Creating an Idaho last will and testament is important if you wish to have control over the distribution of real and personal property upon your death. Idaho wills give the person writing the will, called the testator, the opportunity to provide for a spouse, children, other loved ones, and pets after her death. You can also make a charitable contribution via your Idaho will.
It is important to note that a last will differs from a living will in that the latter provides instructions in the event that you become incapacitated and cannot make decisions regarding your health and medical care. Idaho explicitly allows living wills under its Medical Consent and Natural Death Act.
Do you need a last will and testament?
Although a last will and testament are not legally required, without a will, the laws of intestacy will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes, however, which means it is generally advisable to create a last will and testament.
Having a last will and testament can be beneficial for many reasons, including the fact that it allows the testator to choose the executor or personal representative of her estate, the person who will be responsible for carrying out the wishes contained in the will. If you do not choose an executor of your estate in a will, a court will do so for you.
A will can serve various purposes, most notably by providing a way for the testator to detail how assets such as real estate, personal possessions, and bank accounts, should be divided upon her death. In general, Idaho law permits you to dispose of your property as you see fit, with some exceptions as described more fully below.
Moreover, an Idaho will allows you to name someone as the legal guardian of your children and/or handle property left to minor children.
In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Idaho law explicitly permits the creation of a trust to provide for the care of animals. An Idaho will gives you the opportunity to set up this kind of pet trust (although not called as such under Idaho law).
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will. In Idaho, small estates (those with a net value less than $100,000) or those for which the sole beneficiary of the estate is a surviving spouse may be eligible for a simplified probate process.
Otherwise, the court will name a personal representative of the estate, who can then proceed to pay debts and taxes of the estate and then distribute property according to the will.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Idaho, in the absence of a will, the share of the surviving spouse depends on how the couple owned property (separate or community) and whether the decedent had surviving descendants or parents.
If there is no surviving spouse, children, or parents, the estate goes to the decedent’s siblings, grandparents, aunts and uncles and so forth down the line. The closer the relative, the higher the priority to inherit.
Accordingly, you can see the importance of making a Idaho will if you would like to have control over the distribution of your assets and to avoid the application of intestacy laws.
Exceptions to ability to distribute property
Not all property owned by the testator may pass through a Idaho will. For example, any property owned in joint tenancy with the rights of survivorship, which passes automatically to the survivor. Also, any community property goes directly to the surviving spouse.
Form a last will in Idaho
The basic requirements for a Idaho last will and testament include the following:
- Age: The testator must be at least 18 years old or an emancipated minor.
- Capacity: The testator must be of sound mind.
- Signature: In order to be valid, the will must be signed by the testator or by someone other than the testator in her presence and by her direction.
- Witnesses: At least two people who witnessed either the signing or the testator’s acknowledgement of the signature or of the will must sign the will in order for it to be valid.
- Writing: An Idaho will must be in writing to be valid.
- Beneficiaries: Idaho does not limit the class of beneficiaries who may be included in a will.
Other kinds of recognized wills
In addition to the last will and testament as described above, Idaho also recognizes holographic (handwritten) wills as valid legal documents so long as the signature and material portions of the document are in the testator’s handwriting.
Changing an Idaho last will and testament
A Idaho last will and testament may be changed whenever the testator wants to do so through a codicil, an amendment to the will that must follow the execution procedures of wills.
Revoking an Idaho last will and testament
The revocation of an Idaho will can be accomplished in the following ways:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
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