By Lane V. Erickson, Idaho Estate Planning Attorney
When we meet with clients we often tell them that their Pocatello estate plan has more to do with them than it does with just giving away their property and money after they die. In addition to that other purposes of estate planning are to anticipate the future and to provide a plan that protects you individually from the worst things that can happen to you while you are alive. By doing this, we are able to help you create a plan that protects not only yourself but also your loved ones while you are alive and after you die.
Our team of premier Pocatello estate planning Attorneys at the Racine office work with each client to customize a specific estate plan to meet their unique needs. The lawyers on our team include partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley, each of whom are knowledgeable, experienced, and skilled in assisting each of our clients. We are confident that we can help you too.
We often have clients come to us and ask if there are ways that their family can avoid probate in Pocatello. When we are asked this question we discuss with our clients the following four ways that they can avoid probate if they choose to.
Use Your Money on YourselfThe first and easiest way to avoid probate in Pocatello is to use all of your property, money, and assets on yourself while you are alive. The reason for this is because Idaho requires a probate to be done for any person who has an estate valued at $100,000 or more at the time of their death, or when their name is on the title to any real property regardless of its value. Essentially, this means if they own a house, or any land regardless of its value, some type of a probate will be required.
If during your lifetime you use your money so that the value of your estate including every item you own is below $100,000 at your death a probate won't be required. Likewise, if during your lifetime you either sell or give away any land, homes, or other real estate that you have an ownership interest in, then it's possible that a probate may not be required for you when you pass away.
The only problem with this option is timing. If we all knew when we were going to die it would be easy to follow this particular option and make it work. However, because we do not know this, this option is actually very difficult to time right especially if your estate consists of a large amount of property, money, and assets. But, don't give up hope, there are some other things that you can do if you choose while you're alive that can help you avoid probate.
Give Your Money AwayThe second option that you have is similar to the first, but rather than using your money and property for yourself, you give it away to others while you are alive. You have the option of giving gifts to any individual you choose during your lifetime. Idaho law will support you giving these gifts to others and once a gift is given you have specifically divested yourself of any ownership interest in the item that is given away. This could include money, personal property such as vehicles or other items, or it could include real estate such as land, or homes. Other than the Federal gift giving exemption limits, which are not the focus of this particular article, there really is no limit to the gifts that you give to others while you are alive.
Similar to using your money on yourself while you are alive, if you have lowered the dollar of value of your estate below $100,000, and if you no longer own any real estate, because you have given these all away as gifts while you are alive, then a probate will not be required for you after you die.
Surviving Spouses Gets an Additional OptionA surviving spouse gets an additional option under Idaho law. If a person is a surviving spouse, and they are the only recipient of the decedent's estate, which means they are the only person who is receiving the estate, they have an additional option to avoid probate known as a Summary Administration.
The purpose of a Summary Administration is to limit the expenses and time normally associated with probate. The reason for this is because normally the spouse is already involved in and an owner of the property they are receiving from their deceased spouse. As an example, a home is usually purchased by a husband and a wife while they are married. When one of the spouses passes away, the other spouse can use a Summary Administration as a means of transferring the full ownership of the house to themselves rather than having to go through an entire probate process to get it done.
When it comes to a surviving spouse, the only weakness of a Summary Administration is that it does require the surviving spouse to agree to be responsible for any debts that were owed by the spouse that passed away. This could include debts that were separate and which the surviving spouse originally did not have an obligation to pay. However, a Summary Administration is much quicker and far less expensive than a regular probate. For this reason, many spouses choose the Summary Administration option so they can avoid doing a regular probate.
Set up a TrustThe final option that's available to any person wanting to avoid probate is setting up a trust. Again, if you transfer away your ownership interest in your money, property, and assets to a trust while you are alive, and as a result you have no ownership interest in any real estate and the value of your entire estate is less than $100,000, then a probate will likely not be necessary when you pass away.
There are many different kinds of trusts that can be used if a person wants to use a trust to avoid probate. The real key in using a trust as a means of avoiding probate is to make sure that after the trust is created that it is properly funded. Again, this simply means transferring all ownership interests from the individual to the trust while they are alive.
Some people believe that if they have a last will and testament that says all their property goes into trust after they die that they do not have to go through a probate. However, in this instance it would be the probate process that would transfer the property from the deceased individual into the trust. Because of this, in this circumstance the trust really did not help anybody avoid probate at all. Again, the key is that all transfers to a trust must occur while the person is alive.
We have helped numerous clients over the years take steps that may help them, or their family avoid probate in the future. We are confident that we are knowledgeable and experienced about these things and can provide you with sound counsel and advice if your goal is to avoid probate.
Enlist an Idaho Estate Planning and Probate Attorney to Help YouOur experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, 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 with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.