She seemed relieved to hear that.  Then she commented that the last Simple Will she had prepared by an attorney in Boise, Idaho, had been 26 pages long.  I was incredulous.  I wondered out loud how a Simple Will could possibly be that long?

She asked if I would like to see the Will?  She showed it to me and, when I quickly thumbed through it, I realized that it technically fell into the category of a “Simple Will” because it did not include any provisions leaving her estate in a trust for her heirs.  But what it did include was a whole raft of provisions that did nothing other than extend the length of the document and make it more difficult for the client to understand.  For example, it included a full ten pages of definitions.  In the industry, that sadly falls under the category of “preserving the mystique” of the practice of law.

In the end, this client was delighted to sign a very short, easily understood Will.  She could tell that her Will did exactly what she wanted done.  No padding.  No boilerplate.  Just a short simple Will that turned out to be just two and a half pages long.

So what are the essential elements of a Simple Will?  They are:

• Full names of the person making the Will and his or her spouse and the names of all children (whether or not they are to receive an inheritance)
• The name of the person who is to serve as the Executor to make sure that the wishes of the person making the Will are carried out.
• The names of the persons who are to receive the person’s property after he or she passes away.  The gifts can be either:
  • Specific items left to certain persons (“my baseball card collection to my brother, Bob”),
  • Gifts defined by their value ($10,000 cash to my sister, Susan”), or
  • They can be a fraction or percentage of the total estate (“half of my estate each to be given to my brother and sister, Bob and Susan”).

Other provisions can be added, but the foregoing provisions are the essentials.  For example, it’s generally a good idea to state that you take away the inheritance that you otherwise have left to anyone who contests the Will.  But that is not something that is legally essential.

To make the process quick, easy to understand, and economical, it is important to know if your attorney tends to make a mountain out of a molehill.  Or is he or she able to distill the complexities of your Will or Trust down into an easily-understood format?  In the arena of Wills and Trusts, “Less really is better.”

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Whether you live in Boise, Meridian, Eagle, Star, Nampa, or other nearby communities – in fact, anywhere in Ada County or Canyon County – for additional easy-to-understand information on Wills, Trusts, probate, and estate taxes, visit the user-friendly website at http://barrypeters-law.com.  Then call attorney Barry Peters’ offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at http://barrypeters-law.com/common-questions .  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

When you put their names on your bank accounts, brokerage accounts, vehicle titles, and/or real estate here in Idaho, they become joint owners of that property.  In the event of a falling out, this could allow them to take those assets and do with them as they please.  They can legally draw money out of your bank accounts and sell your stocks and bonds.  Though they would not be able to sell your home in Boise, Eagle, or Meridian without your permission, neither would you be able to sell it without their permission.

Putting their name on the title to your assets also exposes those assets to your children’s creditor claims, IRS claims, and the like.  If your child was involved in an auto accident and a judgment was entered against him or her, the person who obtained the judgment would be able to require that your property be sold to pay off that judgment.  And if your children owe any unpaid taxes to the IRS or to the Idaho State Tax Commission, those agencies could also grab your assets to pay your child’s debt.

With a Will or a Trust carefully prepared by an attorney or lawyer, none of these risk exists.

To make matters worse, having the children receive the property by putting their name on title may also cause them to lose certain tax benefits that come through inheriting an asset.  If the asset has appreciated in value and they receive it as an inheritance, they can then sell the asset without paying a long term capital gains tax on the amount by which the value increased since the time that you initially acquired the asset.

On the other hand, if you give it to them apart from an inheritance, they generally receive it with the same “tax basis” that you have in the property.  That means that, when they later sell that asset, they will be required to pay tax on the difference between what you originally paid for the asset and what they later sell it for.  As a rule of thumb, they will be required to pay about 20% of the gain as federal and state taxes on property that you give to them in Boise, Meridian, Star, or Eagle.  On the other hand, if you leave them the asset in a Will or Trust no taxes will be due when they sell the appreciated asset.  And if a Living Trust is used, no probate will be required at the time of your death.

