Most common questions about probate in Idaho and Utah

How soon can I get my inheritance?

Here are some of the most common questions people have about probate in Idaho and Utah:

1. What is probate?

Probate is a court-supervised process for managing and distributing a deceased person's assets and debts. To put it another way, a probate involves asking a judge to give someone the authority to collect assets, pay bills, resolve disputes and otherwise administer the deceased person's estate.

Primary steps involve validating the last will and testament (if one exists), appointing a personal representative (also called an executor), collecting assets like accounts, real property, etc., paying debts and taxes, and lastly distributing remaining assets to beneficiaries or heirs.

2. Is probate required in Idaho and Utah?

Probate is generally required if the deceased person owned assets exceeding $100,000, owned certain types of property, if there’s a dispute, or if a financial institution requires a probate to transfer the money.

Specific types of property that requires probate is land, houses or dwellings, mineral rights, business interests such as closely-held stock (like in an S-corporation) or interest certificates (like in an LLC or partnership), etc., regardless of value.

Assets

3. How long does probate take generally?

Naturally, the duration varies based on the complexity of the estate and potential disputes.

A straightforward case can take 6 months at a minimum. This time period represents the total time before the case may be closed. It is possible to transfer assets sooner.

Complexities like disagreements among heirs or difficulties locating creditors can extend the process to a year or substantially longer.

4. How much does probate cost?

Costs depend on court fees, attorney fees, and additional expenses like publication or recording fee, etc..

Initial court filing fees may range from $167 - $375, and attorney fees can be hourly ($300 - $500/hour) or flat-rate ($2,500 - $5,000 or more) depending on complexity.

Additional costs might include appraisal fees, publication fees, recording fees and asset management or liquidation fees.

5. Can probate be avoided?

Yes, probate can be avoided through various estate planning strategies.

These include:

• Revocable living trusts: Assets held in a trust bypass probate.

• Joint tenancy ownership: Property held jointly with another person automatically passes to the survivor outside of probate. This can be referred to as JTWROS (Joint Tenants with Right of Survivorship).

• Pay on Death (POD) or Transfer on Death (TOD) designations: These specify a beneficiary to receive the asset directly upon death and do not pass through probate.

• Life insurance policies and retirement accounts with named beneficiaries: Proceeds are also distributed outside of probate.

• For estates valued under $100,000 (excluding real estate), Idaho and Utah law allows the use of a small estate affidavit. Some financial institutions may not accept a small estate affidavit thus requiring probate regardless.

6. What assets are subject to probate in Idaho and Utah?

Probate assets include real property owned solely in the decedent's name, personal property like cars and household items, bank accounts titled solely in the decedent's name, and life insurance policies or brokerage accounts listing the estate as beneficiary.

Non-probate assets, like property held in trust, joint tenancy property, or accounts with designated beneficiaries, may bypass probate.

Don't go it alone.

7. Do I need a lawyer for probate in Utah?

While not strictly required, hiring a probate attorney is often recommended. In the case of complex estates, attempting to navigate a probate without legal counsel is considered risky.

A lawyer can help with collecting proceeds, identifying and securing assets, appraisals, paying debts and taxes, resolving tax issues, preparing and filing required documents, and otherwise managing the estate.

8. What is a Personal Representative (Executor) and what are their duties?

A Personal Representative, or Executor, is the individual appointed by the court to manage and settle the deceased person's estate.

Their duties typically include contacting heirs and creditors, inventorying and collecting assets, paying debts and taxes, selling property if necessary, and distributing the remaining assets to beneficiaries or heirs.

Consulting with a qualified Idaho or Utah probate attorney for guidance specific to a situation is always recommended.

Thank you,

Curry Andrews, Attorney