Estate Law FAQ

Every adult should consider preparing an estate plan.  This is true regardless of your age or the value of your estate. Whether you are new parents welcoming your first child, a single professional in the height of your career, a high school graduate heading off to college, grandparents planning for your sunset years, a married couple finally checking off a box on your “to do” list, or any other category you may place yourself if, it is important to take those steps to plan now.

• It is important for you to decide how the assets you have (the money, property, and possessions you have accumulated during your lifetime) will be distributed upon your death.
• It is important for individuals and couples to appoint trusted family or friends to act on their behalf, as directed in planning for disability or incapacity and death.
• It may be important for you to consider options that may protect your assets from unnecessary taxes and avoidable attacks of creditors.
• It is important for you to consider healthcare decisions, medical directives, end of life preferences, and burial instruction.
• It is important for young families to plan for the care of their minor children.
• It is important for young adults to decide if their parents or any other trusted person will be permitted to access medical information and act on their behalf in the event of a medical emergency.
• It may be important to prepare a plan to ensure eligibility for benefits is not lost and to plan for future care.
• It may be important for non-familial beneficiaries, blended families, and non-traditional families to properly include or exclude potential beneficiaries.  
• It is important to make these plans before it becomes necessary because of illness or death, when it is often too late to take advantage of planning tools, and when the decisions will be made during an already stressful and emotional time.  
• It may be especially important to make these Estate Planning decisions and directives if there may conflict between your own wishes and those of your family, or to avoid disagreements between loved ones.   

Most often, a basic will only costs a flat rate of $300.00 to $500.00 to prepare. If your will is more complicated, or you would like to set up a trust, our attorneys would bill their standard hourly rate and our firm would require a retainer to get started. Every client’s legal needs are different, so we suggest scheduling a consultation to see how complicated your will may be, and how much it may cost for us to prepare it for you.

A Will, sometimes called a “Last Will and Testament,” is a document that designates how your assets and possessions will be distributed, and if necessary, appoints individuals to care for your minor children upon your death. A Will appoints an Executor or Executrix, who serves to administer your Will, paying debts and taxes and distributing your remaining assets as dictated in your Will. Those who you want your assets to be distributed to will be named as Beneficiaries in the Will. Provisions appointing a Guardian and, sometimes, a Trustee will be included for those with minor children. If you die without a Will, your estate will be distributed in accordance with laws governing intestate succession.

While your estate may not necessarily revert to the State, it may not automatically be distributed as you assume or intend. Likewise, and more importantly, your children may be placed with family that you would have entrusted to another, or similarly situated next of kin, for example, two sets of grandparents, may engage in legal battle to assert their right. An estate plan, including a Will, is important to not only avoid intestate succession and guardianship battles, but also to ensure your legacy and your directives given upon your death.

A trust is a legal entity and fiduciary relationship that allows an individual called a trustor or grantor to give another party, the trustee, the right to hold title to property and assets for the benefit of a third party, the beneficiary. Trusts are created for several reasons, for example, to control the precise distribution of your assets, to protect your legacy from creditors, for privacy and to avoid Probate and estate taxes, or to preserve a portion of wealth while maintaining eligibility for programs such as Medicaid.

There are many categories of Trusts, but they generally fit into one or more of the following categories:

Living Trust or Testamentary Trust

A living trust is where an individual’s assets are placed in trust for use during their lifetime. The assets are transferred to the named beneficiaries upon the individual’s death. Living trusts can be revocable or irrevocable.

A testamentary trust, or will trust will, specifies how the assets of the individual are designated after the individual’s death. The assets must first pass through Probate.  A testamentary trust is irrevocable.

Revocable or Irrevocable Trust

A revocable trust can be changed or terminated by the trustor or grantor during his lifetime. An irrevocable trust is one that generally cannot be modified or changed once it is established.

Funded or Unfunded Trust

A trustor or grantor will put assets into a funded trust during his or her lifetime. An unfunded trust consisted only of the trust agreement with no funding. Unfunded trusts become funded upon a trustor’s death, or remains unfunded, contrary to its intent.

Types of Trusts

Some types of trusts include special needs trusts, credit shelter trusts, charitable trusts, generation-skipping trusts, insurance trusts, qualified terminable interest property trusts, spendthrifts trust, separate share trusts, blind trusts, Totten trusts, and more.

Trusts are not exclusively for the wealthy.

Properly drafted trusts serve a number of Estate Planning objectives. Call to schedule a consultation with our estate law attorneys to evaluate whether you would benefit from a trust.

A Power of Attorney is a legal document that allows a person to appoint an agent to act on his or her behalf. Powers of Attorney are only effective during the life of the person, and the designation ends upon their death.

There are different types of Powers of Attorney (POA), each with a unique purpose:

A General Power of Attorney will allow the agent to perform almost any act as the principal, such as making and managing financial decisions. A general POA is terminated when the principal becomes incapacitated, revokes the POA, or passes away.

A Durable Power of Attorney includes a clause that maintains the agents’ power after incapacitation of the principal.

A Limited Power of Attorney serves a specific purpose, for example granting the agent authority to sign documents or sell real estate on the principals’ behalf.

A Springing Power of Attorney may spring into effect only when and if a certain event, such as when the principal becomes incapacitated.

