Must Surviving Spouse Go Through Probate in Idaho?

Must Surviving Spouse Go Through Probate in Idaho?

A common misconception is that a surviving spouse in Idaho is not required to go through the probate process.  It is presumed that everything somehow automatically becomes owned by the surviving spouse when his or her spouse passes away.

The truth is that such an automatic transfer does not occur.  The reason for that is based on the fact that a deceased spouse is not legally required to leave his or her belongings to the surviving spouse.  Instead, he or she may leave a Last Will and Testament that directs that the estate be divided between the surviving spouse and children.  Or that it is to be transferred just to the children.  Or that it passes to his or her church or other favorite charity.  It is entirely up to the person who passed away to determine who is to inherit his or her property.

That being the case, unless special steps were taken to avoid probate, Idaho statutes and courts require nearly all estates to be probated in order (1) to determine who is legally entitled to inherit the deceased person’s property and (2) to carry out those inheritance entitlements.  And in the event that a spouse fails to identify who is to inherit his or her property, the answer to that question is dictated by certain statutes here in Idaho.  Typically, that will involve some allocation between the surviving spouse and the surviving children.

There are a few narrow exceptions that allow for processes that are simpler, less expensive, and less time consuming than probate.  But 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 while both spouses are still alive; or
  • If (1) the total value of the property owned by the person who passed away was less than $100,000 and (2) that property did not include any interests in real estate, then the estate can be transferred by the preparation of an Affidavit by the person who was legally entitled to inherit that property; or
  • Title to real estate that a person owns can be held 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; or
  • Bank accounts, Savings & Loan accounts, and securities accounts can have a “Payable on Death” beneficiary designation that directs who is to inherit the assets in those accounts when the primary account holder passes 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 other assets.  The only viable means to avoid probate on all assets for both spouses is the use of a Living Trust or a Family Trust.

But in the absence of one or more of these specific and intentional steps to avoid probate, even a surviving spouse in Idaho is required to go through the probate process.  And it is also worth noting that, although a spouse can many times delay taking that step, such a delay can often result in complications for, and even legal disputes among, those who are to ultimately to inherit the property once both spouses have passed away.

For the sake of the surviving spouse and the rest of the family, steps taken to avoid probate will pay huge dividends at death both for the surviving spouse and for the other family members.  And after one spouse has passed away, the surviving spouse will make life easier for the children by taking the necessary steps to probate the estate of the deceased spouse rather than delaying that step until both spouses have passed away.


Whether you live in Boise, Meridian, Eagle, Star, Nampa, or other nearby communities – in fact, anywhere in Ada County or Canyon County – for additional easy-to-understand information on Idaho Wills, Trusts, probate, and estate taxes, visit the user-friendly website at  Then call attorney Barry Peters’ offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.

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Options were explained clearly and thoroughly. Questions were answered fully and cost was affordable. We have recommended you to others. Thank you Barry." (Gary & Marlene P., Meridian, Idaho)