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Where Your Property Goes if You Don't Have a Will

By Lane V. Erickson, Idaho Estate Planning Attorney

In a perfect world every person in Boise would have a complete and well-thought-out estate plan that would include among other documents a written last will and testament. Having this would provide protections for an individual while they are alive and would also create an organized plan for the distribution of their money, property, and assets after they die. While this might not eliminate every problem that could arise it would take care of most of them. The reality is, very few people in Boise have an estate plan in place. Our job as the premier Boise estate planning law firm is to help each client create a plan that considers the realities of both life and death. We also work to help our clients solve any problems that arise whether they have a written last will and testament or not.

Our team of Boise estate planning lawyers have decades of knowledge and experience in assisting clients in creating customized estate plans and helping families through the probate process as well. We utilize a team approach so that our clients can have their needs met immediately. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. We are proud that each of our attorneys has received exceptional peer and client reviews during the last several decades.

As we talked with people we recognize that not everybody has an estate plan in place. Often, there are questions for people about whether in fact they need an estate plan at all. In particular, people ask questions about what happens when there is no written last will and testament. To help convince you that having a written last will and testament is a good idea, here are three specific questions that are answered about what happens when you don't have a will.

If There is no Written Will, is Probate Necessary?

In meeting with individuals and talking with them about estate planning, one of the most common questions that comes up is whether a probate is still required in Idaho if a person does not have a written last will and testament. On the other end of the spectrum, some people mistakenly believe that if they have a written last will and testament that a probate is not necessary. The short answer is this, a probate is required in Idaho anytime a person dies when they own real estate regardless of its value or if the total value of their estate is worth $100,000 or more even if it doesn't have any real estate in it.

Some examples here might help. If a person purchased a home, and their name was on the deed to the title to that home, and they pass away. A probate will be required in order to transfer title to that home to somebody else. This is true, regardless of whether the person had a written last will and testament or not. This is also true even if it was a married couple that purchased the property and one of the spouses passed away but the other spouse survives. In that instance, the spouse's jointly owned the home, but the surviving spouse cannot sell the home without doing some sort of probate first.

Likewise, if a person has $200,000 in the bank, but they have no home because they rented property their entire life, a probate will still be required for them as well when they pass away. So, the real issue is not whether there was a written last will and testament or not. Rather, the real issue is whether the type or amount of property in the person's estate requires a probate under Idaho law.

However, the processes and procedures that happen during the probate, and how property is distributed is vastly different depending on whether there is a written last will and testament or not. These next two sections will discuss these major differences.

If There is a Probate Who Will be the Personal Representative of Executor?

The first major difference that occurs depending on whether there is a written last will and testament or not, is who will be chosen or appointed to be the personal representative or executor of the estate after you die. In Idaho, the person who is in charge of your estate is called a personal representative. However, many people use the term executor instead. It really doesn't matter what name this person is given because they refer to the same person.

When a probate is required, a person must be appointed by a court as the personal representative in order to have legal authority to deal with the property in the estate and the creditors of the person who died. When a written last will and testament exists, the person who creates the written will can name, or nominate the person, or succession of people that they want to act as the personal representative of their estate. In other words, they have control over who will be appointed by the court that will be handling their money and property.

However, when there is no written last will and testament things are very different. In this instance, the statutes and Idaho create a list of people who are in priority to be able to become the personal representative of your estate. For example, if you are married and you have a surviving spouse, the surviving spouse has the highest priority to petition the court to become the personal representative of your estate. If you do not have a surviving spouse but you have several surviving children, then the statutes allow any of your children to petition the court to become the personal representative because the statutes provide equal rights or priorities with all your other children.

The bottom line is that if you do not have a written last will and testament, you do not have any control over who will be appointed to be the personal representative of your estate. Any person who has priority on the statutory list can petition the court to become your personal representative.

How is Property Distributed When There is no Written Will?

The second major difference between having a written will or not is in how your property will be distributed after you die. To create the contrast I'll start by saying that when you do have a written last will and testament you are in complete control of who receives your property. Typically, most people will leave their estate to their family or other loved ones. However, you're not required to do this. If you chose to, you could leave your money and property to charities or to other people or to complete strangers. The point is, that with the written last will and testament you are in complete control of where your property goes after you die.

When you have no written last will and testament, again the estate that you would leave will be controlled completely by the statutes in Idaho. Without a written last will and testament you are deemed to have died intestate. This just simply means that you died without a written last will and testament. When this occurs, the statute creates a list of priorities of people who will receive distributions from your estate. The first level of distributions is a surviving spouse. Surviving children also come into this mix if you pass away at a time when you own separate property. Without getting into all the details it is sufficient to say that if you do not have a written last will and testament you really have no control over who receives your property after you die. Some people are not concerned about this. However, most of our clients want to be in control because they know their family and children and they understand what they believe will be best for them.

Regardless of whether you have a current written last will and testament or not, or you are interested in receiving one, we can help. Our team of Premier Boise estate planning attorneys have assisted numerous clients with these same issues and we are confident we can help you too!

Enlist a Boise Estate Planning Attorney to Help You

Our team of Boise lawyers can help you with any of your estate planning needs if your spouse has passed away. 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 We will answer your questions and help you solve your Boise Estate Planning problems.

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