How to Help Your Parents With Estate Planning Without Messing it Up
Having been Idaho estate planning attorneys for over 70 years we have seen a number of different situations arise where children attempt to help their parents complete their estate planning. There's nothing wrong with children trying to help their parents complete this important task. However, it's vitally important that children not overstep their bounds. A person's estate planning should be their own. What this means is the decisions that are made about who will receive their property, assets, and money should be left to the individual alone and there should be no undue influence trying to convince a parent about how they should distribute their estate after they die.
Our team of Idaho estate planning attorneys takes pride in the fact that it has assisted clients in creating customized estate plans for over 70 years. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley, each of whom have received numerous positive reviews from current and past clients. Additionally, our attorneys have received the highest ratings possible from AVVO, Justia, and Martindale & Hubbell based on reviews and information provided by judges, other attorneys, and our current clients.
So what exactly is it that children can do to help their parents get their estate planning done without overstepping their bounds and unduly influencing their parents. In other words how can a child help their parent and still have a valid a state plan when they are done. To accomplish this there are three specific things that you should know.Parents Must Know What They are Doing
The first thing that you should know is that your parents must know and understand what they are doing when they are creating their own estate plan. If you are pushing too hard to have your parents create an estate plan, or a last will and testament and if they do not seem to understand what they are doing, or if you are unduly suggesting to them how they should distribute their property after they are gone, then your parents' last will and testament may not be valid when it is done.
According to applicable Idaho case law your parent must have "sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which they are about to dispose, and nature of the act which they are about to perform, and the names and identity of the persons who are to be the objects of their bounty, and their relation towards them." In re Heazle's Estate, 74 Idaho 72, 76, 257 P.2d 556, 558 (1953).
In general, the basic requirement is that your parent must at the time of making their will have sufficient mentality to enable them to know what property they possess and of which they are making a testamentary disposition, to consider and know who are the natural objects of their bounty, and to understand what the disposition is that they is making of their property by their will. In re Heazle's Estate, 74 Idaho 72, 76, 257 P.2d 556, 558 (1953).
To sum it up, your parent must understand without prompting what it is they are doing. They must understand what property they own and who their property will go to upon their death based on what is written in the last will and testament.Parents Must not be Influenced by Children
The next most important thing that you must understand is that you must not influence your parents' decisions about who they are giving their property away to after they die. According to current Idaho law, a last will and testament may be held invalid on the basis of undue influence where sufficient evidence is presented indicating that the testator's free agency was overcome by another. In re Estate of Roll, 115 Idaho 797, 799, 770 P.2d 806, 808 (1989). Generally, undue influence is often demonstrated through proof of four elements: "(1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence occurred." Gmeiner v. Yacte, 100 Idaho 1, 6-7, 592 P.2d 57, 62-63 (1979).
Evidence relevant to the question of whether undue influence has occurred includes the age and physical and mental condition of the one alleged to have been influenced, whether that person had independent or disinterested advice in the transaction, the providence or improvidence of the gift or transaction, the delay in making the gift known, the consideration or lack or inadequacy thereof for any contract that was made, the necessities and distress of the person alleged to have been influenced, the person's predisposition to make the transfer in question, the extent of the transfer in relation to the person's whole worth, the failure to provide for his own family in the case of a transfer to a stranger, or the failure to provide for all of his children in case of a transfer to one of them, as well as active solicitations and persuasions by another party, and the relationship of the parties. Wooden v. Martin (In re Conway), 152 Idaho 933, 938-39, 277 P.3d 380, 385-86 (2012).
If based on the evidence that can be submitted there is any indication of undue influence, the court may find the last will and testament of your parent to be invalid. If the will is declared to be invalid and there is no additional last will and testament that was created, then your parent will have died intestate, and Idaho's laws of intestacy will determine who will receive distributions from your parents' estate.How an Estate Planning Attorney Can Help
The third thing that you should know and understand is that having an Idaho estate planning attorney help you can provide strong evidence that your parents understood and knew what they were doing. Based on current Idaho case law any independent witness who can testify about capacity and whether undue influence existed can testify. This includes the estate planning attorney who helped your parent create their last will and testament.
As to capacity, an estate planning attorney can be permitted to testify that the testator was "alert," "perky," not distracted, and correctly answered questions about their family members, the value of their estate, and the date. Wooden v. Martin (In re Conway), 152 Idaho 933, 936, 277 P.3d 380, 383 (2012)Enlist an Idaho Estate Planning and Probate Attorney to Help You
Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or are in need of a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial free consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with the Racine Olson team. You can also email us directly at email@example.com. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.