If a loved one has passed on in Idaho and you need to handle the administration of a will or estate but don’t know what to do, Boise Lawyer Jared W. Sommer is here to guide you through the legal process. Please review our FAQ below and call Attorney Jared W. Sommer at (208) 440-8173 or click here to set up a free initial consultation.
Probate is the process where a judge appoints someone as the Personal Representative (also known as an Executor) to liquidate the assets of the deceased (also known as the decedent), satisfy any valid and enforceable debts, distribute the assets or property to the legal heirs of the decedent and to otherwise administer and wind up the affairs of the decedent.
WHEN IS PROBATE NECESSARY?
There are some limited exceptions, however, as a practical matter in the State of Idaho, almost all deaths require probate, even when there is a valid will. Probate is generally necessary for the following reasons:
1. If there is No Will, Probate is Necessary – If the Decedent dies without a will, probate is almost always necessary as any assets of the decedent will pass according to Idaho rules for distribution without a will (also known as intestacy).
2. An Idaho Judge Must Determine that the Will is Valid – If there is a will, an Idaho judge must generally determine that the will is valid. The formal rules for drafting and executing a will can be very complicated and due to attempts by many people to draft a will without the assistance of a knowledgeable Idaho attorney, errors in the execution of wills are common and those errors can lead an Idaho judge to determine that the will is invalid.
3. An Idaho Judge Must Appoint a Personal Representative (aka Executor) – An Idaho Court must appoint a Personal Representative and give them the power to administer the affairs of the estate of the decedent. Even if you have been granted a power of attorney on behalf of someone during their life, that power of attorney is null and void after their death. Accordingly, banks, employers, governmental agencies and other entities will not allow you to access, collect, transfer or liquidate any property, assets or payable on death benefits unless and until a personal representatitve is appointed by an Idaho judge.
4. Probate is Necessary to Cut Off Debts of the Decedent – This is one of the most crucial reasons that probate is necessary, to cut off the debts of the decedent. In Idaho, Probate is necessary to cut off creditors claims against the estate of the decedent, failure to do so could lessen the amount of assets available to distribute to heirs and create a situation where the creditors can sue an heir to try and recover from them money or assets they received as part of their inheritance. This can be particularly problematic when the heir has already spent the money and then is faced with a lawsuit to pay a creditor. Your lawyer will file certain documents with the Idaho probate court, send notices to applicable government agencies and publish notices in the newspaper that will give creditors four months to file their claims with the probate attorney or personal representative. If the creditors fail to timely file a claim, the debt is extinguished, increasing the amount of inheritance for the heirs. The rules for cutting off the debts of the decedent are complicated and complying with the rules generally require the expertise of a skilled Idaho probate attorney. To set up a free initial consultation with an experienced Idaho probate attorney, call the Law Office of Jared W. Sommer today at (208) 440-8173 or click here to contact attorney Jared W. Sommer.
5. To Resolve Disputes – Any time their is a dispute over who is entitled to the inherit some or all of the assets of the decedent’s property, probate is necessary to resolve the dispute or to resolve any claims that undue influence was used on the decedent in signing a will.
THE DECEDENT SET UP A TRUST OR LIVING TRUST, IS PROBATE NECESSARY?
This is a complicated question but generally speaking, a probate is almost always necessary. In theory, if a trust was set up and all assets of the decedent were transferred into the trust prior to the decedent’s death, then no probate would be necessary. Practically speaking, however, there are generally many reasons a probate is still necessary. For example, some reasons you still need to probate a case include:
1. To Transfer Property, Access Bank Accounts and Obtain Payable on Death Benefits, You Generally Must Have an Idaho Probate Court Appoint a Personal Representative – Often times the Decendent meets with a lawyer, creates a trust and initially transfers their assets into the Trust, but they might live for years or even decades thereafter. As they acquire more property like real estate, cars, stock or open new bank accounts, they often fail to transfer that property into the Trust. In that event, a case must be opened in Idaho Probate Court so that a personal representative can be appointed and given power to liquidate the assets of the estate. Accordingly, to transfer or sell a car, real property, obtain the funds in a bank account or claim an employer payable on death benefits not transferred into the trust prior to the decedent’s death, you will need to have a personal representative appointed by an Idaho Probate Judge.
2. To Cut Off or Minimize Debts of the Decedent, You Need to Open an Idaho Probate Case – Even if you have the rare case where all the assets of the decedent’s estate were properly transferred into a trust or living trust, trusts do not cut off or eliminate the decedent’s death. This is one of the most important functions of the Idaho Probate Process, once notices to creditors have been served, filed with the Court and published in the newspaper, creditors only have four months to file claims with the Idaho Probate attorney or personal representative, if they fail to do so, the debt is extinguished. There is no such process in cases that pass through trusts outside of probate. It is worth noting that governmental agencies like Medicaid can still go after claims against a trust after the decedent’s death, even if those assets were properly and legally transferred into the trust.
