Overview of the Probate Process
By Lane V. Erickson, Idaho Estate Planning Attorney
One of the best ways to understand the probate process in detail is to talk with a qualified estate planning attorney about it. However, I know that most people are hesitant to do this because they are afraid of what it will cost them to meet with a lawyer. I understand this concern.
To get around this problem, and to encourage people to get answers to their questions and help them understand what the probate process is, I offer a free 30-minute consultation for any person who has questions about either estate planning or probate. During this free consultation I answer any questions my clients have. Additionally, once I know what their concerns are, I can also usually provide detailed information to them about what it is that needs to be done.
For clients with estate planning questions, I provide them with a free Estate Planning Questionnaire. This is the easiest way for a married couple or an individual to collect all the information they should consider when it comes to creating their own customized estate plan. I also talk with them about things they should consider and that their estate planning can help them with both while they are alive and after they die.
For clients who have probate questions, I provide a probate diagram that I go through with my clients. I write notes on this diagram that are particular to their situation and that will help them remember the discussions we have. More importantly this diagram helps them remember the answers to the questions they have asked.
The purpose of this article is to provide an overview of the probate process in Idaho. Keep in mind that this article is just a summary of some things that you should understand when it comes to probate. However, the very best thing you can do if you have questions about probate is to make sure that your questions about your particular situation are answered. Again, to do this, I encourage you to schedule a free 30-minute consultation where I can answer your particular questions.What Triggers a Probate in Idaho
To start, we will pose the question: “When is a probate required to be done in Idaho?” In other words, what is it that actually triggers a probate in Idaho?
According to the applicable statues, there are two specific circumstances that can trigger a probate in Idaho. The first, is that the individual who passed away had an ownership interest in Idaho real estate. In other words, this person owned a home, or they owned farm ground, or they owned some other type of land or ground. If the deceased person’s name is on a deed or title to any type of real property, then a probate is required.
The reason that owning real estate triggers probate is because while the person is alive, they have the ability to sign a new deed that would transfer their ownership interest in that real property to some other person. However, once that person passes away, there is no one who has legal authority to sign a new deed to transfer that property away from the deceased person until a probate is done. It is in the process of the probate, that another person is given legal authority to transfer the deceased person’s title or ownership in real estate to someone who is alive.
The second circumstance that can trigger a probate in Idaho is when the decedent’s estate has a value of $100,000 or more, regardless of whether it has real estate in it or not. In other words, if the deceased person’s estate which includes all bank accounts, cars, cash at home, furniture and so forth are worth $100,000 or more, then a probate is required.
The reason this is true is because Idaho has specific statutes which allow a small estate, which would be in a state that has a value less than $100,000 and also contains no real estate, to be handled through a small estate affidavit rather than through probate. Every other kind of estate has to be probated.
Some people mistakenly believe that if a written last will and testament exists that no probate is required. This is simply untrue. Having a written Will is important, but it does not control whether a probate is required. The triggers listed above are what control whether a probate needs to be done. All the written Will controls are things such as who will be in charge during the probate as your personal representative, and who will be the beneficiaries that will receive the money, property, and other assets in your estate.Spousal Probate - Summary Administration
One of the probate options I will mention in this article is the special probate that is available to a surviving spouse. Idaho is a community property State. Because of this, there is a presumption that when a person is married, everything they own is also owned jointly by their spouse. In other words, they have what is known as a community estate.
When this is the case, and when there is a surviving spouse, that person can enjoy using the spousal probate, which is also known as a summary administration probate. I personally also call this a “speedy probate” because of how quickly it can be completed.
A summary administration is only available when you have a surviving spouse. Additionally, it can only be used when all of the property in the estate is community property. In other words, if the deceased spouse owned any kind of separate property, especially if that separate property was real estate, then a spousal probate or summary administration cannot be used.
When a spousal probate can be used, it is usually completed within 15 to 45 days. There are factors that determine how long this process will last. However, even at its longest, it is done much more quickly than a regular probate. The end result of a spousal probate is that the court enters a decree that transfers ownership of all the estate that was owned by the decedent to the surviving spouse.Normal Probate - Informal Probate Process
The next probate option that I will mention in this article has to do with what is known as a normal or informal probate. This is the probate process that is used in most probates.
The purpose of a normal probate is to appoint a personal representative, make sure that all creditors are paid, and to then distribute any remaining assets in the estate to the person or people the court identifies to be the decedent’s beneficiaries.
To accomplish these things, the first step in the process is that a petition to probate needs to be filed. The petition states who the decedent is, when they died, where they resided, whether they had a written last will and testament, and who should be appointed as a personal representative of the estate. If the court is satisfied with the evidence that’s presented through the petition then a Statement or Order is issued appointing a personal representative. This would also include what’s known as Letters that are signed and certified by the court identifying who the personal representative is and that they have legal authority to deal with the decedent’s estate.
Next, the personal representative contacts all known and unknown creditors either personally or through publishing a notice to creditors in the newspaper. This starts a four (4) month period of time, for creditors to file their claims with the estate so that all the decedent’s debts and expenses can be paid.
During this time, the personal representative prepares an inventory of the estate which lists in summary terms the total value of the items that are in the estate. This inventory is filed with the court and is provided to any of the known beneficiaries of the estate.
Next, the personal representative takes care of the property and assets that are in the estate. If there is a home, it might be listed and sold as part of the probate process. Other assets may also be sold to provide the funds needed either to pay creditors or to make distributions to beneficiaries once the probate is completed.
Towards the end of the probate, the personal representative takes care of all tax filings that need to be completed for the decedent. The personal representative also creates an accounting that is then presented to all known beneficiaries. This accounting shows the total value of the decedent’s estate on the day that the decedent died, a deduction for every expense and debt that was paid by the personal representative and a final number of what remains in the estate. This accounting would also set forth the distributions that will be made to each of the beneficiaries.
After reviewing the accounting, the beneficiaries are required to state in writing, whether they agree or disagree with the accounting and the proposed distributions. Once this is done the personal representative then makes the final distributions from the estate. To close the probate, the personal representative then files a petition where the personal representative testifies of their completion of the probate process and seeks the court to close the probate.
And there you have it, a description of when a probate is needed, and a short description of the most common types of probates that are completed in Idaho. If you have questions or concerns or you are in need of completing any type or kind of probate in Idaho, we can help. We have assisted numerous clients through the probate process that we are confident that we can help you too. Please contact us today for a free 30-minute consultation where we can answer your questions and help you with your particular needs.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 firstname.lastname@example.org 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.