Transferring Land When no Probate was Ever Done

By Lane V. Erickson, Idaho Estate Planning Attorney

Having been an estate planning attorney in Idaho for nearly twenty years I have seen just about every conceivable circumstance that can arise when a family member passes away. Having experience in helping clients through the probate process is important because it gives us the ability to understand the options that exist and guide our clients to those options that maybe best for them and their family members. As our motto states, our goal is to solve your problems.

One common problem that often arises is when a family member passes away but no probate is done for them. In Idaho a probate is required any time a person dies if the value of their estate is worth $100,000 or more when they pass away. More importantly, a probate is required any time a person passes away when their name is listed on the deed or title to any real property, regardless of what it is worth. The reason for this is that when a person is alive, they can transfer, gift away, or sell their real property anytime by signing a new deed. However, when they pass away, there is no person who has legal authority to sign the decedent's name to a new deed to transfer real property unless a court has given them authority to do so. The process where a court grants this authority is through a probate.

The problem is, most people don't know that there is a three-year time limit for probating a person's last will and testament after they die. Under Idaho law, if a probate is not commenced within 3 years of a person's death, the last will and testament of that person is no longer valid and can no longer be probated. As a result, the probate cannot be commenced, and the real property cannot be transferred through the probate process.

If you find yourself in this circumstance, don't despair. Our team of Idaho estate planning attorneys have experience in helping families through this particular problem. Our knowledgeable and skilled Idaho estate planning team includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. We are confident that we can help you through this problem. Below is a short description of some of the ways that we have helped our clients who have found themselves in this particular situation.

The first solution we have used is an Affidavit of Heirs. If for example, you have a parent whose name is on the title to their home but they passed away and some other family member has been living in the home for many years and now your family is ready to sell the property, you will likely find out from a title company that you cannot sell the home. In this instance we often work with title companies to find out what will satisfy them concerning allowing a transfer of the property through a sale. We have found that one solution is the use of an Affidavit of Heirs. In the example given above, we would have all the children of the deceased parent sign an affidavit saying that they all agree that the property should be sold. In some instances, title companies will be satisfied with this document because they will see that these children are the heirs of the deceased parent.

However, not all title companies are satisfied with this solution. Many title companies want a clean chain of title or they want some court authority indicating that the children do have a right to sell the home. If this is the case, then you'll need to move on with some of the other solutions we have used in the past.

The second solution is commencing a quiet title proceeding in a District Court. In these proceedings, the family files a complaint with the court indicating that they want to quiet title from their parents to themselves. There are usually no family members who dispute the right to do a quiet title and as a result the process can be completed within just a few months. However, some people don't like the idea of commencing a lawsuit to deal with the property. Additionally, this solution really could only work if the family members all agree about what should happen. If they disagree, this can lead to long and costly litigation.

The third solution, and the one that we find that we rely on the most, is that we commence proceedings to determine the heirs of an intestate through a specific petition. This is done in a Magistrate's court because it is done under a portion of the probate statutes specifically listed under Idaho law.

You probably noticed that we use the word intestate to describe these proceedings. The reason again for this is that if more than three years have gone by even if your parent had a written last will and testament, Idaho law now considers that will to be void and unenforceable. As a result, your parent is treated as if they died without a will, which means that they died intestate.

These proceedings require that all members of the family receive notice of the petition. Additionally, a hearing is held before the court and witnesses are called to establish all the elements necessary for the court to determine who the heirs of the decedent actually are through the laws of intestacy. Once that is established, the court can then issue an order transferring title to real property from the decedent to the heirs that are established in the intestacy proceedings.

These proceedings usually take about a month and a half or so depending on the schedule of the Magistrate Court. Because an order is issued by a court, we haven't had a single title company have any problem with title being established in the name of the intestate heirs. This then allows the heirs to transfer the home, by selling it or by some other means.

We are confident that our Idaho Estate Planning lawyers can help you. Whether you are seeking to create or review your own customized Idaho estate plan or would like to help a family member do the same, we are available to discuss your options and answer your questions at a consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at racine@racinelaw.net. We will answer your questions and help you solve your Idaho Estate Planning problems.