After over 70 years of experience our Pocatello Probate Attorneys know that many of our clients misunderstand the probate process. It is commonly misunderstood that when a person dies the surviving spouse does not need to complete a probate. Many people just believe that the surviving spouse automatically now owns all of the property they and the decedent owned together. It is important to understand that in Idaho there is no automatic transfer of property for a decedent to a surviving spouse. This is true because when they were alive, the decedent is legally able to gift their property away in a Last Will and Testament. In this instance, the decedent can give their property away to a charity, their children, the surviving spouse, or even a stranger if they choose. Because of this, nothing is automatically given to the spouse. It is through a probate that the decedent’s instructions of who their property is to be given to is completed. However, there are 3 specific ways that a person can avoid a probate if they choose.
Our team of Probate lawyers in Pocatello has advised and helped numerous clients plan and prepare their estates so that probate can be avoided. If avoiding probate is your goal, we can help you too. Our team of Pocatello Attorneys includes partners Randy Budge and Lane Erickson, and attorneys Nathan Palmer and Dave Bagley who have served and helped clients with all of their estate planning and probate needs for decades. Here is a list of the 3 specific ways a person can actively avoid having to complete a probate in Pocatello.
1. No Real Property and a Small EstateUnder current Idaho law, there are two specific circumstances that must exist where a regular probate can be avoided. When these circumstances exist, the decedent has what the law defines as a small estate. A small estate means that the person who died didn’t own any valuable assets when they passed away. Idaho’s statutes specifically state that probate can be avoided under a small estate claim when:
Under these two specific circumstances there is a small estate. When a small estate exists, in many instances, no specific court process is needed to transfer the property from the decedent to others even if a written Last Will and Testament exists. A small estate can transfer property though an Affidavit of Heirship completed by the person who is entitled legally to receive or inherit that property. The person simply presents an Affidavit of Heirship which represents that they are entitled to the property.
2. Creating and Using a TrustA second and more comprehensive way to avoid probate is accomplished when a person creates a written Trust. Creating a trust is the easy part. However, the key to having a valid trust is transferring property into the Trust. A trust is like a pie crust and transferring property into the trust is the pie filling. To transfer the ownership of different types of property into the trust means the person doe not individually own the property anymore. When the transfer occurs, the Trust becomes the legal or titled owner of the property.
Our goal in this discussion is to describe the ways to avoid probate. If you create a trust but fail to transfer any property into it a probate will likely still be required to transfer your property when you die. If you personally still own any type of real property, or if you own any other kinds of property with a total value of $100,000 or more, you will still have to complete a probate even if your Trust now owns some of your property. To be clear, whatever property you transferred into the trust will not be included in the probate, but all of the property not owned by your Trust will have to be probated.
3. Pay on Death and / or Beneficiary DesignationsA final way that a probate can be avoided for some specific assets is through payable upon death (POD) or beneficiary designations. This is most commonly used on items such as bank accounts, investment accounts, certificates of deposit and the like. To make this effective, the owner must fill out a beneficiary form for the account which specifically names the beneficiary (single or multiple individuals). This form then specifically states that the monies in the account will be paid to whoever is listed upon your death. The beneficiary that is listed is not required to complete a probate in order to receive the monies from the account. Typically, all a beneficiary is required to do is provide proof of death and complete whatever paperwork the account administrator requires. One this is done, the distribution of the monies directly to the beneficiary occurs.
When one of the 3 options listed above is completed, probate may be avoided. However, if none of these is utilized then it is likely that even a surviving spouse will be required to complete a probate in Idaho and in Pocatello in order to legally distribute any property left by the decedent after their death. If you are interested in using any of the 3 options described above, we can help you.
Enlist a Pocatello Estate Planning Attorney to Help YouIf a friend or family member recently passed away and you have questions about the probate process in Pocatello 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 racine@racinelaw.net. We will answer your questions and will help you solve your Pocatello Estate Probate problems.