Justin Jeppesen: Does Idaho Require Probate When There is a Surviving Spouse?

I am asked this question often enough to write about it. “My husband passed away, do I need to go through Probate?” Most often, the answer is yes and there is valid reason for it as well. Even with this, some estates are not required to go through Probate. See here.

The State of Idaho does not offer a general presumption that a spouse intends to leave all of their assets to their surviving spouse. So, an automatic transfer from husband to wife, or vice versa, does not exist. The simplest way to justify this, is that you are not required to leave any of your assets to any person or groups of persons, ie spouse, or children, etc. So, as long as you own it, you can leave your assets to any body after you have passed away, be it a spouse, child, friend, charity, etc. If you created a Will, it holds no legal authority until the Probate Court blesses it. Which to do that, the Will needs to be Probated.

If you fail to create a Will or Trust, the State of Idaho creates a distribution of your assets for you, which generally includes leaving your assets mostly to your spouse and then some to your kids, no matter their age. Here is a link to a previous article on this topic.In this situation, Probate is still required because the Probate Judge is required to oversee that your assets are distributed according to the Laws of the State.

There are a few options available that are less expensive, time consuming and simpler than Probate. For a list of those see this previous post, How to Avoid Probate in Idaho.

If you read that post, it is important to remember that these options may avoid probate on certain assets when the first spouse passes away. Aside from the Trust, those options do nothing to avoid probate when the other spouse passes away.  I word of caution is that taking some of these steps to avoid probate on certain assets does not avoid probate on other assets. Using a Living Trust or a Family Trust is the only available option to avoid probate on all assets for both spouses.

Your estate is required to go through Probate regardless of if you are married or not. The unfortunate aspect is that no one will force you to go through Probate and failure to often results in complications for, and even legal disputes among, those who are to ultimately to inherit the property once both spouses have passed away.

Whether you live in the Meridian, Eagle, Star, Nampa, or Boise areas of Idaho and you don’t have a Will or Trust, call attorney Justin Jeppesen at 208-477-1785, or visit his website at http://www.jeppesenlaw.com, to ensure that your wishes have a voice and that they are carried out.