Idaho Law Blog

A Will and Community Property

Published on: October 23, 2016 | by Racine Olson

Many of my clients who are married, often wonder what property they will actually be able to give away in their Will (last will and testament) to the people they choose when they die. The reason they ask this question is because they recognize that Idaho is a community property state but they don’t really understand what this means. Here are a few things you need to know about your Will and the property you can give away in Idaho.

In Idaho all property acquired after marriage by either the husband or wife is presumed to be community property. Idaho Code § 32-906(1). The presumption is rebuttable but the party asserting that property is not community bears the burden of proving that the property is separate with reasonably certainty and particularity. Matter of Freeburn’s Estate, 97 Idaho 845 (1976). However, in Idaho all property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either gift, bequest, devise or descent, or that which either he or she acquires with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property. Idaho Code § 32-903. The income of all property, separate or community, is community property. Idaho Code § 32-906(1). Property conveyed by one spouse to the other shall be presumed to be the sole and separate property of the recipient. Idaho Code § 32-906(2).

4 Reasons People Like Trusts More Than a Will

Published on: October 22, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

When it comes to estate planning there are a myriad of options available. The type of estate planning that is completed for a person really depends on what it is they want to accomplish and the size and type of the estate they own. Through my experiences in helping individuals create a customized estate plan I’ve come to learn that there are 4 specific reasons why people like having a Trust more than a Will.

1. MULTIGENERATIONAL BENEFICIARIES

Why Does My Idaho Worker’s Compensation Case Take So Long?

Published on: October 21, 2016 | by Racine Olson

By: Fred J. Lewis

I have been practicing workers’ compensation law for almost 30 years. It comes as a surprise to most injured workers how long their Idaho workers’ compensation case takes to get resolved. The first hurdle that we have in every Idaho worker’s compensation case is that the Idaho Workers’ Compensation Law requires that the injured Idaho worker has to heal completely or come to a place in their healing process that the American Medical Association Guides to the Evaluation of Permanent Impairment 6^th Edition defines as “Maximum Medical Improvement”. The Guides define Maximum Medical Improvement (MMI) as “where patients are as good as they are going to be from the medical and surgical treatment available to them”.

The writers of the Guides go on to explain that “(MMI) can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change”. The writers of the Guides also state that “MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment”. I have often heard doctors refer to this idea of Maximum Medical Improvement as to when their patient reaches a plateau in their recovery and their injured body part has pretty much healed to the extent that it becomes functional again and it’s not expected to change in the future to any significant degree. If an injured Idaho worker is at MMI it does not necessarily mean that there’s an elimination of symptoms or subjective complaints. It just means that more surgeries or more medical procedures will not result in any significant improvement in the healing of the injured body part. Injured workers can still benefit from palliative care in the form of pain medications, massage therapy, and other pain relief treatments.

UNSECURED LOADS & ROAD DEBRIS CAUSE SERIOUS CONSEQUENCES

Published on: October 21, 2016 | by Racine Olson

load How often have you traveled behind a truck, trailer or pick-up and witnessed an unsecured load dumping debris, large items, household items or even large pieces of furniture onto the roadway? The U.S. Department of Transportation estimates that at 55 mph, an object weighing 20 pounds strikes with an impact of half a ton when it falls from a vehicle.

As indicated by the pictorial above, the AAA Foundation’s national study found that between 2011 and 2014, unsecured loads and road debris caused 200,000 crashes, 39,000 injuries and more than 500 deaths. Motorists need to be aware of the consequences and dangers of hauling unsecured items. No matter how fast your speed or how long (or short) your trip may be, all items in a load must be properly strapped down and securely anchored. Even at slow to moderate speeds, heavy items can become loose during an abrupt stop or from other unanticipated road conditions.

Additionally, big rig truck tires often shed debris from badly worn or underinflated tires which is left on the highway. On congested roadways, motorists have little time to react creating a recipe for disaster. ITD crews consider it a top priority to clean up and alleviate debris thrown from big rigs to avoid crashes.

Executing a Valid Will – Part 3 Fraud, Duress, or Undue Influence

Published on: October 21, 2016 | by Racine Olson

By Matthew Stucki

This is the third of four posts discussing the execution of a valid Last Will and Testament. If you recall, the first step in executing a valid will requires the person executing the Will, the Testator, to have Testamentary Intent. The second step, deals with the requirement of Testamentary Capacity. The third step, which is the topic of this blog, requires that the execution of an individual’s Last Will and Testament be free from fraud, duress, or undue influence.

