Summary Administration an Alternative to Probate for a Surviving Spouse
Things are never easy after a loved one passes away, and this is even more true when it is our spouse. Often surviving spouses don't know where to even begin when it comes to dealing with either the estate or a probate of the estate of their husband or wife that recently passed away. For more than 70 years, our premier a team of Idaho estate planning attorneys has assisted clients in understanding what their options are and deciding what actions to take after a spouse has passed away. Our goal is to provide both peace of mind and high-quality legal advice and services to each of our clients based on their own particular circumstances and needs.
Our team of Idaho estate planning attorneys have the knowledge, skill, and experience necessary to help you understand all the options that exist for you when your spouse passes away. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our team has years of experience helping clients through the probate process. Our past and current clients, other attorneys we work with and the judges that we appear before consistently give us the highest ratings possible based on our legal skills, experience, and knowledge.
In Idaho, the law provides a surviving spouse with some unique choices to make when it comes to probating an estate. Depending on what the circumstances of the surviving spouse are it's possible that a regular probate can be avoided which will save both time and money. This is possible through a process called a Summary Administration. Below is a description of what a Summary Administration is and why it may or may not be a good choice for you if your spouse has recently passed away.What a Summary Administration is
Idaho has a large number of statutes dealing with probating an estate. Under normal circumstances, a probate is required anytime the person who has died is named on a deed to any real estate, or when the value of their estate is worth $100,000 or more. However, there are some exceptions to this regular requirement for probate.
Mixed in all of the probate statutes is one small section of the Idaho Code that deals specifically with what can happen with a surviving spouse when they are listed as the sole beneficiary of the decedent's estate. In other words, if a spouse passes away, and they have a written last will and testament that names their surviving spouse as their sole beneficiary of their estate this statute could be utilized. Likewise, the statue would also be applicable if the decedent died without a written last will and testament and under Idaho's intestate laws the surviving spouse would be the sole beneficiary of the decedent's estate.
The statute is found at Idaho Code §15-3-1205. The relevant portion of this statute reads as follows:
15-3-1205. SUMMARY ADMINISTRATION OF ESTATES IN WHICH A SURVIVING SPOUSE IS THE SOLE BENEFICIARY.
- Upon the testate or intestate death of a person leaving a surviving spouse as the sole devisee or beneficiary, the surviving spouse (or any person claiming title to any property through or under such surviving spouse) may file a verified petition setting out marriage and the death of a person leaving a surviving spouse as the sole devisee or heir. If the decedent died testate, the petition must be accompanied by the original of the last will and testament of the decedent. Notice of hearing shall be given pursuant to the provisions of section 15-1-401, Idaho Code.
- If it shall appear at such hearing that the decedent and the person claimed to be the surviving spouse were duly married and that the surviving spouse is the sole heir or devisee, a decree shall be made to that effect. This decree shall thereafter have the same effect as a formal decree approving or determining distribution. The petitioner, or the surviving spouse, or both, need not appear in person at such hearing, nor must an attorney for the petitioner spouse appear in person at such hearing. The petitioner or the attorney for the petitioner, or both, may either:
- Upon proper motion made by the petitioner, appear telephonically; or
- Submit one (1) or more affidavits in advance of the hearing certifying that notice of hearing was given as required by law and that no objection to the entering of the decree has been received by the petitioner or the attorney for the petitioner.
- In the event that the surviving spouse (or person claiming through or under the surviving spouse) shall elect to proceed under this section, the surviving spouse shall assume and be liable for any and all indebtedness that might be a claim against the estate of the decedent and there will be no administration of the estate of the decedent.
Essentially, by reading through the statute you can see that the process of transferring property from the decedent spouse to the surviving spouse is almost immediate. Really, the main reason for this statute is to allow the transfer of property from one spouse to another without complicating the matter with a longer and more expensive regular probate.How It is Different From a Regular Probate
The main way that a Summary Administration is different from a regular probate is the amount of time and money it takes to complete it. As can be seen from the statute above, a Summary Administration can be completed within just a few weeks of time. Alternatively, a regular probate must remain open at least 6 months after the order appointing the personal representative is entered by the court. Usually probate proceedings last longer than 6 months.
Another major difference between a Summary Administration and a regular probate has to do with dealing with creditors. In a regular probate, creditors are notified and given an opportunity to file a claim with the estate in order to be paid. Alternatively, as you can see from the statute, when a Summary Administration is completed, the spouse specifically agrees that they will personally assume and be liable for any and all debts that could be claimed against the estate of the decedent. This is true even if the surviving spouse was not originally obligated for that debt. This doesn't cause too many concerns for most surviving spouses however, because usually they are already responsible for that debt. Additionally, because Idaho is a community property State, most of the debts of a person will also belong to their spouse as well.Why It may not be a Good Idea
Given that a Summary Administration would be quicker and thereby cheaper to accomplish then why is it that not all surviving spouses choose to do it. There are several good reasons why a Summary Administration may not be a good idea for a surviving spouse. The first such situation maybe where the surviving spouse does not want to assume debts that were owed by the deceased spouse.
Additionally, there are circumstances where the decedent and their spouse owned property in other states. In order to properly transfer that property away from the decedent spouse a regular probate must be commenced in Idaho, so that the personal representative who is appointed can also be recognized by the courts in the other states where property is located that must be transferred.
Furthermore, when there is either a prenuptial agreement or a Marital Property Separation agreement that was signed that specifically separated out both property and debts, it's possible that the surviving spouse may not want to be liable for the deceased spouse's debts. That agreement they release them for personal liability and less they do a Summary Administration.
Through our skill, experience, and knowledge, we regularly work with clients to determine whether a Summary Administration is a good idea or not. If you have questions about whether a Summary Administration may be the best choice for you, we are confident we can answer your questions and help you too.Enlist an Idaho Estate Planning and Probate Attorney to Help You
Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, 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 with the Racine Olson team. You can also email us directly at firstname.lastname@example.org. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.