How to ensure your property goes to those you desire, smoothly.
A lifetime often results in the accumulation of a significant amount of property. What happens to our property at the end of our lives? While a will is the determination of where you would like your property to go, probate refers to the actual process by which ownership of the property is transferred. In other words, the probate is the enactment or actualization of the will. In the event that a will does not exist, probate follows a process of distribution established by the law.
Probate can generally be broken down into four steps. The first is the courts’ official recognition of the personal representative, or executor. A personal representative is needed to oversee the distribution of the estate. Most often nominated within the will, this individual is empowered to perform a wide range of activities, including the signing of property deeds, filing tax returns, closing financial accounts, and selling assets. This person ought to be someone who is both trustworthy and responsible.
The second step involves the personal representative making an inventory and appraisal of all the decedent’s property. This is then filed with the probate court.
Third, any debts of the decedent are paid by the personal representative from money obtained from the estate. The order in which debts are to be paid is important, and must precede the distribution of the inheritance. Keep in mind that neither the personal representative nor other family members are held liable for debt not covered by the assets of the estate.
Finally, the remaining assets are distributed among heirs in accordance with the will (or in accordance with the Uniform Probate Code if a will does not exist). Distribution may occur through liquidation of the remaining assets or allocation of the property as is.
There are a few points important to note when it comes to Idaho probate:
- An informal probate is common and does not require court hearings or judicial supervision. Formal probate, involving a judge, is needed in situations where disputes arise or ambiguity exists regarding the decedent’s wishes.
- In certain circumstances, Trusts or Joint-Tenancies are better suited and can avoid probate altogether. But note that in Idaho, probate is a fairly easy process.
- Sometimes cases arise in which property is owned outside of the decedent’s state. In these instances, it is important to consult with your legal advisor to determine jurisdiction and whether an ancillary probate is needed.
It’s always a good idea to maintain careful records of your debts and assets, including deeds and documentation of bank accounts, certificates, insurance policies, stocks, and bonds. Keep your papers together in an accessible, safe place. By doing this, you ensure that your property will pass to those whom you designate, and that the transfer process will go as smoothly as possible for your loved ones.
Tom Packer is an Elder Law Attorney serving all of 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.