Idaho Probate: The Basics
Probate is a vital part of estate planning. Every state in the country has its own probate laws. Therefore, even if you have a will, it is very important to have an Idaho estate planning attorney who specializes in this field to guide you on the paths you need to take with a living will and any other papers needed by you or your family to settle your estate after your death.
All the records pertaining to your property both real and personal are divided by county spread across the state of Idaho. Since you cannot pass any property to beneficiaries without a will, all encounters with the probate court must be by one of the 44 counties in Idaho. In order to have your affairs properly settled, all matters must be done according to the laws of your resident county .
Probate is the legal process that involves human assets of all kinds. The most important aspect of probate is transferring the ownership of all property that an individual owned. This includes both real and personal property. It basically dignifies to whom the deceased person’s property will be transferred to. For instance, the primary intent of a will is to change the title of all real property to a beneficiary chosen by the deceased individual and to sell off personal property to do with what they wish. All debts should be paid out of property ownership and when there is no will, the law of intestacy kicks in with the probate court deciding how to distribute property.
When Idaho Probate is Necessary
Most estates of decedents in Idaho are administered informally. However, there are circumstances when the conduct of estate administration should be brought before the probate court. These proceedings occur in an action called "probate." In Idaho, probate is governed by title 15 of Idaho Code. A "probate" proceeding refers to the formal process whereby a will is proved in a court of law and accepted as a valid public document that is the true last testament of the decedent. It also refers to the administration of a decedent’s estate under the supervision of a probate court.
The first step in the probate process involves submitting an application to the probate court in the county where the decedent resided at time of death (or in the case of a nonresident decedent then the application is filed in the county where the decedent owned real property). The court clerk will provide the forms and information necessary to start this process, and there is a filing fee for opening the proceeding. Idaho law dictates the information that must be included in the application for probate. Once the application has been submitted to the court, it will be reviewed and if in order, a judge will set a hearing date to admit the will and name the personal representative.
If there is a will, the proposed personal representative will formally "prove" the will by offering evidence of its validity. If there are no objections, the will will be admitted to probate. An order will be issued admitting the will to probate and appointing the personal representative to administer the estate pursuant to the Idaho Code.
Probate is required in Idaho probate court when:
Decedent died with a will. Proof of the will is required, and the will must be probated as a matter of law.
A joint bank account with right of survivorship was cannot be proven by declaration. A declaration that all funds were contributed by both parties is required to disperse funds between joint owners upon the death of one party. No declaration is required if the bank account agreement specifies the right of survivorship.
Title to real property cannot be transferred by affidavit. No affidavit is allowed if the value of the entire estate exceeds $100,000. Often a grant deed must be recorded to transfer title to real property.
Estate exceeds $100,000, but not more than $150,000, and real property is to be transferred to a person outside Idaho. Title to the real property cannot be transferred without a probate action if the beneficiary receiving the real property is a nonresident of Idaho.
Decedent leaves no will and the value of the estate exceeds $100,000. If the value of the estate is $100,000 or less a simplified procedure can be used.
How Idaho Probate Works
The probate process in Idaho generally follows the below timeline of events.
- – Petition for Appointment. The first step in the process involves the filing of a Petition to Open Estate, requesting that the court appoint a Personal Representative. Upon the petition being filed, a notice of hearing is issued for the next term of court (which occurs every two months). The petitioner must provide notice to all interested persons, and any of the heirs in the estate in order to show up on the hearing date.
- – Grant of Letters of Administration. At the hearing, the court will issue an order granting letters of administration. That document is then "letters" which give the petitioner (who is now the Personal Representative) the ability to marshal assets on behalf of the estate. The order appointing the Personal Representative will also appoint a bonding company which will insure personal representative for misunderstanding in handling the assets. However, they will not pick up the bond, and you as a personal representative will be responsible for the cost of the bond.
- – Inventory Assets. The Personal Representative must prepare an inventory of all assets of the estate. They must value all assets and provide a copy of the inventory to the beneficiaries of the estate.
- – Pay Claims. The Personal Representative must publish a creditor’s claim in the local newspaper. Creditors then have four months to make a claim with the estate, and you have four months from the publication to pay any claims.
- – File a Final Accounting. After four months have passed from the creditor’s claim publication, the personal representative must file a final accounting with the court. This is just a final count of assets and expenses of the estate.
