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Death Without a Last Will and Testament

By Matthew P. Stucki

When people in the community discover that I am an attorney that practices in the area of estate planning, one of the first questions that they ask is what happens upon my death if I do not have a Last Will and Testament. In response, I inform them that if they die in Idaho, the Idaho legislature has promulgated statutes that provide for the distribution of one’s property upon death if there is not a valid Last Will and Testament.

These statutes can be found in Idaho Code, Title 15, Chapter 2. In essence, all community property of a deceased individual passes to the surviving spouse. (See, Idaho Code § 15-2-102). However, if there is not a surviving spouse, then the deceased person’s property passes according to the following priority:

1) to the deceased person’s children or issue (which issue is defined as lineal descendants);

2) to the deceased person’s parents;

3) to the deceased person’s brothers and sisters;

4) to the deceased person’s nieces and nephews, or their issue;

5) to the deceased person’s grandparents;

6) to the deceased person’s aunts and uncles, or their issue;

(See, Idaho Code § 15-2-103)

Despite these statutory schemes that provide for the distribution of property upon an individual’s death, these schemes are not customized to deal with some of the most basic desires of a deceased individual. The statutory schemes do not name a personal representative to act on one’s behalf. They do not provide assurances that stepchildren with inherit or that one’s own children will inherit if a person dies before his spouse in a second marriage. The statutory schemes do not allow for customization to prevent property from falling into the hands of children upon their 18th birthday. There are also many other things that the statutory scheme does not plan for. As a result, it is important to execute your own, customized Last Will and Testament to ensure, at a minimum, that all your wishes and desires are met upon death.

It is important to note, that when separate property is involved, which is defined as property owned separately by the husband or wife, there are a few nuances in terms of what a surviving spouse would receive on the death of the other spouse. (See, Idaho Code § 15-2-102). If you have any questions regarding what would happen if you do not have a Last Will and Testament upon your death or regarding the importance of executing your own Last Will and Testament, please do not hesitate to contact us.

Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.


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