Many times clients come to our office who are terrified of the “probate” process and want their estate and family members to avoid such proceeding at all costs. The client’s perception may derive from what they have heard from other family, friends, television, or a prior experience in another state. However, depending on the estate, Idaho’s probate process can be relatively straightforward and easy.
What is Probate?
Probate is the legal process that occurs to finalize and administer your assets and liabilities (estate) when you die. This process involves the appointment of the personal representative (individual in charge of the estate administration), paying off debts and taxes, inventorying the estate property, and liquidating and distributing the estate assets to your beneficiaries or heirs.
When is Probate Needed?
Probate is usually required in Idaho when real property is owned by an individual, owned between spouses, or owned as tenants in common. Probate may also be required when the total assets exceed over $100,000.00 or there are no beneficiary designations on bank accounts or other investments. This is true whether or not you have a Will as probate is the process to validate the heirs of the estate and complete an orderly administration.
Myths About Idaho Probate
1. Having a Will Avoids Probate. False. Having a Will or the absence of a Will does not necessarily avoid probate. Probate is needed so that an individual has recognized authority from a court to access bank accounts and sell/distribute real property or other assets. Without having this recognized authority, the banks will not permit access to accounts and no one can sign on the decedent’s behalf to transfer the real property.
2. Idaho is a Community Property State and My Estate Will Automatically Go to My Spouse. False. Simply being married does not automatically transfer your estate or your interest in real property to your spouse. Even if you have a Will that distributes your interest in real property to your surviving spouse, probate is required to complete the transfer process. The failure to properly probate a deceased spouses’ interest in real property oftentimes will require a joint probate on the death of both spouses. The failure to complete the transfer may create a clouded title in the real property.
3. Probate is Expensive and Time Consuming. Idaho’s probate process is usually straightforward because appointment of your personal representative can be initiated by an informal process and without a court hearing. The estate can be administered and closed without court intervention which reduces the time and expense. We find that the most expensive probate administrations derive from issues with beneficiaries or creditors, not the probate process itself.
There are many useful estate planning tools that may help avoid probate, but are not always necessary in light of Idaho’s informal and relatively simplistic probate process.
This article is not intended to replace legal advice applicable to your situation and should be used only for informational purpose. Consult with your legal or tax advisors before implementing any suggestions contained herein. Ms. Clapp-Younggren is an associate attorney with the firm of Sandra L. Clapp & Associates, P.A. and can be reached at aclapp@clapp-legal.com or (208) 938-2660.
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