Is a Copy of a Will That Is Not Notarized Valid in Idaho?
Full Question:
Answer:
A person must have testamentary capacity to make a valid will. This means the will is made while of sound mind, with awareness of the person's assets and potential heirs, and free from coercion or undue influence. In Idaho, a will must be signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and signed by at least two (2) persons at least 18 years old, each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. If the witnesses don't sign a self-proving affidavit (see statute below), they may be called to court to testify about the making of the will.
The court will usually only accept the original copy of a decedent’s will, in order to ensure its validity. An authenticated copy of a will can be admitted to probate, but can be a lengthy process, and the copy is not guaranteed to be accepted. I suggest you contact a local attorney who can review all the facts and documents involved.
The following are Idaho laws:
Rule 901. Requirement of authentication or identification.
(a) General provision. The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony of a witness with
knowledge that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the
genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of
fact or by expert witnesses with specimens which have been
authenticated.
(4) Distinctive characteristics and the like. Appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken
in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard
firsthand or through mechanical or electronic transmission or recording,
by opinion based upon hearing the voice at any time under circumstances
connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that
a call was made to the number assigned at the time by the telephone
company to a particular person or business, if (A) in the case of a
person, circumstances, including self-identification, show the person
answering to be the one called, or (B) in the case of a business, the
call was made to a place of business and the conversation related to
business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by
law to be recorded or filed and in fact recorded or filed in a public
office, or a purported public record, report, statement, or data
compilation, in any form, is from the public office where items of this
nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or
data compilation, in any form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was in a place where it, if
authentic, would likely be, and (C) has been in existence 30 years or
more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to
produce a result and showing that the process or system produces an
accurate result.
(10) Methods provided by statute or rule. Any method of authentication
or identification provided by Supreme Court rule or by a statute or as
provided in the Constitution of this State.
15-2-501. Who May Make a Will. —
Any emancipated minor or any person eighteen (18) or more years of age
who is of sound mind may make a will. A married woman may dispose of her
property, whether separate or community, in the same manner as any other
person subject to the restrictions imposed by this code.
15-2-502. Execution. —
Except as provided for holographic wills, writings within
section 15-2-513 of this part, and wills within section 15-2-506 of
this part, or except as provided in sections 51-109, 55-712A or
55-712B, Idaho Code, every will shall be in writing signed by the
testator or in the testator's name by some other person in the
testator's presence and by his direction, and shall be signed by at
least two (2) persons each of whom witnessed either the signing or the
testator's acknowledgment of the signature or of the will.
15-2-504. Self-proved will. —
(1) Any will may be simultaneously executed, attested, and made
self-proved, by the acknowledgment thereof by the testator and the
affidavits of the witnesses, each made before an officer authorized to
administer oaths under the laws of the state where execution occurs and
evidenced by the officer's certificate, under official seal, in form
and content substantially as follows:
I _______, the testator, sign my name to this instrument this _______
day of _______, _____, and being first duly sworn, do hereby declare to
the undersigned authority that I sign and execute this instrument as my
last will and that I sign it willingly (or willingly direct another to
sign for me), that I execute it as my free and voluntary act for the
purposes therein expressed, and that I am eighteen (18) years of age or
older, of sound mind, and under no constraint or undue influence.
_______________________________
Testator
We, ____________, ___________, the witnesses, sign our names to this
instrument, being first duly sworn, and do hereby declare to the
undersingned authority that the testator signs and executes this
instrument as his last will and that he signs it willingly (or
willingly directs another to sign for him), and that each of us, in the
presence and hearing of the testator, hereby signs this will as witness
to the testator's signing, and that to the best of his knowledge the
testator is eighteen (18) years of age or older, of sound mind, and
under no constraint or undue influence.
