Deadlines for Completing a Probate in Idaho
By Lane V. Erickson, Idaho Estate Planning Attorney
When a family member or a loved one passes away, there are many different types of probates that can be completed for them in Idaho. The type of probate that is chosen is really dependent upon the individual circumstances of the person who passed away. These circumstances could include whether or not they were married, the types and kinds of property that they own when they passed away, the value of the property that they own when they passed away, and how much time has already gone by since the person died. For more than 70 years we have assisted clients in determining what their particular needs are when it comes to completing a probate when a family member or loved one passes away.
At the Racine Law Office we have a team of talented and knowledgeable Idaho estate planning and probate attorneys who work together to meet every need our clients have whether that is completing their own customized estate plans or helping them through the probate process when a loved one passes away. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley each whom have years of experience in assisting families through the probate process. Because of our experience and knowledge, we are confident that we can help you too.
When a client comes to us for help in completing a probate, the first thing we do is determine the type of probate that could or should be completed. Once we’ve determined that, we then know what the deadlines are that are associated with the type of probate that will be done. Below is a listing of the different types of probates that exist in Idaho and a discussion of the deadlines that are associated with each one.The Deadlines for a Regular Probate
Under existing Idaho law, a regular probate must be completed any time a person dies when the value of their estate is worth $100,000 or more, or if their name is listed on the title or deed to land, a home, or other real estate regardless of its value. A regular probate can be completed regardless of whether the individual had a written last will and testament or not. While it’s true that determining whether a last will and testament exists will have an impact on how and to whom the decedent’s property will be transferred, it has no bearing on the associated deadlines of completing the probate itself.
According to Idaho’s applicable statutes, (I.C. § 15-3-108) a regular probate must be completed within 3 years of a person’s death. Again, this is regardless of whether the person who died had a written last will and testament or not. The only extension of this deadline included in this particular statute occurs if there are circumstances where person is missing, and it is unknown whether in fact they have died. When this happens, the 3 years begins to run when there is actual proof that can establish the death of the missing person. When this proof comes forward that is when the 3 years begins to run.
The only other exception to this 3-year deadline is when we are talking about a different kind of probate. The different kinds of probate may include a joint probate for deceased spouses, or a summary administration, or the use of a small estate affidavit. Each of these different types of probates are discussed more fully below.The Deadlines for a Joint Probate
As stated above, the first type of probate that may extend the 3-year deadline is a joint probate for deceased spouses. Under normal circumstances, as listed above, a probate must be completed within 3 years of a person’s death. However, Idaho has a specific statute that allows for a joint probate to be completed for both spouses regardless of how much time has gone by since the first spouse passed away.
The key thing to remember here is that when the surviving spouse passes away the joint probate must be filed within 3 years of their death. The applicable Idaho statute, I.C. ⸹ 15-3-111 is clear about this. It states:
In cases in which a marital community has been dissolved by the death of either spouse at any time, the survivor was then entitled to all of the property of the decedent by will, law, or both, and the survivor died before any proceeding had been commenced for the probate of the estate of the spouse whose death occurred first, the estates of both decedents may be joined for probate in a single proceeding in any court having jurisdiction of the estate of the spouse whose death occurred last. The 3 (3) year provision of section 15-3-108, Idaho Code, applies only to the death of the spouse whose death occurred last.
As a result, the 3-year deadline can be extended for the spouse who died first so long as a joint probate is filed and begun within at least 3 years of the death of the surviving spouse.The Deadlines for a Summary Administration
A summary administration is an additional type of probate that can occur that may extend the 3-year deadline of a normal probate. The Idaho statute that creates the 3-year deadline specifically excludes summary administrations from that deadline. This means that a summary administration could be filed at any time after a spouse passes away including after the 3-year deadline.
However, there are some qualifications before a summary administration will apply. These are set forth in I.C. 15-3-1205. Again, this is regardless of whether a person passes away with a written last will and testament or not. This is what the statute says about a summary administration:
- 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.
- 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:
- Upon proper motion made by the petitioner, appear telephonically; or
- 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.
- 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.
The key thing to take away from this statute is that the surviving spouse will be assuming all the debts of the decedent spouse. In most circumstances this is not a big deal, but it is possible there could be separate debt owed by the deceased spouse that the surviving spouse is not obligated to pay and may not want to be responsible for. This is something the surviving spouse must clearly understand and be willing to do.The Deadlines for a Small Estate Affidavit
The final type of probate that can be done, which is really no kind of probate at all, is the small estate affidavit. A small estate affidavit can be used by a surviving spouse or family members at any time when the person who died did not qualify for a regular probate. This means that the value of the estate of the person who died is less than $100,000, and they did not have title or any type of ownership interest in or to a home, land, or any other type of real estate.
When these circumstances exist, the surviving family members can prepare an affidavit which they can then present to any third party who is holding any property or money of the decedent. The only deadline associated with a small estate affidavit is that the affidavit cannot be presented to any third party until at least 30 days after the death of the decedent.
When the small estate affidavit is presented, the third party is required to deliver the money or property they are holding to the individual presenting the affidavit. It is the affidavit did that provides evidence to the third party that they are required to release the money or property. The statutes provide protection for a third-party who does this. This is provided to give them insurance that they will not be responsible for providing the money or property to the wrong person.
Our experienced team of Idaho Estate planning and probate attorneys have helped many clients through each of these types of probates. We are confident that we can help you too.Enlist an Idaho Estate Planning and Probate Attorney to Help You
Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial free consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation with the Racine Olson team. You can also email us directly at email@example.com. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.