Probate and a Small Estate: Is It Always Required?

Is Probate always required to transfer assets when I pass away? Is there an option if I don’t have much?

Probate is required under one of two circumstances in the state of Idaho:

  1. you personally own any interest in real property; and/or

  2. you own more than $100,000.00 in non-designated probate-able assets.

As you can see, Probate will not always be required when someone passes away. So, what if your estate does not meet either of these criteria?  

In Idaho, the law allows for the collection and disposition of assets, which are not required to go through Probate, through a Small Estate Affidavit, found under Idaho Code 15-3-1201.

In addition to the asset requirement, the affiant must swear to additional information as well.

The law does allow for the avoidance of Probate, but that may not always be your best option. Consider three potential outcomes.

First, did the deceased person have a Will? If so, the provisions of that Will must be carried out. By avoiding Probate, you also avoid the neutral party in the Judge of ensuring that the provisions of your Will are followed. That way your last wishes still have a voice. Otherwise, a potential arises of someone filing a contest.

Second, did the deceased person have debts? If so, the Probate process can allow for the elimination of some of those debts through a notice to creditors and the 4-month limitation on claims that accompanies the notice. If you proceed with the Small Estate Affidavit, you do not benefit from this limitation on filing a claim. Also, if you collect and spend all of the assets in which a creditor has priority, you may be required to refund the creditor long after you spent the money.

Third, did the deceased person have assets outside of the State of Idaho? The other state might not acknowledge the Idaho Small Estate Affidavit.