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 Once you have a well-drafted estate plan in place, the hardest work is done and you should congratulate yourself on checking this critical item off your “To Do” list.
Nonetheless, every couple of years, you’ll want to review your plan and make sure it still reflects your family’s needs and wishes. Life happens: children grow up, people move, you buy or sell a house. You want your estate plan to keep up with these changes. Life changes that should be addressed in your estate plan include:
If you’ve experienced any of these life changes, or something else you think should be addressed in your estate plan, give us a call at 208-995-9224 or shoot us an email - [email protected] - and we’ll get it taken care of.  The death of a loved one is inherently challenging, but the situation grows more complex when you know they made a Will but you can't find it. Idaho law, however, provides a pathway for handling such scenarios. This post will guide you through the process of probating a lost Will in Idaho.
Idaho’s Approach to Lost Wills The good news is that, in Idaho, you can still probate (legally process) a Will even if you can't find the original. In fact, even if you can’t find any physical copy of the Will at all, as long as you have strong evidence about what the Will said, you can still submit it to probate. Overcoming the Presumption of Revocation The initial hurdle in probating a lost Will is addressing the "presumption of revocation." This legal principle assumes that if a Will was last known to be in the possession of the person who died, but is now missing, the deceased may have intentionally destroyed the Will with the intention of revoking it. Don’t worry, you can overcome this presumption with appropriate evidence. Establishing Non-Revocation To counter the presumption of revocation, you'll need to present compelling evidence. This might include:
Proving the Will’s Contents Once you've overcome the presumption of revocation, the next step is to establish the Will’s contents. This process is more straightforward if you have a copy of the Will. In the absence of a copy, you'll need to provide substantial evidence of the Will’s provisions. Statements made by the deceased will not be enough on their own. The most persuasive testimony typically comes from the attorney who drafted the Will or witnesses familiar with its contents. The Dead Man’s Act: A Potential Complication An additional factor to consider is Idaho's Dead Man's Act. This statute can limit admissible testimony regarding conversations with the deceased. While this may complicate the process, an experienced probate attorney can help navigate this potential obstacle. Conclusion While probating a lost Will in Idaho presents challenges, it's far from an insurmountable task. The key points to remember are:
Every situation is different, so it’s a good idea to talk to a lawyer who knows about Idaho probate law. Our office can help guide you through the process and help you gather the right evidence to present your case to the court. Understanding the Difference Between Probate and Non-Probate Assets: The Two Bucket Approach10/27/2024
 When creating your own estate plan or administering the estate of a loved one after they have passed, one of the most crucial distinctions to understand is the difference between probate and non-probate assets. This distinction can significantly impact how assets are distributed after death and whether beneficiaries need to go through the court-supervised probate process.
We have found that understanding how assets transfer after death is simpler when you think of it as two distinct "buckets." Bucket #1: Assets with Beneficiary Designations The first bucket contains assets that pass directly to beneficiaries without court intervention. These assets have built-in mechanisms for transferring ownership upon death through beneficiary designations or joint ownership. The transfer process is typically quick and straightforward, requiring only a death certificate and the beneficiary's identification. Examples of Bucket #1 Assets include:
The second bucket contains everything else, assets that must either go through probate or transfer according to a trust agreement. These assets typically don't have built-in transfer mechanisms and require additional legal steps to pass to beneficiaries. Examples of Bucket #2 Assets include:
A will or trust agreement primarily controls assets in Bucket #2. However, it's crucial to understand that beneficiary designations (Bucket #1) override what a will or trust agreement says. This is one of the most common misunderstandings we encounter and it can lead to disastrous results. For example, we recently assisted with the administration of an estate in which the deceased mother had named her eldest child as a joint account holder on an investment account that held the bulk of her assets. The only reason she did so was because she wanted that child’s assistance in managing the investments. She did not intend to gift the account to that child alone. In her will, she stated that at her death she wanted all four of her children to share the funds in the investment account equally. Unfortunately, no one had advised her that the joint account designation would override her will. At her death, the account custodian immediately transferred all of the assets in the joint investment account to the eldest child as the joint account holder. Although in this situation, the eldest child ended up making gifts to her siblings to fulfill their mother’s wishes, not everyone is going to be that magnanimous nor will it always be feasible to make such gifts. Good Planning Can Clarify Which Assets Are in Which Buckets An experienced estate planning attorney can help ensure your estate plan effectively addresses both types of assets and achieves your specific goals for asset distribution. And if you are the one administering an estate that contains assets in both buckets, an experienced estate planning attorney can help you and the beneficiaries navigate the transfers.  We recently had a client who lost her mother after a long illness. As she sorted through her mother’s papers, she discovered that her father’s name was still on the deed to the family home and several bank accounts. Her father had passed away more than ten years before, and our client’s mother had never formally settled his estate. Panic set in as our client remembered something about a three-year limit for probating estates in Idaho. Her first question when she met with us was: Is it too late to handle her parents’ affairs properly?