There are also Medical Powers of Attorney which would allow an agent to determine what care the principal receives, including hospital care, surgery, psychiatric treatment, home health care, etc.

An agent under a Power of Attorney cannot transfer their right to someone else, nor can they change a principal’s will. They have a duty to act in the principal’s best interest. They cannot act on behalf of the principal after their death (unless they are doing so as the executor of their will, or the principal dies intestate and is appointed administrator of the will).

An Advance Directive, sometimes called a Healthcare Directive or Advance Healthcare Directive, is a document that is created to ensure your preferences as to medical treatment are followed if you are unable to make your own decisions.  It goes into effect if your physician determines you are unable to understand your diagnosis and treatment options or the possible harms and benefits of them.

A Durable Power of Attorney for Healthcare, or Medical Power of Attorney, is a document created to appoint a person as your healthcare representative.  This representative is asked to make healthcare decisions on your behalf in the event you are unable to make them for yourself.  This can be because of a temporary or permanent medical condition. Your healthcare representative will make decisions in your best interest, and if your instructions are known, in accordance with those instructions.

A Living Will, is a document created to have your end-of-life instructions honored.  It is drafted to identify under what circumstances you would or would not want to have life-sustaining treatment if you are unable to make those decisions on your own behalf, for example, because you are terminally ill or permanently unconscious with no medical options to extend a quality of life.

If you recently lost a family member, you are probably dealing with grief and loss. However, you still have the practical side of the situation to manage, which includes determining what to do with the estate.

Probate is the legal process to disperse the assets of the decedent. The courts oversee the management of the estate according to the will, or state law, if no will was found. They monitor the actions of the personal representative until Probate is ready to be closed.

Probate is required in Idaho if the deceased person was a named owner of property. The courts are also used to validate the will, which means filing with the county court after the death of the estate owner.

The Probate process: 

1. The Will and a Petition to Open Probate is filed with the county court. An executor or personal representative is chosen and approved by the court. They receive documents that allow them to act on behalf of the estate.
2. The executor must notify the heirs that Probate is open. They also take inventory of the assets of the estate and values them.
3. The executor must notify the creditors and pay any debts owed by the estate. This includes filing taxes and paying them. To notify the creditors, they must publish the notice in a local newspaper for three weeks.
4. Once all debts have been paid, the executor can file a petition to close the estate and pay the heirs.

Several factors may have an impact on the timeline to complete the Probate process in Idaho. For instance, if the will is contested, this dispute must be settled before the process can continue. While creditors have up to four months to present claims, there is a provision which allows claims to be accepted for up to three years after the decedent’s death. You should expect that it will take around eight months to a year before Probate will be closed if there are no delays. With a delay or two, it could be much longer before the assets can be distributed to the heirs.

A simple Probate may only cost around $1,500, but a more complex one could cost much more. The cost to file and oversee Probate is determined by many variables. If the will is contested, the size of the estate, the number of beneficiaries or heirs involved, the number of creditors to be paid, and the complexity of the financial accounts to be closed all affect how much work an attorney must put into your case.  Give us a call so we can discuss the details of your Probate and let you know how much you can expect it to cost.

If the value of the estate is less than $100,000 and there is no real property involved, you can avoid opening a Probate and use an Idaho Small Estate Affidavit for Collection.

This sworn statement in writing allows the person to transfer a title or deed to the heir. The heir needs only to show the affidavit and a copy of the death certificate to the holder of the asset or title. You can use a small estate affidavit to claim life insurance, pay debts and taxes, and conclude any other personal business on behalf of the deceased. There is a 30-day waiting period before the person can claim the assets with a small estate affidavit.

For those who live in Idaho, there’s no specific inheritance tax you’ll need to pay when inheriting property from a relative. However, if you inherit the property from someone who lives in Pennsylvania, Iowa, New Jersey, Nebraska, or Kentucky, you will be sent a bill to pay a certain amount of inheritance tax, the amount of which differs from state to state. This amount largely depends on how much you’ve inherited, and it’s important to know about the exemptions associated with these taxes. You could receive a full exemption or a reduction of a portion of the tax depending on your exact relationship with the deceased.

When it comes to the federal estate tax, it’s estimated that only two out of every 1,000 estates is required to pay the tax. This is due to the fact that the assets you’ve inherited from the deceased person will need to exceed several millions of dollars in order for the estate tax to be levied. If the estate at the time of death does not exceed the taxable threshold, those who inherit the estate won’t have to pay any taxes due to an exemption.

It is the position of Sasser and Jacobson, PLLC, that all income is taxable unless specifically excluded by the IRS. Please consult your tax advisor on the tax implications of your inheritance.

Yes, Idaho law allows for the personal representative to be paid for their time and expenses. They are also allowed to renounce any compensation or refuse it if they so desire.

According to the Idaho Uniform Probate Code, the personal representative is entitled to reasonable compensation. If the will addresses compensation, the court will abide by that guideline. If it isn’t mentioned in the will, the court will determine what is considered reasonable based on the complexity of the estate, the amount of work the executor has had to do and what other cases have paid for similar duties.

Idaho is one of the few states that follow the Uniform Probate Code. This provides a standard set of rules that is used to determine if Probate is necessary and how it should be handled. You can find the Probate code in Title 15 of the Idaho legislature. Title 15 of Idaho Probate Code