In an ideal world every single person would have a complete, thorough, and well-thought-out Idaho estate plan before they die. The reason for this is that estate planning provides protection to an individual not only after they die but also while they are alive. It also allows the individual who created the plan to be in control of how their estate is distributed after they die. However, the reality is that not everyone has completed their estate planning. In fact, this is very common. Our job is to help our clients with the realities of their life regardless of their circumstances and help them solve their probate and estate planning problems whether they have a written estate plan or not.
For over 70 years our team of Idaho Estate Planning and probate attorneys have assisted our clients in solving their problems. Often, these include completing a probate of an estate where no written last will and testament exist. The attorneys on our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each member of our team has extensive experience in helping clients resolve probate and estate planning issues when there is no written estate plan. We are confident that we can help you too!
If you are concerned about what will happen to your estate if you have no written last will and testament, or if you have a family member who recently passed without a written last will and testament, here are some specific things that you should understand about how Idaho law will affect the distribution of the estate.
Is Probate Still Required if You Don't Have a Written WillThe first question that many clients will ask us is if they don't have a written last will and testament is a probate still required in Idaho. The short answer is yes. A probate is required in Idaho regardless of whether there is a written last will and testament if a person died when they owned an interest in any type of real estate regardless of its value or if the value of their estate was worth $100,000 or more regardless of whether it had real estate in it or not.
When a written last will and testament exists a probate is called a "testate" probate. This simply means that there is in fact a written last will and testament. When a person dies without a written will, the probate is called an "intestate" probate. Again, this simply means the person died without a written last will and testament.
Other than those specific things the process of a probate is generally very similar regardless of whether a written last will and testament exists or not. However, if there is a written last will and testament, the individual who completed it retains far more control over how the probate is conducted and who is involved and who will receive distributions from the estate. For this reason, we always encourage our clients to complete their estate plan which includes a written last will and testament.
Who Will be the Executor or Personal RepresentativeOne of the most common questions our clients ask us is if they do not have a written last will and testament who will be named as the executor or personal representative of their estate? The answer to this question is controlled by Idaho law. Specifically, Idaho's statutes (I.C § 15-3-203) set forth the priority among individuals who are seeking appointment as a personal representative when a person dies without a written last will and testament. According to these statutes the order is as follows: (1) a surviving spouse; (2) a surviving heir of the decedent which would be children or grandchildren; and (3) other more distant heirs of the decedent; and (4) a creditor if no other person petitions for appointment within 45 days of the decedent' death.
This statute provides one of the best examples of why it is so important to have a written last will and testament. You get to control who takes care of your estate and the distributions that are made from your estate, after you die. The same statute places the highest priority for appointment on the person who is "nominated by a power conferred in a will." In other words, if you have a written last will and testament, and you have nominated or listed a person there to be your personal representative, the court will give that person the highest priority for that appointment. This means they will be considered and appointed above anybody else, including a spouse or any other relative. This gives you the ability to stay in control of who will administer your estate after you die.
Who Will get Your Property if you Don't Have a Written WillThe most common question that people ask us is if they die without a written last will and testament, who will receive the property, money, and assets that are owned in their estate. Again, this answer is controlled by specific Idaho law. Idaho statutes dealing with intestate succession state that a surviving spouse receives all of the community property and they receive one half of any separate property owned by the decedent. The remaining 1/2 of the separate property will go to the decedent's children or parent or other heirs if there are any. If there are no surviving children or parents or other heirs of the decedent then all of the separate property goes to the spouse.
However, when a written last will and testament exists, the decedent is able to pass his separate property to whoever he chooses. This could be to a charity, or to a friend, or to a specific family member. There is no requirement that an individual name specific persons or groups of people in their last will and testament. In fact, if you choose, you can disinherit a person in your will. As a result, by having a written last will and testament, you remain in complete control of who will receive your personal separate property after you die.
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 are in need of 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.