Fortunately, it was not too late. Idaho law provides a solution for this situation, and it’s called joint probate. Understanding Joint Probate Joint probate is a legal process in Idaho that allows for settling a married couple’s estate after both spouses have died, even if the second spouse took no action to retitle property after the first spouse’s death. For our client, this meant she could still properly settle both her parents’ estates, despite the long gap between their deaths. When Joint Probate Becomes Necessary Our client’s situation is not uncommon. Several scenarios might lead to the need for joint probate:
Idaho Code 15-3-111 provides the legal foundation for joint probate. For our client, this law meant she could join both her parents’ estates in a single probate proceeding, even though her father died over 10 years ago. The key requirements for joint probate are:
Luckily, because our client acted promptly after her mother’s death, her initial worry about the three-year limit for probate wasn’t a problem. In joint probate, the three-year limit only applies to the death of the spouse who died last; in this case, our client’s mother. This meant our client could still use joint probate even though it had been more than a decade since her father passed away. Conclusion While our client initially felt overwhelmed by discovering her mother hadn’t settled her father’s estate, joint probate in Idaho provided a solution to her problem. If you or someone you know encounters this challenge, we recommend consulting with an Idaho probate attorney to help navigate the joint probate process.  Dealing with the loss of a loved one can be overwhelming. It's easy to overlook certain important estate administration tasks during this difficult time. While concerns over safeguarding bank accounts, managing real estate, and settling debts often take precedence, there are several less obvious responsibilities that require attention in the months following a death.
Each of these tasks, while seemingly small, plays a part in properly settling your loved one's affairs. But it's important to remember that while these tasks are necessary, they don't all need to be addressed immediately. Take things one step at a time and keep in mind that it's okay to take breaks when needed. The grieving process is different for everyone, and it's crucial to take care of yourself during this challenging time. Don't hesitate to ask for help from friends, family, or professionals if you feel overwhelmed. With patience and perseverance, you'll be able to navigate this difficult process. Our office is here to help you through this difficult time.  A Living Trust involves three key roles. Often, the same person takes on more than one of the roles. We like to think of each role as a separate hat.
In the case of married couples, spouses usually, but not always, set up a joint Living Trust. In that case, both spouses wear all three hats during their joint lifetimes. Depending on the terms of the Living Trust, after the first spouse dies, the surviving spouse may continue wearing all three hats and have the power to change the terms of the Trust. In other cases, the surviving spouse may not have the right to change the terms of the Living Trust with respect to a portion of the assets in that Trust.  Congress has enacted new reporting requirements for limited liability companies that impact almost anyone who has an interest in a limited liability company (“LLC”) or other small business, or who is a senior officer of a limited liability company.
Congress created the new reporting rules to combat money laundering and terrorism by making it more difficult for bad actors to hide or benefit from their ill-gotten gains through shell companies or other opaque ownership structures. The reporting requirements were created by the Corporate Transparency Act (“CTA”), which passed in 2021 with bipartisan support. The CTA requires most limited liability companies and other small businesses to submit a Beneficial Ownership Information Report (“BOIR”) to the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”). The most important take-aways are: (1) almost everyone who owns or controls a limited liability company must report their “beneficial interest” to FinCEN; (2) there are potential significant civil and criminal penalties for not reporting; and (3) reporting must be done by the following deadlines:
Although this sounds ominous, the beneficial interest reporting process is relatively simple and can either be done online at https://boiefiling.fincen.gov/or by completing a PDF and uploading it on the FinCEN website. The information you are required to provide includes basic information about the limited liability company, such as the name of the LLC, state of formation, tax identification number, and address of the company, and basic information about yourself (the beneficial owner), such as your name, date of birth, and residential address. The beneficial owner is also required to upload a photo of an “identifying document” such as a driver’s license or passport. If you have an interest in more than one limited liability company, you can obtain a “FinCen ID,” which enables you to simplify the reporting process. You input your beneficial owner information once and then obtain a unique identifying number (a FinCen ID) that you can report instead of completing the beneficial owner information for each LLC. Some limited liability companies and small businesses are exempt from the new reporting requirements. Exempt entities include: (1) large companies with 20 or more full-time employees; (2) companies with more than $5 million in revenue; and (3) certain types of entities that are already subject to significant government regulations such as banks or other financial institutions. Here is a link to the full list of exempt companies. For more information, please refer to FinCEN’s Small Business Compliance Guide. FinCEN’s website has an excellent Q&A section on the new reporting requirements.  Choosing the right successor Trustee is an important step in establishing a Living Trust. Your successor Trustee is responsible for gathering and distributing your assets and settling your final affairs after you pass. If you become incapacitated, your successor Trustee will manage the assets in the Living Trust for your benefit during your lifetime. In some cases, the successor Trustee also may be responsible for managing assets held in trust for your beneficiaries for a certain period of time. Depending on the nature of your assets, these tasks may be time-consuming, complex, and require a high degree of financial sophistication.
When selecting a Trustee, you should pick someone you trust, who is organized, fair, levelheaded, and comfortable discussing and managing financial affairs. We also recommend that you select at least one alternate successor Trustee who could step into this role if your first choice is unable or unwilling to do so. Other considerations when choosing a successor Trustee include: Age of your successor Trustee It is important to take into consideration the age of your Trustee. If you are older, it’s fine to select a peer, such as a sibling or a good friend, but you also should select at least one successor Trustee who is from a younger generation than you. If the terms of your Living Trust will require your successor Trustee to manage a Trust for the benefit of a loved one for many years—for example, for the benefit of a minor child, or a person who is not good managing money or who has substance abuse issues—you should consider how old the Trustee will be when the Trust ends. You should not name your 80-year-old mother as the successor Trustee of a Trust that would not terminate for 20 years. On the flip side, you should also avoid selecting a Trustee who is younger than 25, as they may not have the maturity to handle the task. Potential for family conflict It also is important to consider family dynamics. If you have two children who do not get along, it may be better to choose a close friend to be your Trustee rather than one of the children. Some clients in this situation try to solve this problem by appointing both children as co-Trustees. However, naming successor co-Trustees often complicates matters, even when the co-Trustees get along well, because they must agree on all actions and may both be required to sign certain documents. Many parents automatically name their oldest child as their successor Trustee. If this child is well-suited to the task, this is a good decision. But relying solely on birth order without taking other traits into consideration can be problematic.
