Idaho Probate do You Need to Do a Probate - The 7 Question Checklist
By Lane V. Erickson, Idaho Estate Planning Attorney
Having been an estate planning and probate attorney for 20 years I find that most people don’t understand what the probate process is, or when a probate will be needed. My job as a probate attorney is to help my clients understand the probate process and whether a probate will be needed after they pass away in order for their family, and other loved ones to receive the money, property, and assets in their estate. I enjoy providing a free 30-minute consultation to my clients to talk with them about these things and to put their minds at ease about the probate process and whether a probate will be needed for them after they pass away.
All of the attorneys on our Idaho estate planning team at the Racine law office are experienced and qualified in helping clients understand the probate process and whether a probate will be needed. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Our attorneys have each earned the highest rankings possible based upon their experience, knowledge, abilities and ethics from the several notable legal rating services including AVVO, Martindale & Hubbell and Justia. More importantly, our team of attorneys have the skill and experience to help you.
So the bottom line question for a family who has had a loved one pass away or that you may have in preparing your estate planning is whether a probate is required to be done. Below is a 7-question checklist that will help you understand whether a probate needs to be completed. If you answer yes to any of these questions, then a probate needs to be done and you should seek the help of a qualified estate planning attorney to assist you and your family.Question 1 - Is there Real Estate?
Idaho law requires a probate to be done anytime a person passes away when their name is on the deed or title to any real estate regardless of its value. In other words, if your name is on the deed or title to a home, or to bare ground, or to farm ground, or to business property, then a probate needs to be accomplished after you pass away. The reason a probate will be required is because while you are a live you have the ability to sign a deed and transfer your ownership in real estate away to someone else. However, if your name is on the deed to real estate, after you die, there is no one who has the legal authority to sign your name.
Many people are confused in thinking that a power of attorney may still give them the ability to sign on a deed to transfer property away after a person has passed. However, it’s important to note that a power of attorney loses all legal validity when a person dies. In other words, a power of attorney is only valid while a person is alive. After a person passes away the only individual who would have authority to deal with the real estate of the person who died is the personal representative. A personal representative can only be appointed through the probate process.Question 2 - Is the Estate Worth More than $100,000?
Likewise, if the value of the estate of the person who passed away is worth $100,000 or more, regardless of whether it has real estate in it or not, then a probate is required. This is a statutory requirement under current Idaho law.
If a person does not have any real estate in their name, and the value of their estate is worth less than $100,000 when they pass away then a probate is not required. Rather, there are other mechanisms and documents that can be used under Idaho law that will allow the decedent’s money, property, and other assets to be transferred away to their surviving family members.Question 3 - Are there Minor Aged Children?
The next question on the checklist is whether there are any minor age children. To be clear, a minor age child in Idaho is someone who is under the age of 18. A probate would be required when there is a minor aged child when that child is an orphan and the deceased parent had a written last will and testament that nominated a guardian for that child. It would be the probate process that would complete the guardianship and allow that child to be placed with the individuals who are nominated by the deceased parent.Question 4 - Does Anyone Disagree About Who Should Inherit?
Another reason that a probate may be required is if there is a disagreement about who should inherit the money, property, and other assets of the person who passed away. When there is a written last will and testament, the beneficiaries will be named specifically. However, when there is no written last will and testament then the laws of intestacy provide specific instructions on who the beneficiaries are who will inherit the decedent’s assets.
Sometimes there is a disagreement about whether a person is a true heir or beneficiary. It is the probate process that allows a court to make the determination of who the heirs and beneficiaries of the decedent will be.Question 5 - Does Anyone Disagree About What Property is in the Estate?
Additionally, a probate will be required anytime someone disputes whether the decedent owned certain assets or property. The probate process creates an estate of the decedent and appoints a personal representative who has legal authority to identify, collect, protect, and preserve all the assets of the decedent’s estate so that all debts can be paid and all beneficiaries can receive the distributions they are entitled to.
When a dispute arises about whether the decedent actually had an ownership interest in some property or asset, it is through the probate that a court will determine whether such an interest exists in the estate. This often results in evidentiary hearings where lawyers, witnesses, and other individuals present evidence to the court to allow the court to make such a decision. Without a probate, there would be no one who would have authority to seek to include the disputed property or assets in the decedent’s estate so that they could be distributed to the recognized heirs and beneficiaries.Question 6 - Does a Trust Need to be Created or Funded?
The next question that will help you determine whether a probate will need to be done is whether there is a trust that needs to be either created or funded. It’s possible that the decedent already had a trust created while they were alive. It’s also possible that their last will and testament would indicate that certain money, property, or other assets are to be transferred into the trust after they pass away. To properly transfer these assets into the trust a probate needs to be completed.
Likewise, a written last will and testament could identify a trust that needs to be created after a person passes away. This is called a testamentary trust. This type of trust is often used to care for and protect the money, property, and other assets that may be going to minor aged children. The purpose of the trust is to protect and preserve the assets until the child reaches the age where the deceased parent believes they would be capable of handling the money or assets themselves. If a written last will and testament contains a testamentary trust, it is the probate process that allows and provides a mechanism for that trust to be created and funded.Question 7 - Does any Third Party Require a “Letter Testamentary”?
The final reason that a probate may be required is when a third party requires a letter testamentary before delivering money, property, or other assets to the beneficiaries or to the estate. For example, if there had been an accident that resulted in the death of a loved one, and insurance monies are involved, most insurance companies require the creation and establishment of an estate through probate that would produce a letter testamentary to identify who the personal representative is. The insurance company would then deliver the insurance monies to the personal representative to make sure that they are properly received by the estate.
Insurance companies require this because it gives them the ability to make sure that they are delivering the insurance money to the proper party so that there will be no claims made against the insurance company once the monies are paid. In other words, insurance companies don’t want claims to be made against them that may require them to make the payment an second time or that may result in litigation to recover monies that had been improperly paid or paid to the wrong party.
To be clear, probate is not necessarily a bad process in Idaho. A probate in Idaho is less expensive than it is at almost any other state. Additionally, probates don’t take years and don’t always results in family fights or disputes that cost a lot of money. If you find that any of the seven questions listed above apply to you or your family members, and that a probate is required, we can help. We have helped numerous clients through the probate process, and we are confident that we can help you too.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 email@example.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.