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WHAT DO I DO IF MY PARENT DID NOT NAME ME IN THEIR WILL?

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By Lane V. Erickson, Idaho Estate Planning Attorney

For nearly 20 years I have helped a number of clients deal with a variety of Idaho estate planning and probate issues. I enjoy helping individuals and families resolve their problems when it comes to either creating an estate plan or distributing an estate based on the instructions and laws that apply.

Based on my experience I have found that a number of similar issues arise often that I can discuss with my clients about whether they are going to receive a portion of their parent’s estate. Based on my experiences I’ve listed three specific scenarios that I seem to get questions about on a regular basis. These questions and my responses about how these are applicable are listed below.

What Happens if There is No Written Will?

The first main question that I get is what happens if my parent did not actually write a last will and testament up. This is actually a pretty simple scenario. When there is no written will, then the laws of intestacy apply. Intestacy is a fancy legal word that lawyers use that simply means a person died without a written will.

Idaho has specific statutes that are called the intestate statutes. These are located at Idaho Code 15-2-101 et seq. If a person truly died without a written will then all of their property is divided as follows: (1) First, if there is a surviving spouse they will receive all of the community property, and ½ of all separate property that the decedent own at the time of their death; (2) Second, surviving children receive all the remaining ½ of the estate; (3) If there are no surviving children then the remaining ½ goes to the grandchildren; (4) if there are no grandchildren then it goes to the decedent’s parents; and (5) if there are no children, grandchildren, or parents, then it would go to the grandparents or to the issue of the grandparents if they are deceased. In other words, the property would then start going to very distant relatives such as uncles and aunts, cousins, and so forth.

As a result of this, if you are a child and there is no written will for your parent then you will receive a portion of their estate automatically.

What Happens if There is a Written Will But You Are Not Named in It?

Things might be a little different if there is a written will. Sometimes a parent will get a written will and then many decades will go by and they don’t update it or change it. When this occurs, sometimes there are additional children who are born after the will was written. As a result, a parent may have named some children but not all of them. If there is a written will and you are specifically not listed in it, you are what is called a “pretermitted” child.

According to Idaho law, if you are a pretermitted child then you are specifically allowed to receive a share in the estate equal in value to the estate you would have received if your parent had died without a written will. In other words, you are entitled to receive the same share you would have received if the intestate laws listed above applied. For this reason, even if you are not named in your parents written will, after it was executed, you will still be protected and receive a portion of their estate.

What Happens if You are Disinherited in a Written Will?

Things change again however if your parent specifically listed your name in the written will and stated that you are not to receive anything from their estate. In other words, if your parent specifically disinherited you in their written will, the law will uphold this disinheritance and specifically state that you receive nothing from your parent’s estate.

If you do have questions about whether you are going to receive any portion of your parent’s estate, we can help. We have talked with numerous clients before about their parent’s estates and have helped them determine whether they are going to receive anything from the estate. This is especially true if probate proceedings have begun.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

If you do not have an estate plan in place, or if you have questions about estate planning we can help. When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning problems.

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