3. If the Trust was Set up in Another State or is Poorly Drafted (the Infamous Self-help or Online Form)
The advent of self-help will and trust forms, many of which are set up by non-lawyer scam artists looking to make a quick buck, and the advent of the internet has created a major problem where the number of wills and trusts that are being found to be invalid and unenforceable has increased substantially. Literally almost every will or trust I have seen over the years that was created using a self-help form has been either invalid and unenforceable, not consistent with Idaho probate law or has been so poorly drafted that it is impossible to understand what the testator intended when drafting the will or trust. Almost always, these self-help wills and trusts were created out-of-state and are not specific to Idaho probate laws. Idaho is one of only seven states that is a community property state and has a unique set of laws governing probate and trust law, a will drafted in New York or California (often where these forms come from) is going to be totally inconsistent with Idaho Probate Law. Similarly, even if you had an attorney draft a will or trust while living in another state but have moved to Idaho at the time of your death, Idaho laws are so unique that the will or trust you had drafted in another state likely will not comport with Idaho law. In these cases, a trust may be invalidated and probate may be necessary. If you have moved from another state to Idaho and need to update your will or trust, contact experienced Idaho wills and trust attorney Jared W. Sommer to set up a free initial consultation at (208) 440-8173 or click here to contact attorney Jared W. Sommer.
ARE THERE DIFFERENT TYPES OF PROBATE?
Yes, there are several types of probate in Idaho, the most common are Small Estate/Affidavit proceedings, proceedings where all or most of the property pass to a surviving spouse, informal probate and formal probate. Determining which type of probate is required in any given case generally requires a consultation with a licensed Idaho probate lawyer, to set up a free no cost, no obligation initial consultation to determine which probate is right for you, contact probate attorney Jared W. Sommer at (208) 440-8173 or click here to contact attorney Jared W. Sommer.
WHAT IS THE PROBATE PROCESS?
There are different types of probate and every case is different, however, whether a valid will exists (testacy) or not (intestacy), in Idaho the vast majority of cases proceed as either an informal probate or formal probate. The guidelines set forth below, however, give a general overview of the probate process in Idaho.
1. Meet with an Attorney – The following will generally occur during your free initial consultation:
a. Determine the Validity of the Will – I will determine whether a will exists and determine whether the will was properly executed and will be found valid by the Idaho Probate Courts.
b. Determine the Heirs – Either by the contents of the will or the Idaho rules for probate without a will (intestacy) I will determine the heirs of the deceased (decedent’s) estate.
c. Determine Who will be Appointed Personal Representative – If a valid will exists, the will names a personal representative, the named representative has legal capacity to serve as personal representative (i.e. is still alive, not mentally incapacitated or a minor) and the named personal representative is willing to serve, they will be appointed personal representative. If no valid will exists or if the will fails to designate a personal representative that is able or willing to serve, Idaho law has default rules that govern who will be appointed as personal representative. In most cases, there are multiple family members or heirs that could be approved as personal representative and family members generally agree by consensus as to who will serve in this capacity. I will inform you of who has the right to serve as personal representative, discuss the wishes of the heirs as to who they would like to serve as personal representative and tell you who I think an Idaho Probate Judge would likely appoint to serve as personal representative.
d. Explain the Probate Process, Timeline and Duties of the Personal Representative – I will give you an overview of the entire Idaho Probate Process to include all the steps I will take as the probate attorney, all the duties of the personal representative and the timeline for the probate process.
2. Prepare Initial Court Documents to Open the Probate Estate and have a Personal Representative Appointed – A series of documents must be prepared and filed with the Idaho Probate Court and mailed to potential heirs to open an Idaho probate case and have a personal representative appointed. We also request that the Idaho Probate Judge issue Letters of Administration (where no valid will exists) or Letters Testamentary (where a valid will exists appointing a personal representative). Letters of Administration and Letters Testamentary are essentially the same thing, they are a court order giving the personal representative powers (similar to those given in a power of attorney) to administer the affairs of the estate.
