Do I Need to Probate?

This is a common question after a loved one passes away.

When a person dies, the surviving spouse or children ask, what do I need to do? Do I need to probate? The answer depends, in part, on the answer to the following questions: 1) Was the decedent’s property being held as joint tenants, community property, or community property with a right of survivorship? 2) Was the total value of the decedent’s probate estate minus any liens against the property less than $100,000?

1. How was the decedent’s property held?

  • Joint tenants – Many times, property is held in joint tenancy, where on the death of one of the tenants, the property passes automatically to the survivor. A common example of this is bank accounts that are held as joint tenants. When one person dies that money in the account passes to the survivor.
  • Community property – Community property (property obtained after a couple is married) belongs equally to the members of the couple. When one of the members of the couple passes, his or her interest in the property passes to their estate and not to the surviving spouse. A common
    misconception is that when a spouse passes away, his or her interest in the couple’s home will automatically pass to the surviving spouse. Instead, to remove the decedent’s name off the title to the home held as community property, probate would be required.
  • Community property with a right of survivorship –To avoid having to probate on the death of a spouse, couples can record a deed that gives a right of survivorship on their real property. Then the surviving spouse only needs to record a death certificate at the courthouse.

2. Is the total value of the probate estate, minus the liens against it, less than $100,000?

  • Property in estates that are worth less than a $100,000 can be collected using an affidavit of heirship instead of filing for probate. For example, if the only property the decedent had at his or her death was a vehicle, the spouse or children of the decedent can go to the Department of
    Transportation website, fill out their Affidavit (they call it an Affidavit of Inheritance), submit it to the county assessor along with the title to the vehicle, and they will be able to transfer the title without having to file for probate.
  • Sometimes, spouses will open a bank account in just one of their names. Even though the money in the account is community property, banks will not give the surviving spouse access to the account. If that spouse dies and their probate estate is less than $100,000, the money in the account can be collected with an affidavit of heirship. However, Financial institutions prefer
    to receive letters testamentary or letters of administration (which are used in probate) rather than an affidavit of heirship, and initially they often will not accept an affidavit. Idaho Code § 15-3-1201 clearly provides for property to be collected by an affidavit. With a little persistence and a call to the banks legal counsel, the bank eventually will turn the money in the
    account over to the spouse or children pursuant to the affidavit.

Deciding whether you need to file for probate is not as complicated as it seems, and there are many things you can do in estate planning that can help things run smoothly and can avoid problems.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

July 2022