It is better to run the risk of potentially offending a child who is not suited to the demands of serving as a Trustee/Personal Representative than to leave this critical task to someone who is underqualified. Family dynamics are also relevant if you are holding assets in trust for an adult beneficiary. In many cases, it is not a good idea to put one child in charge of another child’s assets.
For clients who do not feel that any of their loved ones are suited to the role of Trustee or who do not wish to ask their loved ones to take on these responsibilities, using a professional fiduciary can be a good option.  A Living Trust is a like a box. You put your assets into the box during your lifetime and, after you die, those assets are distributed according to your wishes, either outright to your loved ones or held in the box for their benefit. Assets in the box do not need to pass through probate.
There are three ways to put your assets into a Living Trust, also known as funding the trust. First, you can title an asset in the name of your Living Trust. For real estate, this means changing the owner of the property from yourself to your Living Trust. Financial accounts work the same way: you change the owner of the account from yourself to your Living Trust. Any property titled in the name of your Living Trust is in the box. Second, you can direct your assets into the Living Trust after you die. For example, you can name your Living Trust as the “pay-on-death beneficiary” of your checking or savings account or the “transfer-on-death” beneficiary of your brokerage accounts. You can also name your Living Trust as the beneficiary of your life insurance policies or retirement accounts. When you die, the assets in any account that names your Living Trust as beneficiary will be transferred into the box. Finally, if you forget to put an asset into the Living Trust during your lifetime or direct it into the Living Trust by beneficiary designation, the asset will be added to the box through something called a Pour Over Will. A Pour Over Will is part of a complete estate plan alongside a Living Trust. It is called a Pour Over Will because it “pours” any forgotten assets into your Living Trust after you die. The downside is that, if the assets that you forgot to put into the Living Trust include real estate or have a cumulative value exceeding $100,000, to “pour” the assets in, your Personal Representative must initiate a probate proceeding. Having to go through probate undermines one of the primary benefits of creating the Living Trust in the first place! The good news is that you now know how important it is to fund your Living Trust during your lifetime and can ensure that all of your assets make it into your Trust.  “The Gentle Art of Swedish Death Cleaning” by Margareta Magnusson is a witty and engaging book that offers an approachable guide to reducing clutter and unneeded belongings from your home so that others do not have to do this for you.
The author, who describes herself as age “somewhere between eighty and one hundred years old,” matter-of-factly dispenses advice on why death cleaning, called dostadning in Swedish, is both a gift to your family, as “we want to save precious time for our loved ones after we are gone,” and to yourself by making life “easier and less crowded.” The book is short enough to read in an afternoon. And Ms. Magnusson’s tone – warm, frank, humorous, and a little salty – combined with charming stories about her life in Sweden make a challenging task feel doable. Whether you’re in your forties and want to declutter your home or in your eighties and downsizing, giving some thought to how to lighten the burden of your belongings is worthwhile. For me, it inspired a long-put-off garage clean out. I’ll admit that two hours into the task, with the entire contents of our garage spread on the driveway, I was not feeling particularly pleased with dear Ms. Magnusson. However, a few hours and two trips to the donation center later, I was grateful to have a much cleaner and better organized garage. For others, it may be an opportunity to make sure sentimental possessions are placed with the right person. Or to ensure items with a monetary value (but perhaps less sentimental ties) are sold to a collector who appreciates the item and its value. Although your loved will do their best, the task of sorting through your belongings after you’ve died can overwhelming or time consuming, and items of true emotional or economic value may be overlooked. Setting aside some time now to downsize your possessions will lighten your loved one’s load at an already difficult time. If this sounds like a project you’re ready to take on, “The Gentle Art of Swedish Death Cleaning” will provide just the inspiration you need!  There are two basic ways a person’s assets pass after they die. You can think of this as two buckets.
