The death of a loved one is always an emotional and turbulent time. The grieving process is long and arduous, and the last thing you need is the added stress of uncertainty. While it may sound unnecessary, understanding the probate process and how it works can alleviate the burden and uncertainty in what is to come.
What is Probate?
Probate is the legal process the court goes through to carry out your will. If you leave a will, your family will go through probate. Typically what will happen is:
- The personal representative that you named in your will files an application with the courts.
- The court goes through your will to ensure its validity.
- A notice of your will is published for two reasons. First, creditors can seek payment if you owe debts. Second, people are able to contest your will if they believe there is a mistake or they are owed something that’s not specified.
- Once creditors are paid, and the will is proven valid, the probate court will distribute your assets.
- Your personal representatives can decide whether to liquidate the assets or inherit them as-is.
Can I Avoid Probate?
Unfortunately, there are very few ways to avoid probate. After you pass away, if you have a will, your family will need to go through probate court, even if you are married and left everything to your spouse. One sure way to avoid probate is to create a living trust instead of a will. The second way to avoid probate is to create a joint tenancy. The final way to avoid probate is through an affidavit.
What is a Living Trust?
Like a will, a living trust is a legal document that establishes where your assets will go upon death. Simply put, a living trust establishes a trust containing all of your assets. You control the trust and the assets while you are still living. The trust also names a beneficiary upon your passing. This allows your beneficiaries to skip the probate process because you technically do not have any assets to your name, and they inherit them through your trust.
While a will and a living trust are similar, there are some important differences between the two:
- A living trust goes into effect as soon as it is drafted, whereas a will goes into effect upon your death.
- A living trust does not go through probate, but a will does.
- A living trust establishes when and how your assets are distributed, whereas a will only establishes who inherits them.
What is Joint Tenancy?
Another way to avoid probate is joint tenancy, but this can lead to complications down the line. Joint tenancy is when you and another person are co-owners of an asset. For example, if you and your wife have a joint bank account, upon your death, she will become the sole owner of that account. The funds will not be frozen, nor will she need to go through probate to access them. Joint tenancy works similarly with other assets, such as homes and cars. Your co-owner will inherit these assets without going through probate.
The joint tenancy issue could arise if you wish to divide that asset amongst multiple beneficiaries. For example, let's say you are not married. You don’t want your three siblings to have to go through probate, so you create a joint bank account with one brother. That bank account has $90,000 in it, and you communicate to your brother that upon your death, he will inherit the money, and then you’d like him to split it equally amongst your three siblings. Hopefully, your brother will uphold your wishes. However, your brother has no legal obligation to do so. Legally, the bank account becomes his alone. He could keep all that money for himself, even if it were stated in your will to be divided evenly.
What is an Affidavit?
In Idaho, an affidavit can be used to avoid probate. An affidavit is a sworn statement saying who inherits the estate. The big drawback to an affidavit is that the estate must be small. In Idaho, the estate or asset named in an affidavit cannot be worth over $100,000.
Probate Court in Idaho
While each state requires you to go through probate court, states have some flexibility in how this happens. Read below to find out how probate court works, specifically in Idaho.
Where Does Probate Court Take Place?
Probate court will be held in the county the deceased person lived in when they passed away. If that person was not currently residing in Idaho, the location of the inherited property determines where probate court will occur. For example, if the deceased person resides in Canyon County, probate court will be held there. If the deceased person lived in Portland, OR, but owned property in Blaine County, probate will be held, for the inheritance of that property, in Blaine County.
How Long Does Probate Last?
According to Idaho Law, the probate process cannot conclude until at least six months after death. Generally, probate will last for about a year. If you have multiple estates or considerable net worth, this process can take up to two years.
Can I Access the Accounts During Probate?
In short, no. During the probate process, accounts are frozen. Until the will is deemed valid, debts are paid, and any contesting is completed, you cannot access any assets left to you. You may file an appeal for temporary funds if you are dependent on that money; however, the courts could deny it.
How Much Does Probate Cost?
Generally, probate in Idaho will cost between $2,000-$5,000. This cost comprises various fees, such as attorney fees, court and filing fees, appraisal and accounting fees, executor fees, and other miscellaneous fees, depending on your state and the estate size. The executor of the will is responsible for paying these fees. The will may designate some money to the executor to pay for their time. If there is no money for the executor named in the will, Idaho courts can decide on a reasonable stipend for them to be paid.
Uniform Probate Code
The Uniform Probate Code, or UPC, is a statute meant to modernize and clarify the probate process. The UPC was originally written and approved in 1969 and has since been amended many times. Idaho is one of sixteen states that has fully adopted the UPC. The remaining states have adopted parts and pieces of it. This document can be difficult to understand, so don’t hesitate to reach out to a trusted Idaho law firm with questions.
Upon the death of a loved one, emotions are heightened, and extra stress should be avoided. If you don’t have a will or a living trust in place, be sure to contact the experienced attorneys at Johnson May Law to write one today. If you recently experienced the death of a family member and are looking for support in the probate process, Johnson May Law can help. Reach out today and get the help you’re looking for.