Friday, September 16, 2011

Boise Idaho Probate Attorneys - Estate Planning Lawyers - Elder Law - (208) 472-2383

Have you been left out of your parent's will?  Did your parent fail to mention you in or bequeath you anything in their will? Are you out of luck or is there a chance you may get your intestate share of your deceased parent's property?  Do you get nothing or do you get your "rightful" share?

Our office deals with a wide range of Estate Planning and Probate issues.  Perhaps the most heartbreaking story I hear as a probate attorney is when an heir has been left out of a will.  This can happen in a couple of different ways.  Often it is the case that a parent has either been married before or had a child out of wedlock.  Later they marry and start a new family.  They make their last will and testament and make no mention of the child of the previous relationship.  Another scenario is you and your parent have a falling out and you are written out of the will.  Sometimes I even see that very dramatic clause that if you contest the will you loose everything and collect only $1.

In Idaho there is a chance that in both of these situations you may actually take what is known as your intestate share of the property.  Intestate refers to a probate situation where there is no will.  A descendant's property must be divided somehow so every state, including Idaho, has a set of probate laws which determine how the property will be divided.  In the above two situations, when you have been left out of a will and the court decides you deserve your fair share, they need a way to determine what you ultimately get.  This is your intestate share.

So how can these situations be challenged? Let's take the second scenario first; you have a falling out with your parent.  People often think that it's the parent's property so they can do with it what they please.  And this is absolutely true.  The challenge comes in when there is undue influence or lack of testamentary capacity.  If you can show that somehow your parent was influenced in a way that forced or influenced them illegally to leave you out or that they did not have the mental capacity necessary to write a will, the will becomes invalid and you as a child of the descendant may take an intestate share of the property.

The first scenario falls under something called a pretermitted heir. This is a fancy way of saying a left out heir.  This is a little bit more tricky.  The Idaho Probate Code contains a pretermitted heir statute which says, in effect, that if a parent leaves a child out of their will solely because they think they are dead then they are a pretermitted heir and are entitled to their intestate share of the property.  A child left out for any other reason gets nothing.  That's what the code says.  Case law, however, which is controlling at this point on the subject, says that unless the testator uses very specific language to show their intent to leave the child out (such as I have a child, Jane Doe, and I give her nothing), Idaho will presume that the child was left out unintentionally and therefore the child will take their intestate share.

Many people panic when they have been left out of a will, but as a Boise Probate Attorney, I can tell you this doesn't necessarily mean you get nothing.  If you have been written out of your parent's will or been completely left out of their will, it is possible that we might be able to get you your intestate share of the estate.  Please give us a call, (208) 472-2383 to see what we can do for you.

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