Probate is basically the process for transferring assets from a deceased person to the heirs. It begins with petitioning the judge to appoint a personal representative (executor) and give that person the authority to sign deeds, titles and paperwork at banks, etc. Once all the bills have been paid and the assets are ready to be transferred to the heirs, the judge signs off and the probate is complete. During the whole process, the Last Will and Testament provides instructions on who is in charge, who the heirs are and who gets what. It can be pretty confusing, though, because there are a lot of steps involved in the process.
The fact that an attorney is needed to get everything done correctly can be one of the “not so good” aspects of Probate. Legal fees are expensive, and the time it takes to get everything done can also be irritating. It’s not all bad, though.
One of the best elements of a probate is that it can be used to clear up title problems and vest the property in the name of the heirs by court order. Without this, the property remains in the name of the estate, and nobody can do anything with it. Mortgages go unpaid, homeowner’s insurance lapses, etc.
A probate can also be used to settle the debts of the person who passed away. Under Idaho law, the creditors of the estate have a limited time period to respond and file a claim in a probate. If those creditors fail to do so in a timely manner, their claim is forever barred! If, however, the debts are not dealt with in a probate, the creditors can seize the property of the estate and drain all those assets that should have gone to the heirs so it’s a good idea to get it done right away and get it done correctly.
Curry D. Andrews, Attorney at Law