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WHAT COUNTS AS A WRITTEN WILL

By Lane V. Erickson, Idaho Estate Planning Attorney

Whenever a client consults with me after a family member or loved one has passed away, one of the first questions I always ask is whether there was a written last will and testament. The reason for this, is that a written will can control a number of things that happen after a person passes away. For sake of simplicity, we will mention only two in this article.

The first thing that a will controls is who will be named or listed as the personal representative of the estate. Some people call this person the executor. This individual will be appointed by the court as the personal representative through a probate process. Once this happens, the person who is named as the personal representative has legal authority to take control of all the property of the estate, deal with all the creditors of the decedent, and make all the distributions that need to go to the beneficiaries.

This brings up the second thing that a will controls which is who the beneficiaries are. A beneficiary is the person the decedent identifies to receive all or a portion of their estate after they pass away. A beneficiary could be a spouse, a child, other family members, or others. The person creating the will could name a friend, a stranger, a charity, or even a charitable purpose as a beneficiary under their will. Regardless of who or what it is, so long as a beneficiary is clearly identified, and the individual shows forth their intent that this beneficiary receive something from their estate, then that is what will happen.

If you don’t have a written will, don’t despair. We help make the process as simple as possible. The best place to start is with organizing all your information in one place so that it can be easily understood. To do this, we recommend that our clients begin with our free Estate Planning Questionnaire. This is an easy and organized way of compiling all your information. Then we encourage our clients to schedule a free 30 minute consultation where we can answer their estate planning questions.

The purpose of this article is to discuss what counts as a written will under Idaho law. The reason we are providing this article is that we have found that most people don’t actually understand what a written will is or how it works.

Formal Written Will

Under Idaho law, the first type of will that can exist is a formal written will. This is often called a self-proved will because it contains several signatures in addition to the person who the will is for. These signatures include two witnesses, and a notary.

The witnesses sign a statement that says that they have specifically watched the individual creating the will sign their name to the will. They are also testifying that the person is over the age of 18 years, they are of sound mind, and under no constraint or undue influence. Essentially, they are acting as a witness to show that the individual who signed the will did it freely and voluntarily.

Next, the notary signs an oath and statement indicating that they saw the person who created the will sign it. They also testified that they saw the witnesses sign the will. Finally, the notary stamps the will with their notary stamp as evidence that the document is properly notarized under Idaho law.

It is very difficult for a formal written will to be challenged. The reason for this is because of all the witnesses who have provided testimony or a statement under oath indicating that the will is valid. This is why this type of will is known as a self-proving will.

Holographic Will

But this is not the only type of will that Idaho recognizes. In addition to a formal written will, Idaho law also makes provisions for what is known as a holographic will. The term holographic means in a person’s own handwriting. In other words, a holographic will is a will that a person wrote in their own handwriting and that they did not have a lawyer, or some other person type up formally.

In order for a holographic will to be valid, it has to be signed, dated, and it has to include some sort of testamentary intent. In other words, the holographic will must set forth the intentions of the person who created it to actually give a gift of their property to someone else when they die. If this is done, then the holographic will is considered valid and enforceable through the probate process.

Other Possibilities

The question then becomes what actually constitutes a holographic will. Courts in Idaho and in other states have found that birthday cards, notes in a notebook, statements written on a napkin, and even statements written in a person’s own blood qualify as a holographic will. So long as it is written in the person’s own handwriting, signed and dated and has testamentary intent, the law doesn’t really care what the holographic will is actually written upon.

As you can imagine, holographic wills are much easier to contest and to challenge. Because of this, if you and your family are hoping to avoid any type of family conflict or fights concerning the distribution of your estate, we encourage you to get a formal written will completed through a qualified estate planning attorney. By doing you have a better chance of avoiding these types of conflicts and challenges.

If you have questions or concerns about your own written will, or other estate planning documents, we can help. We have assisted numerous clients in the creation of their own customized estate plans, and we are confident that we can help you too. Please download our free Estate Planning Questionnaire and call us today for a free 30-minute consultation.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.

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