What is a probate? Do I need one? My spouse recently passed away—what is next? Over the next few articles, our team here at Madsen Beck will be providing you with information about probate basics, from what is involved to when you need one and even when probate alternatives make sense.
Many clients that come to Madsen Beck either for estate planning or business planning tell us that they want to do anything and everything possible to avoid a probate upon their or their loved one’s death.
We think, however, that feeling comes from uncertainties about probate and the inextricable link with someone’s death. Over the next few weeks, our goal is to provide you with an overview of Idaho’s probate basics to remove the uncertainty and fear you may hold when it comes to facing the possibility of a probate.
At the most basic level, a probate will involve the following steps. At each level, Madsen Beck is equipped to help you through the process and even carry out most of the steps required during the probate.
- Determine if a probate is needed. A probate is necessary in Idaho if the decedent (a) had a Last Will and Testament, (b) had an interest in real property (for example, a home or land), or (c) owned more than $100,000.00 in probate assets. A probate is also advisable if there are heirs or creditors disputing where the probate assets should go.
- Determine who oversees the Estate. If there is a Will, typically it will name an “executor” who should serve as the Personal Representative (“PR”) in the probate. This person will be in charge of ensuring the decedent’s desires set forth in the Will are enforced. If there is no Will, but a probate is still necessary, Idaho law provides a priority list to decide who can represent the Estate through the probate.
- Gather the decedent’s assets. The next step for the PR is to figure out what assets the decedent owned/held at the time of their death. Typically, this includes real property, bank accounts, vehicles, and personal property.
- Handle the bills and potential creditors. Many individuals are not debt-free when they pass away. They may owe credit card payments, medical bills, taxes, etc. Although the probate process requires attempting to find creditors, one of the biggest benefits of a probate is that it puts a time cap on creditor’s claims and stops creditors from being able to come back for money after that time cap expires. Even if creditors are discovered in the probate process, Madsen Beck can help negotiate with those creditors and work to satisfy any amounts owed, while keeping in mind the decedent’s legacy desires. Valid creditor claims must be handled, either by payment or other satisfaction, before the final step can occur.
- Distribute the Estate. The find step in the probate process is to distribute the remaining Estate to the heirs. The PR will look to the Will to determine how to distribute the assets (or to Idaho Code § 15-2-102, Intestate Succession, if there is no Will). Once the assets are distributed, the PR can ask the Court to close the Estate.
This general overview may look slightly different for each person and their specific circumstances. Madsen Beck can help you determine if you need a probate and can assist you through the process. Please contact us at (208) 321-6384 to schedule a consultation.