Probate
Empathetic Probate Assistance
When someone dies, loved ones are often overwhelmed with the grief and pain of loss. Idaho Law Group understands and appreciates the difficulties you are facing. This grief is often compounded by daunting legal and estate issues that must be dealt with. Idaho Law Group’s skilled probate attorneys can help you navigate the probate proceedings with empathy and consideration.
When is Probate Necessary?
- Probate is usually necessary if the deceased person (the “decedent”) owned real estate or other assets, in their own name, at the time of death. Transferring assets into a “Trust” avoids probate.
- The decedent’s real and personal property are called the “estate” of the decedent. Probate is the process of resolving the affairs of the decedent by paying debts of the estate and then distributing the remainder as the Court directs.
- Probate is usually required if the estate includes real property (land, a house, mineral rights, etc.) of any value, or the estate has personal property worth more than the “small estate” statutory dollar amount.
- When probate is legally required, it is best to have it done as soon after the death as possible. A trust designed by Idaho Law Group can help avoid probate altogether.
Different Kinds of Probate in Idaho
- Informal probate is the process of asking the Court to appoint a Personal Representative for a decedent’s estate without a hearing. This process is usually used when there is no dispute among heirs about who should be appointed the Personal Representative and how the estate should be distributed.
- If there is no Will, or if the existing Will does not provide for informal administration, it is still possible for the Personal Representative to ask the court for authority to act as an informal Personal Representative.
- Informal probate is the process of asking the Court to appoint a Personal Representative for a decedent’s estate without a hearing. This process is usually used when there is no dispute among heirs about who should be appointed the Personal Representative and how the estate should be distributed.
- If there is no Will, or if the existing Will does not provide for informal administration, it is still possible for the Personal Representative to ask the court for authority to act as an informal Personal Representative.
- Formal administration usually arises because there is disagreement about who should be appointed as Personal Representative, or how the estate should be administered. An interested party petitions the Court to make those decisions.
- Formal probate requires notice to all potential interested parties before the Court appoints a Personal Representative. This gives parties an opportunity to file an objection or file a competing request for appointment. Interested parties include:
— heirs
— persons named in the Will (devisees)
— children
— spouses
— creditors
— beneficiaries
— any others having a property right or claim against the estate of the decedent.
- This probate option can be used when the surviving spouse is the sole beneficiary of the decedent’s estate and all assets of the estate are community property.
- This method of probate is available whether the decedent died with or without a Will.
- A surviving spouse, or any person claiming title to any assets through or under the surviving spouse, may file a petition for summary administration.
- The surviving spouse must assume any debts of the decedent.
- Summary administration incurs less expense and concludes probate more quickly.
- If probate is not required by law, it may be possible to collect personal property (such as money in a bank account) using a small estate affidavit. In Idaho, a small estate affidavit is not filed with the Court. Instead, the decedent’s successor completes a notarized affidavit and gives it to any third parties to gain access to the personal property of the decedent.
- This method of probate can be used if:
— There is no real property in the estate
— The fair market value of the entire estate, less liens and encumbrances, is under $100,000
— At least 30 days have passed since the death of the decedent, and
— No application or probate petition is pending or has been granted in any jurisdiction
Probating an Estate in Idaho
You may have heard of Domestic Asset Protection Trusts, Off Shore Trusts, or Medicaid Asset Protection Trusts. These are all examples of Irrevocable Asset Protection Trusts. What these trusts are designed to do and how effective any of these trusts are depends on the provisions built into them. It is the attorney’s job to counsel with the client to balance the client’s goals of asset protection, control (or loss thereof), and tax consequences.
- If the decedent left a Will, the decedent likely nominated someone to act as Personal Representative and listed the decedent’s wishes for how the estate should be distributed.
- When a person dies without a valid Will, Idaho “intestate” laws impose a distribution plan overseen by the Court. Your wishes are irrelevant. Idaho Law Group can help you avoid this problem.
- Usually the surviving spouse, a child, or another close heir will apply to probate the decedent’s estate. If that person waits too long, another interested person may file. Idaho law provides the priority for appointment as the Personal Representative in the following order:
- the person nominated in the decedent’s Will
- the surviving spouse of the decedent named as a beneficiary
- others as named beneficiaries
- the surviving spouse not named as a beneficiary
- other heirs of the decedent
- If none of the above are appointed, the Court may actually appoint a decedent’s creditors as Personal Representative!
- A Court may require the Personal Representative to post a bond insuring the estate against losses from a Personal Representative’s careless or dishonest action.
- If a probate application or petition is approved by the court, the judge signs a document called Letters Testamentary (if there is a Will) or Letters of Administration (if there is no Will).
- A probate case may be filed in the district court of the county where the decedent lived at the time of death, or in the district court of the county where the decedent owned property.
- If the decedent owns property in other states, another probate must be filed in that state.
- Medicaid recovery and liens must be satisfied if the decedent received Medicaid benefits.