Bucket #1: Assets that Pass via Beneficiary Designation The first bucket holds assets that pass by beneficiary designation. Perhaps the best-known example of this type of asset is a retirement account. When you open a retirement account, the financial institution or your employer asks you to name one or more people or charitable organizations who will receive the funds in that account after your death, as well as a secondary beneficiary in case the primary beneficiaries predecease you. When you die, the retirement account is transferred directly to whomever you have designated. Another example of assets that pass via designation is property you own jointly with another person, such as a joint bank account or real estate you own in joint tenancy. In these cases, the person you own the property with is the automatic beneficiary of that property on your death. Assets with a beneficiary designation do not need to pass through probate to be distributed to your beneficiaries. The beneficiary simply needs to provide the financial institution or other entity with documentation of the asset-holder’s death, usually a death certificate and social security number. After receiving sufficient documentation, the assets are transferred directly to the named beneficiaries. You also do not need a Will or Living Trust to pass these assets to your loved ones, as the beneficiary designation specifies whom you want to inherit these assets. Indeed, beneficiary designations supersede any instructions included in your Will or Living Trust. Accordingly, it is important to make sure these designations align with your overall estate plan, which we will discuss in more detail below. Examples of assets that pass via beneficiary designation include:
Example: Peter and Penelope are married and have a joint checking account. When Peter dies, Penelope provides the bank with a copy of Peter’s death certificate and his social security number. The bank removes Peter’s name from the account and the assets in the account pass to Penelope. Bucket #2: Assets that Pass via Probate or a Trust The second bucket holds everything else! That includes:
Example: Arthur owns a home in Boise and has a Will. When Arthur dies, his children hire an attorney to probate Arthur’s estate according to the terms of Arthur’s Will. Arthur’s house is distributed to Arthur’s children in equal shares according to his wishes after the probate is concluded, a process that takes about six months. Example: Abe owns a home in Lewiston and has a Living Trust. When Abe dies, the successor trustee of his Living Trust reviews its terms and distributes the home to Arthur’s children in equal shares within a month after Abe’s death. Planning for Assets in Both Buckets Some people with very simple estates only have assets in Bucket #1. In this case, these people may be able to direct all of their assets to their loved ones by beneficiary designations. Most people, however, have assets in both Bucket #1 and Bucket #2. An important part of the estate planning process is making sure that you properly direct the assets in both buckets in a way that achieves your goals. For more information on planning for assets in both buckets, check out our blog post on The Importance of Aligning Beneficiary Designations With Your Estate Plan.  While taking care of loved ones financially is often the first reason people create an estate plan, a well-crafted estate plan also can help take care of loved ones emotionally at a time when they are grieving. Final disposition instructions, which name the people you want to oversee your funeral or other disposition arrangements as well as your wishes regarding how you want those arrangements to proceed, can help provide certainty and closure to your loved ones. They can also mitigate conflict around what can be an emotionally-charged decision.
Under Idaho law, you have the right to designate whom you want to control the disposition of your remains. The best way to do so is in a written document separate from your Will or Trust. In the same document, you also may express your wishes regarding cremation or burial, a funeral service or celebration of life, where you wish your ashes to be spread or your remains buried, and any other aspect of your disposition that is important to you and your loved ones. So long as you sign your final disposition instructions in front of witnesses or a notary, your agent designations and your directions are legally binding under Idaho law. If you do not leave legally binding written instructions, Idaho law dictates who controls your final disposition. In order of priority, those are: (1) a person named as agent under a healthcare power of attorney; (2) a person named as agent under a financial power of attorney; (3) a competent surviving spouse; (4) a majority of competent surviving children; (5) the competent surviving parents; (6) the personal representative of the estate; and (7) a majority of those entitled to inherit. Moreover, the person is not bound to follow any wishes you might have expressed in conversation or otherwise if you did not follow the legal formalities of signing in front of witnesses or a notary public. Including separate final disposition instructions in your estate plan can avoid the kind of conflict that we have seen when those left behind have different religious beliefs or otherwise disagree about the deceased’s wishes. For example: After receiving a terminal diagnosis, Amanda prepared powers of attorney naming her son, Charles, as her healthcare agent and her daughter, Donna, as her financial agent. Although Amanda was happily married at the time, she and her wife, Betty, agreed that Betty was not great under crisis and therefore they preferred to name Amanda’s children to make health and financial decisions if Amanda became incapacitated. Amanda then sat down with her wife and two children and told them that, after her death, she wanted to be cremated and have her ashes scattered in the city where she and Betty had met. Amanda also specifically stated that she did not want to be buried in her family’s historical plot because her parents had shunned Betty. During the conversation, Donna wrote her mother’s wishes down on the back of her copy of her financial power of attorney and Amanda initialed the handwritten notes. After Amanda died, Charles immediately began making arrangements for Amanda to be buried in the family plot. When Betty and Donna reminded him of Amanda’s wishes, he stated that, as healthcare agent, he had the right to make final decisions and, regardless of what she might have said, it was only right that his mother be buried with her birth family. When a distraught Betty and Donna showed the funeral director Donna’s handwritten notes, the director stated that he was sympathetic but, under the law, he had to follow Charles’s direction. Don’t put your loved ones through this additional emotional upheaval. Consult with a qualified attorney to properly document your final disposition wishes. Don’t Try This at Home: The Risks of Trying to Revise Your Will or Trust Without an Attorney8/8/2022
 Recently, we’ve had several new matters involving individuals who attempted to revise their estate planning documents without the assistance of an attorney. The results were disastrous for their estates.
