Idaho Law Blog

3 Things to Know About Pour-Over Wills

Published on: September 28, 2016 | by Racine Olson

Estate Planning offers many options for individuals and families with simple or with complex estates. Anyone who has looked into creating a living trust has probably heard the term “Pour-Over Will” but few really understand what they are or how they work. After all, if you are interested in creating a Living Trust you likely want to avoid probate and the need for a Will in the first place. 　Here are 3 things to know about a Pour-Over Will.

1. What a Pour-Over Will is

Employee or Independent Contractor

Published on: September 28, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

It may be surprising to know that many people who are working a job really don’t know whether they are an employee or not. They may think that they are an independent contractor, but may not actually be one according to the law. 　In Moore v. Moore, the Idaho Supreme Court provided some specific guidance on whether a person is in fact an independent contractor or not. Here are the 4 factors the Courts used in its decision.

The first factor that the Court examined was whether there was direct evidence of the employer’s right to control the time, manner, and method of the work. In analyzing this factor, the Commission found that Claimant generally controlled his own work. The Commission analyzed the period of time from the late 1990’s until 2008, and found that at all times before and after the accident, Claimant was an independent contractor who controlled his own work. Moore v. Moore, 152 Idaho 245, 249, 269 P.3d 802, 2011 Ida. LEXIS 12 (Idaho 2011). Shriner v. Rausch, 141 Idaho 228, 108 P.3d 375 (2005), does not stand for the proposition that the Commission cannot consider the course of dealings between the parties when conducting its analysis. Importantly, the Court in Shriner never indicated that the course of dealing could not be considered, but only that the course of dealing did not change the result in that case. If anything, the Court’s statement was an explicit acknowledgement that the course of dealing was properly examined, but that such dealings either supported, or did not contradict, the Court’s ultimate conclusion. Moore v. Moore, 152 Idaho 245, 250, 269 P.3d 802, 2011 Ida. LEXIS 12 (Idaho 2011).

Small Business 101: Can you form a partnership in Idaho by conduct alone?

Published on: September 27, 2016 | by Racine Olson

By Joseph G. Ballstaedt

If you and a friend or family member have started a side business or some type of small money-making venture, you may have inadvertently formed a partnership. To form a partnership in Idaho, partners don’t need to file paperwork with the state of Idaho, form a written partnership agreement, or agree to form a partnership. Rather, under Idaho law, a partnership can form by conduct alone. Specifically, when two or more people get together and run a business as co-owners and share profits, they have formed a partnership, a legal entity separate from their individual entities. It doesn’t matter that they didn’t intend or want to form a partnership; a partnership may nonetheless exist.

As a partner in a partnership, you may have unexpected liabilities. Each individual partner is an agent of the partnership for purposes of the partnership’s business, and when a partner does any normal and expected business work or transactions (acts done “in the ordinary course” or running the partnership), those acts are almost always binding on the partnership, in additional to acts explicitly authorized by all partners. Acts that are binding on the partnership are in turn binding on all individual partners (with limited exceptions) because each individual member to a partnership is usually jointly responsible for the debts, obligations, and liabilities of the partnership.

The Basic Terms Every Written Lease Agreement Should Contain

Published on: September 27, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Under current Idaho law, a lease agreement can be either oral or written. As attorneys, we always recommend that our clients get a written lease so that there are no misunderstandings about what the terms of the agreement will be. However, just having a written lease agreement alone is not enough unless it contains all the critical information needed to clearly describe what the agreement really is. As is set forth in the Idaho Attorney General’s Landlord and Tenant Guidelines (http://www.ag.idaho.gov/publications/consumer/LandlordTenant.pdf) here is a list of the basic information that should be contained in every written lease agreement between a landlord and a tenant.

1. Contact Information. The names, addresses and telephone numbers of the landlord, the property owner, the tenant and an emergency contact and any other important contacts, such as maintenance personnel. This information provides both parties with a way to contact each other in case of some sort of emergency. This also allows the parties to contact each other if they feel that the terms or conditions of the lease agreement are not being that.

3 Things to Know About a Minor’s Trust

Published on: September 27, 2016 | by Racine Olson

By Lane V. Erickson

Many of my clients are parents of children who are minors. These parents often ask me how they can transfer property to their children if they are minors at a time when the parents die. These parents raise several serious concerns about who will take care of that property and the timing of it being distributed to the children. A Minor’s Trust is an Estate Planning mechanism that can be used to protect property given to minors and provide for a plan of distribution. Here are three important things to know about a Minor’s Trust.

