What Happens If You Die Without a Will in Idaho?


Estate planning means deciding in advance what you want to happen with your money and your stuff, called “assets,” after your death.

A key to effective estate planning in Idaho is to make sure this is all written out in a will.

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If you have a valid will in Idaho, what you have planned in the will can happen after your death. 

If you do not have a valid will in Idaho, you are not performing effective estate planning, which means you are not controlling what will happen to your assets after your death.   

This article examines what happens if you die without a valid will in Idaho.    

Idaho’s Intestacy Laws Explained

When we die, our stuff, property, and money don’t disappear. New owners and decision-makers need to be designated to decide what will happen to it.If we do not address what happens to our assets after our death in a valid will, other rules need to be in place to determine what happens. These rules are the intestacy laws. 

Intestacy laws are state laws. Every state, including Idaho, has its version of the intestacy laws for people who die there. Intestacy laws determine both who will get your stuff and money after death and who will manage your assets.

Idaho distinguishes between two types of property: separate property and community property. Separate property is owned by one spouse in a marriage. Community property is owned by both spouses.

Separate property in Idaho includes:

  • Property owned by one spouse before marriage.
  • Property acquired by gift or inheritance.
  • Property acquired with separate property.
  • Property designated as separate property under a written agreement (such as a prenuptial agreement).

Community property in Idaho includes:

  • Property acquired after marriage by either spouse that is not designated separate property.
  • Income.

If you die without a will in Idaho, your separate property will be divided among the following people:

  • If you have a surviving spouse, but no surviving children or grandchildren (also called “descendants”), and no surviving parents, everything will go to the surviving spouse.
  • If you have a surviving spouse and surviving descendants, 50% goes to the surviving spouse and 50% is split among the surviving descendants.
  • If you have a surviving spouse and a surviving parent or parents, but no surviving descendants, 50% goes to the surviving spouse and 50% goes to the surviving parent or parents equally.
  • If you have surviving descendants, and no surviving spouse, everything goes to the surviving children.
  • If you have neither a surviving spouse nor descendants, but you have a surviving parent or parents, everything is evenly divided among the surviving parent or parents.
  • If you do not have a surviving spouse, descendants, parent or parents, then everything goes to the descendants of your parents, e.g., your surviving siblings.

If all of your descendants have the same degree related to you, (e.g., they are all your children), they will all receive an equal share of your assets. However, for descendants who are more distantly related (also called an “unequal degree of relationship”), for example, if you have a surviving child and two surviving grandchildren, your assets will not be distributed equally.

For example:

Megan dies in Idaho without a valid will. She has no surviving spouse and is survived by her two children, Jamie and Caleb. Megan’s separate property is allocated equally to Jamie and Caleb, as they are of the same degree of kinship. 

Suppose the same facts, except that Caleb has died before Megan. Caleb has two children, Wendy and Zachary. Megan’s separate property is allocated 50% to Jamie, 25% to Wendy, and 25% to Zachary. Jamie and Caleb’s children are of unequal degrees of kinship (i.e., more distantly related), but Wendy and Zachary are still beneficiaries through their deceased father, Caleb.

If you die without a will in Idaho, all of your community property will go to your surviving spouse, because the law assumes that both spouses in the marriage own community property.  

If you die without a will in Idaho, someone has to be chosen to manage your assets. This is decided using the following order of priority. If one person on this list is unavailable, deceased, or otherwise doesn’t exist, the responsibilities will fall to the next person down on the list:

  1. The surviving spouse.
  2. Other heirs of the deceased person (which may include children or grandchildren).
  3. 45 days after the death of the decedent, any creditor.
  4. The public administrator.
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How Does Probate Work in Idaho If There Is No Will?

Probate is the legal process in Idaho by which an estate is settled after a person’s death. A judge supervises the probate process. 

Probate in Idaho occurs in the county where the deceased person resided.  

There are three common types of probate in Idaho:

  • Summary administration: This happens if a surviving spouse is the only person receiving any assets. Summary administration allows a court to give property to a surviving spouse in an easier and more efficient way, without much need for a judge.
  • Informal probate: This begins with the court appointing a person to manage the deceased person’s estate.  This person is known in Idaho as the “personal representative.” If the deceased person has a valid will, it’s likely they’ve named a person in the will to be their personal representative. If there’s no will, the court approves the personal representative based on the above list. With informal probate, the personal representative manages the estate with limited input and supervision from a judge.
  • Formal probate is similar to informal probate, except a judge is more involved in the process and the work of the personal representative.    

With informal or formal probate, the personal representative in Idaho has various responsibilities, including:

  • Taking inventory of the deceased’s property and figuring out how much it’s worth.
  • Maintaining the assets while probate happens.
  • Opening a bank account for the estate and paying any necessary bills.
  • Providing notice to and pay any creditors.
  • Filing any required tax returns.
  • After paying creditors, paying and distributing the remaining assets to the beneficiaries

In Idaho, probate (of whatever type) can still occur regardless of whether you die with a valid will. If your case falls under one of the exemptions described further below, then your family can avoid probate. 

