Idaho Law Blog

4 Things to Know About Choosing a Personal Representative

Published on: October 18, 2016 | by Racine Olson

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.

A History of the Fair Labor Standards Act

Published on: October 16, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

The Fair Labor Standards Act of 1938 (abbreviated as FLSA; also referred to as the Wages and Hours Bill) is a federal statute of the United States that changed employment relationships dramatically. 　The FLSA introduced the forty-hour workweek, established a national minimum wage, guaranteed “time-and-a-half” for overtime in certain jobs, and prohibited most employment of minors in “oppressive child labor”, a term that is defined in the statute. It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage.

The FLSA was originally drafted in 1932 by Senator Hugo Black, who was later appointed to the Supreme Court in 1937. However, Black’s proposal to require employers to adopt a thirty-hour workweek was unpopular with employers who were used to working employees up to 12 hours a day. In 1938 a revised version of Black’s proposal was passed that adopted an eight-hour day and a forty-hour workweek and allowed workers to earn wage for an extra four hours of overtime as well. Children under eighteen were prohibited from certain dangerous jobs, and children under the age of sixteen could work during school hours.

3 Things to Know About Estate Planning and Divorce

Published on: October 16, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Once you are married, you stay that way legally until a judge signs a divorce decree. If you are separated from your spouse but not divorced and then you die or become disabled, your estranged spouse may still have legal control over you and your estate. 　Worse, your estranged spouse may be legally entitled to receive your estate. 　The good news is that you can change this. 　Here are 3 things you should know about estate planning and divorce.

1. YOU CAN CHANGE YOUR ESTATE PLAN ANY TIME YOU WANT

What happens to retirement benefits in divorce?

Published on: October 15, 2016 | by Racine Olson

By Heidi Buck Morrison

One of the assets that must be dealt with in divorce is the parties’ retirement accounts such as pensions, 401Ks and IRAs. Upon divorce, retirement benefits must be valued and divided.

With respect to valuing a retirement account, there are two valuation methods used by courts. First, the “Time Rule” is a valuation method that determines the community interest in a retirement by computing a ratio of the time of marriage, to the total years of service during which the pension or retirement was earned. Maslen v. Maslen, 822 P.2d 982 (Idaho 1991). Under this valuation method, the calculation must be determined by calculating the amount of benefits that would be due if the spouse were eligible for retirement then. Id., at 982.