Must a Surviving Spouse Go Through Probate?

A common misconception is that a surviving spouse in Idaho does not have to go through the probate process.  The assumption behind this misunderstanding is that everything automatically becomes owned by the surviving spouse when his or her spouse passes away.

The truth is that no such automatic transfer occurs.  This is due to the fact that a deceased spouse is free to leave his or her property to anyone desired.  Surviving spouse.  Children.  Friends.  Charities.  Anyone at all.

In short, the deceased spouse is not legally required to leave his or her belongings to the surviving spouse.  It is entirely up to each person to determine who is to inherit his or her property.  The probate process then becomes the way to determine and carry out just what the decedent actually wanted to occur.

Because if this absolute freedom in choosing who is to inherit an estate, the probate process is the means by which it can be determined who is actually entitled to receive the decedent’s property.

And in the event that a spouse fails to leave a Last Will and Testament to identify who is to inherit his or her property, the answer to that question is also dictated by statute here in Idaho.  Typically, that will involve some allocation between the surviving spouse and the surviving children.  If the person who passed away leaves neither spouse, nor children, then more distant relatives will receive the property.  In only the most unusual circumstances will the state of Idaho actually take the property of the person who passed away.

Since that is the case, unless special steps are taken to avoid probate, Idaho statutes and courts require nearly all estates to be probated.

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;
  • 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 persons who are legally entitled to inherit that property;
  • 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, Annuities, and Securities accounts can have a “Payable on Death” beneficiary designation that directs who is to inherit the funds or securities which remain in those accounts when the primary account holder passes away; or
  • Deeding title to your home to the name of the intended heirs.

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 all assets.  Also, there can be unintended adverse consequences on some of these options.

The best and most viable means of avoidin probate on all assets for both spouses is the use of a Living Trust or a Family Trust.

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