Does your estate plan need an Idaho-specific revision?
| November 15, 2023 1:00 AM
Wills, trusts, advanced medical directives, and power of attorney documents of those who have moved to Idaho from other states should be reviewed with an eye toward Idaho law. People regularly move to Idaho from other states and bring with them estate planning documents created in their prior state of residence. Such people often ask me if their old estate planning documents are enforceable in Idaho. Generally, those documents are still valid in Idaho. However, there are some very important reasons to have estate planning documents from another state reviewed by an Idaho estate planning attorney. Let’s remind ourselves what each of these documents are and then consider some of the issues that create concern about out-of-state wills, trusts, and other estate planning documents.
A “Last Will and Testament” (“will”) is a document used to state what should happen to your possessions and assets when you die, as well as who should carry out those instructions you’ve left. Trusts come in many varieties, each with its own purpose. The most common type of trust used in estate planning is known as a “Revocable Living Trust.” A Revocable Living Trust is used to avoid the need for your estate to go through a court-controlled process called “Probate.”
Power of Attorney Documents typically state who your decision maker will be if you are alive, but unable to make your own decisions due to some sort of incapacity. These documents generally come in two categories — financial decision making and health care decision making. And, a “Living Will” is used to state what medical treatments you do or do not want administered to you if you are terminally ill and your death is imminent, or you are in what is called a “persistent vegetative state.”
Every state has its own laws concerning wills, trust, powers of attorney, advanced directives, estate taxes, and probate. These laws can have substantial differences. There may be formal requirements that some states require (but others do not) in order for such documents to be either valid, or in order for the documents to be used without the need for court involvement. Some documents may need to be witnessed and notarized in one state, but not in others. A document that does not meet your current state’s formality requirements may be “valid” but basically useless from a practical perspective.
If your documents specifically quote or cite to statutes (written laws) from your old state, those quotes or citations will not likely correspond to the statutes of your new state. Similarly, your old documents may specify that they be governed by and/or interpreted under the laws of your old state. That could mean that if an Idaho judge needs to interpret your documents, he or she may have to apply the laws of California (for example) instead of Idaho law. None of this is ideal insofar as it can cause confusion and ambiguity about the application of your documents.
Your documents may also specifically refer to the disposition of assets that you no longer own. Do your documents specify that your child is to receive the home in California or Arizona that you no longer own? Don’t presume that language will automatically be applied to your new Idaho home. These sorts of issues are the cause of way too many probate disputes. And if you are using a living trust to avoid probate, these issues can force your estate into court — the exact opposite of the outcome you were aiming for.
Finally, if you have moved, you very likely no longer live near some of the people you have named in these important documents to fill certain roles (such as the “agent” or “attorney-in-fact” under your power of attorney document, or the “personal representative” or “executor/executrix” under your will). Are those still the people that you want doing those jobs? Can they effectively do those jobs from another state?
An estate planning attorney can help you determine what, if anything, needs attention if your planning was done in another state.
My law firm is currently offering free in-person, telephonic, or electronic consultations concerning creating or reviewing estate planning documents.
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Robert J. Green is an Elder Law, Trust, Estate, Probate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.