In 2008 a new law in Idaho allowed married couples to hold their real property (homes etc.) as “community property with right of survivorship”. (See I.C. 15-6-401). This created a statutory tool to help couples simplify their estate plans, and make probate administration more efficient.
Under Idaho law, real property that is in a decedent’s name usually requires opening a probate case to remove the decedent’s name from the title or to sell the property. A great deal of times I open probate cases simply for this purpose. Other assets sometimes can be transferred to the rightful beneficiary without opening a probate; this can be especially true for married couples.
A married couple who owns all their assets jointly, and that will be giving all their assets to their surviving partner when they die, can utilizing the new law to avoid having to do two probates (one upon the first spouses death, and another upon the second spouses death). If a married couple holds their real property jointly as “community property with the right of survivorship”, then upon the first spouse’s death the home automatically transfers (upon recording of a death certificate) into the other spouse’s name without a need for probate. Oftentimes this tool will mean that the surviving spouse will not have to go through the probate process upon the first spouse’s death, only upon the second spouse’s death.
If you are married and own a home, then you definitely should ask your Idaho Estate Planning attorney about this new law and how it could help you simplify your estate plan.