Probate FAQ’s
These materials are for informational purposes only. They should not be construed as legal advice. This information is not intended to replace the assistance of an attorney in any particular situation. It is not intended to, and does not, create an attorney-client relationship.
What is probate?
Probate is a legal process during which the court oversees the distribution of assets that were left in a Will. This process can take a matter of months or, in rare cases, even a number of years to be completed.
Where does probate occur?
Your Will is probated in the Court of the county and state in which you lived at the time of your death. If you own any property in another state, another probate proceeding may be required in that state and county.
What assets are subject to probate administration?
All assets owned by you in your own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration when you die.
How is the Will probated?
The following is a VERY simplified outline the general probate process:
- The Personal Representative files with the Court a Petition for Probate of the Estate attaching the original Will.
- A Notice to Creditors is published and for a period of four months from the date of publication, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
- During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc.
- When the Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
- If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.
It is important to have a good probate attorney, it reduces the chances of complications during the probate process.
Is there any way to avoid a full probate?
Idaho has a summary procedure whereby full probate is avoided if the value of your assets is less than a certain amount, or if the only heir or beneficiary is your spouse. Otherwise, you will need to prepare a Trust in order for your assets to be distributed outside of probate court. It’s in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.