With all of these dangers in mind, for the vast majority of people, it makes far more sense to leave their children off title to their assets.  Instead, leaving those assets to the children in a well-prepared Will or Trust will be safer and could be far less expensive in the long run.

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Whether you live in Boise, Meridian, Eagle, Star, Nampa, or other nearby communities – in fact, anywhere in Ada County or Canyon County – for additional easy-to-understand information on Wills, Trusts, probate, and estate taxes, visit the user-friendly website at http://barrypeters-law.com.  Then call attorney Barry Peters’ offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at http://barrypeters-law.com/common-questions .  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

In a properly-prepared Living Trust or Family Trust here in Idaho, at least three documents are required and several more are very advisable.  Here’s which is which:

Required Documents:

• Living Trust Agreement
• Last Will and Testaments
• Deeds to move your home and other real estate into the trust and an Affidavit Regarding Residence of Trust to insure that your homeowners tax exemption will remain in effect even though you have moved your home into your new Trust.

So when you consider using an internet-based entity to draft your Living Trust in Boise, Meridian, or Eagle, always ask if all of these documents are included.  And don’t forget that a Deed is not effective unless it has also been taken or sent to the Ada or Canyon County Recorder’s Office where it was actually recorded.  So any service that omits any or all of these documents or services will be inadequate for the task of using a Living Trust to avoid probate and estate taxes.

Recommended Documents: For a thorough estate plan, though perhaps not absolutely required, several other documents are typical and helpful in a well-prepared estate plan.  Those would include at least:

• Living Wills to establish the medical care and food and water that you would like to receive in the event that you are in a coma and unable to express your desires.  Do you want medical care continued or terminated?  If you want the medical care terminated, do you want food and water terminated, as well?  Or should they be continued?
• Durable General Powers of Attorney which authorize a trusted family member or friend to step in and act on your behalf in the event that you are unable or unavailable to attend to your own affairs.   If you are medically or mentally incapacitated, Power of Attorney will avoid the need for someone to go to court and have you declared incompetent in order to have your affairs attended to.

So as you consider whether to try to cut corners with an internet-generated “Living Trust,” make certain that all of these documents are included in the total package.  Failure to include all of these is a recipe for disappointments.

An additional issue concerns the method by which your documents are signed.  It is very important that, when you sign your new Last Will and Testament, you have two witnesses and a notary public present at the same time so that your signature can be witnessed and both yours and your witness’ signatures are notarized.

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Whether you live in Boise, Meridian, Eagle, Star, or other nearby communities, for additional easy-to-understand information on Wills, Trusts, probate, and estate taxes, visit the user-friendly website at http://barrypeters-law.com.  Then call Barry Peters’ law offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at http://barrypeters-law.com/common-questions .  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

The answer is that, yes, you are legally permitted to do so here in the Boise, Eagle, and Meridian area.  But you should do so with careful attention to the way it is written and signed because it is very easy to inadvertently destroy the validity of a handwritten Will.

Idaho law permits what it calls “holographic” Wills.  Those are Wills that are entirely in your own handwriting.  But any part of the document that is not in your handwriting will render it invalid.  That means that the heirs that you name in your holographic Will would not be able to inherit anything under that Will.

So what sorts of things keep a handwritten will from being enforceable?  Here are several:

• The Will is witnessed by the signature of anyone else.
• The Will is notarized.
• The Will is typed up on your computer or downloaded on your computer and then signed by you.

Each of these steps results either in someone else’s handwriting being added to yours or in part of the document not being in your own handwriting.  In either case, in the event of a Will contest, the judge here in Boise, Meridian, and Eagle will declare your Will to be invalid.  That will leave you either with a prior Will still being in effect or, worse yet, leaving you with no Will at all.  Either case will result in your wishes being thrown out the window.

Unfortunately, the rules in this regard are so strict that it is easy to fall into the vast no-man’s-land between the legal methods of creating a Will in Idaho.

