Addressing Idaho’s three most common estate planning questions

Estate planning in Idaho presents unique considerations due to the state's specific rules and community property laws. Here is a rundown on what Idaho residents most commonly ask when preparing their estates: 

No. 1: Do I Need a Will or Trust Despite Idaho's Intestate Laws? 

States like Idaho have established default rules (called “intestate succession” laws) that determine where your assets will go upon your death if you have not signed a last will and testament or a trust. Relying on these rules instead of creating a will or a trust can lead to unexpected outcomes for your family. These laws follow a rigid formula: with few exceptions, your surviving spouse receives all your community property and half of your separate property, while the other half of your separate property goes to your children. Without a will or trust, you lose control over crucial decisions. You don’t get to decide who will be in charge. You can't name guardians for minor children, make specific bequests to loved ones, or leave anything to charity, your church, or to nonprofits. A will or trust gives you the power to override default state required distributions and ensure your wishes are followed.  

No. 2: How Does Idaho's Community Property Law Affect My Estate? 

As one of nine community property states, Idaho treats marriage as an economic partnership. This designation significantly impacts how property is handled during estate planning. Community property includes everything acquired during marriage, including income earned by either spouse and assets purchased with that income. Both spouses equally own these assets, regardless of whose name is on the title of an asset, or whose name was on a paycheck. 

Separate property, however, belongs solely to one spouse. This includes assets owned before marriage, inheritances, and gifts specifically given to one spouse. A prenuptial agreement can also designate certain assets as separate or community property even if the law would have treated it otherwise. 

This distinction between community and separate property matters because different inheritance rules apply to each property type, because tax implications can vary significantly, and because distribution options can depend on property classification. 

No. 3 Should I Create a Trust to Avoid Probate?  

In Idaho, if you own any real property (even just your personal residence) and regardless of what it is worth, your estate must go through probate court even if you have a last will and testament. Idaho law offers both formal and informal probate, but the requirements to qualify for informal probate can be tricky and are too often misunderstood. Uncontested Idaho probates are typically completed in less than 12 months. Still, many of my clients find that timeline too lengthy and want to use a trust to try to maximize efficiency and minimize costs.  

A living trust can offer some distinct advantages when set up correctly: 

• There is no need to go to court to get things done 

• Beneficiaries can gain near immediate access to assets (presuming you want them to) 

• Estate details remain private in your family (compare this to a probate where almost every aspect becomes public record)  

• Complex family situations can be better managed (especially those involving holding funds for minor children, dividing property among the children of blended families of second marriages, and ensuring your desires are met regarding the outcome of community and separate property) 

Making your decision 

Whether you choose a will or a trust, the key is to act. Procrastination is never a good estate planning strategy. Having any estate plan is better than leaving your family to navigate Idaho's intestate laws alone. Regular review and updates ensure your plan continues to meet your needs as circumstances change. Remember that estate planning is an investment in peace of mind for you and your loved ones.  

My law firm is currently offering free telephonic, electronic, or in-person 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.