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By:   Sandra L. Clapp
Sandra L. Clapp & Associates, P.A.

It may come as a surprise for your heirs to learn there is no legal “right” to an inheritance except if you die without a will or testamentary plan in place.  An inheritance is a voluntary gift and each person has the right to direct the final distribution of her estate (which is a legal term for your assets, rights, and liabilities).  If a will or other testamentary plan is not established, upon death the remaining assets in your estate are distributed pursuant to the laws of intestacy.  As a general matter, the laws of intestacy favor distribution to spouse, children, or other lineal descendants such as grandchildren.  Under the laws of intestacy, all persons of the same class of heirship are treated equally.  In determining the distribution of your estate, you may desire to create unequal proportions, make distributions to non-family members, or devise all or part of your estate to charity.  Distributions that are not equal or made to non-family members may be subject to greater scrutiny or dispute, particularly if your heirs expect an inheritance.

If your testamentary desires vary from the traditional intestacy distributions, additional care should be given to insuring your estate planning documents are enforceable.  There are many reasons why distributions may vary to include unequal amounts or non-family beneficiaries.  Some of these reasons include the fact that one child or person has provided great assistance with care and needs during lifetime.  Other considerations may be the lifestyle, criminal activity, or addictions of the child or heir.  Sometimes the reasons are very personal and do not need to be explained.

The key to carrying out any testamentary distribution is to insure the testamentary documents are valid, binding, and enforceable.  As discussed in prior articles, in Idaho a will is valid if it is signed in front of two witnesses.  In addition, Idaho recognizes a holographic will which is a document where the material provisions of the will are in the handwriting of the decedent.  Although a holographic will may be recognized under Idaho law, the burden is on the proponents of the will to prove it is valid which can create challenges to whether it is effective or not.  This burden may include handwriting experts to analyze and validate the document.  The burden may also include witnesses or other evidence that confirm the decedent prepared the will and that the will reflects the intent of the individual who prepared it.  Finally, a handwritten document may be subject to interpretation which may cause a legal action to interpret the provisions of the document even if it is found to be valid.

One of the easiest ways to avoid such legal wrangling is to prepare a written will that is considered to be self-proving under Idaho law.  To be considered a self-proving will, the document is executed by the testator in front of two witnesses and a notary.  The will incorporates particular language that is outlined in the Idaho statutory provisions.  Once the will is executed to include the self-proving language, under Idaho law the will is presumed to be valid.  Any person who seeks to contest a self-proving will bears the burden to admit sufficient evidence before the court to set aside the will.  The most common reasons for a will challenge include (a) lack of capacity, (b) fraud, (c) mistake, (d) undue influence, or (e) duress.  Another very important consideration in a will contest action to set aside a self-proving will is that the burden the contesting party must prove is very high (known as clear and convincing evidence).  The use of an independent attorney to prepare the testamentary documents also minimizes the risk for dispute because the professional can often (a) validate the testamentary instructions are voluntary and not the result of influence, (b) the apparent capacity of the individual, and (c) the process used to execute the documents.  Merely not liking the terms of the will is not sufficient grounds for a will contest.  If the will is executed during a period of illness, the will may also be supported by medical evaluations and videotaping of the execution.  Because of the heightened burden of proof to invalidate a will, the use of a properly executed self-proving will can greatly minimize the potential for a will dispute.

Many wills prepared by attorneys also include what is commonly referred to as a “no contest clause.”  This clause states that if any person seeks to challenge the terms of the will, the interest of the challenging person is terminated as if the contesting person died prior to the testator.  In Idaho, a no contest clause is enforceable unless the challenging party had adequate basis or probable cause exists for the challenge.  A no contest clause does not prevent a beneficiary from challenging actions of the fiduciary in administering the estate, but does minimize potential for dispute regarding the actual content of the documents.

This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes.  Consult with your legal or tax advisors before implementing any suggestion contained herein.


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