_______________________________
Witness
_______________________________
Witness
The State of _________
County of ____________
Subscribed, sworn to and acknowledged before me by __________, the
testator and subscribed and sworn to before me by _________, and ______,
witnesses, this ____ day of _________
(Seal)
(Signed) ______________________
_______________________________
(Official capacity of officer)
(2) An attested will may at any time subsequent to its execution be
made self-proved by the acknowledgment thereof by the testator and the
affidavits of the witnesses, each made before an officer authorized to
administer oaths under the laws of the state where the acknowledgment
occurs and evidenced by the officer's certificate, under the official
seal, attached or annexed to the will in form and content substantially
as follows:
The State of ___________
County of ______________
We, __________, ___________, and __________, the testator and the
witnesses, respectively, whose names are signed to the attached or
foregoing instrument, being first duly sworn do hereby declare to the
undersigned authority that the testator signed and executed the
instrument as his last will and that he had signed willingly (or
willingly directed another to sign for him), and that he executed it as
his free and voluntary act for the purposes therein expressed, and that
each of the witnesses, in the presence and hearing of the testator,
signed the will as witness and that to the best of his knowledge the
testator was at that time eighteen (18) years of age or older, of sound
mind and under no constraint or undue influence.
_______________________________
Testator
_______________________________
Witness
_______________________________
Witness
Subscribed, sworn to and acknowledged before me by __________, the
testator, and subscribed and sworn to before me by ________, and ______,
witnesses, this ____ day of ________
(Seal)
(Signed) ______________________
_______________________________
(Official capacity of officer)
15-2-505. Who May Witness. —
(a) Any person eighteen (18) or more years of age generally competent
to be a witness may act as a witness to a will.
(b) A will or any provision thereof is not invalid because the
will is signed by an interested witness.
15-3-301. Informal Probate Or Appointment Proceedings —
Application — Contents. —
Applications for informal probate, informal statement of intestacy
where the estate is community and there is a surviving spouse, or
informal appointment shall be directed to the registrar, and verified by
the applicant to be accurate and complete to the best of his knowledge
and belief as to the following information:
(a) Every application for informal probate of a will, informal
statement of intestacy where the estate is community and there is a
surviving spouse, or for informal appointment of a personal
representative, other than a special, ancillary or successor
representative, shall contain the following:
(1) A statement of the interest of the applicant;
(2) The name, and date of death of the decedent, his age, and the
county and state of his domicile at the time of death, and the names and
addresses of the spouse, children, heirs and devisees and the ages of any
who are minors so far as known or ascertainable with reasonable diligence
by the applicant;
(3) If the decedent was not domiciled in the state at the time of his
death, a statement showing venue;
(4) A statement identifying and indicating the address of any
personal representative of the decedent appointed in this state or
elsewhere whose appointment has not been terminated;
(5) A statement indicating whether the applicant has received a
demand for notice, or is aware of any demand for notice of any probate or
appointment proceeding concerning the decedent that may have been filed in
this state or elsewhere;
(6) If the application is for an informal statement of intestacy of a
community estate where there is a surviving spouse, an affidavit of the
surviving spouse or someone acting on behalf of the surviving spouse that
there is no will, that the decedent's estate consists solely of community
property of the decedent and surviving spouse, that he or she is the
surviving spouse, and a request for a statement that there is no will,
that all assets are community and that the surviving spouse is the sole
heir;
(7) That the time limit for informal probate or appointment as
provided in this article has not expired either because three (3) years or
less have passed since the decedent's death, or, if more than three (3)
years from death have passed, that circumstances as described by
section 15-3-108 of this code authorizing tardy probate appointment have
occurred.
(b) An application for informal probate of a will shall state the
following in addition to the statements required by subsection (a) of
this section:
(1) That the original of the decedent's last will is in the
possession of the court, or accompanies the application, or that a
certified copy of a will probated in another jurisdiction accompanies the
application;
(2) That the applicant, to the best of his knowledge, believes the
will to have been validly executed;
(3) That after the exercise of reasonable diligence, the applicant is
unaware of any instrument revoking the will, and that the applicant
believes that the instrument which is the subject of the application is
the decedent's last will.
