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What Happens When You Don't Have a Written Will

Wouldn’t it be great if no one ever got sick, everyone paid their bills on time, and people were nice to each. It would also be great if every person had a complete Pocatello estate plan including a written last will and testament. The problem is we do not live in an ideal world. In fact, the reality is that in America, only about one-fifth of all adults have done anything to create a written last will and testament. Our job as a premier Pocatello estate planning law firm is to help each individual we work with in Idaho to think about and complete their own estate plan.

At the Racine Law Office our team of Pocatello Estate Planning and probate attorneys have assisted clients for over 70 years in thinking about and creating their own customized estate plan. Additionally, many of our clients come to us when a family member or loved one has passed away without a written will. We have assisted all of these people in completing a probate. The attorneys on our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each member of our team has experience in helping individuals complete probates for their family and loved ones in all kinds of circumstances including when there is no written last will and testament.

If you are worried about what will happen to your estate or to that of a loved one or family member who has no written will, or if you had a loved one or a family member recently pass away without a will, here are some specific things that will help you understand what needs to happen under Idaho law.

If There is no Will, do I Still Need to do a Probate?

Perhaps the biggest misconception that I find occurring with client is whether a probate needs to be completed or not. Some individuals think that if they have a written last will and testament that there is no need for a probate. Alternatively, some clients believe that if there is no written last will and testament and then there is no need for a probate to occur. The reality is that under applicable Idaho law probate must be done whether or not there is a written last will and testament if certain circumstances exist. These circumstances are as follows: (1) a probate is required if a person dies when they have an ownership interest in any kind of land or real estate regardless of his value; or (2) a probate is required for any individual who has an estate worth $100,000 or more when they die Even if there is no land or real estate in the estate.

When it comes to a probate, the only difference between having a written will and not having one is the specific direction a written will provides during the probate. For example, if a written will exists, it nominates who the personal representative will be, and it directs who will receive all the property of the person who passed away. Well there are more specific things that a written will can do, these are the two most basic that affect how a probate occurs. Otherwise, the probate process is very similar whether there is a written will or not.

How is the Personal Representative Chosen?

The next question we often receive from our clients is that if there is no written will, how is a personal representative chosen? The personal representative is the individual who is tasked with the responsibility to protect the property in the estate, pay all bills and debts of the person who passed away, and then to distribute all of the decedent’s property, money, and assets to those individuals who it is supposed to go to. As was mentioned above, when a written will exist, it specifically names the person who should be the personal representative. When there is no written will a different process is followed to choose the personal representative.

Specifically, when there is no written will Idaho law controls who the personal representative will be by creating a list of priority for different individuals. Under Idaho Code § 15-3-203, the order of priority for person who could be appointed by a Court to be the personal representative is as follows: (1) a surviving spouse; (2) a surviving heir of the decedent which would be children or grandchildren; and (3) other more distant heirs of the decedent; and (4) a creditor if no other person petitions for appointment within 45 days of the decedent’ death.

When you have a written will, you remain in control of nominating and naming the individual you want to have served as your personal representative. You’re not required to stay within your own family, but rather can name any individual you choose. This could include a close family friend, or a professional that you trust such as an accountant, or an attorney. The main difference between having a will and not having a will is that it gives you complete control over who is nominated to take care of this important responsibility for you after you pass away.

If There is no Will, Who Will get My Property?

The question that is the most common that we are asked by family members and loved ones after an individual dies without a written will is who will receive the assets, money, and property of the individual who died. When there is no written last will and testament, the laws of intestacy control the distribution of all property. to State it simply, all community property goes to a surviving spouse. Additionally, 1/2 of any separate property that is owned by an individual who dies goes to their spouse and the other 1/2 goes to their children. The statute goes further in stating that there is no spouse or children then the heirs of the decedent will be determined to be the next closest living relatives which could include parents, grandparents, siblings, and so forth.

As was mentioned previously, when you do have a written will, you are in complete control of naming who will receive your property, and money. You are not required to give anything to your children. In fact, if you choose, you have the ability to completely disinherit an individual in your will even if this individual is your own child.

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 Pocatello 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 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 We will answer your questions and will help you solve your Pocatello Estate Planning and Probate problems.

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