If your loved one died recently, you are likely in turmoil. You may feel a variety of emotions — grief, anger, or even relief. You also may be worried about what you need to do from a legal standpoint to wrap up a person’s affairs. If so, you need to understand the probate process, and this post will help.
What is Probate?
Probate is a court process for wrapping up a deceased person’s legal and financial affairs. Steps in the process may include the following:
- Appointment of a person to administer the deceased person’s estate (called a personal representative, executor, or administrator).
- Verifying that a document is actually the deceased person’s Will, if he or she wrote one.
- Giving notice to anyone to whom the deceased person might have owed money.
- Filing an inventory of the deceased person’s assets.
- Selling property.
- Accounting for income and expenses from the estate.
- Completing tax returns.
- Distribution of the estate.
- Closing the estate.
When is Probate Needed?
Many assets pass to loved ones when someone dies without any court process. For example, retirement accounts and life insurance contracts have beneficiary designations. When a loved one dies, the retirement or insurance company pays the asset out to the person designated to receive it. Bank accounts can have POD designations (payable-on-death). When the bank gets a death certificate, it pays the account out to the person designated. For real estate, if the property is held by joint tenants with right of survivorship, then the joint tenant automatically inherits the property when the other tenant dies. Or, if real property is titled as “community property with right of survivorship,” the surviving spouse will inherit automatically when the first spouse dies.
However, you must use a court process to transfer some assets after death. If the person who died did not put a beneficiary designation on an account, or if the designated person has also died, that account may end up in the estate. Bank accounts with no POD may require a court process. And real estate almost always requires a court process to assure clean title for the recipient after death.
Shortcut for Small Estates to Skip Probate
Fortunately, Idaho has a shortcut procedure that can be used in some circumstances. This shortcut can be used if there is no real property, and the value of all other property in the estate is less than $100,000. In that case, the person who is entitled to the asset can swear, under oath, that he or she is entitled to the property. That sworn document (called an Affidavit) can then be used to claim the property in the estate, skipping the probate process altogether.
Shortcut when Surviving Spouse Will Inherit Everything
Idaho has another shortcut that can be used whenever a deceased person’s surviving spouse will inherit 100% of the estate. In this procedure, it does not matter whether the estate include life insurance, nor does the size of the estate matter. However, this procedure does require the surviving spouse to petition the court for a decree. Although this is certainly a court procedure, it is much less cumbersome than a “full-blown” probate.
Unfortunately, many surviving spouses assume that their deceased spouse’s assets will automatically pass after death. This is not true! Indeed, for most couples, at least the family home will need to be transferred by the court to the surviving spouse. Otherwise, when the surviving spouse tries to sell the home later, he or she will receive an awful surprise: they won’t be able to sell. At least, not without a different, much lengthier and complex (and expensive) court process.
Informal Probate
Most estates that do not qualify for one of the shortcuts will need to go through an “informal” probate. Do not read “informal” to mean “simple.” Completing an informal probate requires a number of steps. Among them are the following:
- File a petition with the district court.
- Pay the court’s filing fee.
- File the original of the will, if there is one.
- Publish notice of the probate in the newspaper.
- Send notice to any beneficiaries and known creditors.
- Inventory the estate, including appraisals where necessary.
- Maintain and file adequate accounting records of estate income and expenses.
- Make distributions to the beneficiaries.
- File a statement of closing.
As you can see, this is not a straightforward process. However, unless the person who died took steps to avoid this process, this is the process you will most likely face.
Formal Probate
Finally, if there is a question as to whether the deceased person left a will, or a question as to whether a will is valid, you will need to proceed with a formal probate. That process is similar to an informal probate, but requires a hearing with the judge to determine the validity or existence of a will. The court can also issue orders determining who is entitled to inherit from the deceased person.
Conclusion
Probate can be relatively simple and straightforward. However, if not handled properly, it can be time consuming, expensive, and frustrating. Or, worse yet, you can end up putting a cloud on title to real estate or causing some other complication or harm. And sometimes those problems don’t arise until many years down the road. So, if a loved one has died recently, please come talk to us at Learned Lawyer. For free, we will help you figure out what kind of probate you need, if any. And if you do need probate, we’ll make it as convenient as we can for you.
In this time of grief, please let us set your mind at ease about at least some of the issues you are facing.
