Probate and Estate Administration

When is probate necessary?

Probate is often required to transfer legal title to real property to the decedent’s heirs or beneficiaries. Probate is also used to enforce debts owed to the decedent, to cut off claims of the decedent’s creditors, and to settle disagreements among the decedent’s heirs or beneficiaries regarding the distribution of the decedent’s assets.

Probate may not be required if the decedent owned few assets, or if the decedent owned all of his or her assets jointly with right of survivorship or owned property that passed by beneficiary designation. Also, in many situations probate might not be necessary if all the decedent’s assets were held in trust and creditors’ claims are not a consideration.

However, to avoid potential problems down the road, you should consult with a qualified probate attorney to ensure that probate isn’t accessory in your situation.

How does the probate process work?

The person named in the Will as the personal representative meets with us to talk about the decedent’s assets and debts in order to decide whether a probate is needed. We then prepare the appropriate documents to be signed by the potential personal representative and then filed with the court, together with the decedent’s Will. After reviewing the documents filed with the court, the judge then signs an order appointing the personal representative and also issues “Letters Testamentary.” The Letters Testamentary are the official proof of the personal representative’s authority to act on behalf of the decedent’s estate.

If the decedent did not have a Will, a close relative normally has the priority to serve as personal representative. Documents similar to those used in a testate estate are prepared and filed explaining, however, that the decedent died without a Will. Rather than Letters Testamentary, the court issues “Letters of Administration” as the official proof of the personal representative’s authority to act on behalf of the decedent’s estate. In addition, the court sometimes requires that the personal representative be bonded before he or she can take control of the decedent’s estate.

What powers and duties does a personal representative have?

Until termination of his or her appointment, a personal representative has the same power over the property in an estate that the decedent would have had. However, the personal representative must exercise this power for the benefit of those persons designated in the Will to receive the decedent’s property (called the beneficiaries), the decedent’s relatives legally entitled to inherit the estate if there was no Will (called the heirs), the decedent’s creditors, and others interested in the decedent’s estate.

The personal representative is required to notify the decedent’s beneficiaries, heirs, and creditors about the probate proceeding.

The personal representative also has to file an inventory with the court listing the estate’s assets and their values. The personal representative may sell some of the assets. He or she also pays bills and debts and collects any money owed to the decedent. The personal representative works with an accountant or other tax preparer to file the final federal, state, and local income tax returns for the person who died, together with whatever tax returns are required for the estate, and pays any taxes that are due.

When the estate is ready to be distributed, the personal representative files an accounting with the court, and requests permission to pay any remaining expenses and to distribute the estate to the beneficiaries or heirs.

How long does probate take?

The probate process may be initiated soon after the decedent’s death. A “simple” probate process usually takes approximately one year or less to complete. However, if the decedent’s estate is more complex (e.g., there is real property that must be sold, complex tax issues exist, or a dispute erupts among the heirs and/or beneficiaries), the probate process may take significantly longer to complete.

Probate may not be required if the decedent owned few assets, or if the decedent owned all of his or her assets jointly with right of survivorship or owned property that passed by beneficiary designation. Also, in many situations probate might not be necessary if all the decedent’s assets were held in trust and creditors’ claims are not a consideration.

How much does probate cost?

The costs related to a probate include the court fees for filing the initial application or petition for certified copies of the Letters, and for filing the closing pleadings, the cost for publishing a legal notice to creditors in a local newspaper, the bond for the personal representative (if required), the fee for the accountant or tax preparer (when necessary), and expenses related to protecting and distributing the estate’s assets (e.g., insurance premiums, storage fees, appraisals, and shipping costs). In addition, the personal representative is entitled to be paid a reasonable hourly rate for services performed. Similarly, the associated attorney fees are based on the attorney’s regular hourly rate and the amount of time spent assisting the personal representative with the probate proceeding.

Is there an alternative to probate for smaller estates?

Idaho’s Uniform Probate Code provides for a small estate proceeding that may be used for estates consisting only of personal property (property other than real property) with a fair market value of $100,000 or less. There is also an abbreviated proceeding that may sometimes be used, where there is a surviving spouse.