When preparing a Last Will and Testament for an individual, the individual often meets with an attorney to discuss how he or she would like to give away their property in the event of death. The individual also selects who he or she would like to represent them, a Personal Representative, upon their death and distribute the property as outlined in the Last Will and Testament. In most instances, it is my experience that the individual that I am working with to draft a Last Will and Testament desires to give everything to his or her children, and he or she keeps each child apprised of the contents of the Last Will and Testament. This process is a built in safe-guard against fraud, duress, and undue influence as each child of the individual or Testator can hold the other children accountable and prevent each other from bad conduct.

4 Questions You Should Ask Before You Agree to Be a Trustee

Published on: October 21, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Being named as a Trustee in a Trust for a family member or a close friend may be a great honor but it is also a great responsibility. Just because you are named as a Trustee doesn’t mean that you are required to serve. Before you agree to serve as a Trustee you should be fully informed about what you are being asked to do. To help you become more informed here are 4 questions to ask before you agree to serve:

1. CAN I READ THE TRUST?

Six Steps in Partitioning a Property in Idaho

Published on: October 20, 2016 | by Racine Olson

By Joseph Ballstaedt

Joint owners of real estate can run into serious challenges if they have different goals for the property. For example, suppose a son and daughter inherit their parents’ home, and one wants to live in it while the other wants to sell it. Or suppose two friends invest in a rental property together, but sometime down the road one of them decides being a landlord just isn’t for him and wants to sell the property against the other’s wishes. Or maybe two brothers have owned the family farm for decades, but now one wants to scrap farming and begin developing residential subdivisions. In such circumstances, a partition of the jointly owned property may be necessary.

A partition is a legal term used to describe the act of dividing up a single piece of real estate between the various owners. When parties seek a partition, the judge’s goal is to divide the property based on the parties’ proportionate interests, which the court cannot properly do at times based on the circumstances. For example, it may be easy to divide up undeveloped land, but a judge probably cannot equitably divide between multiple owners a single residence that sits on a property. If a partition isn’t proper, the court can have the property sold and then divide the proceeds between the parties. This route is generally much easier than dividing portions of real estate.

ACCIDENT ON I-184 CONNECTOR IN BOISE – 2 MOTORISTS INJURED

Published on: October 20, 2016 | by Racine Olson

Two vehicles were involved in a crash Wednesday, October 19, 2016 at 10:18 a.m. on I-184 near the Curtis Road exit in Boise. The accident caused injuries to two people. The eastbound lanes of traffic on the I-184 connector were blocked for about an hour. The ISP reports that a Sport Utility Vehicle hit a guardrail, rolled over and landed on its side facing the opposite direction of traffic. Another vehicle that was traveling immediately behind the SUV was not able to stop to avoid a crash and hit the SUV.

Both drivers suffered minor injuries; one was taken to the hospital by ambulance. Police are investigating the accident. It is unknown at this time what caused the driver of the SUV to crash into the guardrail. ITD’s data indicates that the most common contributing factor in multiple vehicle crashes is inattention/distraction (21%) and second most common factor is following too closely (20%).

ITD’s 2015 Traffic Crash Clock indicates that a crash occurs every 21.9 minutes and a person is injured in a crash every 39.8 minutes. Crashes occurring between 8:00 a.m. and 11:00 a.m. number from 900 to over 1500. Idaho’s population increase is associated with added motorists traveling on the roadways each day. Traffic accidents and congestion are now commonplace during peak hours especially in urban areas. Over 3000 injury-related crashes occurred last year in the cities of Boise and Meridian.

Executing a Valid Will – Part 2 Testamentary Capacity

Published on: October 20, 2016 | by Racine Olson

By Matthew Stucki

This is the second of four parts discussing the execution of a valid Last Will and Testament. If you recall, the first step in executing a valid will requires the person executing the will, the Testator, to have Testamentary Intent. The second part, which is the discussion for this post, deals with the requirement of Testamentary Capacity.

As people are living longer, it seems that more and more individuals are having to deal with the effects of dementia and memory loss. Depending on the severity of one’s mental condition, signing a Last Will and Testament may be out of the question. Under the law, a person must have Testamentary Capacity in order to execute a Last Will and Testament. However, judging one’s capacity can be difficult.

The Older Workers Benefit Protection Act

Published on: October 20, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

The Older Workers Benefit Protection Act (OWBPA) forbids discrimination by employers based on age when providing employee benefits, like severance. The OWBPA also ensures that no employee is coerced or pressured into signing legal waivers of rights under the Age Discrimination in Employment Act (ADEA).

The OWBPA was enacted to “protect the rights and benefits of older workers” who are being laid off. 　The U.S. Supreme Court has interpreted the statute as requiring “‘strict, unqualified statutory stricture on waivers’” executed by these workers in exchange for compensation and benefits. 　The party defending a release’s validity bears the burden of proving compliance.