Is Your Will Going to Work

By Lane V. Erickson, Pocatello Estate Planning Attorney

If you have gone to the effort to create your own last will and testament, you want to make sure that it's actually going to do what you want it to do. In other words, you want to know that it will work. If you haven't yet created your own last will and testament, we provide an Estate Planning Questionnaire with a free 30-minute consultation that will help you get started on the right path in getting it done.

As the premier Pocatello estate planning law firm, we understand your concerns about whether your will does what you want. At the Racine law office, it's important to us that the last will and testament we create for each client will meet their individual needs and not simply be a cookie cutter form. Our goal is to create a customized last will and testament that successfully accomplishes your specific wishes.

For more than 70 years the attorneys on our estate planning team, have helped each client create a customized Pocatello estate plan including a last will and testament. Our actions follow our belief that each client’s last will and testament should accomplish specifically what our clients want and nothing more. Because it is your estate plan, you are in control.

Many times we will have a client bring us a written last will and testament they received from another professional, or that they created on their own from the internet or from software. Often, their will is mixed in with hundreds of other pages in an impressive looking, thick binder with lots of tabs. Most of the time, we determined that the binder full of documents is really useless in accomplishing what our clients want to do. Worse than that, many times the bulk of these documents are just space-filling fluff that really doesn't accomplish anything at all except look impressive.

The purpose of this article is to help you understand whether your last will and testament is actually going to work for you. This is of course assuming that you already have a written last will and testament. If you do not have one, this article will help you understand how you will know whether the last will and testament you create will actually work.

The best place to start is to determine whether your last will and testament has the basic information that should be in a will. This information is simple and it includes such things as identifying who you are with your full legal name. Your will should also have the full legal names of your children and your spouse if you are married. You may also want to name other specific individuals such as grandchildren, good friends, or even charities, if these individuals/entities will be listed as beneficiaries in your last will and testament.

The most important part of the basic information that you should have in your last will and testament is what your specific instructions are concerning your money, property, and other assets. In other words, you need to actually name a beneficiary or more than one beneficiary who will receive your stuff after you pass away. If you go to the trouble to create a last will and testament, but you never actually list any beneficiaries, then the statutes in Idaho will determine who your beneficiaries will be. This really negates the reason for getting a last will and testament done in the first place.

In addition to being specific about the gifts that you want to give, and naming beneficiaries who will receive those gifts, the next most important thing that your will needs to have is a list of the appointments you want to make. There are several different types of appointments that can be made in a last will and testament. We will talk about each of these individually.

The first type of appointment that is made in a last will and testament is who the personal representative will be. Sometimes people call this individual the executor. It really doesn't matter what name you use, what you're really doing is being specific about who you are assigning or appointing to be responsible for making sure that the instructions you leave in your last will and testament are carried out. This particular person will likely be appointed by the court through a court order and other documents that provide authority for this individual to deal with your property and assets and to carry out your instructions.

The second type of appointment that can be made in a last will and testament has to do with naming a guardian for minor aged children. If you have children who are under the age of 18, you have the ability to use your last will and testament to nominate the person you want to be appointed as the guardian of your children if you and their other parent pass away. Idaho statutes provide the specific right to you. The persons that you nominate will be given the highest priority by the courts in Idaho when it comes to entering an Order naming a guardian for your children.

An additional appointment that your last will and testament can create is that of a trustee. If you have a testamentary trust, you have the ability to appoint who the trustee of that trust will be. This is a common mechanism that is used in a last will and testament when you are leaving all or a portion of your estate to minor age children, or to children who have disabilities or special needs.

Again, if you do not actually list somebody or name somebody to each of these appointments then the court will determine who the appointments will be made to. It's far better for you to use your last will and testament to name these individuals. By doing that, you know that the people you have chosen will be the people who will be left in charge after you pass away.

The final question in determining whether your will is going to work is whether your will is valid or not. To be valid, it's simply needs to meet all the legal requirements under Idaho law. These are simple. Essentially, your last will and testament should be typed, should contain your full legal name, should be signed by you, should be dated by you, and should be witnessed by two individuals and notarized after everyone has signed it.If you need all of these formalities, then your last will and testament will be legally valid.

There are other things that your last will and testament should also do in order to avoid confusion or problems. This would include revoking all prior wills and other documents that you have as part of your estate planning. It should also be kept simple. You do not need a 25-page last will and testament when 4 or 5 pages will be adequate.

Do you have questions about whether your last will and testament meets all the requirements we've described? Or, do you need a written last will and testament? We have helped numerous clients in both creating and reviewing their last will and testament to make sure that it will be valid and enforceable. If you have questions, we are confident that we can help you too!

Our team of Pocatello 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 Pocatello Estate Planning problems.