By Lane V. Erickson, Idaho Estate Planning Attorney
I sometimes use this blog to list and answer questions that come up from my clients. Having been an Idaho estate planning attorney now for over 20 years I find that some questions come up frequently. One of the regular questions that I am asked is whether a person can list a child or someone else on the deed to their home as a survivor. In other words, in an effort to avoid probate, my clients want to know if they can have a deed that will transfer the real estate on their death to another individual.
Probate is required in Idaho anytime a person dies when their name is listed on the deed or title to any type of real estate. The real estate could be a home, or farm ground, or just bare ground. Regardless of what it is, and regardless of its value, if a person’s name is listed on the deed to that property and they pass away, then a probate is required to give someone else the authority to transfer that real property from the person’s estate after their death.
Several states allow transfer on death (TOD) deeds to be used so that real property can automatically be transferred to the survivor(s) when the other owner dies. However, with one limited exception, Idaho does not allow this type of transfer. Because Idaho is a community property state, it does allow a right of survivorship in real property to be given to a surviving spouse. But that is it. Even if a person is not married, they cannot use a TOD to transfer their ownership interest in the real estate to someone else when they die.
If a married couple chooses to use a right of survivorship associated with their real property, then they need to do so through specific language on the deed establishing their ownership in the property. This is controlled by Idaho Code § 15-6-401 which states in relevant part:
“An estate in community property with right of survivorship is created by a grant, transfer or devise to a husband and wife, when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship. An estate in community property with right of survivorship may also be created by grant or transfer from a husband and wife, when holding title as community property or otherwise, to themselves or from either husband or wife to both husband and wife when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship.”
Through this statute, a deed can be used to establish a right of survivorship in a surviving spouse. But that is all Idaho law allows.
If you are a married couple, and you have questions about using a right of survivorship on community-owned real estate, we can help. We’ve assisted numerous clients with this issue, and we are confident that we can help you too!
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 1 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Pocatello Estate Planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.