CONTRIBUTED CONTENT - If you don’t write a will, Idaho writes one for you

A lot of people put off making a will because they assume the outcome is obvious: "Everything goes to my spouse." It feels so certain that a written plan seems unnecessary.

In Idaho, that assumption is often wrong — and the gap between what people expect and what the law actually does is where families can get hurt.

If you die without a valid will, you don't avoid having a plan. You simply inherit the state's plan, written into Idaho's intestate succession statutes. And that default may divide your property very differently than you would have.

What "Intestate" Means

Dying "intestate" means dying without a valid will. When that happens, a court applies a fixed formula from Idaho statutes to decide who inherits and how much. The formula doesn't care about your relationships, your intentions, or your family's circumstances.

And, in Idaho, the result depends heavily on a distinction many couples don't think about: community property versus separate property.

Idaho's Default Plan Might Surprise You

Your surviving spouse always receives all of the community property — the assets the two of you built during the marriage.

But your separate property — assets you owned before marriage, or received individually by gift or inheritance — is treated very differently. Here's how it splits:

• No children and no living parents: Your spouse inherits everything.

• No children, but a surviving parent or parents: Your spouse gets half of your separate property. Your parents get the other half.

• You have children or other descendants: Your spouse keeps all community property and half of your separate property. Your children/descendants split the remaining half.

Read that last one again. Even with a spouse you've been married to for decades, your children can end up co-owning half of your separate estate – whether you intended that or not.

Why This Catches Families Off-Guard

That separate-property split causes real problems. Imagine a surviving spouse who suddenly owns property jointly with adult stepchildren from a first marriage, or with minor children who legally can't manage assets at all.

A few common complications:

• Blended families. Children from a prior relationship may inherit a share your current spouse assumed would be theirs.

• Minor children. A young child can't legally control an inheritance, so the court may have to set up a conservatorship — an ongoing, supervised arrangement that costs time and money.

• No say over guardians. If both parents die without a will, the court decides who raises your minor children. You forfeit the chance to name that person yourself.

None of this typically reflects what most people actually want. It's just the default of the law running on autopilot.

The Assets the State Doesn't Touch

It's worth knowing that intestacy rules only govern your probate estate. Some assets pass outside the formula entirely, straight to whoever you named:

• Life insurance and retirement accounts with named beneficiaries

• Bank or investment accounts with payable-on-death or transfer-on-death designations

• Property held in a living trust

• Assets titled in joint tenancy with right of survivorship

That's a double-edged sword. These designations override the default — but they also override a will. For example, if beneficiary designations are outdated, they can send assets to the wrong person no matter what else your plan says.

You Don't Have to Accept the Default

A will or living trust lets you replace Idaho's formula with your own choices: who inherits, in what shares, who serves as your personal representative, and who raises your children. It can keep your spouse from co-owning property with relatives, spare your family a conservatorship, and prevent the slow, public probate the default method requires.

The state's plan exists for people who never made one of their own. You can almost certainly do better — but only while you still have the chance.

My law firm is currently offering free telephonic, electronic, or in-person consultations concerning probating estates or creating estate planning documents.

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Robert J. Green is an Elder Law, Trust, Estate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Kootenai Law at 208-765-6555, [email protected], or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.