On the other hand, having Barry Peters or another skilled legal professional prepare the Will for you will always include:

• Carefully crafted provisions to precisely express your wishes;
• The signatures of two witnesses; and
• The notarization of the signatures of both you and the witnesses.

And, of course, one of the additional advantages of having a Living Trust is that these documents should never have to go to court for a judge to rule on their validity.  Under normal circumstances here in Idaho, Living Trusts avoid the probate process altogether and are, therefore, subject to much less stringent standards for their proper execution.

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Whether you live in Boise, Meridian, Eagle, Star, or other nearby communities, for additional easy-to-understand information on Wills, Trusts, probate, and estate taxes, visit the user-friendly website at http://barrypeters-law.com.  Then call Barry Peters’ law offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at http://barrypeters-law.com/common-questions .  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

Both the federal government and the state of Idaho have laws requiring the heirs of a person to pay taxes on the inheritance when that person passes away.  The tax rates vary, but can exceed 50% of the inheritance in the case of a very large inheritance here in the area of Boise, Eagle, and Meridian. 

So how can a Living Trust decrease the amount of those taxes if it is properly prepared by a skilled attorney?  The secret lies in the fact that, while they are alive, both the husband and the wife are each entitled to their own estate tax exemption.  In other words, if the amount of property being left to heirs is below a certain level, no estate taxes are required.

To grasp how a Living Trust can help a married couple out, bear in mind that legally each spouse is the “owner” of half of all the property that they have accumulated during their marriage.  In other words, each spouse in a couple that has acquired $2 million dollars in assets is actually the owner of property worth $1 million.  That includes real estate, bank accounts, stocks & bonds, vehicles, and any other property accumulated here in the Boise area.  And each spouse initially has a tax exemption that will shield that property from estate taxation.

But if the couple only has simple Wills instead of a Living Trust, they may create a problem.  For most simple Wills – even if prepared by a lawyer — leave everything to the surviving spouse when the first spouse passes away.  Then, when the second spouse passes away, the property is left to the children in some manner. 

The problem comes about when the first spouse passes away leaving everything to the surviving spouse.  That inheritance essentially doubles the amount of the property owned by the surviving spouse.  In our hypothetical, above, instead of just owning $1 million in assets, the surviving now owns the whole $2 million in property which was accumulated by the couple. 

When the surviving spouse passes away in Eagle or Meridian, for example, the size of the estate is now doubled and the amount of the estate taxes may, as a result, increase significantly.

With a Living Trust properly prepared by a skilled lawyer or attorney, on the other hand, the exemption initially held by both spouses is preserved.  Even though the same $2 million estate passes to the same heirs, the double exemption applies cutting down dramatically – if not eliminating — the estate taxes being payable by the heirs.

For the moment, an estate must be very large (in excess of $3.5 million in value) to incur estate taxes.  But, unless Congress and the President take decisive steps by the end of 2010, on January 1, 2011, the size of estates that will be subject to estate taxes will drop significantly.  One of the two great advantages of setting up a Living Trust here in Idaho is that it will double the size of the estate that is free from taxation regardless of what Congress may or may not do. 

The other great advantage of a Living Trust is, of course, that the surviving spouse and the ultimate heirs of the couple will be protected from the waste of time, money, attorney fees, and court costs that will result from having to go through the probate process twice – once for the husband and again for the wife.  The children and other heirs here in the Boise, Eagle, and Meridian area, will be left with the full inheritance for which the couple worked so hard during their lifetimes.

For additional easy-to-understand information on Wills, Trusts, probate, and estate taxes, visit the user-friendly website at http://barrypeters-law.com.  Then call Barry Peters’ law offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation of visit his Q & A pages at http://barrypeters-law.com/common-questions .  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

If significant property is left out of the trust, especially if it is Boise, Eagle, Meridian, or Star real estate for which title is in your individual name, probate will be required just to move that property into the trust where it can then be dealt with in the manner you have directed.  Likewise, if you rely on a Last Will and Testament to settle your affairs, probate is also required. 

