Idaho Estate Planning can a Joint Probate Help Your Family

By Lane V. Erickson, Idaho Estate Planning Attorney

We recognize that our job as Idaho’s premier estate planning and probate attorneys is to help our clients solve the problems that come up either before or after a family member or loved one passes away. For over 70 years, our team of skilled, knowledgeable, and experienced Idaho estate planning and probate lawyers have assisted each of our clients in both the creation of a customized estate plan and in solving planning and probate problems when they arise.

When it comes to the death of a family member or loved one, our talented team work together to help our clients complete the probate process in the most efficient and best way possible. Our goal is to take the burden of completing the probate off the shoulders of our clients and to assist them through the entire process so that they are never alone in completing what needs to be done.

The knowledgeable and experienced members of our Idaho estate planning team include partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each member of our team has completed numerous probates for clients and have helped them through each step of the probate process. We are confident that we can help you too.

The purpose of this article is to talk about how a joint probate may help you and your family. To be clear, a joint probate means that you are doing a probate for both the husband and wife at the same time after they have both passed away. This doesn’t mean that the spouses have to pass away at the same time, or even really close together in time. Rather, a joint probate is the tool used to complete a probate for both spouses regardless of when or whether each spouse passed away at the same time or even in a relatively short period of time. To explain these things, we will first talk about when a joint probate is needed. We will then talk about the deadlines that apply to a joint probate. Finally, we will discuss the steps of a joint probate.

So, when is a joint probate needed? The most common circumstance where this arises is when we have children dealing with the estate of their parents. Usually, one of the parents will have passed away some time ago. The surviving parent continues to live in the home and use the bank accounts and drive the cars and do everything that was being done before when both parents were alive. Because of this, nothing has really changed. However, when the surviving parent passes away, and the children go to transfer a vehicle owned by the parents, or to sell their parents’ home, they discover that they are unable to do this because their parents’ names are still listed on the deeds or titles to these types of property. When this happens, the children are usually told that they need to do a probate.

In using real estate such as a home as the example, a person has the ability to sell, transfer, or gift away their real property at any time they want to while they are alive. However, after they pass away there is no person who has legal authority to sign the name of the deceased person on a deed or a new title to transfer ownership. The only way that legal authority exists after a person ides is when the court grants authority to a Personal Representative through the probate process.

So, if both parents have passed away, and a probate was not done for either of them at any time, then a joint probate will need to be done for both of them. The good news is that Idaho law has a specific statute that provides and gives authority to a family to do a joint probate for both parents in this circumstance.

The next question is, what deadline applies to completing a joint probate? Normally, a probate must be done at Idaho within 3 years of a person’s death in order for a last will and testament to be valid and for the probate (whether there is a will or not) to be properly completed. However, Idaho has provided a specific statute that extends this time. For the first spouse who passes away. In this circumstance, the three years does not begin running until the surviving spouse passes away. Specifically, we are referring to Idaho Code § 15-3-111 which states:

15-3-111. Joint probate on death of survivor of marriage dissolved by death. In cases in which a marital community has been dissolved by the death of either spouse at any time, the survivor was then entitled to all of the property of the decedent by will, law, or both, and the survivor died before any proceeding had been commenced for the probate of the estate of the spouse whose death occurred first, the estates of both decedents may be joined for probate in a single proceeding in any court having jurisdiction of the estate of the spouse whose death occurred last. The three (3) year provision of section 15-3-108, Idaho Code, applies only to the death of the spouse whose death occurred last. The initial application or petition filed in any such joint proceeding shall contain a statement of the facts upon which such joint proceeding is based, in addition to all other statements required by this code to be made therein.

An example will help illustrate how this statue works. Suppose there is a married couple who own a house but the husband passed away 15 years ago. No probate was ever completed for him. All the property, including the house, that was owned by the husband was community property in which the surviving wife also held an ownership interest. When the wife passes away, there is a three-year period of time in which a joint probate can be completed for both the husband and the wife, even though the husband passed away 15 years ago. By completing a probate, the family will have the authority to transfer the ownership interests of both the husband and the wife in the home through the probate process.

The steps of completing a joint probate are similar to those of a regular probate with one addition. Based on the statute quoted above, the application for the probate must contain an additional statement of the fact that the probate is a joint probate and also that all the property involved in the probate was community property owned by both the husband and the wife. Other than that, the normal probate process and steps involved in the probate must be completed.

We have helped numerous families complete a joint probate for their parents after the surviving parent has passed away. We understand the process, we are familiar with the statutes, and we are confident that we can help you too!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.