- – Distribution. The Court will then issue a decree of distribution, distributing the assets of the estate according to the Will. If the decedent has died without a Will, the Court will distribute the assets according to the intestate statutes.
Idaho Probate and Its Many Forms
In Idaho, there are several types of probate proceedings available that will depend on the value of the estate and the potential for disputes among the beneficiaries. At the most basic level, the following terms explain the various types of probate in Idaho and when each is appropriate.
Depends on the value of the estate and the potential for disputes among the beneficiaries. Often the first thing the named personal representative (also called the executor) will do after the death of the decedent is prepare Form 9, a "Request for Informal Probate," which he or she will file in the district court located in the county where the decedent resided when he or she died. This form asks the court to informally supervise the probate proceedings and to issue letters testamentary (to someone named in a will) or letters of administration (to someone named in a codicil or without a will) appointing the personal representative. The court will usually issue the letters unless it has a reason to stand in the way. The court can entertain challenges to the validity of the will or codicil, conflicts over whether the decedent had been declared of unsound mind, creditors’ claims, or a conflict over who is entitled to be personal representative, but an informal proceeding can be useful to avoid courts’ involvement if heirs are not objecting to the validity of the will or whether the decedent was incompetent, creditors are mostly satisfied with the estate, or no conflict exists over who should be personal representative. An informal proceeding takes a minimum of 40 days from the date the petition for informal probate is filed. However, this method can be faster because it does not require waiting for the Court Calendar to set a hearing.
This type of proceeding allows the personal representative to handle the estate affairs without direct court supervision. The court will supervise matters touched upon above, as well as the distribution of the estate. Like the informal proceeding, a formal proceeding can be used when there is some conflict among beneficiaries, creditors’ claims are disputed, or when a will or codicill is being challenged. A formal proceeding takes about the same time as an informal proceeding to get the court to issue letters testamentary or letters of administration, but the proceeding will take longer as beneficiaries must be provided with notice of court hearings and an objection must be resolved before the decree is issued and the estate can be closed. This process should be determined by a qualified estate professional.
The Job of the Personal Representative
The United States Supreme Court has described the executor as one to "whom the law intrusts credited and charged with great power to perform important duties." Pfister v. Northern Trust Co., 374 U.S. 391, 396 (1963) (noting that English law provided a term and "American law…an admirable, if unfortunate, Americanism – executor."). As such, Idaho imposes a number of duties upon personal representatives in order to ensure they are worthy of the trust. First, the personal representative must act that consist solely of initiating or defending a judicial proceeding in or out of this state concerning the estate or the affairs of the estate that includes a request for adjudication of an issue the resolution of which will impede distribution of the estate. Second, the personal representative must act that is brought by the creditors of the decedent or the estate against either the decedent or the estate where for payment of the claims or costs of administration recovery must be from the property in the estate of the decedent. Unfortunately, this has proven to be a "very broad grant of powers, including the exclusion of just about all limitations." See Idaho Uniform Probate Code Comments. As such, the Idaho Uniform Probate Code provides some limitations on the personal representative’s powers. One of the most important "powers" of a personal representative involves notifying creditors and interested parties of the Estate’s existence. First, notification of the Estate’s existence is governed by Idaho Code § 15-3-404. Under this code section notice must be given to; all the decedent’s devisees and heirs at law, all known or reasonably ascertainable creditors , and all beneficiaries under any governing instrument. The failure to give this notice has serious implications and can often result in personal liability for a personal representative. Second, the Code also requires the personal representative provide "notice of an appointment" to all requested parties once the personal representative applies to the probate court for appointment. Idaho Code § 15-3-701. Third, notice must be published in the newspaper and/or a publication must be sent to all other parties whenever a claim is made against the Estate. Idaho Code § 15-3-801. The Code also requires an accounting be made of Estate’s property and of the acts and transactions of the personal representative. Idaho Code § 15-3-705. In summary, the personal representative is handsomely rewarded with statutory "powers" amongst his or her many duties and responsibilities. Often times though, better than the statutory powers are those "judicially imposed powers", often referred to as the "powers with regard to the beneficiary". Idaho Uniform Probate Code Comments. These powers enable the personal representative to negotiate a quick resolution of any disputes, control the costs of a non-litigated proceeding, and facilitate dispute resolution within the Estate. Therefore the personal representative does have some real discretion, as long as he or she does not abuse the discretion; an abused discretion can lead to a surcharge of the personal representative. The challenge for the personal representative lies in voluntarily delegating powers to heirs and beneficiaries within the constraints of the Idaho Uniform Probate Code. Get it right, and everyone is happy. Get it wrong, and litigation is the likely result.