But one potential problem in this scenario arises from the fact that, by federal law, IRA and other similar retirement accounts can only be held in the name of the employee who created the account.  Changing those accounts directly into the name of your Idaho living trust is prohibited.

But there is a solution:  It is permissible to designate your trust as the “payable on death” beneficiary named for the account.  Under this arrangement, the account remains in the name of the employee until either the account is drawn down to a zero balance or the employee passes away.  But if there are still funds in the account when the employee passes away, the bank then is legally instructed to pay those funds to the trust for handling under the terms of the trust.  This permits those funds to come under the trust without having to go through the probate process.

To accomplish this, simply ask your bank to designate your living trust as the “payable on death” or “POD” beneficiary on you IRA or other similar account.  That’s all there is to it.

For other ideas to keep your living trust simple to use, visit the “Question & Answers” section at http://barrypeters-law.com.

The short answer is no.  A creditor with a persistent lawyer will be able to track down your property even after you have placed it in a trust and have the property sold to satisfy the debt. 

And the truth is that this is appropriate.  If you owe someone money, you should not be able to avoid that debt by placing your home in a trust that allows you to continue to use the property. 

Realistically, there are very few avenues available to you and your attorneys to effectively protect against legitimate creditor claims here in Idaho.  Among them are:

• Keep insurance in place.  Your homeowners, automobile, medical, and an umbrella policy of insurance are your best first lines of defense against creditor claims.
• File bankruptcy.  With the exception of certain assets that you will permitted to retain even in the bankruptcy proceeding, the bankruptcy process will require that you give up most assets to satisfy creditor claims leaving you with minimal possessions for a “fresh start” in life.
• If you live in the home that you own, don’t forget that up to $100,000 in equity in the home will be protected from creditor claims under Idaho’s homestead exemption laws.  If your home here in the Boise, Meridian, and Eagle area is not worth at least $100,000 more than you owe against it, your creditors will not be able to touch it.

While claims are sometimes made that a trust or a corporation may be used to protect your assets, as long as you retain the ownership of the corporation or the right to revise or revoke the trust, your creditor’s attorney will be able to invade the trust or the corporation to satisfy your debts.

Your best approach to avoiding creditors is to live life cautiously and keep your insurance up to date.

Having said that, a  Trust carefully prepared by an experienced attorney does serve two very important purposes:  It will keep your heirs from having to go through the time and expense of a probate proceeding and it will eliminate most or all of the estate taxes that may be payable at the time of your death.  A living or family trust will insure that your heirs will receive your property here in the Boise, Eagle, and Meridian area as quickly and easily as possible after your death.

For additional information on Wills and Trusts, visit http://BarryPeters-Law.com .

Essentially, if you pass away without a Will in the Boise area, the state of Idaho will provide one for you. The law determines who will inherit your property. If you are married and/or a parent, your possessions will be shared by your spouse and your children. If you have neither a spouse, nor any children, your property will go to your parents if they are living. If not, then to your brothers and sisters. Then to your grandparents. Then to any surviving children, grandchildren, or great grandchildren of your grandparents.

One thing the law does not dictate is who will serve as the Executor or your estate and the Guardian of your children. Any interested person can ask to be appointed to those positions after you have passed away and it will be up to the probate court to determine who it thinks will be best. So if you have people you want to see in those positions (or persons that you don’t want to see in those positions), it is imperative that you leave a Will that has been properly prepared, signed, and witnessed.  This will enable your family to make sure that your wishes are carried out in the probate process and in determining who will inherit your property.

The state of Idaho will only inherit your property in the unlikely event that you have essentially no living relatives at all.  But even in that case, a Will or Trust prepared by a skilled and experiences layers will be important to make sure that your possessions pass to the friends or charities of your choosing and that the Executor chosen by you is the one that will oversee the probate process.

