Is Probate Required When Husband or Wife Dies?

Is Probate Required When Husband or Wife Dies?

A common misconception in Idaho is that no probate is required when a surviving husband or wife is left when a person dies.  Unfortunately, that is not true.

The existence of a surviving husband or wife does not exempt that estate from being probated.  Although this comes as a surprise to many people, there is a valid reason why this is the rule.

This legal requirement stems from the fact that the spouse who passed away had no legal obligation to leave any or all of his or her property to the surviving spouse.  It could have been left to other family members, to friends, or to charities.  So the requirement that the estate be probated is designed to insure that the correct person or entity actually ends up inheriting the property.

So, unless special steps are taken before either spouse passes away, the surviving spouse will normally be required to probate his or her spouse’s estate.  The easiest way to avoid probate on the death of each spouse here in Idaho is to establish a Living Trust or a Family Trust while both spouses are living.  This will not only avoid probate when the first spouse passes away, it will do the same when the second one dies also.


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 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 for a free initial consultation.  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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