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When You can Avoid Probate in Idaho

Our Idaho Probate attorneys understand that there is a common misconception in Idaho that a surviving spouse is not required to go through the probate process. Most people assume that the surviving spouse is somehow automatically entitled to receive and own all of the decedent’s property. However, our lawyers in Idaho understand that property does not automatically transfer to the surviving spouse. The decedent is entitled to give his property away in his Last Will and Testament to whomever he wants which could include the surviving spouse, children, charities or even strangers. However, probate is the process where the decedent’s instructions are carried out and property is distributed. There are, however, 3 specific circumstances where a person can avoid a Probate in Idaho.

Our team of lawyers in Idaho have decades of experience in advising and representing many clients in Idaho and at times helping clients to avoid probate. We are confident that we can help you. Our team of Idaho Attorneys include partners Randy Budge and Lane Erickson, and attorneys Nathan Palmer and Dave Bagley.

Below is a description of the 3 specific circumstances where a person can avoid a Probate in Idaho.

1. Small Estate and no Real Property

The first circumstance that exists in Idaho where a probate can be avoided is when there is a small estate. A small estate is exactly what it sounds like. It simply means that the decedent didn’t own much of anything when the passed away. More specifically, according to Idaho’s statutes probate can be avoided due to there being only a small estate when:

  1. The total value of the property owned by the decedent upon the date of death was less than $100,000; and
  2. The decedent’s property did not include any real estate, regardless of the value of the real estate.

Under these circumstances there is in fact by definition a small estate that requires no specific court process. This is true regardless of whether there is a written Last Will and Testament or not. Whenever there is a small estate the property it contains can be transferred though an Affidavit by the person who is legally entitled to inherit that property. The person simply presents an Affidavit representing that they are entitled to receive the property. No other steps are required.

2. Using a Trust While You are Alive

The second and much broader way that a person can avoid probate is through the creation of a valid written Trust. However, just creating a Trust is not enough. When a trust is created it is like making a crust to a pie. The crust is good, but the pie isn’t complete until the pie filling is put on top of the crust.

When it comes to having a Trust, the key is to make sure you transfer your property into the Trust while you are alive. This is how the pie filling is created. Transferring ownership of property into the trust means that the person no longer individually owns the property. Rather, the Trust is now the legal owner of the property. If you fail to transfer property into your Trust a probate may still be required to transfer ownership to your loved ones when you die. As discussed above, when you die, if you still own any type of real property, or if you own personal property worth $100,000 or more, then a probate will still have to be completed, even if you have a Trust that has some of your property in it. The property in your Trust will not need to be probated, but the property outside of your Trust will.

3. Beneficiary or Payable Upon Death Designations

The third and final way that a formal court process can be avoided for some specific assets such as certain bank accounts, retirement accounts and the like is through beneficiary or payable upon death (POD) designations on these accounts. This occurs when you fill out the form associated with the account that specifically names a beneficiaries and instructs the monies in the account to be paid to these individuals when you die. When this happens, the account administrator or bank is required to simply make distributions of the money to the persons you name when you die. The beneficiary does not need to complete a probate for this to happen. All the beneficiary needs to do is provide proof of death and then complete the appropriate paperwork so the distribution can be completed.

Unless a person takes one of the 3 steps listed above then even a surviving spouse in Idaho is required to complete a probate to legally distribute the decedent’s property. If you really want to simplify the process of passing property to others in Idaho, we can help you and your family use one of the options above.

Enlist an Idaho Estate Planning Attorney to Help You

If you have a family member of close friend who recently passed away and you have questions about the probate process in Idaho we can help. We are available to answer your questions and discuss your concerns at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team of attorneys in Idaho. You can also email us directly at We will answer your Idaho Probate and/or Estate Planning questions and will help you solve your Idaho Estate Probate problems.

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