As we have discussed in this previous post, estate plans are intended to be fluid; we highly recommend reviewing and revising your plan every few years or as new life circumstances arise. When you find that it is time to make changes to your plan, it may be tempting to avoid the cost and hassle of engaging an attorney for what seem like simple little amendments. But trying to modify your documents on your own almost always ends poorly. In most cases, the desired changes are unenforceable because they do not comply with legal requirements. The unenforceable attempted changes then lead to confusion and potential conflict among your beneficiaries and an estate plan that no longer reflects your wishes. Idaho law requires that individuals seeking to amend a Will, Trust, and other estate planning documents follow certain legal formalities. Primary among these are verification requirements intended to ensure that you – and not someone pretending to be you – are the person making the changes, that you have the mental capacity to revise your documents, and that the changes reflect your wishes. These formalities require more than simply typing up an amendment or initialing a change. By consulting with an attorney, you ensure that your revisions are legally enforceable and achieve your goals. If you aren’t yet convinced, here are a couple cautionary tales illustrating the perils of trying to revise your documents without the assistance of a qualified attorney: "James" James prepared a Will in 2018 that left all of his assets to his three brothers in equal shares. A week after James finalized his documents, he decided he wanted to leave his house to his younger brother Fred, who did not yet own a home and with whom James had a closer relationship. James did not want to “bother” his attorney with this change after having just finalized his Will so he decided to make the change on his own. Using the Personal Property Distribution Form, James handwrote: “I leave my house to my brother Fred.” Then he signed and dated the form. James died unexpectedly the next year. When Fred took James’s Will to an attorney to be probated, he was informed by the attorney that James’s revision gifting his house to Fred was unenforceable because it did not meet the legal requirements for amending a Will. If James had consulted with an attorney, he would have been told that the Personal Property Distribution Form is only for distributing “personal property” – items you can touch and hold such as jewelry, furniture, collectibles – and not for large assets like a home. An attorney would also have told him that under Idaho law, changes to a Will must be signed in front of two witnesses and a notary public. "Carlos" Carlos had an attorney prepare a Revocable Trust for him in 2004. In 2019, Carlos’s youngest son David asked to borrow $25,000 to start a business. Carlos was happy to loan his son the money but wanted to make sure this amount was deducted from David’s share of the inheritance in order to be fair to his other children. The attorney who had prepared Carlos’s trust had retired. Rather than trying to find a new attorney, Carlos decided he would save some money and make the change himself. On his computer, Carlos typed out a document stating his wish that the loan to his son David be deducted from David’s share of the estate. On this document, Carlos typed his full name. He printed the document but did not sign it in ink. When Carlos died a few years later, Carlos’s children found his Will and the type-written amendment. The type-written amendment was invalid, however, because the terms of Carlos’s trust stated that any amendments had to be signed, dated, and notarized. Predictably, an argument resulted between David and his siblings, who felt that David should honor his father’s wishes. David did not agree to deduct his loan from his share of the inheritance and his siblings had no legal recourse. Not only was Carlos’s estate distributed contrary to his wishes but, more importantly, due to the conflict created by the unenforceable amendment, Carlos’s children remain on bad terms, the last thing Carlos would have wanted. Don’t risk finding yourself in this situation. If you or a loved one want to change your estate planning documents, make sure to consult with a qualified attorney to ensure you make your changes properly.  Probate is the judicial process in which a Court oversees the distribution of person’s assets after they die. In Idaho, probate can proceed “informally” if the original signed Will is available or if the decedent did not have a Will and the Estate is uncontested, or “formally” if the original Will is missing or the Estate is contested. As the names suggest, informal probate involves the least amount of judicial supervision and does not involve appearing before the Court whereas formal probate includes direct involvement by the Court and attendance at Court hearings.
Although it is possible to initiate a probate proceeding without using an attorney, known as proceeding “pro se”, the highly technical nature of the probate process is best navigated with the assistance of an experienced attorney. The probate process can take anywhere from six months to more than a year to complete depending on the size of the Estate and whether the Estate is contested. Informal probate is the most common type of probate proceeding. Typically, there are seven steps in Idaho's informal probate process:
 We recommend reviewing your estate plan every five to seven years to ensure it reflects your current wishes and to address any changes in the value of your estate or in the tax laws. But sometimes, life can surprise you with a major event in between those regular reviews. The following life events can have a significant impact on your estate plan and merit scheduling an appointment with your estate planning attorney right away.
1. Your Marital Status Changes
 A Trustee or Executor (sometimes called a Personal Representative) is the person responsible for gathering and distributing your assets after you pass and settling your final affairs. In some cases, this person also may be responsible for managing assets held in trust for your beneficiaries for a certain period of time. Although this may sound simple enough, depending on the nature of your assets, these tasks can be time-consuming, complex, and require a high degree of financial sophistication.
While many people select friends or family members (often adult children) to serve in this role, for some people it makes more sense to appoint a professional fiduciary. A professional fiduciary is a company, bank, or individual, such as an accountant, who specializes in serving as a trustee or executor. These professionals have years of institutional experience administering estates and have the staff and resources to manage long term trusts. A professional fiduciary charges your estate for its services. Charges may include a set minimum fee to settle an estate plus hourly fees for administrative services. Alternatively, the fee may be calculated as a percentage of the value of the estate. If the professional fiduciary is managing the assets held in trust for a period of time, they will also charge asset management fees. Paying a stranger to perform tasks you believe your friends or family members could do for free may feel like an extravagance. But there are many situations in which the benefits provided by a professional fiduciary significantly outweigh the costs, including:
If any of the above situations apply to you, you should strongly consider using a professional fiduciary to ease the burden on your friends and family and ensure that your estate plan is carried out according to your wishes in the most effective way.  Certain types of assets pass to your loved ones by “beneficiary designation” outside of your estate plan. This means that when you die, these assets go to whomever you have listed as the beneficiary of your account, rather than according to the distribution provisions in your Will or Trust.
