Who Is Entitled To Receive Notice of Probate

By Lane V. Erickson, Idaho Estate Planning Attorney

Probate in Idaho is required any time an individual passes away when they have an ownership interest in any type or kind of real estate. This would include a home, farm ground, bare ground, or any other type or kind of real estate.

Additionally, a probate is required in Idaho anytime a person’s estate is valued at $100,000 or more regardless of what is in it. In other words, even if a person doesn’t own a home or other real estate, but they have a bank account, or vehicles and other property that all together would be worth more than $100,000, then a probate is required.

Probate is the court process where a personal representative is appointed. This person has the ability to administer the estate of the person who died, to deal with their creditors and make sure they are paid, and to make sure that the money, property, and other assets left in the estate are distributed to who they are supposed to go to.

If the criteria above exist, then a probate is required regardless of whether or not a written last will and testament exists. If there is a written Will, it simply controls who’s appointed as the personal representative, and who the beneficiaries are that will receive the property and money from the estate.

When there is no written Will, the probate is controlled by the laws of intestacy. These statutes then determine who will be appointed as the personal representative. These statutes also determine who the beneficiaries are, and the percentages of the estate they are entitled to receive through the probate process.

The focus of this article is to determine who, during the probate process, is entitled to receive Notice of a Probate.

The first group of people that are entitled to receive notice are known as interested parties. These are usually the heirs or devisees of a Will. Normally, this is the spouse, children, and other relatives of the person who died. However, it could also include any third-party that the individual named in their written Will who would receive any portion of their estate. According to the applicable statutes, this notice is required to be sent to every individual who qualifies, by ordinary mail at their address that is reasonably available. If any such person exists, and they aren’t notified as required by law, then the person who is appointed as a personal representative may be liable to that person for any damages that result from failing to give that notice.

If there is no written Will, then the person who is seeking the appointment as a personal representative is required to give notice of their application being filed with the court, to all persons that have a prior or equal right to appointment that hasn’t been waived in writing by the court. In other words, if a parent passes away, and there is no surviving spouse, the children of that parent are required to give notice to each other if they seek to be appointed as the personal representative and to proceed with probate of the estate.

Additionally, notice is required to be given to any person or party who specifically requests notice. In other words, if a person files a Demand for Notice in the court proceedings, then notice is required to be given to them. This is controlled by specific Idaho Statutes. Idaho Code § 15-3-204, states,

Any person desiring notice of any order or filing pertaining to a decedent’s estate in which he has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in section 15-1-401 of this code to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

As a result of this statute, any person who files a written Demand for Notice is entitled to receive a copy of every document that is filed in the court.

Finally, notice requirements also exist for creditors. Specifically, a personal representative who is appointed may publish a notice to creditors in a newspaper that is in circulation in the area where the decedent died. The personal representative can also give written notice by mail or other delivery to any creditor that they are aware of.

The purpose of providing notice to creditors is to give them the opportunity to make claims against the estate so that all debts and expenses of the estate can be resolved before distributions are made to the heirs and devisees. If notice is not provided to these creditors, then the personal representative could be personally responsible to pay the debts of the decedent. Additionally, beneficiaries who receive money or property from the estate could also be directly responsible for paying the decedent’s debts up to the value of the property or money they received from the estate.

We understand that the probate process may be confusing to those who are not familiar with it. If you have questions or concerns, or if we can help you in any way, please contact us. We can schedule a free 30-minute consultation to review the probate process with you and answer your questions. We have assisted numerous clients through the probate process 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 free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free 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.