Frequently asked questions about probate
What is probate?
Probate is when the Court appoints a personal representative to distribute the assets of a deceased person according to a will. If you would like to learn more, you can read about probate in Idaho Code, Title 15, Chapter 3
If the person did not create a will (or a trust), their estate is called “intestate” and the court appoints a personal representative to distribute the estate according to Idaho’s intestate laws. If you would like to learn more, you can read about intestate succession in Idaho Code, Title 15, Chapter 2
Is probate required in Idaho?
Probate is required anytime a person with a will dies and has an estate that includes real estate such as a home or land. Probate is also required if the value of personal property if over $100,000.
If there is no real estate AND the value of all other personal property is less than $100,000, then a small estate affidavit may be used instead of completing the probate process. If you would like to learn more, you can read about small estate affidavits in Idaho Code, Title 15, Chapter 3, Part 12.
If all assets are in a trust, or the assets left outside the trust do not include real estate or personal property valued over $100,000, probate is not required.
What is personal property?
Personal property is almost everything a person owns EXCEPT for real estate, (also known as real property). Real estate includes a home, a building or land. In other words, things that cannot move to another location. Personal property can include vehicles, jewelry, collectibles, furniture, electronics, In appliances, and anything else that can be moved.
Most personal property is transferred in a personal property memorandum attached to a will or trust. It is important to know that in Idaho, a personal property memorandum can NOT be used to transfer ownership of a vehicle (or any property with a title), money, evidence of debt, real property (or interests in real property), securities (such as stocks or bonds), or property used in a business. These items require specific methods of distribution within an estate plan.
If you would like to read Idaho’s complete definition of real property, you can find it in Idaho Code, Title 55, Chapter 1.
If you would like to see the definition of personal property, also called tangible personal property, you can find it in Idaho’s sales tax laws, specifically Idaho Code, Title 63, Chapter 36.