The most common examples of these types of assets are retirement accounts, life insurance policies, pay on death accounts, and any assets held in “joint tenancy” or titled as “joint.” When you set up these types of accounts, you designate primary and contingent beneficiaries. The primary beneficiary is first in line to inherit the asset after you die. The contingent beneficiary will inherit if the primary beneficiary cannot. If you are like the majority of people, after you first set up these accounts, you rarely think about who you designated as the beneficiaries. Because these accounts pass outside of your estate plan, however, it is important to review these designations as part of the estate planning process to ensure they match your current wishes. Without taking this step, your estate plan may not work as you intended. The following examples show how failing to review beneficiary designations can undermine an estate plan:
Who you should designate as the beneficiaries of your accounts depends on your unique estate plan. Here are a few examples of how these assets are typically designated:
 If you have committed to a long-term life partner but don’t plan to get married, you are not alone. According to recent U.S. Census Data, the number of adults in cohabiting, unmarried relationships is up 29% since 2007.
Although many people think estate planning is only for married couples, the opposite is true. Couples in unmarried relationships who do not set up an estate plan are more vulnerable than married couples when it comes to making end-of-life decisions for each other and passing property after death. In addition, without legal documents entitling them to information about their partner’s health status or allowing them to remain in the couple’s residence after one of them dies, unmarried partners may find themselves literally shut out in the cold. Luckily, there are a few simple steps unmarried couples can take to protect against this bleak scenario. Ensure That Your Children Are Taken Care Of The first most important step for all couples with minor children, whether those couples are married or not, is to create a Will naming guardians. Without a Will setting forth your wishes, if you die unexpectedly, this important decision will be left to a Judge. Although Judges do their best to pick the right person, Judges almost always pick a family member, which may not be what you want. Naming a guardian is particularly critical, however, when your partner is not the children’s biological or adoptive parent but has become a trusted primary caregiver. If you want your partner to be your children’s guardian or remain active in their lives if something unexpected happens, you need to state your wishes in a Will. Ensure That Your House and Property Pass According to Your Wishes If you die without an estate plan, your assets will pass according to state intestacy laws. For married couples, the surviving spouse usually inherits a significant portion of the deceased spouse’s estate. For unmarried couples, however, this is not the case. Your unmarried partner is entitled to none of your estate unless you have a Will or a Trust leaving your assets to them. Even worse, if your home is in your name only, if you die, your spouse will not inherit your home and will have no right to live in the home even if they contributed to mortgage payments while you were together. Ensure That You Have Named the Proper Beneficiaries for Accounts that Pass Automatically on Your Death Unmarried couples also should ensure that they have updated the beneficiaries for all accounts that pass automatically upon death, which typically include life insurance policies and retirement accounts. If you want your partner to inherit these accounts, you must name them as the beneficiary because the beneficiary designations in these accounts take precedence over a Will or a Trust. Ensure That Your Partner Is Involved in Health Care and End-of-Life Decisions Health care decisions are also a critical area for unmarried couples to plan proactively. Whereas spouses have the right to make healthcare decisions for an incapacitated spouse and can obtain medical information related to their spouse, unmarried partners do not share these rights. If you want your partner to make health care decisions for you or have access to your health care information if you are not able to communicate with your doctor, you must have a Power of Attorney appointing your partner as your agent for health care decisions, and a HIPAA authorization allowing that your partner to access your healthcare records.  Idaho's Advanced Care Planning Document allows you to appoint someone to make health care decisions for you if you become incapacitated, and state your wishes for the type of end of life care you want if you are no longer able to communicate with your doctor. Stating your end-of-life wishes spares your loved ones the burden of trying to guess your wishes, helps avoid conflict among family members advocating different levels of treatment, and protects you from receiving more medical care than you want.
In Idaho, your end-of-life wishes become relevant if (1) you are unable to communicate and (2) a doctor certifies that:
 For small business owners, an important part of the estate planning process is making sure you have your key corporate documents – such as Operating Agreements, Shareholder Agreements, Partnership Agreements, and Employee contracts – organized and in a location where your Trustee or Personal Representative can find them. This ensures continuity in the business if something unexpected happens and also provides critical documentation of the amount and value of your ownership interest.
