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PROBATE

What is Probate?

Probate is a legal process that normally takes place after someone (called a "decedent") dies.  In the State of Idaho, this process is governed by Title 15 - Uniform Probate Code.  In most, but not all, cases, Probate will be required to effectuate the legal transfer of the deceased person's assets (estate) to the rightful heirs or specifically intended beneficiaries.  How this process will actually occur depends on the particular circumstances in each individual case, including the makeup and value of the estate, and whether or not the decedent made a Last Will and Testament ("Will").   See section entitled Testate vs. Intestate.

3-Year Rule

If the deceased person is unmarried, widowed or divorced, then a Probate of the decedent's estate must be filed within three (3) years following the date of his or her death.  After that period, an actual Probate is no longer possible.  That it not to say that the estate can no longer be distributed, however it will be through a different process entitled "Determination of Heirs.  Even if the decedent left a valid Will, it will no longer be considered and the estate must be distributed under the Law of Intestate Succession (see section entitled "Testate vs. Intestate") upon Application by an entitled person.

Formal vs. Informal

Probates can either be Formal or Informal.  Formal means that  the probate process is supervised by the court until it is completed, unless it is subsequently converted to Informal.  Formal Probates are rare, and typically in cases where there are complications, such as a known but missing original will, or where there is a Will contest among the heirs.

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More than 90% of Probates are filed and completed as Informal Probates.  These probates are usually simple and easily handled by a family member if there is no obvious rancor or disagreement among the heirs.  If you expect difficulties among the heirs, or it is a large and/or complicated estate, a lawyer is recommended.  Otherwise, it is a process that be completed more quickly and economically without an attorney.

Non-Probate Transfers

Under certain circumstances, probate can be avoided completely.  If, at the death of the decedent, he or she left no Last Will and Testament; and did not have an ownership interest in any real property; and, the entire estate, less any liens, debts or encumbrances, is less than $100,000.00, the rightful survivor may file an Idaho Small Estate Affidavit, which must be honored by any party holding title or physical possession of the property, pursuant to Section 15-3-1202 of the Idaho Code.

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  1. Under Section 15-3-1201 of the Idaho Code, this Affidavit permits a rightful heir to collect property (but not real estate), possessions, and accounts with a total value (after the deduction of liens, debts, and encumbrances) of up to $100,000.00 without the requirement of probate.

  2. Under Section 49-514 of the Idaho Code, this Affidavit shall govern the disposition and transfer of any and all registered or licensed vehicles, trailers, or boats in which the Deceased Person held an interest at the time of death.

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Testate vs. Intestate

There are two types of Probate, Testate and Intestate. These names refer to whether or not the deceased person had executed a "Last Will and Testament."  Obviously, Testate means that there was a Last Will and Testament; and Intestate means that there was not a Last Will and Testament.

Testate

Under a Testate Probate proceeding, the process will be governed by the decedent's Will.  An Application for Appointment as Personal Representative (formerly called Executor or Executrix) will have to be filed by the person nominated by the decedent in his or her Will (or an alternate person name in such Will).  This person will then be "appointed" as the Personal Representative by the Court, and will receive a document entitled "Letters Testamentary," which gives him or her complete authority over the estate of the decedent.  This person is charged with determining all of the assets and liabilities of the estate, collecting such assets, paying valid debts, and distributing the estate to the heirs and devisees according the instructions set forth in the decedent's Will.

Intestate

Under an Intestate Probate proceeding, the process will be governed by the Law of Intestate Succession, which was created by the Idaho Legislature, under Title 15, Chapter 2, Idaho Code.  Since there was no Will made by the decedent, this law provides a "priority" for whom is entitled to seek and be appointed as Personal Representative.  This link provides the specific priority of each person to be appointed under Section 15-3-203, Idaho Code.  The person appointed will be given "Letters of Administration" by the court granting him or her complete authority over the estate, with the same authority as outlined above, except that the estate proceeds must be distributed pursuant to the Law of Intestate Succession, which defines who is entitled to the proceeds of the estate.  The heirs actually entitled to the estate are described under Section 15-2-102 (Surviving Spouse) and or Section 15-2-103 (Heirs other than Surviving Spouse).

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