Who Typically Inherits Assets in Idaho If There Isn’t a Will?

The intestacy laws are default rules that apply if the deceased person has no valid will. As default rules, they typically name people who are closest to the deceased, like close family members, as beneficiaries and personal representatives.

As described above, this typically means naming a surviving spouse, children, and/or parents. 

However, the problem with intestacy laws is that “typical” beneficiaries might not always be the same as the people who you want to be your beneficiaries. The following three examples show how Idaho’s laws may not have the desired outcome:

Example 1 - Valerie is survived only by her two children, Maura and Terry. She wants her assets to transfer all to a charity, but does not have a valid will.  Idaho’s laws will transfer Valerie’s assets all to Maura and Terry, contrary to what Valerie wants after she dies (also called “testamentary intentions.”)

Example 2 - What if Valerie wants her 25% of her assets to go to her friend, Paul, and 75% to Maura and Terry (equally between them), but does not have a valid will? Idaho’s intestacy laws will still transfer Valerie’s assets all to Maura and Terry, since she did not stipulate before she died that she wanted Paul to get something. 

Example 3 - What if Valerie wants her assets to be put in two equal trusts for her two children and wants to name her brother David as the trustee? Valerie wants to name specific terms and conditions for when David can distribute money the trusts to Maura and Terry. But if Valerie does not have a valid will, Idaho’s intestacy laws transfer Valerie’s assets “outright” (not in trust) 50% to Maura and 50% to Terry.

Because Valerie’s intended beneficiaries were not the “typical” beneficiaries under Idaho’s laws, they did not receive her assets in the manner she would have liked. Valerie could have avoided this problem by having a valid will. It is not difficult to have a valid will in Idaho. It generally must be in writing, executed, dated, witnessed, and notarized.  

Frequently Asked Questions: Dying Without a Will in Idaho

Here are some of the frequently asked questions about what happens if you die without a valid will in Idaho.

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Does a spouse automatically inherit everything in Idaho?

Your surviving spouse does not automatically inherit all of your assets in Idaho.

Your surviving spouse could be your sole beneficiary in Idaho if:

  • You have a valid will that designates your surviving spouse as sole beneficiary.
  • You have no valid will and no separate property.
  • You have no valid will, no surviving descendants, and no surviving parents.

However, in other cases, your surviving spouse is not your sole beneficiary in Idaho. This occurs if:

  • You have a valid will that designates other people, in addition to your surviving spouse, as beneficiaries.
  • You have no valid will, surviving descendants and/or parents, and have separate property from your spouse. In this case, your surviving descendants or parents get 50% of your assists, and your surviving spouse will get the other 50%.    

How long does probate take if there’s no will?

There is no specific length of time to complete probate in Idaho. The time to complete probate in Idaho depends on the type of probate.

Summary administration — giving over assets to the surviving spouse — should take a few weeks.

Informal probate — appointing a personal representative and having them manage the estate — requires at least six months.  Part of this time is a four-month period to notify any creditors of the person’s death and give them time to claim any debts.

Formal probate — in which the judge is more involved — generally takes longer than informal probate.

If there is no valid will, probate often can take longer than if there is a valid will because more issues may arise when trying to figure out how the laws apply to your situation. 

Are there any probate exemptions if you die without a will in Idaho?

The following are the common exemptions from probate in Idaho:

  • Assets that transfer by a “small estate affidavit” can transfer exempt from probate. If your estate is a “small estate,” means your personal property is valued at less than $100,000.   
  • Assets that transfer to a named person can transfer exempt from probate. This exemption applies to things like an insurance policy, a retirement account, or a bank or investment account that’s stipulated to be paid out to someone on your death.
  • Assets that two people own (“joint tenant”) with rights of survivorship — meaning whoever lives longer can take the whole thing — can transfer to the surviving joint tenant exempt from probate.
  • Assets owned in a trust (such as a revocable “Living Trust”) can transfer to the people named as beneficiaries from probate.     

These probate exemptions in Idaho can apply whether or not you die with a valid will in Idaho.

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Who is considered next of kin in Idaho?

There is no express definition of the phrase, “next of kin” in Idaho.

However, people like surviving spouse, descendants, and parents — who are generally the default beneficiaries if you have no will — are the people who most people would consider “next of kin” as their closest relatives.  

No Valid Will Results in a Loss of Estate Planning Control

Estate planning gives you the right to control what happens to your property on death.

In Idaho, if you don’t have a valid will, you lose the ability to control your estate.  Instead, you essentially give up this control to the state.

To maintain control over what happens to your estate in Idaho, you need to execute a valid will.

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