So, whether you live in the Boise, Eagle, Meridian, or Star area of Idaho and you don’t have a will or trust, call attorney Barry Peters at 939-2600, or visit his website at http://barrypeters-law.com,  to start the process of ensuring that your wishes are carried out.

Always start by asking others who have had a will or trust prepared who they used.  Then ask them whether they would use the same lawyer if they had it to do over again.  The answers to those two questions will reveal a tremendous amount.

Friends and neighbors who have had a good experience having their will or trust prepared are a strong indicator that you will also be pleased with the same attorney.  And where you hear there were problems, there is a good likelihood that you would have a similarly-disappointing estate planning experience.

Wherever you are in Idaho, whether you are in Boise, Eagle, Meridian, or Star, a great review of a local lawyer is an excellent starting point.

So how can you know that the services provided by Barry Peters are exemplary?  Three strong indicators are:

Satisfaction Guarantee:  Barry Peters guarantees that you will be fully satisfied or you will pay no fees.  Can you think of another attorney that offers such a confident promise?

Testimonials: On Barry Peters’ website at http://www.barrypeters-law.com/ , you will find testimonials that have been offered by many of Barry Peters’ satisfied customers.

Easy-to Understand Web Site: The web site that Barry Peters has created contains answers to many of the questions often asked by those considering a will or trust.  In the answers offered, you will find that attorney Barry gives straightforward replies that are easily understood and which cut to the heart of the question.  That is his hallmark – simplicity.

For an expedited appointment to discuss your estate planning needs, call Barry Peters’ office at (208) 939-2600.  Or visit his web site at http://www.barrypeters-law.com/ .

An Idaho Power of Attorney gives someone else the legal capability and power to act on behalf of the person who signed the document. Powers of Attorney often entail taking over extremely important day-to-day affairs of another and they usually involve legally taking over their finances. While powers of attorney can be an effective tool to assist elderly and other persons with diminished capacity and ability, they can easily be used to exploit the elderly or other persons with diminished mental or physical capacity. What is more, Power of Attorney documents are easily obtainable here in the Boise area and can be purchased in kits from office and legal supply stores or downloaded online, sometimes free.

In these troubled economic times, family members, friends, and other persons have at times been using Powers of Attorney for their own financial gain, taking advantage of the elderly through the use of these documents. If this abuse goes unchecked, the assets, and sources of income for an elderly or incapacitated person can be devastated. In fact, the damage done to a person’s estate can be limitless and usually is permanent except in rare circumstances when it is possible to recover the assets back from the party who abused the Power of Attorney.

It is sad, but necessary, in this day and time to be very guarded and protective of anyone who has given a Power of Attorney. Even here in Boise, Idaho, this is as true even for a family member. As the old adage says: It is often the ones to whom you are closest that hurt you the most. In fact, it is often the family member or friend who borrows a little money with the characterless belief they will pay it back who is the one who will abuse a Power of Attorney.

With the economy worsening, the temptation to acquire and/or abuse a Power of Attorney is ripe for occurring.

 Setting up the Power of Attorney properly can decrease the chances of abuse.  In doing so, a person should:

• Seek advice and retain an attorney in the Boise area to create the Power of Attorney and explain how it works.
• Limit the powers granted under the Power of Attorney to those duties necessary for the purpose of the document. A “blanket” Power of Attorney can be dangerous!
• Require the agent to keep all documentation pursuant to the Power of Attorney, such as receipts, bank statements, a daily or weekly journal or account ledger, etc.
• It is best to have one person as agent under a Power of Attorney as co-powers of attorney only create confusion and result in disagreements.
• Should you be acting under a Power of Attorney for another here in Idaho, keep detailed, hard copy, and electronic copies of all records. Remember, you have a fiduciary duty as you are acting on behalf of another person. You are required by Idaho law to do what is in the best interest of the other person, which may be contrary to your own best interest and wishes.

Boise estate and probate lawyers advocate that any Idaho Power of Attorney should only be entered into after serious consideration, substantial disclosure, and with protections in place.