One of my clients is unfortunately in the process of learning this lesson the hard way. Ann’s father Frank died two years ago in California without a Will or Trust. Without a Trust, Ann’s father’s estate has to go through probate, which in California is a very expensive process. The bigger problem for Ann and her brother, however, involves Holy Cannoli, a bakery her father owned with a good friend, Sally. After Frank’s death, Ann and her brother spent hours looking through Frank’s papers trying to figure out how much of Holy Cannoli Frank owned. Ann thought her father owned 60% of the bakery, but Ann’s brother thought their father owned only 25%. Ann found some documents referring to an Operating Agreement for Holy Cannoli – which would list each owner’s interest – but she was unable to find the Operating Agreement itself. Ann contacted Frank’s business partner Sally and asked her for a copy of Holy Cannoli’s Operating Agreement. At first, Sally said she didn’t remember an Operating Agreement. When Ann told her that she’d found several documents referencing the Operating Agreement, Sally changed her tune and said that she would look for the document in her files. Months passed and Sally did not produce an Operating Agreement. After repeated calls, Sally suggested Ann contact Sally’s attorney to see if he had a copy of the Operating Agreement. The attorney, after waiting several weeks to respond to Ann’s email, said that he would get back to her after tax season. Tax season came and went, however, and Ann and her brother still do not have an Operating Agreement and still do not know how much of Holy Cannoli belonged to their father. In addition, Sally has not provided Ann and her brother with access to the Holy Cannoli books nor have they been paid any of the profits since Frank died. Sally claims she is keeping their “share” in a separate account, but Ann has received no information about how much their “share” is or where this alleged account is located. Sally, meanwhile, has offered to “settle” the issue by paying Ann and her brother $200,000 in exchange for Frank’s interest. Ann’s brother is tired of the whole thing and wants to settle. Ann, however, thinks it is ridiculous to “settle” when they don’t know how much of Holy Cannoli Frank owned! Ann and her brother are currently deciding how to proceed. Frank could have avoided all of this heartache and wasted time by giving Ann and her brother a copy of the Operating Agreement, or, at a minimum, telling them where to locate this critical document. Whether you own a bakery, a family business, a rental property, or a large corporation, take the time now to make sure your key corporate documents are organized and someone – other than you and your business partners – knows where to find them.  One of the many benefits of putting together an estate plan is minimizing potential disputes between your loved ones after you die. By clearly stating your wishes about who inherits your assets, in what amounts, and when your beneficiaries receive their assets, you significantly decrease the likelihood of disagreement between your loved ones.
One important, but often overlooked, part of this process is deciding how your personal property should be distributed. Personal property – which is tangible items you can touch such as your furniture, jewelry, collectibles, guns, art, family photos and other sentimental items – can be a major point of contention. This is a particularly vexing problem for parents, as sibling dynamics can result in significant strife over items of sentimental, but little monetary, value. Earlier this month, this issue came to mind when one of my clients told me about her family’s grand piano. This beautiful musical instrument has been in her family for several generations. My client is a musician so her siblings understood why their parents left the grand piano to her. However, my client now has three grown sons of her own – all of whom are musicians and all of whom want the piano! My advice to her was to hold a family meeting with the boys to reach a consensus on what happens to the piano when she dies. Although this may be a challenging conversation, it is much better to take on this problem now rather than leaving it to your heirs. When considering what to do with your personal property, think long and hard about your loved one’s personalities and relationship. For example, I have two daughters who are 9 and 11 years old. Given their current willingness to invest 20 minutes arguing over whose turn it is to set the table, I know that at some point I need to sit down and divvy up certain artwork and sentimental items to avoid future conflict. There are many ways to approach this issue. For unique items that many loved ones desire, you can draw straws for the item now so the matter is settled for the future. Some of my older clients choose to give away such items during their lifetime which has the dual benefit of resolving the problem and giving them the pleasure of seeing their gifts enjoyed. Other clients elect to include specific procedures for distributing personal property in their estate plans, such as setting the order in which beneficiaries choose items. Every person and family is different. What makes sense for a family with an only child is likely very different than a family with five children or a couple with no children. The most important thing is to give some thought to the disposition of your personal property with an eye towards minimizing the potential for conflict. And rest assured, we’re here to help you find the best solution for you and your loved ones.  The trend among estate planners, including myself, is to offer flat-fee estate plans. I think this a great development for both attorneys and our clients.
A flat fee estate plan allows my clients to know the cost of their estate plan up front. I provide my clients with a menu of estate plan options, which differ in price based on complexity. For example, a plan with a simple will as the central organizing document is easier to draft and therefore costs less than if a revocable living trust is the key document. All of my estate plans also include the other key documents you should have in place, including a durable power of attorney for health care, a living will, a financial power of attorney, and HIPPA waiver. I like flat fee plans because they simplify the relationship between me and my clients and allow me to spend as much time as needed to understand my clients and their family’s needs. I also find that my clients like the flat fee model because it lets them call or email me with questions without having to worry about how much each minute is costing them. In my practice, the fee I charge reflects how long it takes me, on average, to prepare the plan. A revocable living trust plan takes me longer to draft, so it costs more. This is also why the price for couples – in which I have to produce documents for both spouses – is more than for a single person. My goal is to keep my plans affordable while also offering a superior level of service. For me, the flat-fee model is the best vehicle to achieve this goal.  I was reminded of the importance of keeping your estate plan up to date last month when a client asked me to probate her father’s estate. Her father, who I’ll call “James”, prepared his estate plan over 15 years ago. Since that time, one of James’ children passed away, both of the individuals he nominated as his Personal Representative have died, and he purchased an investment property in Sunnyvale, California. Since James’ estate plan was not updated, none of these changes were addressed in his estate plan, which created significant problems for his beneficiaries.
