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Is Probate Necessary?

When an Idaho resident dies, his or her property can be transferred to others in a number of ways:

Non-Probate Transfers

  • If the decedent’s property is titled in joint tenancy or community property with rights of survivorship (ROS), the property will transfer directly (without the need for probate) to the joint tenant, or, in the case if community property w/ ROS, to the surviving spouse;
  • If the decedent had a bank account or investment account and signed a pay on death or transfer on death (POD) designation, the account will transfer directly (without the need for probate) to the person named in the designation;
  • If the decedent owned a life insurance policy or annuity that named a person or persons as beneficiaries, then the proceeds from the policies will transfer directly (without the need for probate) to the named beneficiaries; and
  • If the decedent held some or all of his or her property in a revocable (or living) trust, then property will transfer directly (without the need for probate) to the beneficiaries of the trust.

If none of the above applies, then the question is whether the heirs need to commence a probate. If the decedent’s property consists only of tangible personal property (such as a bank account, a car, personal furnishings) and the total amount of such property is less than $100,000, then the heirs may be able to obtain the property by use of an Affidavit in Lieu of Probate. We say “may” because: (i) even though institutions are supposed to accept such affidavits, sometimes they will insist on the property transferring through probate, (ii) if there are debts against the decedent’s estate or disputes among heirs as to who is entitled to the property, then transferring property in this manner, without settling the debts, may result in litigation, and (iii) this form of transfer is not available for transfer of real property such as a house or land.

If the property doesn’t transfer by virtue of its title or by beneficiary designation and can’t be transferred by affidavit, or if the heirs or creditors are disputing who the property should go to, then a probate should be commenced.

Probate

Probate is a process established by state statute and overseen by the court for distributing a decedent’s property to his heirs, settling disputes among heirs, and settling creditor claims against the decedent’s estate. There are several types of probate in Idaho:

  1. Informal Probate. The most common form of probate is an informal probate. This form of probate involves minimal court involvement and does not require a hearing before a judge. Essentially, following submission of various documents to the court, the judge appoints a personal representative (the “PR”) to settle the estate. After the PR is appointed, notices of the appointment need to be given to heirs and creditors. Thereafter the PR undertakes a number of steps to settle the estate and any creditor that does not submit a claim to the PR (or his or her attorney) within four months is barred from seeking recovery from the estate. Not earlier than six months following the PR’s appointment, the probate can be closed by filing a sworn closing statement with the court. See Probate Steps for more information.
  2. Formal Probate. If there are disputes among heirs that need to be settled by the court or an original will cannot be found, then a formal probate needs to be commenced. This probate is essentially litigation and will involve hearings before a judge.
  3. Summary Administration. If one spouse dies and:
  • all of the decedent’s property is community property, and
  • the surviving spouse is entitled to the decedent’s property by virtue of the terms of the decedent’s will or under Idaho’s intestacy statutes, then a summary administration can be commenced by the surviving spouse. This form of probate requires a hearing before a judge, but once complete, all of the decedent’s property and debts will be transferred to the surviving spouse. If the surviving spouse does not want to assume the decedent’s debts, then this form of probate should not be commenced.

Summary administration expedites the probate process because once a hearing has been held and the judge decrees the property and debts transfer to the surviving spouse, the probate process ends. Thus, it is a shorter process, with fewer document submissions than is involved in the other forms of probate.

  1. Consolidated Probate. In cases where both spouses have died and probate was not commenced following the death of the first spouse, but probate is commenced within three years following the death of the second spouse, then the estates of both spouses can be consolidated in a single probate.
  2. Determination of Heirs. Idaho requires that probate be commenced within three years following the date of death of a decedent. If it is not, then a determination of heirs needs to be commenced. This process requires a hearing before a judge and submission of certain documents establishing the right of heirs to the decedent’s property.
  3. Ancillary Probate. If a decedent died owning real property in more than one state, then a separate probate may need to be commenced in each state in which real property is located.

Do you need a lawyer?

For non-probate transfers, a lawyer is typically unnecessary unless there are complicated issues involved or unless transfer documents, such as warranty or quitclaim deeds are needed. For probate transfers, a lawyer is typically necessary to prepare and submit the required documents to the court and third parties. A lawyer is also helpful in advising the personal representative on the many issues that come up in the course of probate.

Contact Us for Assistance

The rights of heirs to a decedent’s property as well as issues relating to the transfer of that property can be complicated. We can help you understand the alternatives and issues involved Please contact Mathieu, Ranum & Allaire, PLLC at our Boise and Sun Valley offices.

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