By Lane V. Erickson, Idaho Estate Planning Attorney
There are many kinds of probates that can be accomplished in Idaho depending on what your specific needs are. The reason there are several different kinds of probate is that there are no two situations that are exactly alike, and different situations call for different types of probate to be accomplished. Idaho law provides some flexibility in allowing family members and loved ones to choose the type of probate they would like to accomplish when a person passes away. This gives family members the ability to decide exactly what they want to accomplish.
Our talented team of Idaho estate planning and probate lawyers at the Racine Law Office have assisted clients for over 70 years in determining what type of probate is needed. We then work together as a team to help our clients complete the probate process in the most efficient and best way possible. Our goal is to take the burden of completing the probate off the shoulders of our clients and to assist them through the entire process so that they are never alone in completing what needs to be done. The knowledgeable and experienced members of our Idaho estate planning team include partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each member of our team has completed hundreds of probates for clients and have helped them through each step of the probate process. We are confident that we can help you too.
The purpose of this article is to describe the process of completing a joint probate for spouses when they are deceased. This is one of the many options available to family or loved ones when there is a married couple where both spouses have passed away. This doesn’t mean that each spouse passed away close in time together, although this does happen sometimes. Rather, the most common scenario is that one spouse passes away and then many years later the surviving spouse passes away as well. Regardless of the timing, if both spouses are deceased, and a probate was never completed for the spouse who passed away first, there is an option to do a joint probate. Below are the three most common questions we are asked about joint probates with answers and explanations to help you understand whether a joint probate would be a good idea for you and your family.
Why Would I Want to do a Joint Probate?The first question we are usually asked is why would a family want to do a joint probate? The answer to this question really comes down to the circumstances of the individuals who have passed away. The most common scenario revolves around a house or other real estate that needs to be transferred to family members who are still alive after both parents pass away. As was mentioned above, it’s not common that both spouses pass away together. Usually, one spouse passes away first, and then the surviving spouse may live several years or even decades longer.
However, we often find that when the first spouse passes away no probate was ever completed. Because of this, the first spouse that passed away is still listed on the deed or the title to a home or some other type of real estate. This creates a problem because the surviving family must remove the names of all individuals who have passed away from the title to all real estate in order to transfer it to those who are still living. This is one of the purposes of probate.
Idaho does have a saving statute for this situation. When the surviving spouse passes away, Idaho law allows a joint probate to be done for both spouses, regardless of how long ago the first spouse passed away. This is important because this allows surviving family members to transfer the ownership of the house or other real property to the surviving family members through the probate process.
Whenever a family comes to me for advice about probate I always ask questions to determine whether the individual who passed away was married and whether their spouse is still alive or not. I also ask questions about whether a probate was completed when the first spouse passed away. Often I find that no probate had ever been completed at all. this is when I discuss with the family the opportunity of doing a joint probate so that the real estate can be properly transferred away to the surviving family members.
Is There a Deadline or a Cutoff Time?The next most common question is whether there is a deadline for completing a joint probate for spouses. Under normal circumstances a family has a 3-year period of time to complete a probate for an individual who dies regardless of whether they have a last will and testament or not. The importance of this deadline as it relates to a last will and testament is that if a probate is not completed within 3 years, the last will and testament will be considered invalid and unenforceable. However, because of Idaho’s statutes allowing a joint probate to be completed for spouses, the 3-year statute of limitations only applies to the date of the death of the last surviving spouse. An example would best illustrate how this works.
Suppose for a moment that your mother passed away 10 years ago and that no probate was ever completed. Your father survived and passed away 2 years ago. In this situation, there is 1 year left in which to complete the joint probate for both parents. This is because the applicable deadline or cutoff time is 3 years from the date in which your father passed away.
What do I do?The next question that people usually ask now that they know about a joint probate option is what do they need to do to get it done. We always recommend that you use a qualified Idaho probate attorney to assist you in completing a probate in the first place. When it comes to completing a joint probate, this is even more important. To qualify for a joint probate proof must be provided with regards to the marriage of the spouses who passed away. Evidence must also be provided as to the date of death for each of the spouses. Finally, the probate petition that needs to be filed with the court should contain references to the statutes allowing a joint probate to be filed in the first place.
Our team of qualified Idaho estate planning attorneys at the Racine law office have completed numerous joint probates for deceased spouses. We are familiar with the process and with the evidence that is needed to complete a joint probate. We are confident that if you need to do a joint probate, we can help you too.
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.