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Probate Options in Idaho

By Lane V. Erickson, Idaho Estate Planning Attorney

The law in Idaho is pretty flexible when it comes to probate. Stated differently, the law in Idaho allows for several different types of probate to be completed depending on what the needs of the estate are. In other words, Idaho law recognizes that one type of probate may not fit every situation that could arise. For this reason, Idaho law has created several different types of probate that can be completed depending on the circumstances of the individuals involved, the value of their estate, and who is going to receive the assets from the estate.

At the Racine law office our team of talented Idaho estate planning attorneys, work together to assist each client with the creation of not only a customized estate plan, but also with probate after a family member or loved one has passed away. We take the time to meet with our clients, discuss their particular circumstances, and based on this information determine the simplest and easiest way to solve their estate planning and probate problems. Our team of Idaho Estate Planning and probate attorneys consists of of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys are experienced and have earned the highest ratings possible on Martindale-Hubbell, Justia, and AVVO, which are all legal ranking services that provide details on the knowledge, experience and skills of attorneys.

The purpose of this article is to provide a short summary of the types of probate that are available in Idaho and the circumstances that would allow each of these probate options to be completed. In other words, this article is a starting place for you to learn which type of probate may be best for your circumstances if you recently had a family member or loved one pass away. However, this article is not meant to be comprehensive, and even after reading this article you should consult with a qualified Idaho Estate Planning and probate attorney to answer your questions and help you through the probate process.

Again, as a short summary, there are really four different types of probate options that are offered in Idaho. The first is what is called a small estate affidavit. The second option involves a Summary Administration for a surviving spouse. The third option could include a joint probate whenever a probate needs to be completed for both spouses. And finally, the regular probate option which is the most common probate option in Idaho.

Small Estate Affidavit

Idaho is practical in the laws that it applies to probate. As a result, when there is a small estate involved, Idaho law does not force a family member to incur the costs or deal with the time constraints of a regular probate. Rather, in this circumstance, probate can be completed by the use of a small estate affidavit.

In order for an estate to qualify as a small estate, the statute requires that: “The fair market value of the entire estate of the decedent which is subject to probate, wherever located, less liens and encumbrances, does not exceed one hundred thousand dollars ($100,000).” Additionally, there can be no real property involved. (See Idaho Code § 15-3-1201.) If the value of the estate is worth more than $100,000 or if there is real property involved (a home, or farm ground or any other type of land) regardless of its value, then the small estate affidavit is not an option that can be used for probate.

If the estate truly is a small estate, then the affidavit can be used. The affidavit is prepared based on the language of the statute, and is presented to any third party who holds property that belongs to the decedent. This would include bank accounts, or investment accounts, or any other type or kind of personal property. When a properly completed small estate affidavit is presented, the third party is required by law to turn over the property belonging to the person who passed away to the individual who is presenting the affidavit. The affidavit acts as evidence for this third party that they have properly distributed the property of the person who passed away to the correct party. As a result, the third party cannot be held liable for distributing property based on the instructions of a small estate affidavit.

Summary Administration for Surviving Spouse

In addition to a small estate affidavit, Idaho law also offers a specialized probate option to a surviving spouse that saves time and money. This is known as a Summary Administration for a surviving spouse. This option is based on a specific statute and it gives a surviving spouse the option of using a shortcut styled probate rather than the regular probate option.

In order to qualify for a Summary Administration probate, all of the property owned by the individual who passed away must either be community property which the surviving spouse already has an interest in, or if the spouse who passed away owned separate property, they had a written last will and testament that left everything they owned to their surviving spouse. If there is separate property and there is no written last will and testament, then children and other beneficiaries may have a right to some portion of the estate and a Summary Administration cannot be used.

Again, the goal behind this statute is to allow a surviving spouse the ability to move forward quickly without having to complete a regular probate. The Summary Administration process allows a faster way for a surviving spouse to become the sole owner of the property.

Joint Probate for Deceased Couple

The next probate option involves a circumstance where both spouses have passed away and their children need to complete a probate. What often happens is that the first parent will pass away and the surviving parent continues to use the bank accounts, live in the home, use the vehicles, and so forth. Often, no probate is completed for the parent who passed away first. Then, the second parent passes away and the children are left to deal with the estate. In doing so, they realize that they cannot sell the home without doing a probate for both parents who have passed away.

Under Idaho law, a probate normally needs to be completed within three years of an individual’s passing away or it is too late to do a probate. However, when we are talking about individuals who are married, the law provides an exception. In this circumstance, when children are dealing with the death of their parents, the three-year statute of limitations only applies to the death of the last parent. In other words, suppose you have a married couple and the husband passed away 15 years ago with no probate being completed. Then the wife passes away. The children of these parents have three years from the death of the wife in which to complete a joint probate for both parents.

By utilizing this probate option, children have the ability to properly complete a probate and transfer the ownership interests and all of the property involved, including real estate, homes, bank accounts, investment accounts, and so forth to the children.

Regular Probate

The final option available to an individual when a loved one passes away is a regular probate. A regular probate is required whether or not there is a written last will and testament if the value of the estate is worth $100,000 or more, or if there is any real property involved such as a home, land, or farm ground. Additionally, as set forth above, a probate must be completed within three years of a person’s passing. A regular probate takes at least six months to complete, and must complete all of the steps involved in the probate process. Again, the purpose of this article is not to describe a regular probate but rather simply to provide a summary of all the different probate options that exist. If you have had a loved one pass away and none of the other options of probate listen above apply, then more than likely you need to complete a regular probate.

We have helped numerous clients after they have lost a family member or loved one complete a probate. We assist with determining the type of probate that needs to be done and with completing every step necessary in the probate. If you have questions or concerns about probate, 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 consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us 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 Idaho Estate Planning problems.

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