1. A Minor’s Trust Can be Included in a Last Will and Testament

Can An Employer Obtain a Credit Check on an Applicant

Published on: September 27, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Credit checks related to hiring and other employment matters are generally referred to as employee credit checks or employment credit checks. Idaho does not currently have a “credit check law” that restrict or prohibit an employer from conducting a credit check on its prospective or current employees. As a result, employers have the right to conduct an employment credit check to make hiring or other employment related decisions. A potential or current employer is free to check a credit report as part of an employment background check.

The main reasons employers conduct credit checks on job candidates are to help prevent theft and embezzlement, and to reduce potential legal liability for negligent hiring. Credit checks are often used by employers. In fact, a 2012 survey by the Society of Human Resource Management showed that 47 percent of the employers surveyed conduct credit checks on job candidates. Of those employers, 34 percent conduct credit checks only on certain job candidates and 13 percent do so on all job candidates.

Can a primary custodial parent move with the children to another state?

Published on: September 27, 2016 | by Racine Olson

By Tippi Jarman

Did you know that the Idaho Supreme Court just days ago upheld a magistrate judge’s decision to allow the primary custodial parent (mother) to move with the children from Idaho to Montana?

In Reed v. Reed, 2016 Ida. LEXIS 246, (September 9, 2016), the magistrate judge analyzed a petition to modify the child custody determination made in the parties’ previous divorce. The magistrate judge gave due consideration to the factors set forth in Idaho Code Section 32-717(1); namely: (a) the wishes of the child’s parent or parents as to his or her custody; (b) the wishes of the child as to his or her custodian; (c) the interaction and interrelationship of the child with his or her parent or parents, and his or her siblings; (d) the child’s adjustment to his or her home, school, and community; (e) the character and circumstances of all individuals involved; (f) the need to promote continuity and stability in the life of the child; and (g) domestic violence as defined in section 39-6303, Idaho Code, whether or not in the presence of the child. The magistrate judge found that the factors in favor of allowing the mother to relocate with the children in Montana were considerable.　 The mother felt Montana was best for the children. The children were neutral about both of their parents. The mother had been the primary custodial parent and witnesses attested to her strong parenting skills. Although both parents were deemed stable and fit to provide a home for the children, the family situation in the mother’s home allowed for siblings to interact with each other daily.　 The children had made a good adjustment to the school and activities in Havre, Montana. The children were within walking distance of the school and their home. The mother, who had remarried and had two children with her new husband, was able to elect staying at home to care for the children. Since the children had been living primarily with their mother for over ten years, stability and continuity in their lives was promoted by having them stay with her in Montana rather than with the father in Idaho.

If a driver in Idaho faints while driving, is he liable for any resulting damage or injuries?

Published on: September 27, 2016 | by Racine Olson

By Joseph G. Ballstaedt

What if an Idaho driver suddenly loses consciousness or experiences a completely debilitating medical condition–such as a heart attack, a stroke, or a seizure–and this condition leads to a car accident? Is the driver liable for resulting damages and injuries?

Under Idaho law, a person is negligent and responsible for any harm he causes if he does not use ordinary care in keeping others and their property safe. In making this determination, one must simply ask, how would a reasonably careful person act under the circumstances? Answering this question can be a little tricky when a car accident occurs after a sudden and debilitating illness. The law of negligence only holds people accountable for foreseeable injuries, and a reasonably careful person cannot foresee every harm he might cause. For example, if a driver has never had a seizure or experienced symptoms that might lead to a seizure, but one day crashes due to a sudden and unexpected seizure, he probably didn’t act negligently and therefore won’t be held liable for any damages. On the other hand, if he had seizures in the past or had reason to believe he might have a seizure in the future, he might be held responsible.

The 4 Types of Records that Every Corporation and LLC Should Keep

Published on: September 21, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Everything runs smoother in a business when you are organized. 　This is especially true when your business is a corporation or an LLC. 　The reality is that most states require corporations and LLCs to keep certain types of records. Doing so is both a good business practice and can help you keep in good standing in the state where you created your corporation or LLC. 　Records that corporations and LLCs should or are required to keep usually fall into the following 4 categories:

1. ORGANIZATION AND OPERATIONAL DOCUMENTS

4 FACTORS CONSIDERED IN CHILD SUPPORT

Published on: September 21, 2016 | by Racine Olson

By Nathan R. Palmer

The calculation used to determine the amount of child support to be paid by one parent to the other can seem somewhat mysterious. While there are nuances to every factor used in calculating child support, the factors listed below are typically used in every child support calculation:

Time with the child. The Idaho Child Support Guidelines require the input of the percentage of time each parent spends with the child. The percentage is determined by counting the number of overnight visits the child has with each parent during the year. Generally, parents pay less (or receive more) child support when they spend a higher percentage of time with their child.