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What If I Die Without a Will in Idaho?

When people die “intestate,” it means they pass without a will. A probate court follows the intestacy laws of the Idaho code to see who inherits their property. If the decedent has a surviving spouse and children, they receive the estate. If they don’t have a spouse or children, the estate goes to the next of kin, such as parents, siblings, grandparents, nieces, nephews, etc. If there is no next-of-kin, the state receives the assets.

What Does a Will Do?

A will allows you to control who manages your estate, how to distribute your property, and who cares for your children. In your will, you can do the following:

• Name a personal representative or executor to handle your estate. They locate your will and assets, submit the will to probate with the county clerk and follow the instructions in your will.
• Give away specific items of personal property and real property (real estate)
• Name loved ones and family members to inherit your property (your beneficiaries)
• Appoint guardians for minor children, if necessary
• Name caregivers for pets and put aside funds for their care
• Make charitable donations

Because you make these decisions in your will, you streamline the probate process, saving your family time and money in probate court.

What Doesn’t a Will Do?

While you can transfer property and assets in your will, some assets transfer differently. For example, transfer-on-death bank accounts or life insurance policies. These are known as non-probate assets. Instead, they transfer to the beneficiaries you name on them. These non-probate assets may include:

• Funds in payable-on-death or transfer-on-death bank accounts
• Proceeds from life insurance or annuities (to named beneficiaries)
• Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
• Property owned as joint tenancy with right of survivorship
• Property owned by trusts, including living trusts and irrevocable trusts

Check the beneficiary designations on your accounts and policies to make sure they are correct. You should also name a backup beneficiary if your primary beneficiary dies before you. Any assets or accounts without a beneficiary go to your estate for a probate court to distribute.

Who Can Make a Will in Idaho?

Under Idaho law, the person making a will, called the testator, must meet the following requirements.

• Age: A testator is at least 18 years of age or an emancipated minor.
• Sound Mind: A testator is of sound mind, meaning they understand they are making a will, the property they own, who their natural heirs are, and how a will disposes of their property.

The testator must have a sound mind at the time they sign their will. Idaho residents with concerns about whether they can make a will should consult an estate planning attorney for legal advice.

Does Idaho Have a Statutory Will?

No. Idaho does not require or provide a particular statutory form. You can hire an attorney to draft one or do it yourself with online resources, such as FindLaw Legal Forms and Services, to create a will conforming to Idaho law.

What Types of Wills Does Idaho Accept?

Most wills are typewritten or printed in paper form and signed by the testator. There are many ways to make a will, but under the laws of the state of Idaho, only certain types of will are acceptable.

• Handwritten Will: A handwritten or holographic will is a will that the testator writes in their own handwriting without any witnesses. Many states prohibit holographic wills. But in Idaho, holographic wills are acceptable if the signature and the material provisions are in the testator’s handwriting.
• Oral Will: Oral wills are wills that are spoken aloud by the testator. Idaho does not recognize oral wills.
• Electronic Will: An electronic will is a will written and stored electronically or signed, witnessed, or notarized through electronic methods. Idaho recently passed legislation for electronic wills. Under Idaho Code § 15-2-1105, wills may be created, signed, witnessed, and attested electronically.

Although you could use a handwritten will in Idaho, you may prefer a printed or typewritten will to avoid confusion or mistakes.

Can I Make My Own Will in Idaho?

Yes. Idaho allows you to make your own will. If you have a simple estate, know what property you own and who you want to receive the property, then you are ready to make your will. You need basic information, such as the names of your personal representative, guardians, and beneficiaries.

The benefit of using a will drafting service such as FindLaw Legal Forms and Services is that you can easily update it when you want. For example, if there is a death of a beneficiary, birth of a child, or divorce, you can make a revocation of your original will and create a new one.

How Do I Make My Will Valid in Idaho?

The state of Idaho has specific requirements for making a valid will.

• Signature: The testator must sign the will or direct someone to sign it for them in their presence.
• Witnesses: Two competent witnesses must witness the testator signing the will or the testator’s acknowledgment of the testator’s signature. A competent witness is able to act as a witness to a will. Although some states prohibit interested witnesses, which are witnesses who may benefit from the will, Idaho allows interested witnesses. Using interested does not invalidate your will.
• Notary: You do not need a notary for your will. But if you want your will to be self-proving, you need a notary public’s services.
• Self-Proving Affidavit: Idaho allows you to self-prove your will with an affidavit. A self-proving affidavit is a statement you and your witnesses sign attesting that you signed the will. This signed and notarized affidavit makes a will self-proving, so your witnesses do not have to testify in court as to the will’s authenticity.

Can I Disinherit My Spouse in Idaho?

No. You cannot disinherit your spouse. Unless they waive their rights to your estate through a premarital agreement, a surviving spouse may claim an elective share of your estate. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will.

Can I Disinherit My Children in Idaho?

Yes. Under Idaho law, your children do not have a right to inherit from you. If you want to disinherit a child, you should state it expressly in your will. A court may determine that you left out your child’s name by mistake and possibly award them an intestate share of your estate.

What Estate Planning Documents Should I Have in Idaho?

A will is an excellent part of your estate plan to help those you leave behind. However, there are other estate planning documents that may benefit you and your loved ones during your lifetime.

• Power of Attorney. A power of attorney is a document that allows you to appoint someone you trust as your agent to make financial decisions for you. You may want this in the case of incapacity or even for convenience. Your agent has a fiduciary duty to act in your best interest. You determine what powers to grant your agent and when your agent’s authority begins and ends.
• Health Care Directive. A health care directive, also called a living will, or advance medical directive, allows you to specify what life-prolonging measures you do (or don’t) want if you face a terminal illness or end-of-life condition. In Idaho, you can also designate a health care surrogate or agent to make medical decisions for you when you can’t. If you don’t make these decisions in a health care directive, the burden is on your loved ones to figure out what you want.

Fortunately, making a valid will and creating other Idaho estate planning documents is easy with online estate planning templates.