Probate

Empathetic Probate Assistance

When someone dies, loved ones are often overwhelmed with the grief and pain of loss. This grief is often compounded by daunting legal and estate issues that must be dealt with. Idaho Law Group understands and appreciates the difficulties you are facing. We will do our best to 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. 
  • 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
    •  
    • – 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.

  • 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
  • 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.
  • 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.
  • 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:
  1.  the person nominated in the decedent’s Will
  2. the surviving spouse of the decedent named as a beneficiary
  3. others as named beneficiaries
  4. the surviving spouse not named as a beneficiary
  5. other heirs of the decedent
  6. 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.

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.

  • 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. Letters of Administration are are used if there is no Will.
  • Letters Testamentary are documents which grant authority to the Executor / Personal Representative to carry out the the terms of the deceased person’s Will.
  • Letters of Administration grant this same authority to an Administrator to carry out Idaho’s statutory imposed distribution of the estate when there is no Will.
  • Once the personal representative has been appointed, they can then publish notice to creditors. It is not required to publish notice to creditors; however, a personal representative should do so, especially if any of the decedent’s debts may be unknown.

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.

  • 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
  • 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.
  • 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.
  • 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:
    1. The person nominated in the decedent’s Will
    2. the surviving spouse of the decedent named as a beneficiary
    3. others as named beneficiaries
    4. the surviving spouse not named as a beneficiary
    5. other heirs of the decedent
    6. 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 can then publish notice to creditors. It is not required to publish notice to creditors; however, a personal representative should do so, especially if any of the decedent’s debts may be unknown.

How to Proceed

Other Probate issues we can assist you with

  • 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.
  • If the decedent received Medicaid benefits at age 55 or older, a lien may be placed on the decedent’s estate up to the value of the Medicaid benefits paid. If you have no estate, the claim may be made against the estate of your spouse. No estate recovery will be made until after the death of a surviving spouse. If you have no surviving spouse living at home and you need continued nursing home care, the state may place a lien on your property to preserve it for estate recovery. The property lien may be placed regardless of your age. A property lien will be removed if your need for nursing home care stops. There are also circumstances in which a Medicaid Estate Recovery claim or lien will not be made. We can help you determine whether those circumstances apply.  
  • If the decedent is a resident of another state but owned property in Idaho, some kind of ancillary probate proceeding will be required to transfer decedent’s property located in the State of Idaho. We have experience in these proceedings, which can be simple or complex based on the circumstances and requirements of the title company.
  • If the decedent owned firearms, the transfer of those firearms within the state of Idaho is largely unregulated, but is subject to the Gun Control Act, codified at 18 U.S.C. § 922(g). There is a prohibition of the transfer of a firearm to someone who is known to be ineligible to possess a firearm. See here: https://www.atf.gov/firearms/identify-prohibited-persons. You are also not allowed to transfer any prohibited firearm (a firearm that is federally-regulated, such as a fully automatic firearm, a short-barrelled shotgun, or any item requiring National Firearms Act approval. See here: https://www.atf.gov/firearms/qa/which-firearms-are-regulated-under-nfa. We recommend that in any transfer, the personal representative itemize the brand, model, caliber, and serial number, of each firearm being transferred for record keeping purposes (for instance, the firearm may be used in the commission of a crime; in that case the personal representative will want a clear record showing the firearm was transferred). If the transfer of firearms is to occur with a person outside the state of Idaho, you are required to use an FFL (Federal Firearms License). An FFL is a license given by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that allows individuals to do business involving the manufacturing, importation, and interstate or intrastate sales of firearms and ammunition. Idaho Law Group has experience in dealing with the transfer of firearms from decedent’s estate.  
  • If more than three years has passed since the decedent’s death, a “normal” probate proceeding is not usually available. However, there are still ways to transfer the decedent’s property even if this is the case. We have experience in dealing with this and other issues involving estates that were not probated within three years after the decedent’s death.
  • 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.

We will do our best to help you navigate the Probate proceedings with empathy and consideration.

We provide education and counseling to individuals and families so you can make informed choices with confidence.

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