Some rules for writing a will are pretty basic and universal. You must be of sound mind and you must be an adult. In Idaho, this means that you must be at least 18 years old or, if you’re younger, you must be legally emancipated, which can occur under certain circumstances such as if you marry or petition the court to grant you the rights of an adult. The state’s code regarding who can write a will includes at least one unique and antiquated provision as well: A married woman is free to dispose of her property just as any other person is.
Your Will Must Be in Writing
Idaho doesn’t recognize nuncupative wills -- those spoken aloud on your deathbed. Your will must be committed to writing, although it doesn’t necessarily have to be printed out or typed. The state will accept a holographic, or handwritten, will as long as the document is entirely in your handwriting.
Separate Property Lists Are Allowed
One of a will’s primary purposes is to distribute your property to named beneficiaries after your death. You can include major assets, such as real estate, in the body of the will itself, but Idaho law also allows you to transfer items of personal property by attaching a list to your will. The list must be in your handwriting -- not typed or printed out from your computer -- and you must sign it. It must describe each item of property and state who you want to receive it. Your will must mention that the list exists.
Wills Aren’t Just About Property
Another consideration is who you want to take charge of settling your estate. This involves naming an executor, called a personal representative in Idaho, in your will. If you have minor children, your will can also name a guardian for them -- someone to care for them after your death. Minors can’t legally hold property in Idaho, so you might want to also name a conservator in your will to manage their inheritances for them until they turn age 18. If you think 18 is a bit too young for them to inherit, you can state in your will that they shouldn’t take control of their property until age 21 or 25, or even later. The conservator can be the same person you name as their guardian, but if you don’t name either, the court will appoint someone. Another option involves instructing your personal representative to set up a testamentary trust. This type of trust is different from a living trust because it’s created based on the terms of your will. Your personal representative will transfer your property into the trust as part of the probate process.
You Must Meet Signing Requirements
After you complete the terms of your will, you must sign the document and have it witnessed according to Idaho law. A holographic will doesn’t require witnesses, but otherwise, you’ll need two people to watch you sign or someone else sign for you if you’re incapable of it. You can also state aloud, in the witnesses' presence, that it’s your signature on the will. They must be at least 18 years old and “generally competent” -- meaning they’re capable of testifying in court. Idaho law doesn’t prohibit your witnesses from also being beneficiaries in your will. If you don’t want your witnesses to have to testify or make statements to the probate court after your death, Idaho allows you to attach something called a self-proving affidavit to your will, and the court provides a form for this. The affidavit simply confirms that they are your witnesses and that they either saw you sign your will or you stated to them that it was your signature on the document. When the affidavit is signed by you and your witnesses and notarized, the court will accept your will for probate without your witnesses having to make formal statements.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.