(c) An application for informal appointment of a personal
representative to administer an estate under a will shall describe the
will by date of execution and state the time and place of probate or the
pending application or petition for probate. The application for
appointment shall adopt the statements in the application or petition for
probate and state the name, address and priority for appointment of the
person whose appointment is sought.
(d) An application for informal appointment of an administrator in
intestacy shall state in addition to the statements required by
subsection (a) of this section:
(1) That after the exercise of reasonable diligence, the applicant is
unaware of any unrevoked testamentary instrument relating to property
having a situs in this state under section 15-1-301 of this code, or, a
statement why any such instrument of which he may be aware is not being
probated;
(2) The priority of the person whose appointment is sought and the
names of any other persons having a prior or equal right to the
appointment under section 15-3-203 of this code.
(e) An application for appointment of a personal representative to
succeed a personal representative appointed under a different testacy
status shall refer to the order in the most recent testacy proceeding,
state the name and address of the person whose appointment is sought and
of the person whose appointment will be terminated if the application is
granted, and describe the priority of the applicant.
(f) An application for appointment of a personal representative to
succeed a personal representative who has tendered a resignation as
provided in subsection (c) of section 15-3-610 of this code, or whose
appointment has been terminated by death or removal, shall adopt the
statements in the application or petition which led to the appointment of
the person being succeeded except as specifically changed or corrected,
state the name and address of the person who seeks appointment as
successor, and describe the priority of the applicant.
(g) By verifying an application for informal probate, or informal
appointment, the applicant submits personally to the jurisdiction of the
court in any proceeding for relief from fraud relating to the
application, or for perjury, that may be instituted against him.
(h) Any statement entered upon an application for informal statement of
intestacy where the estate is community and there is a surviving spouse
shall contain a statement of heirship setting out the heirs of the
decedent and shall have the same effect as entry of a statement of
informal probate of a will and be subject to the limitation periods set
out in section 15-3-108, Idaho Code, notwithstanding the exception
provided in that section for determining heirs of an intestate.
15-3-303. Informal Probate — Proof And Findings Required. —
(a) In an informal proceeding for original probate of a will or
informal statement of intestacy where the estate is community and there
is a surviving spouse, the registrar shall determine whether:
(1) the application is complete;
(2) the applicant has made oath or affirmation that the statements
contained in the application are true to the best of his knowledge and
belief;
(3) the applicant appears from the application to be an interested
person as defined in subsection (24) of section 15-1-201 of this code;
(4) on the basis of the statements in the application, venue is
proper;
(5) an original, duly executed and apparently unrevoked will is in
the registrar's possession;
(6) any notice required by section 15-3-204 of this code has been
given and that the application is not within section 15-3-304 of this
part,[;] and
(7) it appears from the application that the time limit for original
probate has not expired;
(8) if the application is for a statement of
intestacy of a community estate with a surviving spouse, on the basis of
statements in the application and affidavit:
1. the decedent left no
will,
2. the decedent's estate consists solely of community property of
the decedent and the surviving spouse, and
3. the decedent left a
surviving spouse.
In addition to this, the registrar shall set out the
name of the surviving spouse.
(b) The application shall be denied if it indicates that a personal
representative has been appointed in another county of this state or
except as provided in subsection (d) of this section, if it appears that
this or another will of the decedent has been the subject of a previous
probate order.
(c) A will which appears to have the required signatures and which
contains an attestation clause showing that requirements of execution
under section 15-2-502, 15-2-503 or 15-2-506 of this code have been met
shall be probated without further proof. In other cases, the registrar
may assume execution if the will appears to have been properly executed,
or he may accept a sworn statement or affidavit of any person having
knowledge of the circumstances of execution, whether or not the person
was a witness to the will.
(d) Informal probate of a will which has been previously probated
elsewhere may be granted at any time upon written application by any
interested person, together with deposit of an authenticated copy of the
will and of the statement probating it from the office or court where it
was first probated.
(e) A will from a place which does not provide for probate of a will
after death and which is not eligible for probate under subsection (a) of
this section, may be probated in this state upon receipt by the registrar
of a duly authenticated copy of the will and a duly authenticated
certificate of its legal custodian that the copy filed is a true copy and
that the will has become operative under the law of the other place.
