Idaho Law Blog

CONTINUING GARNISHMENT V. GARNISHING AMOUNTS DUE

Published on: January 29, 2020 | by Racine Olson

By Stephen J. Muhonen, Creditor’s Rights / Collections Attorney, Racine Olson, PLLP

I had an interesting collections issue arise the other day that is worth discussing. A self-represented judgment creditor was attempting to garnish a judgment debtor’s wages. The judgment creditor had repeatedly served a Writ of Continuing Garnishment on the judgment debtor’s employer, just to have the writ returned each time, unsatisfied. The judgment creditor was naturally frustrated because they had expended a considerable amount of emotional energy, time, effort and expense in the repeated attempts to collect upon the judgment; all for naught.

As I listened and the related facts unfolded, the reason as to why the Writ of Continuing Garnishment was not being accepted became apparent. There were two problems. One (1), the judgment debtor was not an employee, but rather, an independent contractor. Two (2), because the judgment debtor was an independent contractor, a Writ of Continuous Garnishment was the improper mechanism to garnish the amounts due to the independent contractor, from the independent contractor’s creditor.

DO YOU REALLY NEED TO AVOID PROBATE IN IDAHO?

Published on: January 24, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

As an Idaho estate planning and probate attorney, I often meet with clients during a free 30-minute consultation to talk about probate. Many times, these clients have moved to Idaho from other states. Additionally, I often have clients who have lived in Idaho most of their lives but who have family members who live in other states. In both of these circumstances I have come across many individuals who have stated that they want to avoid probate in any way possible because they have heard how horrible, long and expensive probate can be.

I’ve always grateful whenever I have a client express these concerns to me because it gives me an opportunity to talk about the probate process in Idaho. Idaho is one of those unique states where probate is really not that bad. Because of this, unless there is a real compelling reason, which rarely exists, it is really not that bad for most families to complete the probate process when they have a loved one pass away.

PROPERTY EXEMPT FROM COLLECTION

Published on: January 24, 2020 | by Racine Olson

By Stephen J. Muhonen, Creditor’s Rights / Collections Attorney, Racine Olson, PLLP

One of the first things I discuss with new clients whom are seeking legal representation to collect money from their debtors is whether the debtor has any assets that can be collected upon. In my opinion, an attorney taking on a new client in this circumstance, without initially exploring collection opportunities or options, is performing a great dis-service to the client. The client came to the attorney in the hopes of being paid that for which they are entitled. If all that is obtained is a “toilet-paper” judgment, then what has the client gained? Now of course I realize and recognize that sometimes the collectability of a pursued judgment cannot always be readily discovered, but there should at least be some attempt to see if collection is even going to be a possibility.

When performing the due diligence of exploring debtor’s assets, the investigation should take place with an eye on what assets may be subject to exemptions. Now just because there are or may be statutory exemptions in place pertaining to the debtor’s property, that does not necessarily mean that one should avoid pursuing the debtor’s property. It is up to the debtor to assert the claim of exemption and to do it timely. If this is not done, the creditor may continue to execute/levy/garnish the property. Some of the exemptions available to debtors are:

THE ESTATE PLANNING QUESTIONNAIRE

Published on: January 20, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

The percentage of adults in Idaho who have actually taken any steps to complete their estate planning is abysmal. The most recent reports I have been able to study show that only 31% of adults in America have taken any actions towards completing their estate planning. The same percentage is similar in Idaho.

It’s important to understand however that not all the news is bad news. I’ve come to learn that most people don’t get their estate planning done because they don’t know how to start. Because of this, we’ve come up with an easy solution to help each individual who is interested in getting their estate planning get started with the process. Our solution is the easy Estate Planning Questionnaire that we offer to each of our clients. This questionnaire can be downloaded to your computer through the link above. So how exactly does our estate planning questionnaire help? I’m glad you asked this question.

A LOVED ONE HAS PASSED AWAY, WHAT DO YOU DO NOW?

Published on: January 17, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

I’ve been an Idaho estate planning and probate attorney now for nearly 20 years. During that time, I’ve received numerous phone calls from clients letting me know that a family member or loved one has passed away. Usually the purpose of this call is that the person doesn’t know what it is they need to do next and they want me to answer their questions.

