By Lane V. Erickson, Idaho Estate Planning Attorney
A visit with a recent client reminded me of the basic questions that many individuals have when it comes to completing a probate in Idaho. Having practiced as an Idaho Estate Planning and probate attorney for nearly 20 years, I sometimes take for granted the fact that I understand the probate process, but my clients do not. In order to give you an understanding of completing a probate in Idaho below are the five most common questions that clients ask me when it comes to Idaho probate.
When is a Probate Required in Idaho?
This is always a good question to start off with, because this is the first question I talk with my clients about when it comes to discussing probate in Idaho. Essentially, a probate is required in Idaho anytime a person passes away when the value of their estate is worth $100,000 or more, regardless of what is in the estate, or anytime the person who died was listed as an owner on the title or deed to a home, land, or any other real property.
When it comes to a home, land or other real property, a probate is necessary in order to change the title from the name of the decedent to whoever the property goes to. While a person is alive, they are free to sign a new deed transferring title to that property. However, when they die there is nobody who has authority to sign their name to transfer that property. That is, until a probate is completed. Through the probate process a personal representative is named who has been given authority to deal with all the property the decedent owned including a home, land, or other real property.
Is a Probate Required When There is a Will?
Yes. A written last will and testament is nothing more than the decedent’s opportunity to describe who his money, property, and assets are to be distributed to. It is the probate process through which those distributions occur. As a result, having a written will does not eliminate the probate process. Rather, it is through the probate process that the instructions and distributions listed in the will are performed.
Is a Probate Different When There is no Will?
Often, it doesn’t make any difference whether there is a written will or not when it comes to the probate process. In other words, the same steps in the probate will be completed regardless of whether there is a written last will and testament or not. However, a probate may be different when there is a written last will and testament when it comes to distributions that are made. In other words, a person can control who will receive their money, property, and assets through a written last will and testament. When there is no written last will and testament Idaho’s laws of intestacy will determine who the decedent’s property will be distributed to.
Who Will be the Personal Representative/Executor?
This is a good question and he is one that always comes up with my clients. The answer to this question will depend on whether there was a written last will and testament or not. If there is a written will, the person who prepared the wheel has the ability to nominate who will be their personal representative. This is usually set forth very clearly in the written will itself. When this occurs, this individual has the highest priority and right to seek the appointment through the probate process of being the personal representative.
However, things are different when there is no written will. When this occurs, Idaho’s intestate statutes provide a list of priorities of the individuals who can be appointed as a personal representative. The highest priority is always reserved for a spouse. When there is no surviving spouse, the list then goes down through other relatives first. If there are no relatives who are available or who are willing to serve as a personal representative, then a creditor can actually petition to become the personal representative.
How Long Does Probate Take in Idaho?
The answer to the question of how long a probate takes in Idaho is really dependent on the type of probate that is completed. However, a normal probate is usually completed within 6 to 8 months of the order being entered by the court that names who the personal representative is. In any event, Idaho statutes require a probate to remain open for at least 6 months after this order is entered. We have found through practical experience however that it often takes a little longer to make all the distributions, deal with all the creditor’s claims, and close the estate.
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 free 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.