Let’s Make an Estate Plan

No matter the size of your estate, at Brian Webb Legal, our goal is to help you plan for generations. We will review your specific circumstances and help you develop a comprehensive plan that:

• provides clear direction on the handling of your estate, to minimize conflicts; and
• protects your family’s assets and estates.
• clearly conveys your choices for end-of-life care and treatment to doctors and health care professionals;
• authorizes someone you trust to make decisions regarding your health care, if you become incapacitated;
• ensures that your children will be well taken care of by a quality guardian of your choosing;
• navigates potential tax consequences to ensure that your estate is not unnecessarily taxed or penalized; and
• forms and funds trusts that are based on your particular needs;

After you execute the personalized documents and instruments contained in your estate planning package, we will:

• register the location of your will with the Idaho Secretary of State;
• register all trusts created to serve your needs, as required by state law (this is a step missed by many);
• register your durable power of attorney for health care, health care directive, or physician order for life sustaining treatment with the Idaho Secretary of State;
• preserve an electronic copy of your will in our secure, fire-resistant, and water-resistant will repository; and
• provide all original estate documents to you in a neatly-organized binder.

Brian Webb Legal will uncomplicate your estate planning process. Our caring and compassionate attorneys will guide you through all of the options available to ensure that your estate planning needs are met.

FAQ

Q: What happens to my estate if I die without a will?

If you pass away without a will, instead of you deciding who will inherit from you, the Idaho Code determines who will inherit your estate:

• If you are married, your estate will pass to your spouse;
• If you are married and have children, your spouse and your children will share in your estate;
• If you are not married and have no children, your estate will pass to your parents, if they are living, or to your siblings, if your parents predecease you.

Q: What happens if I pass away and leave minor children?

If your estate documents direct the appointment of a particular person as the guardian of your minor children, that will be carried you. You should also select a few replacement guardians, just in case the person you select as your childrens’ initial guardian is unable or unwilling to serve in that capacity. You also can name people you don’t want to be named as guardians of your children.

If you don’t have a valid will that names specific people as guardians, though, any person can ask the court to be appointed guardian of your children, leaving it to a judge to make the decision as to who will care for your children after you’re gone.

Q: Can I cut my spouse or a child from my inheritance?

The quick answer is “yes” – you have absolute discretion over who will inherit your property. The attorneys at Brian Webb Legal can help you craft estate documents that ensure your wishes will be carried out.

Q: What if my kids are too young to receive a chunk of money from my inheritance? Or what if I don’t believe my kids can manage money they receive from my estate?

Brian Webb Legal can help you ensure that the financial needs of your young (or immature) children are taken care of, without giving them full authority to blow through their inheritance. For example, a family trust ensures that a trusted person you select (the “trustee”) will manage your estate for the benefit of your children. Using a family trust, you can direct the trustee to distribute money from the trust to your children in any one of several ways:

• to be spent for a particular purpose (to pay educational costs or to purchase a home, for example);
• in phased percentages – for example, 10% at age 18, 10 % at age 21, 20% at age 24, 20% at age 27, and 40% at age 30;
• distribute only the trust income, meaning that any interest or other income the trust receives will be distributed to the beneficiaries, but the trust principal will not be distributed (or only will be distributed upon the occurrence of a certain event, like a marriage or a certain birthday);
• or a combination of these distribution methods.

Q: Can I ensure that my heirs don’t fight over my estate?

The sad fact is that inheritances sometimes result in fights among heirs. Although there is no “silver bullet” that keeps this from happening, there are tools you can use to reduce the likelihood of a will contest:

• First, you can include a provision in your will that intentionally cuts off any person who tries to challenge your will. By itself, this may scare off potential challengers, but sometimes judges won’t actually carry out a “no contest” provision, so it may have limited usefulness.
• Second, your will should include a specific provision stating that you intentionally omitted anyone not specifically named as an heir or beneficiary in your will.
• Third, if there is anyone in particular that you specifically want to keep from inheriting any of your estate, you should name that person and clearly state your intention to omit them from your will.

Q: In what circumstances might a court throw out my will?

A court likely won’t throw out a will unless it finds that strong evidence of the following facts exists:

• you were incompetent when you executed it;
• you were deceived about a material fact or circumstance and that deception caused you to amend or supersede your will as it existed prior to the deception;
• you only amended or superseded your will because you were coerced, enticed, or threatened; or
• you subsequently executed a will that contained different direction, particularly if the later document expressly superseded the earlier will.

