Idaho Estate Planning What Happens if You Leave no Written Will?

By Lane V. Erickson, Idaho Estate Planning Attorney

There are lots of statistics associated with estate planning both in Idaho and in the United States. Sadly, these statistics reveal that only about one-third of all adults have any type or kind of written estate planning completed at some point in their life. Of those that have a written estate plan, more than half have not updated it for more than a decade. What this means is that only about one out of every eight adults, which is about 12%, has an up-to-date estate plan. Everyone else has either nothing or a written estate plan that is out of date. This article is focused on this group of people.

If you have no written estate plan or if your estate plan is out of date and no longer works, then it is the same as having no plan at all. When you have no written estate plan, that means that you are “intestate” which simply means that you have no written last will and testament. When this occurs, in Idaho, the intestacy statutes control everything about your estate after you die.

Because so few people have a written estate plan in place, his situation comes up more often than you would think. I have seen it happen with single parents, with married couples, and with individuals who are going into a second or a third marriage. I’ve seen both young and old adults pass away without a written Will. I’ve also seen people who have created a written Will but haven’t updated it for many years and because the circumstances of their lives have changed, the Will no longer works.

I have also worked with families whose loved one has died with a well-thought-out written Will. I can tell you from personal experience that when a written Will exists it almost always makes the process of dealing with the person’s estate easier. Because of this, I encourage everyone I talk to get their estate planning done.

I’ve found that most people don’t get their estate plan done because they don’t know where to start. The good news is we made it easy. Just download our free Estate Planning Questionnaire. By filling out this document you will be gathering together all the information you need to consider when it comes to making decisions about your own estate plan. We also offer a free 30-minute consultation to review your Questionnaire and to talk with you about the different options available to you based on what you want to accomplish.

So, what exactly happens if you don’t have a written Will? I’m glad you asked. The rest of this article will talk about what occurs after you die when no written Will exist.

The question I am most often asked when there is no written Will is whether probate is still required. Probate, which is the process of dealing with creditors and distributing the assets of the estate, is not dependent on whether there is a written Will or not. In other words, if the circumstances are right, a probate will be required regardless of whether you do or don’t have a written Will.

In Idaho, a probate is required anytime a person dies when they have an ownership interest in a home, land, or any other type of real estate. This is true regardless of the value of that real estate. The reason this is true is because while the person is alive they have the ability to sign a deed to transfer their ownership interest in real estate to someone else. However, after they die, there is no one who has legal authority to sign a deed on behalf of the deceased person. The only way that a person can get the legal authority to do this is through the probate process.

Additionally, even when there is no real estate in the assets owned by the person who died, a probate may still be required. The key here in determining whether a probate is required is the total value of the estate. According to Idaho statutes, if the value of the deceased person’s estate is more than $100,000, regardless of what those assets are, then a probate is required.

The total value of an estate is made up of all kinds of assets. These usually include things like bank accounts, vehicles, guns, jewelry, furniture, decorations, as well as any other items owned individually by that deceased person. It could also include money that was owed to the deceased person. In other words, if they made a loan to someone and that loan was being paid back, the value of that loan is included as an asset of the estate.

However, there are some specific things that are controlled and determined depending on whether there is or is not a written Will. The first thing that is determined is who the personal representative of your estate will be.

When you have a written Will, you can name or nominate whoever you want to be your personal representative. You can choose a spouse, or a child, or a sibling, or even just a close friend. The key is that you have the ability to choose who that person will be. You can also name successive choices so that you have a line of people who will go in a certain order. In other words, if the first person you choose is unable or unwilling to serve as your personal representative that you can make backup choices who can step in and do it for you.

Things are much different when you do not have a written Will. In this circumstance, the intestate statutes provide a description of who could be your personal representative. For example, if you have no spouse but you have five children then any of the five children could be named as your personal representative. The problem with this situation is that your five children may not agree on who that person should be.

If more than one person throws their hat in the ring to be named as your personal representative, then the court will have to determine who that person will be. This could create a contentious situation between those who want to be appointed. My experience is that this usually leads to a family fight that creates hard feelings that never go away. In the end, the court will appoint someone to be the personal representative but usually when this occurs, family relationships may have been destroyed.

The next issue is who will get the assets from your estate when there is no written will. Again, the intestate statutes control. The order of priority is that if all the property you own was community property and you are married, then your spouse will inherit everything. However, if you own separate property that your spouse will get what half of that and you’re surviving children will get the other half.

If you have no surviving spouse, then your children will split everything in your estate equally. Well this may sound okay; it often is not. In other words, your children may not agree on who should get what parts of your assets. When this occurs, the only option the personal representative has is to liquidate or sell your entire estate and then distribute money. This means that if any of your children had a Sentimental tie to any of your property, they may not end up with that property through your probate.

By having a written Will, you have the ability to give specific gifts to whoever you choose making sure that your children and other family members and loved ones will receive the property from your estate that you would want them to have.

We have helped numerous people create their own customized written estate plan. We believe that it is in everyone’s interest to have their own written estate plan so that their instructions and wishes are followed after they have passed away. If you have questions or concerns about creating your own estate plan, we are confident we can help.

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.