By Lane V. Erickson, Idaho Estate Planning Attorney
There are many misunderstandings about probate. These misunderstandings often come from the stories we hear from family members or friends. Even when these stories happen in other states and places, I’ve found that many of my clients are concerned. The main reason: the stories we hear are mainly about how everything went wrong, sometimes really REALLY wrong. Think about it. When things go right, there is no story so we don’t hear about that.
As an Idaho probate attorney for more than 20 years, I’ve heard every story. I’ve even been involved in probates where things have gone badly wrong because of family fights and poorly drafted last wills and testaments or trusts. Like they say on the Farmers Insurance commercials, I know a thing or two because I’ve seen a thing or two.
The purpose of this article is to provide some basic information to you on what you need to know about Idaho probate. My goal is to help you know a few of the basics about Idaho probate. This article isn’t designed to be comprehensive. If you have questions, give me a call. I’d be happy to answer your questions during a free 30 minute consultation where we can talk about probate. Until then, here are some of the basic things you should know:
Probate is Not Always Required
The first thing you should know is that probate is not always required in Idaho. Some people believe that probate is controlled by whether you have a written last will and testament or not. These people think that if you have a written will then no probate is necessary. This is wrong. If it is wrong then when is probate required in Idaho?
Probate is required in Idaho if the person who passed away owned a home or land. This is a legal requirement. To be more specific, probate is required if the deceased person’s name is on a deed or title to any type of real estate. This could include a home, farm ground, bare ground, mineral rights, an easement or any other type of ownership interest associated with any type of real property. The reason for this is simple. While the person is alive, they are able to sign a deed to sell or give away their ownership interest in their real estate. However, after they die, there is no one who has legal authority to sign their name to a deed. Probate is required so that a Personal Representative can be given legal authority from the Court to sign deeds and do all other matters necessary to deal with the decedent’s property.
Additionally, probate is required any time a person dies when the total value of their estate is worth $100,000 or more even when there is no real property in the estate. This is a statutory requirement under Idaho Code § 15-3-1201. In other words, even if a person doesn’t own real property like a home but their estate is worth more than $100,000 in total, a probate is required.
A Spouse May Be Able to Do a Speedy Probate
The second thing you should know is that spouses get special treatment in Idaho when it comes to probate. Idaho is a community property state. As a result, if a spouse dies without a will, but when all of the property is community property, the surviving spouse will receive the entire estate. Likewise, the same thing happens when there is a written will and the deceased spouse leaves everything to the surviving spouse. In both of these circumstances, the surviving spouse will not have to do a regular probate.
Idaho offers a speedy probate for a surviving spouse in these situations. This type of probate is called a Summary Administration. It is a speedy and less expensive way to transfer all of the deceased spouse’s ownership interest in things like the home and cars and other property to the surviving spouse.
Probate in Idaho is Not Expensive
The last thing that you should know is that a probate in Idaho is not that expensive. Keep in mind I’m talking about the expense of a probated Idaho compared to the expense of a probate in most every other state. Many states charge a percentage of the value of the estate as the cost for doing a probate. Usually, that percentage starts at 6% for the first $100,000 through the first million dollar value of the estate. After that the percentage is very depending on the size of the estate.
However, in Idaho, the cost of completing a probate is about the same regardless of whether your estate is worth $100,000 or several million dollars. Because of this, Idaho is not only a great place to live but it is also one of the best places to probate an estate.
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
If you have any questions about your estate, a probate or how to simplify your plans for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 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.