3. Court Opens Probate Case – Personal Representative is Off and Running Once the Court opens the probate case, appoints a personal representative and issues either Letters of Administration or Letters Testamentary, the personal representative obtains a tax identification number and opens a bank account in the name of the estate, prepares a general initial inventory, begins the process of collecting any assets of the estate, payable on death benefits owing to the estate, selling or transferring property of the estate, satisfying any valid debts of the estate, distributing family mementos and otherwise takes all actions reasonably necessary to administer the estate and prepare everything for distribution to the heirs. This can seem overwhelming, however, one of the most important roles filled by an Idaho Probate Attorney is to guide you through the duties of the personal representative. I will send you a detailed letter and checklist specifying your duties as personal representative, I will explain the process to you and I will be available to answer any questions you may have throughout the probate process.
4. Probate Lawyer Files/Publishes Notices to Creditors – As soon as the Idaho Probate Court opens the case and appoints a personal representative, I will file a Notice to Creditors to be filed in the probate case, send notices to any known creditors, send notices to certain required governmental agencies and publish several notices to creditors in the newspaper.
5. Final Inventory/Distribution/Closing of the Estate – Once all assets have been liquidated or prepared for transfer to the applicable heirs and four months have passed from the initial publication of the Notice to Creditors in the Newspaper, I will help you prepare a final inventory of the assets or the decedent and a proposed distribution schedule for filing with the Court. The personal representative will then make distributions to the heirs of the decedent. Finally, I will prepare a document for the personal representative’s signature to be filled with the Court closing the probate case.
HOW LONG DOES THE PROBATE PROCESS TAKE?
While each case is different, most Idaho probates take between four to sixth months to complete. The biggest issue is that you can’t make distribution until four months after you first publish your notice to creditors, so it is essential that you start the probate process as soon as possible. To schedule a free initial consultation with an experienced probate attorney, call the Law Office of Jared W. Sommer at (208) 440-8173 or click here to contact attorney Jared W. Sommer.
WHAT IS THE COST FOR PROBATE AND CAN THE ATTORNEY’S FEES BE PAID OUT OF THE ESTATE?
The attorney’s fees vary depending on the size and complexity of estate of the decendent. When you meet with experience probate attorney Jared W. Sommer, he will ascertain the complexity of your case and give you a flat fee quote for handling your case. Attorney’s fees can be paid directly by the estate, however, typically a family member will have to pay the attorney fee and then be reimbursed by the estate once a personal representative is appointed.
Primary services areas include the following Idaho Counties and Cities:
1. Ada County – Including the Cities of Boise, Garden City, Meridian, Eagle and Kuna.
2. Canyon County – Including Nampa, Caldwell, Middleton, Parma, Wilder, Greenleaf, Notus, Melba and Star.
3. Gem County – Including the Cities of Emmett, Letha, Ola and Sweet.
4. Boise County – Including the Cities of Horseshoe Bend, Idaho City, Crouch and Placerville.
5. Elmore County – Including the Cities of Mountain Home, Mountain Home Air Force Base, Glenns Ferry and Pine.
6. Valley County – Including the Cities of Cascade, McCall and Donnelly.
7. Payette County – Including the Cities of Fruitland, Payette and New Plymouth.
8. Washington County – Including the Cities of Weiser, Cambridge and Midvale.
9. Camas County – Fairfield.
Absolutely, generally, probates do not require court appearances and all my court filings are sent through the mail. With the state of technology today, consultations can be handled via telephone and documents can be transmitted electronically or through the mail. If you are in one of the areas below out of the primary service area, call experienced probate attorney Jared W. Sommer at (208) 440-8173 for a telephonic free initial consultation or click here to contact attorney Jared W. Sommer.
Aberdeen, American Falls, Ammon, Arco, Ashton, Blackfoot, Bonners Ferry, Buhl, Burley, Chubbuck, Coeur d’Alene, Dalton Gardens, Driggs, Filer, Fort Hall, Gooding, Grangeville, Hayden, Heyburn, Homedale, Idaho Falls, Iona, Jerome, Kamiah, Kellogg, Kimberly, Lapwai, Lewiston, Malad City, Montpelier, Moscow, Orofino, Osburn, Parma, Pinehurst, Plummer, Pocatello, Post Falls, Preston, Priest River, Rathdrum, Rexburg, Rigby, Rupert, Salmon, Sandpoint, Shelley, Shoshone, Soda Springs, Spirit Lake, St. Anthony, St. Maries, Sugar City, Twin Falls, Wendell, Wilder
IT’S COMPLICATED, CALL PROBATE ATTTORNEY JARED W. SOMMER FOR A FREE INITIAL CONSULTATION While the probate process can be complicated, Jared W. Sommer, a licensed Idaho Probate Attorney, will walk you through the probate process step-by-step and guide you through the Idaho probate process. Call or e-mail today for a free no costs, no obligation initial consultation at (208) 440-8173 or click here to contact attorney Jared W. Sommer.