Idaho Law Blog

Who Can Get a Copy of My Will?

Published on: January 5, 2017 | by Racine Olson

You are preparing your Estate Planning including a Last Will and Testament. You are putting various information in your Last Will and Testament that is sensitive, such as disinheriting a family member. 　Or you are leaving more money or property to a specific family member than to another. You anticipate that your family will view the gifts that you have given in your Last Will and Testament as being unfair. Now your question is, who can get a copy of my Last Will and Testament?

The good news is that until you die, no one but you is entitled to have and hold your Last Will and Testament. Even your attorney would be required to give to you your original Last Will and Testament if you choose. Most attorneys keep ahold of the original Last Will and Testament so that if it is ever needed for probate purposes, it can be easily found. However, even then, your lawyer cannot distribute a copy of your Last Will and Testament to anyone without your prior approval and authority.

Removing a Homeowner After a Non-Judicial Foreclosure

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

You are a holder of a mortgage on real property located in Idaho. The borrower who owns the Home Depot that and making their regular payments to you. You did everything right and doing a non-judicial foreclosure under Idaho law. A trustee’s deed has been issued naming you as the titled owner to the property. However, the homeowner refuses to leave the property. What can you do now to remove the homeowner after completing your non-judicial foreclosure?

Idaho law provides a mechanism for removing a homeowner once a non-judicial foreclosure has been completed. This process is called an ejectment. Ejectment requires proof of (1) ownership, (2) possession by the defendants, and (3) refusal of the defendants to surrender possession. Pro Indiviso, Inc. v. Mid-Mile Holding Trust, 131 Idaho 741, 745, 963 P.2d 1178, 1182 (1998). Further, a suit for ejectment is equitable in nature and, therefore, that there is no entitlement to a jury trial on the ejectment claim. Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 369, 179 P.3d 323, 332 (2008).

Limits on Using Off-Duty Conduct in Employment Decision

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

In Idaho the limits of using off-duty conduct in an employment decision are mostly controlled by either an employment agreement or the “at will” doctrine described above. However, some exceptions to this may still apply. Using social media as an example illustrates these narrow exceptions. While none of the incidents reported below occurred in Idaho they likely will in the future. As reported:

May 25, 2010, Brixx Wood Fired Pizza waitress Ashley Johnson was pretty fired up about the couple that lingered three hours over lunch, made her work an hour past her quitting time – and then left her only a $5 tip. So Johnson, 22, did the 21st century equivalent of griping to the kitchen staff (or the bartender down the street): She vented on Facebook. “Thanks for eating at Brixx,” she wrote, “you cheap piece of —- camper.” (For the record, the $5 tip was 17 percent of the customers’ bill.)

Using a Specific Gift List as Part of Your Estate Planning

Published on: January 3, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Oftentimes the simpler you can keep your estate planning the better it will be. If your Last Will and Testament is complex, then anytime a major circumstance in your life changes, you may need to rewrite your Last Will and Testament. Our goal in completing estate planning for our clients is to keep things as simple as possible and yet allow flexibility with regards to the giving away of specific gifts. To do this we incorporate a specific gift list into every Last Will and Testament that we draft. Idaho law allows us to do this if we find it to be a good practice.

WHAT IS A SPECIFIC GIFT LIST?

Bicycling Injuries

Published on: January 3, 2017 | by Racine Olson

By Patrick N. George

As could be expected, with the rise in bicycling, there has been a corresponding increase in injuries. A recent study showed that this increase even in the number of adult bicycling injuries between 1998 and 2013. Pocatello, Idaho has seen its own tragedies when it comes to bike riding when a well known and beloved physician in the area was seriously injured. One study involved data gathered from the National Electronic Injury Surveillance System and combined with U.S. Census information. The study showed that the increase is, in part, the result of increasing injuries in cyclists that are older than 45 years of age. This comes as no surprise given that cycling in that age group is becoming more and more popular.

