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Probate Options for a Surviving Spouse

By Lane V. Erickson, Idaho Estate Planning Attorney

Let’s face it, losing a loved one is a difficult experience. This is especially true if that loved one was your spouse. When this happens, it may feel like the whole world is crashing down upon you. In this circumstance, most people don’t know what it is they need to do or even where to begin when it comes to dealing with the estate of their deceased spouse. Many times, the surviving children will assist the surviving spouse in meeting with us to discuss what their options are and the things that they need to do to move forward. This is the best-case scenario because then there are loving family members supporting and helping the surviving spouse through this difficult time. Even when you don’t have family around you, we can help you too!

At the Racine Law Office, we have assisted numerous clients through the probate process after their spouse has passed away. In doing this, we know that our clients rely upon us to provide advice and counsel to them about the options they have and the things that they should do. The advice and counsel that we give to our clients is always based upon their particular circumstances and needs. The reason for this is that when a spouse passes away, not every surviving spouse needs to do exactly the same thing. In fact, there are several options that a surviving spouse can choose from when it comes to completing a probate.

The purpose of this article is to provide a short description of the options available to a surviving spouse. By doing this, we believe that we can help you determine which of the options might best fit your circumstances. However, a short article can never cover every need or circumstance that might exist. For this reason, we encourage you to contact us and schedule a consultation with Lane V. Erickson to discuss your circumstances and needs, so we can describe the probate options that may work best for you.

To help you get started, below is a short description of the Idaho probate options available to many surviving spouses. These descriptions are just a summary of the options available. To help you determine whether any of these options will work for you, we encourage you to contact Lane V. Erickson for a consultation.

First Option - Do Nothing

The first option that exists for a surviving spouse when their loved one has passed away is to do nothing. Many surviving spouses choose this option either because they simply don’t know that they should do something more, or because they deliberately do not want to deal with probating their deceased spouse’s estate.

Whatever the reason, we find that this option happens more often than you would think. We usually learn about this when the surviving spouse passes away, and the children have come to us to determine what needs to be done. Sometimes this comes up because the children now want to sell the home or other real property and they find out that they can’t because a probate was never completed for either parent.

For a surviving spouse, the do-nothing option may have little to no impact on them so long as they never attempt to sell or transfer away any real estate that they and their deceased spouse owned. If they do attempt to sell or transfer real estate that they and their deceased spouse owned together, they will find that they will not be able to do it. This is because the deceased spouse’s name is still on the title or deed to the real estate and there is no one who has legal authority to sign their name in order to complete a transfer to another person.

We do not recommend that surviving spouses choose the do-nothing option. Doing so usually leads to additional legal problems down the road for surviving children and other family members or loved ones after the surviving spouse passes away. Rather, we encourage our clients to be proactive in protecting their legal rights so that they have the most options available to them while they are alive.

Second Option - Regular Probate

This leads to the second option for a surviving spouse which is completing a regular probate. Through a regular probate, a personal representative is appointed who is charged with the duty and responsibility of doing three specific things. First the personal representative must protect and preserve the estate of the deceased spouse. Second, the personal representative must make sure that all creditors are paid through the probate. Third, the personal representative must distribute all of the money, property, and assets of the deceased spouse to the individuals who are determined to be that person’s heirs or beneficiaries.

A regular probate is commenced by the filing of a petition for probate and an application for an appointment of the personal representative. Based on the applicable statutes, certain notices are then required to be given to the heirs or beneficiaries as well as to creditors of the estate. The personal representative then begins dealing with creditors, paying bills, and making sure that the property of the estate is accounted for and protected. Finally, the personal representative then distributes all of the deceased spouse’s assets and closes the probate.

By being appointed by the court the personal representative has legal authority to deal with all the property of the deceased spouse’s estate. This gives the personal representative the ability to sign deeds to transfer the deceased spouse’s ownership interests in any real estate to others.

There are several circumstances were a regular probate may be required by a surviving spouse. These could include the following:

  • The payment of money to the estate by an insurance company;
  • The payment of money to the estate by a retirement account administrator;
  • The receipt by the estate of any additional funds, money, property, or other assets from a third party;
  • When the deceased spouse owns real estate or real property in their name only;
  • When there is any serious disagreement about who should inherit any of the money, property, or assets of the deceased spouse;
  • When the deceased spouse was involved in a legal action or lawsuit prior to his death which was not completely and fully resolved;
  • When the deceased spouse left a last will and testament that requires a trust to be set up for an heir or beneficiary.

If any of these circumstances exist than a regular probate will be required. If none of these circumstances exists, then the surviving spouse may be able to go with the third option which is described below.

Third Option - Summary Administration

Idaho offers a unique third option to surviving spouses if none of the particular circumstances described above exists. This is true even if the deceased spouse owned real estate or other separate property in their own name, so long as they have a last will and testament that leaves everything to the surviving spouse. If the deceased spouse owned real estate or other property in their own name separately, and there was no written last will and testament, then a regular probate will need to be completed, because the children of the deceased spouse will be entitled to receive a portion of that separate property. However, with a last will and testament, the deceased spouse is able to leave that property to whoever they choose. If they leave that property to a surviving spouse, then the surviving spouse may be able to take advantage of the Summary Administration process rather than the regular probate.

In a Summary Administration, a petition is filed with the court that describes the deceased spouse’s property. If a last will and testament exists, it is also included with the petition. Any surviving children then provide a waiver and consent form indicating that all the property of the deceased individual will go to the surviving spouse. When this occurs, if the court is satisfied that the statutory requirements are met, the court will issue a statement or decree vesting title in any described real estate, or other assets of the deceased spouse in the name of the surviving spouse as the sole beneficiary.

We have helped numerous clients who are surviving spouses through the probate options listed above. Through our consultation we learn about the particular circumstances of each client and then to help them make a decision about the option that best fits their needs. We are confident that we can help you too.

Enlist a Pocatello Estate Planning Attorney to Help You

Our team of Pocatello 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 consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email Lane V. Erickson directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Pocatello Estate Planning problems.

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