Idaho Law Blog

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.

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