6 months.

Once the probate court determines whether or not there is a Last Will & Testament, then the court appoints the appropriate person to serve as the Personal Representative of the Probate Estate.  Usually that person is named in the Will, however, that person can be appointed if they have priority for that role under Idaho law if there is no Will.

After the Probate court appoints the Personal Representative, he or she will collect the deceased person’s assets and property, pay legitimate creditor claims, sell any property that cannot be divided, and distribute the remaining property and funds to the named heirs or appropriate devisees.

During that remaining 6 months the Personal Representative will prepare and file a list of the decedent’s property and will provide an “accounting” to the court describing the property and financial details of the probate process.

At the end of the 6 month period, if the Personal Representative is finished with his or her work, ie creditors have been dealt with, remaining property distributed, etc., a final statement is filed with the court closing down Probate.

Justin Jeppesen: What Does Complimentary Consultation Actually Mean?

The purpose of a complimentary consultation, also referred to as a discovery session, strategy session, sample session, get acquainted call, etc., is for me and a potential client to get to know one another a bit and to determine if the two of us are a good fit to work together. We are interviewing each other. Why would I charge you to see if I want to work with you?

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