15-3-402. Formal Testacy Or Appointment Proceedings — Petition
— Contents. —
(a) Petitions for formal probate of a will, or for adjudication of
intestacy with or without request for appointment of a personal
representative, must be directed to the court, request a judicial order
after notice and hearing and contain further statements as indicated in
this section. A petition for formal probate of a will:
(1) requests an order as to the testacy of the decedent in relation
to a particular instrument which may or may not have been informally
probated and determining the heirs;
(2) contains the statements required for informal applications as
stated in subsection (a)(1) through (5) of section 15-3-301 of this
code, the statements required by subsection (b)(1) and (2) of
section 15-3-301 of this code; and
(3) states whether the original of the last will of the decedent is
in the possession of the court or accompanies the petition.
(b) If the original will is neither in the possession of the court nor
accompanies the petition and no authenticated copy of a will probated in
another jurisdiction accompanies the petition, the petition also must
state the contents of the will, and indicate that it is lost, destroyed,
or otherwise unavailable.
(c) A petition for adjudication of intestacy and appointment of an
administrator in intestacy must request a judicial finding and order that
the decedent left no will and determining the heirs, contain the
statements required by subsection[s] (a) and (d) of section 15-3-301 of
this code and indicate whether supervised administration is sought. A
petition may request an order determining intestacy and heirs without
requesting the appointment of an administrator, in which case, the
statements required by subsection (d)(2) of section 15-3-301 of this code
may be omitted.
15-3-409. Formal Testacy Proceedings — Order — Foreign
Will — Lost Will. —
After the time required for any notice has expired, upon proof of
notice, and after any hearing that may be necessary, if the court finds
that the testator is dead, venue is proper and that the proceeding was
commenced within the limitation prescribed by section 15-3-108 of this
code, it shall determine the decedent's domicile at death, his heirs and
his state of testacy. Any will found to be valid and unrevoked shall be
formally probated. Termination of any previous informal appointment of a
personal representative, which may be appropriate in view of the relief
requested and findings, is governed by section 15-3-612 of this code. The
petition shall be dismissed or appropriate amendment allowed if the court
is not satisfied that the alleged decedent is dead. A will from a place
which does not provide for probate of a will after death, may be proved
for probate in this state by a duly authenticated certificate of its
legal custodian that the copy introduced is a true copy and that the will
has become effective under the law of the other place. When a lost will
is established, the provisions thereof must be found by the court and the
findings filed and recorded as other wills are filed and recorded.
15-3-108. Probate — Testacy And Appointment Proceedings —
Ultimate Time Limit. —
No informal probate or appointment proceeding or formal testacy or
appointment proceeding, other than a proceeding to probate a will
previously probated at the testator's domicile and appointment proceedings
relating to an estate in which there has been a prior appointment, may be
commenced more than three (3) years after the decedent's death, except
(1) if a previous proceeding was dismissed because of doubt about the
fact of the decedent's death, appropriate probate, appointment or testacy
proceedings may be maintained at any time thereafter upon a finding that
the decedent's death occurred prior to the initiation of the previous
proceeding and the applicant or petitioner has not delayed unduly in
initiating the subsequent proceeding;
(2) appropriate probate,
appointment or testacy proceedings may be maintained in relation to the
estate of an absent, disappeared or missing person for whose estate a
conservator has been appointed, at any time within three (3) years after
the conservator becomes able to establish the death of the protected
person; and (3) a proceeding to contest an informally probated will and to
secure appointment of the person with legal priority for appointment in
the event the contest is successful, may be commenced within the later of
twelve (12) months from the informal probate or three
(3) years from the
decedent's death. These limitations do not apply to proceedings to
construe probated wills or determine heirs of an intestate. In cases
under (1) or (2) of this section, the date on which a testacy or
appointment proceeding is properly commenced shall be deemed to be the
date of the decedent's death for purposes of other limitations provisions
of this code which relate to the date of death.