Q: Does my being elderly automatically mean that my heirs (or non-heirs) can challenge my competency to make a will?

Almost anyone can challenge a will. The question is whether or not their challenge will be successful. The age of the testator (the person who executed the will) is not a valid basis for a finding of incompetency. If, due to advanced age, a person suffers from memory loss or reduced mental capacity, that may be a basis for a successful will challenge. For our elderly estate planning clients, Brian Webb Legal often recommends a visit to their doctor or health care professional. A reference in the will to an examination by a particular doctor on a specific date, and a finding that the testator was competent and possessed sufficient awareness and mental capacity to understand and make decisions regarding their estate may be sufficient to ward off unnecessary will challenges and contests.

Q: Can’t I just use a will I got off the Internet?

The “form” wills available on the Internet may be sufficient for your needs, but you won’t receive the individualized and customized attention provided by an actual attorney. Worse, you may be ensuring that your children and grandchildren have to endure months (or years) of legal disputes over your estate, that could have been avoided if you had consulted with an attorney (particularly the experienced and knowledgeable attorneys of Brian Webb Legal).

Common problems with online “form” wills include:

• they may contain inconsistent provisions that unnecessarily create confusion when your heirs try to determine what you intended;
• they may not include required formalities, meaning that they are invalid and of no effect;
• they often don’t include instructions on how they must be executed – this is a problem the attorneys at Brian Webb Legal see pretty regularly on the “form” wills clients bring us.

Q: What is the difference between a living trust and a testamentary trust?

A trust that is set up and funded during a person’s lifetime generally is called a “living trust,” whereas a trust that a person’s will directs to be formed and funded generally is called a “testamentary trust.”

Q: Do I need a “gun trust”?

The National Firearms Act of 1934 and the Gun Control Act of 1968 regulate the possession and transfer of certain firearms. If you own a firearm covered under these laws, you need a gun trust. If the firearms you own are pretty standard rifles, shotguns, and pistols, you probably don’t need a gun trust. Covered guns include:

• automatic weapons
• “sawed-off shotguns” (those with a barrel shorter than 18” or an overall length shorter than 26”)
• any rifle with a barrel shorter than 16” or an overall length shorter than 26”
• hand grenades or explosives (obviously!)
• suppressors or “silencers”

Please consult with a lawyer at Brian Webb Legal to determine if a gun trust is right for you.

Q: Will a trust keep my creditors from getting my money when I die?

The short answer is, “no.” A trust may make it more difficult for your creditors to reach the assets in your estate, but it may not stop persistent creditors without a representative to deflect the constant and sometimes misleading creditors showing up after you pass away.

Q: I remarried, and I want to ensure that at my death my natural children receive an inheritance. In other words I don’t want my spouse (my children’s stepmother) to cut out my kids. Is there a way I can protect against that?

Most simple wills contain basic language by which a deceased spouse leaves everything in his or her estate to his or her surviving spouse. In the case of a falling out between the natural children of the decedent and their surviving stepparent (the decedent’s surviving spouse), the surviving stepparent/spouse has full authority to direct the entire estate away from his or her stepchildren, effectively cutting them out of their natural parent’s estate.

A trust may prevent this outcome. Please talk to an attorney at Brian Webb Legal – we can help ensure that your remarriage doesn’t have the unintended result of cutting your natural children out of your estate. A trust also avoids the probate process at the death of each spouse, and a trust may reduce estate tax consequences.

Q: Is probate required?

State law determines whether or not a particular estate is required to go through probate. Please consult an attorney at Brian Webb Legal for specific advice on your situation, but generally speaking, Idaho law requires an estate to go through the probate process when the decedent (1) owned assets or had money exceeding $100,000 in value at the time of his or her death, or (2) owned any real estate, no matter the value. If an estate contains less than $100,000 in value AND includes no real estate, it is not required to submit to the probate process.

Q: Can I keep my heirs from having to go through the probate process?

Yes, you can prevent your heirs from having to navigate the probate process by taking any of the following steps:

• you can form a trust;
• during your life you can give property to friends or family;
• any married couple can sign a devolution agreement;
• your real property can be set up with a joint tenancy or a life estate; and
• many bank accounts and some investments (stocks and bonds) can designate a “payable on death” beneficiary, which removes them from the p