Expedited Idaho Probate
Idaho allows small estates of $100,000 or less to be settled without any probate. These estates can use a simplified procedure through a document called an Affidavit of Heirship/Claim of Conveyance. The Affidavit must include a list of all liens and encumbrances that may be of record in connection with the decedent’s real properties. This Affidavit is sufficient to clear title and transfer to the heirs without further court proceedings.
Alternatively, with estates between $100,000 and $200,000, summary administration can be used as a means of settling smaller estates. A petition can be brought -supported by affidavits duly executed- that the decedent’s interests in property are worth less than $200,000 in total value. If so, all proceedings are taken in behalf of the decedent as the court may consider necessary to protect the interests of creditors and heirs. However, no bond is required, no security is required, and no accounting will be required.
Frequent Issues in Idaho Probate
Will contests arise when a family member decides that a loved one’s wishes are not what they should be. Even though the will may be a valid document, most often created years prior, that family member will challenge its validity. The contest usually alleges lack of capacity, undue influence or the inability of the testator to understand what assets he/she owned at the time of drafting or revising the will. Of course, the family member that is not properly provided for in the will alleges excess influence placed upon the testator by the favored beneficiaries and will also allege lack of capacity. These instances are very common. Heirs must realize that if a loved one does not provide them their "fair share," the residual heirs lose their right to object to the will.
A year tends to pass before any controversy over a will is presented to the court. Contested matters involving oaths, notices, claim, status conference and possible hearings will usually transpire within six months of the initial commencement of probate. If none of these notice requirements or hearings are requested by the other heirs of the estate, the administration will be completed sooner rather than later.
Another area of contention is the matter of children illegitimately born to the decedent. In some situations, a child that believes he/she should share in the estate will assert a claim naming the estate of the alleged father as the beneficiary and challenge the validity of the will. The child must establish paternity or matrinity in order to qualify as an heir at law. They will usually ask for DNA testing, however, a court order is required to order such a test.
Advice for Handling Probate in Idaho
Responsibly managing the probate process in Idaho is essential for fulfilling the deceased person’s wishes, staying compliant with state law, and avoiding family arguments. Here are some practical tips for Idaho personal representatives and beneficiaries to consider:
- Familiarize yourself with the Idaho probate process. Spend some time learning about the different stages of probate, and what will be expected of you at each of those stages. This information will also give you a general understanding of how long you can expect the process to last.
- Keep communication open between the personal representative and all individual or corporate beneficiaries, as well as interested parties (heirs). Contested probate proceedings often arise because of a lack of communication, so open dialogue—especially from the personal representative—to everyone involved is encouraged, if not necessary.
- Prior to filing any petitions, personally serve all active parties with notice of the petition to ensure they have been properly notified and understand the reason for the filing.
- Search for the will. If the decedent had a will, it’s your job to find it and file it with the court. If there is not a will, the estate will be administered as intestate estate. Be careful, however, of declaring an alternative will the "last" or "final" will of the decedent without fully searching for the other wills, which may take months. We had a case once where the testator had around 30 wills, and his last three wills were never found. The first will was four pages long, and the later ones were around 20 pages long . If there is anything in the later wills that is inconsistent with the first known prior will, then the latter will might be deemed to be a well thought-out and documented codicil to the earlier will. Codicils are amendments to a will and should be strictly construed. All of this is a lengthy analysis which requires the supervision of a qualified attorney.
- Stay neutral as best as possible between the personal representative and the beneficiaries. If the personal representative or beneficiaries ask you to play referee, set a boundary. Do not disclose information about the estate or probate proceedings to anyone who is not directly involved with the case. It is the responsibility of the personal representative to facilitate communication.
- If necessary, consult professionals. In addition to a probate attorney, you may also need to have a CPA review estate documents. Further, beneficiaries have a right to access estate-related documents. They should not be charged exorbitant copying fees by a personal representative or requesting attorney seeking a profit.
- Review all estate documents and court documents carefully, including the final accounting. This can be daunting, but a careful review of the final accounting can make the difference between approving the final accounting and asking it be amended.
- Seek legal assistance when necessary, especially when dealing with contested estate matters. A knowledgeable probate attorney can help guide you through the process and avoid simple mistakes that could prove costly later.