The increase in injuries to older riders is substantial. When one compares 1998 and 1999 to 2012 and 2013, an increase in cyclist injuries was 28%. When looking at age groups, those injured in an accident who were over 45 increased from just 23% to 42% of the total injured riders. Worse, the hospitalizations involving this older group of riders increased from 39 % to 65%. One analyst has surmised that the speed of these bicycles is in large part responsible for the more severe injuries and the higher number of hospitalizations.

When is Your Employee’s Conduct an Employment Issue

Published on: January 2, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Scene from the TV series The Office:

Michael Scott:“Yeah, Ryan snapped at me. But there was this twinkle in his eye, that I picked up on, which said, ‘Dude, we’re friends. I’m doing this for appearances. I am the big boss now. And I have to seem like an ogre. But you know me, and you trust me and we like each other. And we’ll always be friends. And I would never take you for granted in a million years. And I miss you, man, and I love you.’. . . His words.”

You Cannot Prove a Total Permanent Disability if Your Vocational Expert Does Not Support You

Published on: January 2, 2017 | by Racine Olson

By Fred J. Lewis

In Beascoechea v. Liberty Northwest Insurance Corporation decided November 17, 2016 the Claimant was found to be 45% disabled inclusive of his 6% permanent partial impairment rating. At the time of the hearing the Claimant was 68 years old and had told everyone he was retired. The Claimant had Dr. Mary Barros-Bailey PhD. testify on his behalf. Dr. Barros-Bailey opined that the Claimant was 60% permanent partially disabled if the Claimant did not return to work for the pre-injury employer and astonishing enough, testified that if the Claimant did return to work that there would be no loss of labor market access, and wage loss, therefore no disability. Dr. Barros-Bailey was the only expert that testified in the case. It is astonishing that the Claimant was awarded any disability at all in this case given the following:

The employer had offered a job to the Claimant and was willing to accommodate his restrictions.

Can I Spend My Kid’s Inheritance?

Published on: January 1, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Let’s assume you have been vigilant in completing your estate planning. You have your Last Will and Testament in place and it includes specific gifts that you are leaving for specific people. You have a boat that your Last Will and Testament leaves to your oldest son. You have an heirloom china set that’s been in the family for several generations that Last Will and Testament gives to your daughter. You have nearly a half a million dollars stored away in savings and retirement accounts that will also go to your children once you pass away.

But, what if you change your mind. What if you decide that you want to travel the world. What if you suddenly find yourself in need of the money You have work so hard to store away. Can you go ahead and use the money, or sell the boat or give the china to someone else even though these things are specifically described in your Last Will and Testament as going to someone else? The short answer is yes. These items belong to you and you can do whatever you want with them, even if you have specifically listed them in your Last Will and Testament.

Accidents and Icy Roads

Published on: January 1, 2017 | by Racine Olson

By Patrick N. George

Once again temperatures have dropped below the freezing point this here in Idaho. This means that drivers and pedestrians must again be aware of the possibility of black ice on roads, bridges, and melting snow along the sides of roads.

Drivers are often not cautious enough about slick roads and can quickly lose control of their automobiles. The reality is, even experienced drivers and automobiles with good tires can be at risk of having an accident if they encounter black ice or other slick conditions on roadways. Oftentimes people drive carefully when snow is falling, but do not exercise the same caution when a road could be icy.

Can an Estate Planning Attorney Be a Witness to Prove Capacity?

Published on: December 30, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

In Idaho, “[a]ny emancipated minor or any person eighteen (18) or more years of age who is of sound mind may make a will.” Idaho Code 15-2-501. When determining whether a person is of sound mind, Idaho Courts have stated:

Accordingly, a testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of persons who are to be the objects of his bounty, and his relation towards them. 　Wooden v. Martin (In re Conway), 152 Idaho 933, 943-944, 277 P.3d 380, 390-391 (2012).