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FamilyAttorney
FamilyAttorney, Lawyer
Category: Estate Law
Satisfied Customers: 693
Experience:  Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 36 years
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My minor childrens mother just past. We haven't been married

Customer Question

My minor childrens mother just past. We haven't been married for almost 4 years. We had wills made up during our marriage. Her will states that all references to her spouse are to him directly.....then it states that If her spouse falils to survive me , such property shall be distributed as a part of my residuary estate. then later as personal representatives.....designation- I nominate as my personal representative my spouse.
Succession-- In the event a vacancy exists, for any reason, in the office of personal representative, she nominates as substitute personal representative (persons name) my friend who lives in ...................
Trustee..designation---I appoint (name of substitute representative) as my trustee.
MY QUESTION, IS WHO IS CONTROL OF WHAT GOES ON IN HER WILL?
Submitted: 6 months ago.
Category: Estate Law
Expert:  FamilyAttorney replied 6 months ago.

Hello. I’m a licensed attorney with 36 years’ experience. My practice is limited to family law and appeals, but I have many years’ experience with landlord-tenant issues, contract law, and other types of law. I also have written hundreds of legal articles. I look forward to helping you today.

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Expert:  FamilyAttorney replied 6 months ago.

A personal representative in Idaho is like an executor. After someone's death, the executor’s primary job is to protect the deceased's property until any debts and taxes have been paid, and then transfer what’s left to those who are entitled to it.

The executor must be:

  • at least 18 years old, and
  • of sound mind -- that is, not judged incapacitated by a court.
  • not convicted of a felony

In addition to the restrictions above, an Idaho probate court will reject a potential executor found to be “unsuitable in formal proceedings.” It’s highly unlikely, but if a question arises about the qualifications of the person you’ve named as your executor, the court will hold a formal hearing in front of everyone with an interest in your estate -- such as your spouse, heirs, creditors, and other potential executors. At the hearing, a judge will determine who is best suited to serve as executor and terminate any appointment found to be improper. (Idaho Code §§ 15-3-203, 15-3-414.)

What probably happened here, which could have been prevented, is that your former wife failed to update her will. Because she failed to update the will, you're still on it. The court may want to hold a hearing to decide whether you should still be the personal representative/executor.

Your best bet is to find a wills and estates attorney right away to review the will. The court may use the substitute personal representative listed in there -- her friend, but if it doesn't have a problem with you being the representative, then it will proceed that way. She may have left things to you, she may not have, but it's likely this is an old will that she failed to update before her death.

I can send you a list of attorneys in your area who handle wills and estates if you let me know what town or city you're near, the bigger the better because there will be more attorneys to choose from, and I'll show you how to pick an attorney.

Expert:  FamilyAttorney replied 6 months ago.

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