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Idaho Estate Planning What Type of Probate do You Need?

By Lane V. Erickson, Idaho Estate Planning Attorney

As an attorney, I have helped individuals for over 20 years in creating their written estate plan or completing a probate when a family member or loved one has passed away. Because of this I have studied estate planning laws, and probate laws in both the state of Idaho and in surrounding states. Additionally, my studies have often led me to review how estate planning and probate works in many other states as well. From these studies, and from my experiences, I’ve come to understand that Idaho is a wonderful place to live when it comes to both estate planning and probate.

If you are interested in learning more about estate planning, we encourage you to download the free Estate Planning Questionnaire that will help you organize your information and will guide you about Estate Planning in Idaho. This questionnaire provides a good deal of information about specific things that you should be concerned about when it comes to estate planning.

Additionally, if you have had a family member or loved one pass away, or you are worried about what will happen to your family when you pass away, we encourage you to read the many articles we have on this website about probate. More importantly, we encourage you to schedule a free 30-minute consultation where we can talk with you about probate and can answer your specific questions.

The purpose of this article is to provide a brief description about the different probate options that exist in Idaho depending on the circumstances of both the family and of the individual who passed away. By providing this article our goal is to give you a starting place on what to think about when it comes to probate in Idaho.

Spouse Probate - Summary Administration

The first type of probate that we will discuss is what’s known as a Summary Administration. This particular probate is available only to a surviving spouse when the property that is owned by the deceased spouse is either all community property or is property that was all left to the surviving spouse in a written will. To be clear, if there was no written will, but all the property that was owned by the deceased spouse was community property, the intestate statutes state that this property will all go to the surviving spouse. So even when there is no written will, in almost all circumstances, a Summary Administration can be used by the surviving spouse.

I like to call the Summary Administration a speedy probate. The reason I do this is because a Summary Administration is much quicker than a regular probate. At its quickest, a Summary Administration can usually be completed within a couple of weeks of filing it with the court. At its longest, a Summary Administration usually is completed within about 30 to 45 days.

A Summary Administration can be completed regardless of the size of the estate. In other words, it doesn’t matter whether there is very little property, or a large amount of property in the estate. The key to remember is that it is only available to a surviving spouse.

Small Estate Affidavit - No Probate

The next type of probate that we will discuss is the small estate affidavit, which is actually no probate at all. This is allowed by Idaho statutes whenever the estate has no real property in it, and when the total value of the estate, including all the assets that are in it, are worth $100,000 or less. If the estate is worth less than $100,000, but there is real property in it such as a home, or farm ground, or even an empty lot, then a small estate affidavit cannot be used.

To describe it simply, a small estate affidavit is simply an affidavit that follows the statutory requirements in Idaho. When it is signed and notarized, this affidavit can be presented to any third party as a legal means of collecting any money or property that is held by the third party that belongs to the individual who passed away.

Informal Probate

As mentioned above, if the estate has any type of real estate involved in it or when the value of the estate is worth more than $100,000, then a regular, or informal probate must be completed.

An informal probate simply means that the probate is filed with the court, but it is not supervised by the court. In other words, once the personal representative is appointed in the probate, that individual has the authority to move forward with completing all aspects of probate and dealing with all kinds of estate property without the need for approval from the court first.

An informal probate can be filed regardless of whether there is or is not a written last will and testament. When there is a written will, the original must be filed with the court as part of the probate filings. Additionally, this document controls who will be appointed as a personal representative and who will receive distributions from the estate. When there is no written will, the laws of intestacy control these two items.

Formal Probate

On the other hand, a formal probate is one that is completed when the original last will and testament cannot be located but a copy exists. Additionally, a formal probate may be required anytime an individual who is listed as the personal representative either requests the formal probate, or when beneficiaries or other individuals request this type of probate so that the court needs to approve the actions of the personal representative before they are taken.

Formal probate is often used when family members are contentious. By having a court approve the actions of the personal representative, this individual can escape continuous accusations from heirs and other beneficiaries concerning their actions and conduct during the course of the probate.

As you can see, there are many types and kinds of probate that an individual can choose from depending on the circumstances of the individual who passed away and their family members. We have assisted our clients in completing all types of probates for more than 70 years. If you’ve had a loved one pass away recently, where you are concerned about what will happen to your estate when you die, we can help you to! Please call us for a free 30-minute consultation.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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