By Lane V. Erickson, Attorney
There is a common misconception in Idaho that a surviving spouse is not required to go through the probate process. I suppose most people assume that the surviving spouse is somehow automatically entitled to receive and own all of the decedent’s property. The truth though is that property does not automatically transfer to the surviving spouse. The decedent is entitled to give his property away in his Last Will and Testament to whomever he wants which could include the surviving spouse, children, charities or even strangers. Unless special steps are taken to avoid probate, Idaho’s statutes and its courts require nearly all estates to be probated. There are, however, 3 ways you can avoid a Probate in Idaho.
1. Small Estate and No Real Property
There is a small exception in Idaho law that does allow a surviving spouse to avoid probate. The circumstances are very narrow and require:
a) That the total value of the property owned by the decedent was less than $100,000; and
b) The decedent’s property did not include any real estate.
Under these circumstances the estate can be transferred though an Affidavit by the person who is legally entitled to inherit that property.
2. Using a Trust While You are Alive
In contrast to the narrow option listed above, anyone can avoid probate by creation of a Trust. However, just creating a Trust is not enough. The key to avoiding probate with a Trust is to make sure you transfer your property into the Trust while you are alive. If you still own real property, or personal property worth $100,000 or more, then a probate will still have to be completed.
3. Beneficiary or Payable Upon Death Designations
Additionally, anyone who has bank accounts, retirement accounts and the like can also make beneficiary or payable upon death (POD) designations on these accounts. When this happens, the account administrator or bank is required to simply make distributions upon your death. The beneficiary does not need to complete a probate for this to happen. All the beneficiary needs to do is provide proof of death and then complete the appropriate paperwork so the distribution can be completed.
Unless a person takes one of the steps listed above then even a surviving spouse in Idaho is required to complete a probate to legally distribute the decedent’s property. So if you really want to avoid a probate in Idaho, use one of the options above. Even still, we recommend that you get advice from your Estate Planning attorney.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Estate Planning questions and will help you solve your personal estate planning needs.