Probate and Surviving Spouse

A common misconception we encounter is the notion that a surviving spouse in Idaho does not have to go through the probate process. The assumption behind this misunderstanding is that everything that a deceased spouse owned automatically becomes owned by the surviving spouse when his or her spouse passes away.

The truth is that no such automatic transfer takes place. This is due to the fact that a deceased spouse is free to leave his or her property to anyone that he or she desires -- surviving spouse, children, friends, or charities. Anyone at all.

In short, the deceased spouse is not legally required to leave his or her belongings to his or her surviving spouse. That is entirely up to each person to determine who is to inherit his or her property, possessions, and accounts.

As a result of this absolute freedom in choosing who is to inherit an estate, the probate process is the means by which it is determined who is to actually receive the decedent’s property.

In the event that a spouse fails to leave a Last Will and Testament identifying who is to inherit his or her property, the answer to that question is also dictated by statute here in Idaho. Typically, that will involve some division between the surviving spouse and the surviving children. If the person who passed away is survived by neither a spouse, nor living children, then more distant relatives will inherit the property. In only the most unusual circumstances will the state of Idaho actually take the property of the person who passed away.

Since that is the case, unless special steps are taken to avoid probate, Idaho statutes and courts require nearly all estates to be probated – including situations where the surviving spouse is entitled to inherit everything.

We understand how disconcerting the loss of a spuse can be. At Peters Patchin & Monaghan, we strive to help steer your ship through these uncharted waters. With our extensive experience handling probate matters, we look for the most efficient and affordable path possible. And our partners, Daniel Patchin and Ben Monaghan, are committed to answering all of your questions along the way as you work through these difficult times.

Having said all of this, there are a few narrow exceptions that allow for processes that are simpler, less expensive, and less time consuming than probate. However, steps must be intentionally taken to implement them. Some of those options are:

• Setting up a Living Trust or Family Trust and transferring property into that trust; or
• Leaving possessions and accounts with a total value of less than $100,000 and (2) that property do not include any interests in real estate. In such a situation, the estate can be transferred by the preparation of an Affidavit by the persons who are legally entitled to inherit that property; or
• Title to real estate that a person owns can be held either as Joint Tenants (with the right of survivorship) or Community Property With Right of Survivorship (if the joint owners are married); or
• The couple can prepare, sign, and record a Devolution Agreement covering their property that includes the legal description of any real estate they own; or
• Bank accounts, Savings & Loan accounts, Annuities, and Securities brokerage accounts can each have a “Payable on Death” beneficiary designation that directs who is to inherit the funds or securities which remain in those accounts when the primary account holder passes away; or
• Deeding title to your home to the name of the intended heirs before you pass away.

As this list is contemplated, it is also important to keep in mind that although several of these options may avoid probate on certain assets when the first spouse passes away, they do nothing to avoid probate when the other spouse passes away. And taking steps to avoid probate on certain assets does not avoid probate on all assets.

Also, there can be unintended tax or other consequences (including unexpected creditor claims) under some of these options.

The best and most viable means of avoiding probate on all assets for both spouses is almost always the use of a Family Trust.

If you would like our help with this or any other probate questions, please give us a call at 208-939-2600 to schedule your free initial consultation. Or you can schedule your expedited appointment at your convenience by clicking on either of the “Schedule Now” boxes on our Home Page.