- Ancillary probates are required for a decedent’s property located outside the State of Idaho.
- Firearms transferred through probate require compliance with Federal and State laws.
- If it has been more than three years since the decedent’s death, a probate is much more difficult to obtain.
Providing protection for assets you leave for a beneficiary is a lot easier than providing protections for yourself.
- Spendthrift Trusts – If you leave assets outright, those assets are at risk. Rather than leave those assets open to legal attack due to divorce, lawsuits, and bad decisions; you can leave the assets in a trust designed to protect them. Your attorney should counsel with you on the balance between protection and control for your beneficiary.
- Special Needs Trusts – You may wish to provide for someone who is disabled. Care must be taken or your loved one will lose financial and medical government assistance. This requires a trust with special provisions that work within the legal framework established by Medicaid and the Social Security Administration.
- If the decedent had a Power of Attorney while he or she was living, that Power of Attorney terminates upon the decedent’s death. After death, it is the Court-appointed Personal Representative who has the authority to act for the decedent’s estate.
- After the Personal Representative has been appointed, notice to creditors is published.
- Collect and safeguard all monies owed to the estate
- Inventory all assets
- Determine fair market value all assets inventoried
- Pay taxes and mortgages on any real property owned by the decedent
- Pay funeral, medical and all other expenses of the decedent and the decedent’s estate.
- File estate tax returns and file estate income tax returns
- Petition the Court when terms of the Will are unclear or ambiguous
- Settle the remainder of the estate in accordance with the Will or the law as directed by the Court
- Submit a final accounting to the Court
- Original Will (Last Will and Testament) of the deceased, if applicable
- Death certificate
- Divorce decree (if applicable)
- Retirement plan documents
- All official papers regarding the deceased’s assets, investments, real estate holdings, bank accounts, and personal property
You may have heard of Domestic Asset Protection Trusts, Off Shore Trusts, or Medicaid Asset Protection Trusts. These are all examples of Irrevocable Asset Protection Trusts. What these trusts are designed to do and how effective any of these trusts are depends on the provisions built into them. It is the attorney’s job to counsel with the client to balance the client’s goals of asset protection, control (or loss thereof), and tax consequences.
- If the decedent left a Will, the decedent likely nominated someone to act as Personal Representative and listed the decedent’s wishes for how the estate should be distributed.
- When a person dies without a valid Will, Idaho “intestate” laws impose a distribution plan overseen by the Court. Your wishes are irrelevant. Idaho Law Group can help you avoid this problem.
- If the decedent had a Power of Attorney while he or she was living, that Power of Attorney terminates upon the decedent’s death. After death, it is the Court-appointed Personal Representative who has the authority to act for the decedent’s estate.
- Usually the surviving spouse, a child, or another close heir will apply to probate the decedent’s estate. If that person waits too long, another interested person may file. Idaho law provides the priority for appointment as the Personal Representative in the following order:
- The person nominated in the decedent’s Will
- the surviving spouse of the decedent named as a beneficiary
- others as named beneficiaries
- the surviving spouse not named as a beneficiary
- other heirs of the decedent
- If none of the above are appointed, the Court may actually appoint a decedent’s creditors as Personal Representative!
- A Court may require the Personal Representative to post a bond insuring the estate against losses from a Personal Representative’s careless or dishonest action.
- Collect and safeguard all monies owed to the estate
- Inventory all assets
- Determine fair market value all assets inventoried
- Pay taxes and mortgages on any real property owned by the decedent
- Pay funeral, medical and all other expenses of the decedent and the decedent’s estate.
- File estate tax returns and file estate income tax returns
- Petition the Court when terms of the Will are unclear or ambiguous
- Settle the remainder of the estate in accordance with the Will or the law as directed by the Court
- Submit a final accounting to the Court
- If a probate application or petition is approved by the court, the judge signs a document called Letters Testamentary (if there is a Will) or Letters of Administration (if there is no Will).
- Once the Personal Representative has been appointed, they then publish notice to creditors.
- A probate case may be filed in the district court of the county where the decedent lived at the time of death, or in the district court of the county where the decedent owned property.
- If the decedent owns property in other states, another probate must be filed in that state.
- Original Will (Last Will and Testament) of the deceased, if applicable
- Death certificate
- Divorce decree (if applicable)
- Retirement plan documents
- All official papers regarding the deceased’s assets, investments, real estate holdings, bank accounts, and personal property
- Medicaid recovery and liens must be satisfied if the decedent received Medicaid benefits.
- Ancillary probates are required for a decedent’s property located outside the State of Idaho.
- Firearms transferred through probate require compliance with Federal and State laws.
- If it has been more than three years since the decedent’s death, a probate is much more difficult to obtain.
How to Proceed
Talk to an Idaho Law Group attorney about your probate matter.
Our attorneys will provide a candid assessment of your case. And guide you towards the most fitting course of action.
