Recently there seems to be a trend by my estate planning clients to avoid probate at all costs. It is true that a number of my recent clients have recently moved to Idaho from other states whose laws are vastly different than Idaho’s when it comes to probate. However, there are also a large number of individuals who have lived in Idaho their entire lives who for some reason feel it necessary to avoid probate
I found that when I actually talk to these clients I learn that their desire to avoid probate stems from information they have received from family or friends. I’m sure that these family and friends are well meaning, but I often find that the information they provide to my client is not accurate. It is my belief that there really are only three legitimate reasons to try and avoid probate.
TAXES
Not so many years ago even smaller estates would be hit with an estate tax. However over the past decade or so, the federal limits for an estate before the estate tax would be applied has grown to be a substantial amount. Currently, an individual will not be hit with the federal estate tax if there estate is worth $5.4 million or less. If for some reason a person’s estate is larger than this then it may be necessary to start being creative with trusts and other estate planning options that would lower the estate value below the federal estate tax limit. Speaking generally, by using a trust a person does have the ability to avoid probate on the items that are transferred into the trust.
PRIVACY
Privacy is perhaps a more legitimate concern. In Idaho, when you probate an estate, you are filing documents with a court that become part of the public record. In other words, any person who wants to can go to the courthouse and pay whatever copy fees are required and can obtain a copy of your probate documents, including a copy of your last will and testament. Some people are bothered by this. The reality of it is, most people’s last will and testaments are boring and not worth the effort.
TO AVOID FAMILY FIGHTS
Perhaps the best reason to try to avoid probate is a person’s desire to avoid family fights that might arise during the probate proceedings. My experience is that people are less likely to file litigation over a trust document than they are over a probate. However, it should be noted, that if a family member is predisposed to fighting about your estate, it can happen regardless of whether there is a last will and testament being probated or a trust or any other estate document.
The probate process employed by the state of Idaho is actually really quite refined. It is a simple process that results in the ability to cut off unknown creditors and to effectively distribute a person’s estate exactly how they designate or describe in their last will and testament. If a person does not have a last will and testament, then the laws of the state of Idaho create a default last will and testament for them through intestacy that provides for the distribution of their estate. I’ve been through the probate process many times with my clients. To be completely frank, probate is not that bad.
If you have any questions about probate proceedings, or how to avoid probate, we can help. 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 Idaho Estate Planning problems.
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