Idaho Law Blog

Executing a Valid Will – Part 1 Testamentary Intent

Published on: October 19, 2016 | by Racine Olson

By: Matthew Stucki

Recently I met with an individual who wanted me to review his Last Will and Testament, which he had personally drafted himself. In our meeting, the individual indicated to me that he had looked up templates on the internet and picked out different sections of the template until he had everything that he wanted in his Last Will and Testament. He then signed the document that he had prepared, believing that he had a valid Last Will and Testament. This prompted a lengthy discussion regarding the steps required in executing a valid will.

In order to execute a valid Last Will and Testament, there are several steps required. This blog post covers the first step, which is Testamentary Intent, with the reaming steps to follow in similar blog posts. Testamentary Intent in simple terms, refers to the Testator’s intent, or the intent of the person executing the will, with respect to the document he is signing to function as his or her Last Will and Testament. If such intent is found, then the Last Will and Testament is said to have testamentary character.

IDAHO OPERATION LIFESAVER PROMOTES SAFETY AT RAILROAD CROSSINGS

Published on: October 19, 2016 | by Racine Olson

The nationwide non-profit public safety program “Operation Lifesaver” was implemented to raise awareness and promote education to keep citizens safe at train crossings. The program began in Idaho in 1972. Each year the Idaho State Police (ISP) conducts its “Cops on Trains” to spend the day patrolling railroad crossings and stop motorists who try to drive past lowered crossing gates and/or around barriers.

Travis Campbell, the Operation Lifesaver coordinator for Idaho, says “Cars are not built to be taking impacts for trains. The weight ratio between your car and a soda can is about the weight ratio between the train and your car.” The odds of surviving a crash with a train are 4,000 to 1. When a law enforcement officer is dispatched to respond to a vehicle versus train crash, they anticipate fatalities. Operation Lifesaver spreads awareness through the three Es: Education, Engineering, and Enforcement.

Vehicle versus train crashes are totally preventable. In Idaho it is unlawful to pull out in front of a train that is 1500 feet of a crossing or is dangerously close to the crossing. It is also unlawful to drive any vehicle around or under any crossing gate or barrier. See I.C. § 49-648. When you see the flashing lights at a rail crossing, HIT THE BRAKES and STOP. Do not try to cross the tracks with a train approaching. That train you see approaching is closer and moves faster than you think. Never take a chance to try to beat the train; it is better to arrive late than not at all. Additional information about Operation Lifesaver and Rail Safety is available at www.oli.org

ISIF- What Is It and How Can I Get Money From Them?

Published on: October 18, 2016 | by Racine Olson

By Fred J. Lewis

The Idaho Workers’ Compensation Law set up a state agency called the Industrial Special Indemnity Fund or ISIF. This state agency collects 5% of all the workers’ compensation premiums paid by businesses throughout the state of Idaho. The fund holds these funds to be paid out to Idaho Workers’ Compensation claimants that have pre-existing injuries and then suffer an addition accident where the injuries combined with their pre-existing injuries and render them totally and permanently disabled.

In Dumaw v. J.L. Norton Logging, 118 Idaho 150, 795 P.2d 312 (1990), the Idaho Supreme Court listed four requirements a claimant must meet to establish ISIF liability under Idaho Code § 72-432:

4 Things to Know About Choosing a Personal Representative

Published on: October 18, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Making all the decisions about and creating an estate plan can be an intimidating and complex process for many people. One of the biggest decisions that must be made is who will be in charge of handling your estate for you after you pass away. This person is commonly known as a Personal Representative or Executor. 　The purpose of this blog is to give you some things to think about as you choose who your personal representative will be. 　Here are 4 things to consider when naming a Personal Representative in your will.

1. THE RESPONSIBILITY OF BEING A PERSONAL REPRESENTATIVE

If I am Terminating an Employee Does the WARN Act Apply

Published on: October 18, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Employment ends for positive reasons such as a new job, a resignation or retirement. Employment also ends for more negative reasons such as layoffs, downsizing, job termination or firing. Assuming that you have taken all possible steps to help an employee improve their work performance, it may be time to fire the employee. Here are the legal and the ethical steps in how to fire an employee and ensure that the company’s actions as you fire an employee are above reproach when faced with the necessity of terminating a large number of employees at the same time. Commonly known as a “layoff” employers must often take several proactive steps in carrying this process out legally and correctly.

The Worker Adjustment and Retraining Notification Act (WARN Act) is administered by the U.S. Department of Labor Employment and Training Administration (DOLETA). It requires most employers with 100 or more employees to provide employees, bargaining representatives of the employees (i.e., unions), and specific government agencies at least 60 days notice of any plant closing and mass layoff. The purpose of the WARN Act is to give workers and their families some transition time to prepare for the prospective loss of employment, to seek a new job, and, if necessary, to seek training in a new skill or retraining in an existing skill that will allow the workers to obtain replacement work.

