By Lane V. Erickson, Idaho Estate Planning Attorney
It’s never easy when a spouse passes away. When this happens, the surviving spouse usually doesn’t know what to do. Whenever this occurs, and a surviving spouse comes to me for advice, my goal is to assist them in the easiest and simplest way possible. The good news is that for a surviving spouse there are several options when it comes to probate. Specifically, Idaho law gives a surviving spouse and opportunity to avoid a regular probate if they choose. A surviving spouse can opt to complete a summary Administration rather than a full and regular probate.
The purpose of this blog is to describe what an Idaho Summary Administration is, and to discuss when and where this would be a good option for a surviving spouse. By providing this information my hope is to help surviving spouses in Idaho determine whether they want to complete a regular probate or complete the Summary Administration instead.
What is a Summary Administration?
When it comes to probate an estate Idaho has a number of applicable statutes. A normal probate is required in Idaho whenever a person passes away when their name is on the title to ownership of any real estate, or if their estate is worth $100,000 or more regardless of whether a home or land is involved. A Summary Administration is an exception to these requirements.
In Idaho when a spouse passes away, and their spouse is their sole beneficiary regardless of whether this occurs because of a written last will and testament, or as a result of Idaho’s intestate statutes, a Summary Administration is possible. Idaho Code §15-3-1205 states specifically:
15-3-1205. SUMMARY ADMINISTRATION OF ESTATES IN WHICH A SURVIVING SPOUSE IS THE SOLE BENEFICIARY.
(a) Upon the testate or intestate death of a person leaving a surviving spouse as the sole devisee or beneficiary, the surviving spouse (or any person claiming title to any property through or under such surviving spouse) may file a verified petition setting out marriage and the death of a person leaving a surviving spouse as the sole devisee or heir. If the decedent died testate, the petition must be accompanied by the original of the last will and testament of the decedent. Notice of hearing shall be given pursuant to the provisions of section 15-1-401, Idaho Code.
(b) If it shall appear at such hearing that the decedent and the person claimed to be the surviving spouse were duly married and that the surviving spouse is the sole heir or devisee, a decree shall be made to that effect. This decree shall thereafter have the same effect as a formal decree approving or determining distribution. The petitioner, or the surviving spouse, or both, need not appear in person at such hearing, nor must an attorney for the petitioner spouse appear in person at such hearing. The petitioner or the attorney for the petitioner, or both, may either:
(1) Upon proper motion made by the petitioner, appear telephonically; or
(2) Submit one (1) or more affidavits in advance of the hearing certifying that notice of hearing was given as required by law and that no objection to the entering of the decree has been received by the petitioner or the attorney for the petitioner.
(c) In the event that the surviving spouse (or person claiming through or under the surviving spouse) shall elect to proceed under this section, the surviving spouse shall assume and be liable for any and all indebtedness that might be a claim against the estate of the decedent and there will be no administration of the estate of the decedent.
Because of this statute, a surviving spouse can choose to transfer property from the decedent spouse to themselves immediately. The purpose of this statute is to give the surviving spouse the ability to own this property without going through a regular and expensive probate.
How Is a Summary Administration Different from a Regular Probate?
The number one way that a Summary Administration is different from a normal probate is both the time and money involved. Normal probate must last at least six months and often many more months than this. A summary Administration can be done immediately and is over quite quickly. Additionally, a Summary Administration usually cost a fraction of what a normal probate costs simply because of the time and actions that are involved. Because of these two things, many surviving spouses choose a Summary Administration over a regular probate.
Why a Summary Administration May Not be a Good Idea
There are a couple of circumstances that would make a summary Administration a bad idea for a surviving spouse. The first is when the decedent spouse had separate debt that was owed. A summary Administration requires the surviving spouse to agree to be obligated to pay all debts the decedent had whether they were joint or individual debts. As a result, if there was a large amount of debt owed by the deceased spouse individually, the surviving spouse may not want to be responsible for those debts.
Another circumstance that would cause a surviving spouse to avoid doing a summary Administration is when the spouses owned Real property such as houses or buildings in another state. When this circumstance exists a regular probate is required in order to transfer property both in Idaho and in other states as well.
If you are a surviving spouse, we are confident that we have the skills and knowledge necessary to be able to help you determine whether a Summary Administration would be a good idea for you or not.
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
If you do not have an estate plan in place, we can help. When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at firstname.lastname@example.org. We will answer your questions and will help you solve your Idaho Estate Planning problems.