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WHO IS CHOSEN AS PERSONAL REPRESENTATIVE WHEN THERE IS NO WRITTEN WILL

By Lane V. Erickson, Idaho Estate Planning Attorney

As a practicing Idaho Estate Planning and probate attorney for over 20 years, I have seen just about every scenario you can imagine when it comes to completing a probate in Idaho. I’ve also come to understand that there is a lot of confusion about whether a probate needs to be done, if so what the probate process is, and who would be chosen to act as the Personal Representative (also known as the Executor) of the probate estate. The purpose of this article is to talk about who will be chosen as a Personal Representative when there is no written last will and testament left by the person who passes away.

Many people that I talk to erroneously believe that if there is a written last will and testament then there is no need for a probate to be done. It’s important to understand at the start that regardless of whether there is or isn’t a written last will and testament, a probate may still be required in Idaho. Simply put, a probate is required in Idaho anytime a person passes away when their name is on the deed or title to any type of real estate regardless of whether it is a home, or farm ground or bare ground. Additionally, a probate in Idaho is required anytime a person’s estate is worth more than $100,000 regardless of the type of property that is in it. Additionally, a probate may be required if the deceased person was going to receive a payment from a third-party such as insurance benefits, or litigation proceeds, or a payment from other types of accounts.

This article is not about all those things. This article is only about who will be chosen as the Personal Representative in order to complete the probate that needs to be done. This is completely controlled by Idaho statutes. The applicable statute is found at Idaho Code § 15-3-203, which is titled “Priority Among Persons Seeking Appointment as Personal Representative”.

Under this statute, the person who has the highest priority to be appointed as the Personal Representative is the person who is named in the decedent’s written last will and testament. However, for purposes of this article we are assuming there is no written will. When this is the case, the person who has the highest priority to be appointed as the Personal Representative is the surviving spouse of the decedent.

When there is no surviving spouse the statute says specifically that other Heirs of the decedent can be appointed as the Personal Representative. This means that if the decedent had children, they would be the highest priority of those able to be appointed as the Personal Representative. If there are no children, then we would look to see if there were any grandchildren or other descendants. If there are none, then we go to the decedent’s parents. If they are no longer alive, we move to the decedent’s siblings. We continue to operate by looking at the next closest living relative who would have the highest priority to be appointed as the Personal Representative.

Interestingly, the statute also allows creditors to become a Personal Representative. Specifically, the statute says that 45 days after the death of the decedent any creditor can seek to be appointed as the Personal Representative. The reason for this provision is so that if there are creditors of the estate and no one else is willing to step up to be appointed as the Personal Representative, a creditor has the ability to do so in order to make sure that they will be paid from the estate of the decedent.

Finally, the statute also has provisions in it for a substitute Personal Representative when the originally appointed person can no longer act. This section of the statute says that the originally appointed person has the right to nominate the next person to be appointed by the Court.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help.  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 Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Pocatello Estate Planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.

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