What is probate? Probate is not a taxation process. Probate is simply the process of transferring the ownership of your property. In probate, a court determines the validity of your will, if you have one, and is informed of the distribution of the assets that a person owns individually (as opposed to assets that pass automatically upon death, such as life insurance proceeds and retirement plan proceeds).
During probate, a complete inventory of your estate is made, heirs are located, creditors are identified and paid, tax returns are filed, and title to the property in your estate is formally transferred. Depending on the circumstance, an accounting may be required before a disbursement can be made.
When is probate necessary? Probate is generally necessary in Idaho when title to property must be transferred.
Is the probate process always the same? No. The probate of an estate can be done either formally or informally. If the spouse is the beneficiary of your estate, a summary administration may be done.
With an informal probate, sometimes the court can handle this proceeding without any court hearings. An informal probate may have the advantage of speed and simplicity.
In a formal probate, the estate will receive the full attention of the court including judicial determination of the existence of a will (testacy), determination of heirship, and full notice of all interested parties. A formal probate is recommended when there are disputes concerning the validity of a will or the appointment of a personal representative, questions concerning potential heirs, or challenges to distribution of estate property. The disadvantages of a formal probate include the time it takes for the estate to close and legal and other costs. In addition, whether an estate is probated formally or informally, it can be supervised by the courts (where conflicts or problems with the estate exist) or unsupervised (no court direction or protection for the personal representative.)
In a summary administration, all the assets are transferred to the surviving spouse on an expedited basis. However, one disadvantage is that the surviving spouse is liable for any debts of the decedent after the date of death.
What are the advantages of probate? Probate provides certain benefits that are unavailable with living trusts. The probate process (i) allows supervision of estate administration by the probate court, (ii) provides notices to beneficiaries who are given an opportunity to object, (iii) provides an opportunity to finalize the determination and amount of the decedent’s debts. In contrast, a beneficiary of a living trust may have to sue a trustee to challenge his or her actions; and, certain benefits, such as the homestead and family allowances, and certain property tax exemptions, may be lost with the use of a trust.
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