Probably the most common question I get from my clients; should I avoid probate? The short answer is usually no in Idaho. Probate in Idaho is generally a straightforward and a cost-efficient way to administer estates. Gone are the days when the probate process was cumbersome and expensive (at least in Idaho). Further, the probate process actually provides several benefits to an estate.
The probate process creates a clear venue for which to resolve any conflicts, or request any necessary orders to administer the estate. Most importantly, the probate process allows the estate to limit creditor claims thereby accelerating the administration process.
The flip side to this question is how does one avoid probate in Idaho? The most common legal vehicle to avoid probate is through the creation of a trust. Trusts can be a great way to accomplish your estate planning goals, however, the downsides outweigh the upsides if you are creating one simply for the purpose of avoiding probate here in Idaho. First, trusts are expensive to create, so much so that it may cost you more to create and administer a trust then to do a simple probate. Second, a lot of times people forget to place some of their assets into the trust, and thus their estate is forced to do a probate anyways. Lastly, sometimes a probate will be opened simply for the purpose of limiting those creditor claims, a tool that a trust in Idaho does not currently have. Thus, in the long run, many people end up having to go through the probate process in any event, even after forking over thousands of dollars to create a trust in the first place. There are many reasons to create a trust, avoiding probate in Idaho is not one of them.
There are some attorneys who do advocate for the creation of trusts to avoid probate. Certainly, if you live in another state other than Idaho, the state law might be different. In the end, the clientele that I serve are usually best served with having their estate go through the probate process. There are are specific circumstances in which a probate can be avoided, which makes administration easier, but those are much narrower circumstances (See Community Property with the Right of Survivovrship).