I provide to these clients a free 30-minute consultation so I can learn about the situation of their family member or loved one. By doing this, I can answer their questions about the things that need to be done. Usually, the main questions people have is about the property, money, or assets the person has left behind as well as any debts that still exist.

HOW THE NEW SECURE ACT MAY AFFECT YOU

Published on: January 12, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

Unless you’ve been living under a rock, you’ve likely heard about the SECURE Act that was recently signed into law by President Trump. This act provides a number of wonderful benefits to individuals who have qualified retirement plans such as 401ks, IRAs, Simple IRAs, and so forth. It is likely that these fantastic benefits will help millions of individuals better prepare for retirement.

However, not everything about the SECURE Act is golden. One of the items that most individuals overlook about the SECURE Act, that caught the attention of all estate planning attorneys, is the 10-year limitation on withdrawal of inherited retirement accounts such as IRAs or 401ks.

THE BIGGEST NEW YEAR ESTATE PLANNING MISTAKES

Published on: January 9, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

Both a new year and a new decade are upon us. Because of this, now is a great time to review your own written estate planning documents and make sure that they are valid, and more importantly that they accomplish what you want. Sometimes it’s difficult to understand what estate planning documents do. For this reason, I often work with my clients in reviewing their estate plan, discussing what their estate plan accomplishes, and then help them in making any updates or changes to the estate plan the client wants to get done for the new year. I’ve helped clients accomplish this for more than 20 years and I’m confident that I can help you too!

So, what are the biggest mistakes people make with their estate plan in a new year? Below are the four most common mistakes that are made. I list these to help you understand the things that you should be thinking about to make sure that your estate plan is updated and accomplishes what you want it to do.

SHOULD YOU DO A JOINT WILL WITH YOUR SPOUSE?

Published on: January 7, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

Estate planning, and coming up with a written estate plan, doesn’t need to be difficult. When you have the right help, and you are doing it the right way, it can actually be a fairly simple process. However, many well-meaning individuals often seek to do their own estate plan or to have it done by individuals who are not experienced. When this happens, mistakes begin to occur that can have a big impact on how a person’s estate is distributed after they are gone.

One of the things that I’ve seen coming up more recently, is when a husband and wife do a joint last will and testament. In other words, rather than each of the spouses having their own separate last will and testament, they create a joint last will and testament that both of them sign, have witnessed, and then have notarized.

CAN A SUICIDE NOTE BE A VALID WILL?

Published on: January 5, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

As an Idaho estate planning attorney, I often get phone calls from clients or potential clients who have questions. I do my best to answer these questions and try to help each individual out as best I can. However, answering questions is usually best done through our free 30-minute consultation, where we can actually spend time with a client face-to-face and can answer their questions about either estate planning, or probate. If you have questions of this sort, we encourage you to contact us for this free 30-minute consultation.

Recently, I’ve had a series of phone calls and questions come in randomly having to do with family members and other loved ones who have passed away by suicide. The circumstance leading to the question that I’ve been asked is that the person who took their own life left a suicide note behind. The question I’ve been asked is whether the suicide note can qualify as a valid last will and testament under Idaho law.

DO KIDS HAVE A RIGHT TO READ THEIR PARENT’S ESTATE PLANNING DOCUMENTS?

Published on: January 3, 2020 | by Racine Olson

By Lane V. Erickson, Idaho Estate Planning Attorney

I’ve been an estate planning attorney now for more than 20 years. During this time, I’ve seen a lot of situations arise between parents and children when it comes to estate planning. In particular, there have been many instances where I have helped a parent complete a written estate plan that they have chosen for any number of reasons not to share with their children. Sometime later, I may have the children contact me and ask me what their parent’s estate planning documents say.

This situation leads to the question that is the title of this article. That is, do kids have a right to read their parents estate planning documents? The short answer is both no and yes. Really, the answer depends on the circumstances that exist. I’ll provide some examples below to illustrate what I mean by this answer.