FORMULA TO DETERMINE IF PROBATE IS REQUIRED IN IDAHO

In summary, if the value of all estate assets is less than $100,000, then probate in Idaho may not be required by law.  However, there are some exceptions to this general rule which are discussed below.  (See Formula Below to Determine Value of Estate Assets)

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1.  Decide if the Decedent (Person Who Died) Had a Will:  If the decedent did have a will, then the will must be submitted to probate to be effective. It is a common misconception that if there is a will, then there is no need for probate.  In order for the person identified in the will to be the duly authorized personal representative or executor with legal authority to act for the estate, that person must be appointed in writing by the probate court.  This is true even if the estate is a small estate worth less than $100,000 as indicated above.  (Idaho Code 15-3-102)  A person who has custody or possession of a will of a deceased person is obligated to provide it to a person able to secure probate or to the probate court (Idaho Code 15-2-902). 

If a person who has possession or custody of a will does not follow this procedure, they could be liable to anyone who is damaged because the will was not submitted to probate.

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2.  If the Decedent Did Not Have a Will:  If the decedent did not have a will, but the estate contains real estate, then the estate will likely need to be probated.  While the probate law may not require it, as a practical matter, title to the real estate will not be able to transferred in a sale of the property, without authority of a personal representative or court authorization.  The best way to check this out is to contact a title company which would normally handle the closing of the real property sale, and ask them what will be required.  Most title companies will not close a sale without the formal appointment of a personal representative in probate. 

3.  If the Decedent Did Not Have a Will:  If the decedent did not have a will and there is no real estate in the estate and the estate is worth less than $100,000, then there is no requirement for probate (Idaho Code 15-3-1203).  However, probate may still be helpful because often times creditors or other people who hold property of the estate do not want to deal with anyone other than a court appointed personal representative.  Getting a personal representative appointed often makes the process flow more quickly and easily.

                               FORMULA TO DETERMINE ESTATE ASSET VALUES