Does Idaho Allow A Transfer On Death (TOD) Deed?

By Lane V. Erickson, Idaho Estate Planning Attorney

I have worked as an estate planning attorney now for more than 20 years. One of the questions I am often asked about basic estate planning is whether a person can use a transfer on death, or TOD deed to transfer real estate after they pass away so they can avoid probate. I found this question usually comes up because people are concerned that probate is going to cost a lot of money.

The short answer is that TOD deeds are not allowed in Idaho. The reason for this is because Idaho is a community property state. Because it is a community property state, a surviving spouse is protected, and the deceased spouse cannot transfer away community property from the surviving spouse to someone other than the surviving spouse. As a result, TOD’s are not allowed under current Idaho law.

However, if your intention is to transfer to your surviving spouse all of your real estate there is some good news. Idaho does allow this through a right of survivorship between a husband and a wife. This is controlled by statute which reads as follows:

Idaho Code § 15-6-401. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP IN REAL PROPERTY. Any estate in real property held by a husband and wife as community property with right of survivorship shall, upon the death of one (1) spouse, transfer and belong to the surviving spouse. 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.

In other words, the statute does allow spouses to avoid probate by transferring real estate to the surviving spouse through a deed upon the death of the deceased spouse. This could be a good estate planning tool for many married couples who own real estate. The good news is that even if you don’t do this Idaho law also provides a speedy probate option known as a summary administration for a surviving spouse. This option is quicker and much less expensive than a normal probate.

If you have questions about using a right of survivorship with you and your spouse, or you have other questions relating to estate planning or probate, we encourage you to contact us for a free 30 minute consultation where we can answer your questions and help you with all of your estate planning needs. Please contact us today.

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 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.