In Idaho, when a landowner flood irrigates, can he let water flood into his neighbor’s property?

Published on: October 18, 2016 | by Racine Olson

By Joseph G. Ballstaedt

The answer to this question may seem to be a no-brainer. You can’t flood another person’s land, right? Well, it depends. Under Idaho law, it is generally considered trespass to enter another’s land without permission, whether the entry is walking on the land, throwing objects on the land, or allowing water to flood into the land. See Mueller v. Hill, 158 Idaho 208, 213, 345 P.3d 998, 1003. With respect to irrigating specifically, landowners can make re asonable use of their water for irrigation, but they must manage and control their water to prevent damage to their neighbors’ land. See Loosli v. Heseman, 66 Idaho 469, 478, 162 P.2d 393, 397 (1945).

However, in Idaho, a person can obtain a prescriptive easement—or a right to use another’s land—by making open, notorious, continuous, and uninterrupted use of that land for twenty years (the prescriptive period was amended from five to twenty years in 2006). See Backman v. Lawrence, 147 Idaho 390, 396, 210 P.3d 75, 81 (2009). What this means is that a landowner who has been discharging irrigation waste water onto a neighbor’s property for twenty years (or had been doing it for five years in 2006) may have a right to continuing doing so, and such use may not be trespass. See Merrill v. Penrod, 109 Idaho 46, 51, 704 P.2d 950, 955 (Ct. App. 1985).

School Zone Safety Concerns in the News

Published on: October 18, 2016 | by Racine Olson

Recent news reports from the Twin Falls area highlight concerns regarding school zone safety for young students. Parents living within the Rock Creek Elementary school district express the need for improvements on Grandview Drive North since a portion of the road does not have sidewalks. Although bus routes have been changed to accommodate the students living in the Hometowne Place subdivision, many students prefer to walk or ride their bicycles to school.

Children walking or riding their bicycles to school can be unpredictable since they do not recognize the potential dangers involved in sharing the road with motorists. The speed limit in school zones is 20 mph. Drivers who do not obey the posted speed limit will be fined a minimum of $75 pursuant to I.C. §49-658. In most jurisdictions, additional court costs and fees apply which increases the total penalty and costs from $116.50 to $151.50.

Nearly 1/3 of the pedestrians killed each year is between the ages of 4 and 14 and involved a pedestrian v vehicle crash. It is important for parents to talk to their children and encourage safety by following simple rules, such as: a) cross the street at intersections, never from behind parked cars or in the middle of the block; b) know what traffic signals mean; and, c) cross the street only when the “Walk” signal is lit up. A number of school zones have yellow flashing lights when children are present. However, children should be aware that not all drivers slow down for the flashing lights.

4 Things You Should Do With Your Estate Plan Before You Travel

Published on: October 17, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

I’ve had a number of both new and current clients who come to me just prior to leaving on a vacation or a trip abroad who are concerned about their estate plan. It seems that the idea of traveling, whether to a remote location or not, somehow creates a sense of urgency in my clients in making sure that their estate plan is complete. Based upon these experiences here are 4 things that you should do with your estate plan before you travel so that you can have peace of mind.

1. REVIEW YOUR PLAN FOR YOUR MINOR CHILDREN

IS MY SPOUSE HIDING ASSETS PRIOR TO DIVORCE?

Published on: October 17, 2016 | by Racine Olson

By Nathan R. Palmer

Gamesmanship is common during a contentious divorce. One common example of gamesmanship is the hiding of marital assets in anticipation of divorce. Hiding assets can come in many shapes and sizes, including stowing cash from bank accounts, taking personal property items from the home, and going on a spending spree. Is the other spouse entitled to compensation when a spouse wastes marital assets during divorce?

Spouses owe each other certain fiduciary duties during the term of the marriage. These fiduciary duties include transparency regarding financial assets and all other property matters. Courts may consider whether a spouse has dissipated or wasted assets by spending marital funds in some improper manner, thereby reducing the amount of assets available for division. The burden of proving dissipation of marital assets can be heavy.

Illegal Lockout by a Landlord

Published on: October 16, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

By and large, most tenants are pretty good, but one bad tenant can give a landlord nightmares and cause him to question whether he should ever rent again. Sooner or later a landlord will be faced with the task of evicting such a tenant. However, even when a bad tenant exists, there are specific steps that a landlord must follow to legally evict a tenant from a rental property. When a landlord fails to follow this process and simply locks the tenant out, the landlord could be liable to the tenant.

A lease is a contract. As a result, the rights and obligations of both the landlord and the tenant are controlled by the terms of the contract. Our society and the laws that current exist determine that it is important that people have a place to live and that a person should have some protection from being immediately removed from their home. As a result, current law requires that even when a tenant has breached the lease agreement or is doing something illegal such as producing or selling illegal drugs, the tenant still has certain protections from being instantly kicked out of the leased property. In fact, unless a landlord has provided the required demands and notices, eviction of a tenant cannot occur.