To make a valid will under Idaho law the will must be:
- In writing;
- Signed by the testator or in the testator’s name; and
- Signed by two witnesses.
The requirements to make a valid will under Idaho law are set forth in Idaho Code § 15-2-502.
These requirements do not apply to make a holographic will under Idaho law, which is a will written in the handwriting of the testator. A holographic will can be valid, whether or not witnessed, as long as the signature and material provisions are in the handwriting of the testator.
Who Can Make a Valid Will In Idaho?
Any emancipated minor or any person eighteen (18) or more years of age who is of sound mind may make a will. Idaho Code § 15-5-501.
To be of sound mind to make a valid will (to have testamentary capacity) in Idaho, a testator must:
- Have the ability to understand the nature of the testamentary act;
- Understand and recollect the nature and situation of his or her property; and,
- Remember and understand his or her relations to his or her living descendants, spouse, and parents, and those whose interests are affected by the will.
Testamentary capacity to make a will is required at the time the testator makes the will.
An Idaho Will Must Be Signed By Or On Behalf Of the Testator
In order to be valid, Idaho law requires that a will be “signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction.” Idaho Code § 15-5-502.
If a testator is able to sign his or her own name on the will, which is generally the case, the testator must do so. However, if for some reason the testator is unable to sign his or her name, Idaho law permits the testator to direct another person to sign the testator’s name on the will. Such signing must be in the testator’s presence and at the testator’s direction. If another person signs the will for the testator, a will contestant might use this as a ground to challenge the validity of the will under Idaho law.
An Idaho Will Must Be Properly Witnessed
An Idaho will must also 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.” Idaho Code § 15-5-502.
Any person 18 years of age or older generally competent to be a witness may act as a witness to a will under Idaho law. Idaho Code § 15-2-505.
Does an Idaho Will Need To Be Notarized To Be Valid?
No, there is no requirement that an Idaho will must be notarized in order to be valid. However, it is a good idea to make a will “self-proving” at the time of its execution. Having a self-proving will allows the will to be admitted to probate after the testator’s death without the need for testimony of the witnesses to the will to prove that it is valid and was executed in compliance with Idaho law.
To make a will self-proving, the testator and the witnesses sign a self-proving affidavit in front of a notary.
Idaho Code § 15-2-504 contains a form for making a self-proved will, which should be substantially followed.
The best way to make sure that you have made a valid will, and one that carries out your last wishes, is to work with an Idaho probate lawyer.