First, because James owned property in Idaho and California, he should have had a Revocable Living Trust as part of his estate plan. A Revocable Living Trust would have allowed his estate to avoid probate in both Idaho and California. Instead, because James only had a Will, his beneficiaries had to hire attorneys in both states and pay probate fees in both states. California has some of the highest probate fees in the United States, so the amount his beneficiaries inherit will be reduced by tens of thousands of dollars. Second, James’ 15-year-old estate plan did not address the fact that one of his children predeceased him. James’ Will directed that the estate be divided between his “then-living” children, which effectively disinherited his deceased child’s son (i.e. his grandson). If James had updated his estate plan, he likely would have made provisions for his grandson. Third, because both people James nominated as his Personal Representative were deceased, this issue had to be addressed during probate, making the process more time consuming and costly. It also caused a strive between James’ two oldest children, each of whom thought they would make the better Personal Representative. Finally, because it had been such a long time since James prepared his estate plan, none of his adult children knew where to find the original copy of his Will, which they needed for the probate proceeding. The attorney who prepared James' Will had also died, which made it even more difficult to locate the original Will. All of the problems encountered by James' beneficiaries could have been avoided if James had updated his estate plan. By taking the time to review and update your estate plan, you ensure your plan reflects your current wishes and your loved ones are spared unnecessary hassle and expense. Make Sure You Tell Your Executor and/or Trustee Where to Find Your Estate Planning Documents10/7/2020
 Once you’ve taken the time to invest in your estate plan, it’s critical that you let your executor and/or trustee (also known as your “fiduciaries”) know where to find your estate plan documents.
When I finish any client’s estate plan, I email them electronic copies of their executed documents in addition to providing them with the original copies of their documents in their Estate Plan Portfolio binder. I advise sharing the electronic copies of your estate plan documents with whomever you’ve appointed as your executor and/or trustee, and, if you are married, to whomever you’ve appointed as your successor executor and/or successor trustee. Included in the email should be a note letting them know where to find the originals of your documents. If you’re not comfortable sharing the contents of your estate plan documents with your fiduciaries, you should let at least two trusted people, who are not your spouse, know where to find the originals of your documents. If you have a will-centered estate plan that does not include a trust, the location of the original will is critical information that your executor must have. This is because a court will only accept the original will for purposes of opening a probate proceeding (the judicial proceeding in which a judge supervises the disposition of a person’s assets after they pass). If your executor does not know where to find the original of your will, a copy of your will may only be admitted as “probative evidence” of your wishes, but a court is not bound by its terms. For some people, this may not be an issue, but, in cases in which there is the potential for discord among your heirs, not knowing the location of the original of your will can create a huge headache. A good illustration of the problems caused by not telling someone where to find your will occurred in the estate of the famous Olympic sprinter, Florence "FloJo" Griffith Joyner. When Ms. Joyner died unexpectedly at the age of 28, she had not told anyone where to find her original will. This proved a significant issue when Ms. Joyner’s mother claimed that Ms. Joyner promised that she could live in Ms. Joyner’s house until she died. Ms. Joyner’s husband disputed his mother-in-law’s claim, and the case wound up in court. Hundreds of thousand of dollars in legal fees could have been avoided had Ms. Joyner told someone where to find her will. The moral of the story is make sure at least a couple of different trusted friends or family know where to find your original estate plan documents.  Why do college students need to think about estate planning? The short answer is because most college students are over the age of 18.
When your child turns 18, a significant legal event happens in their lives: they are considered an “adult” under the law. This means they are responsible for making their own health care decisions, and, under the Privacy Rule of the Health Insurance Portability and Accountability Act (commonly referred to as HIPAA), a parent can no longer access their adult children’s medical records or other healthcare-related information. The combination of these two factors – your child turning 18 and HIPAA – means that as a parent, you are no longer able to make health care decisions for your child nor are you able to access their medical records. Practically speaking, this makes it difficult – if not impossible – to intervene and assist if your child needs medical help, especially if you are trying to do so from a distance. And while this may come as a surprise, this is the case even if your child is still on your medical insurance. For example, if your child is injured in a car accident while away at school and arrives at the emergency room unable to communicate with the doctors, you as their parent cannot automatically step in and help. In fact, in some instances, the hospital may not even be willing to tell you if your child has been admitted to the hospital, let alone give you information on the extent of their injuries. This is an awful position to find yourself in as a parent. Fortunately, it can be easily avoided with three simple, easy to prepare estate planning documents. Power of Attorney for Health Care A Power of Attorney for Health Care allows your child to appoint an agent (typically one or both parents) to make health care decisions for them if they are incapacitated and cannot make such decisions for themselves. With a Power of Attorney for Health Care in place, there are no legal barriers preventing you from obtaining information about your child and making decisions for them if they cannot do so themselves. HIPAA Authorization A HIPAA Authorization allows your child to designate who can access information about their medical records and health condition. It is important to have a HIPAA Authorization in place because a Power of Attorney for Health Care only comes into effect if you child is incapacitated, but does not allow you to access their medical records if they are not incapacitated. If your child has a complicated or long term health condition, access to their medical records is important if you’re helping them make appointments with specialists or identifying the best course of treatment. Springing Power of Attorney for Finance A springing Power of Attorney for Finance allows your child to designate someone to access their financial accounts and undertake other important activities, such as filing a lawsuit on their behalf, if they become incapacitated. The word “springing” means that this document is only effective in the event of an incapacity. This strikes a nice balance between allowing your child to be financially independent while also making sure they are protected in the event of an emergency. Without these three documents in place, a parent’s only choice is often to petition a court to be appointed as their child’s guardian or conservator. This is an expensive process and involves dealing with attorneys and courts, the last thing a parent wants to worry about during an emergency. If you have children heading off to college this fall, or if you have a child over 18 who you want to be able to assist in the event of an emergency, take the time to put these three documents in place. Hopefully, you’ll never need to use them, but it’s always better to prepared in case some doesn’t go as planned. |
AuthorShaila Buckley Archives
January 2025
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