Idaho Estate Planning Estate Planning Myths That Need to be Obliterated - Part 6
By Lane V. Erickson, Idaho Estate Planning Attorney
Welcome to Part 6 of the series of articles that focus on estate-planning myths that need to be obliterated. In the previous five articles in this series we addressed numerous issues that I have found many clients believe to be true but really aren’t. The goal of these articles is to properly educate you about Idaho estate planning and help you understand the importance of getting it done. More importantly, the goal of these articles is to help you and your family avoid many of the planning mistakes I’ve seen other individuals make that have caused problems for them, their family, and their loved ones.
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Once we know what it is you want to accomplish through your own estate planning, we then can quote the flat fee prices we charge for each of the options you are considering. In other words, we give you as much information and education about estate planning as possible for free. It’s only if you decide to hire us to help you get your estate planning done that any payments would be made to us. Our main goal is to give you all the information you need to consider before you make any decisions about your own estate planning.
In part 6 of today’s article we will be focusing on three questions that I am often asked my clients when it comes to estate planning. By answering these questions in this article this will provide you with some additional information about things that are and aren’t true when it comes to creating your own estate plan.I Have to Give My Estate Equally to My Children
One of the biggest misconceptions I find the clients have when it comes to estate planning is that they believe they are required to give their estate fairly to their children. In other words, many clients believe that in their last will and testament they must divide their estate equally between their children.
It’s understandable why there would be some confusion about this. The main reason for this confusion is the intestacy laws that exist in Idaho. Intestacy is a fancy legal word meaning that you do not have a written last will and testament. If you die intestate, then the statutes in Idaho will control how your estate is distributed. These statutes specifically state that if you have no surviving spouse then your estate is divided equally between your surviving children.
However, when you have a written will, you can avoid the intestacy statutes. In other words, in most circumstances when you do not have a surviving spouse, you have the ability of distributing your estate to whomever you want through your written will. This means that you could give your entire estate to one child. Alternatively, you could distribute your estate to none of your children but rather give everything to a friend, or other family member, or even a charity. You are in complete control of who and how someone else receives your estate.I Should Leave $1 to Whomever I Disinherit
When it comes to disinheritance another misconception has to do with how the disinheritance works. I find this particular myth sometimes is perpetuated by attorneys who don’t do estate planning work very often. The misconception is that if you disinherit someone you should leave them at least $1. The reason behind this misconception is that many people believe that if they fully disinherit a child or another person from their estate, then that person can challenge their estate and still get property from the court. These people believe that if they leave $1, then they have actually left an inheritance to that person which means they will not be able to challenge the fact that they didn’t receive anything more.
This is simply not true. Other than a spouse when community property is involved, you are free to disinherit whoever you want, whenever you want. In other words, there is no requirement that you leave anything to a person that you choose to disinherit.
I strongly discourage my clients from leaving $1 to the person they are choosing to disinherit. The reason for this is simple. If in your written will you state that you are leaving $1 to someone then the person you appoint as your personal representative is required by law to deliver that $1. If the personal representative cannot locate the person you are directing that $1 be distributed to, they are required to locate them. This may require the personal representative to hire a private investigation service or do some other costly investigation simply to locate the person so they can deliver $1 to them. In other words, your personal representative may be required to spend a lot of money to distribute that $1.
If you truly want to disinherit somebody, then just do it. Don’t leave them $1. In this way, you accomplish what you want, which is the disinheritance, and you are not obligating your personal representative to spend potentially large sums of money or property from your estate to make that distribution.I Don’t Need a Will Because I’ve Told My Family What I Want
Another comment that clients often make to me is that they don’t want to leave a lot of instructions in their written will because they have already told their family what they want to do with their money and property after they die. To these clients I simply state that if it’s not written down then it never happened. In other words, if it’s not written down with specificity in your written will, then there is no obligation that your family will do what you told them to do.
Let us use an example to illustrate this. Suppose you have five children, and that your intention is to leave your estate equally to four of your children. You are specifically excluding your fifth child because you provided a good deal of money or property to them while you were alive and you told them that that was their inheritance. In this example, if you don’t have these things written down in your will, then that child that you already gave money and property to can challenge any distributions from your estate that wouldn’t include them. In other words, unless it is written in your will, they would be entitled under the law to receive an equal share of your estate upon your death.
There is no obligation for any of your family to fulfill any of the wishes you declared orally. On the other hand, there is no way your family can dispute or fight over the distribution of your estate if it is spelled out in your written will. For this reason, never rely on oral statements. If you want to accomplish some specific thing through your estate planning, then you need to have a valid written will to describe what it is you want to accomplish.
If you do have questions or concerns about your own estate planning, or any of the myths that we have talked about in any of the parts of this series of Articles, please contact us. We would be happy to schedule a free 30-minute consultation with you or we can answer your questions and help you with your own specific estate planning needs.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 firstname.lastname@example.org 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.