I just returned from a lawyers’ seminar, updating lawyers on changes in the law from this years’ Idaho legislative session. Senators Davis and Burgoyne and Representatives Nye and Malek presented. Of course, there were a number of interesting developments this session, but I wanted to highlight two bills that improve the estate planning process in Idaho.
Senate Bill 1054 is a bill that deals with the situation where a patient presents with a power of attorney for healthcare drafted under the laws of another State. Previously, Idaho law contained very limited provisions for relying on such documents. The new bill provides effectively that powers of attorney for healthcare drafted in other States are to be accepted in Idaho. As a practical matter, however, I strongly recommend that if you are living in Idaho but you have a power of attorney drafted in a different State, you should still execute a new, Idaho-based power of attorney for healthcare. I am confident that, if you have an Idaho POA for healthcare, it will be honored. I am less confident that, from a practical standpoint, another State’s POA for healthcare will be honored, despite the change in law. If you live in Idaho, please get your estate planning documents updated for Idaho.
Senate Bill 1056 adds a new tool for creating a non-probate transfer for personal property. Idaho has a type of ownership known as community property with right of survivorship. Prior to this bill, community property with right of survivorship was only available for real property. This bill extends that type of ownership to personal property, such as bank and brokerage accounts. This is a highly useful tool anytime spouses own an account together where the intention is for the surviving spouse to inherit a deceased spouse’s share of the account, because the designation provides a non-probate transfer while retaining maximum step-up in tax basis upon death.