Idaho Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: an application for informal probate or appointment, directed to the registrar and verified by the applicant, or a petition for formal testacy or appointment, heard by the court. Both go to the magistrate division of the district court in the county where the decedent lived, or for a nondomiciliary any county where the decedent's property was located (Idaho Code §§15-3-201(a), 15-3-301, 15-3-401). No statewide official form is named on this page, so ask the court clerk what the court requires; the court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   Idaho sets a 3-year outer limit after the decedent's death for informal or formal probate or appointment, with exceptions, and the application must state that the limit has not expired (Idaho Code §§15-3-108, 15-3-301(a)(7)). Whoever has custody of a will must deliver it with reasonable promptness to a person able to secure its probate, or to an appropriate court, with no day count stated (§15-2-902).

4. 4

   Priority to serve runs: the person nominated in a probated will, a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, then a creditor 45 days after death, then the public administrator if a petition is filed and 60 days pass with no consent to act (Idaho Code §15-3-203(a)). A person under 18 or one the court finds unsuitable in formal proceedings is disqualified (§15-3-203(f)). For a nonresident, ask the court clerk. The court decides who serves and appointment is not guaranteed.

5. 5

   Notice: on the informal track, informal probate requires notice only to anyone who filed a demand for notice and to any existing personal representative, and informal appointment requires notice to demand filers and to anyone with prior or equal right to appointment (Idaho Code §§15-3-306, 15-3-310). On the formal track, notice of hearing goes to the surviving spouse, children and other heirs, devisees and named executors (§15-3-403). Within 30 days after appointment, the personal representative must send information of the appointment to heirs and devisees by ordinary mail (§15-3-705).

6. 6

   Creditors: the personal representative may publish notice once a week for three successive weeks in a county newspaper, and may also give written notice to known creditors. Claims are due within 4 months after first publication, or for written notice the later of that date or 60 days after mailing or delivery (Idaho Code §15-3-801). Notice to Health and Welfare is required if medical assistance was paid for a decedent aged 55 or older.

7. 7

   Bond: none is required of a personal representative appointed informally unless a special administrator is appointed, the will expressly requires bond, or bond is required under §15-3-605, and in formal proceedings the court may require bond at appointment (Idaho Code §15-3-603). Not every estate needs probate: Idaho has affidavit collection of personal property, summary administration for a sole-beneficiary surviving spouse, and informal probate as a track within probate. See DocDraft's small-estate-affidavit page for the affidavit route.

Idaho Requirements for Petition for Probate

• Informal Application or Formal Petition

  Idaho has an application for informal probate or appointment, directed to the registrar and verified by the applicant, and a petition for formal testacy or appointment heard after notice (Idaho Code §§15-3-301, 15-3-401).

• Magistrate Division Where Decedent Lived

  Venue is the county where the decedent was domiciled at death, or for a nondomiciliary any county where the decedent's property was located (Idaho Code §15-3-201(a)).

• Three-Year Outer Limit

  Probate or appointment proceedings may not be commenced more than 3 years after death, with exceptions, and the application must state the limit has not expired (Idaho Code §§15-3-108, 15-3-301(a)(7)).

• Will Custodian Delivery Duty

  A person with custody of a will must deliver it with reasonable promptness to a person able to secure its probate, or to an appropriate court (Idaho Code §15-2-902).

• Order of Priority for Appointment

  Priority runs from the person nominated in a probated will through a surviving spouse who is a devisee, other devisees, the surviving spouse and other heirs, then a creditor 45 days after death, then the public administrator if a petition is filed and 60 days pass with no consent to act (Idaho Code §15-3-203(a)).

• Heirs and Devisees Listed

  The petition identifies the heirs and devisees with their relationships and addresses, since notice of hearing on the formal track goes to them (Idaho Code §15-3-403).

• Information to Heirs After Appointment

  Within 30 days after appointment, the personal representative sends information of the appointment to heirs and devisees by ordinary mail (Idaho Code §15-3-705).

• Creditor Notice and Claims Period

  The personal representative may publish notice weekly for three weeks, with claims due within 4 months after first publication, or for written notice the later of that date or 60 days after mailing or delivery (Idaho Code §15-3-801).

• Bond Default

  No bond is required in informal appointment unless a special administrator is appointed, the will requires it or §15-3-605 requires it, and the court may require bond at appointment in formal proceedings (Idaho Code §15-3-603).