The simplest answer to this question in Idaho is within three (3) years of the death, but there are exceptions and ways to still distribute an estate even after the three-year mark. Let’s look at some exceptions to the rule.

Mom and Dad didn’t have a will. Dad died ten years ago. Mom just died last year. Mom never probated Dad’s estate and both mom and dad’s names are on all assets. In this scenario, you would still be within the three-year statute of limitations. Without a will, the surviving spouse would have been entitled to the assets of the estate anyway. Therefore, pursuant to I.C. § 15-3-111 a joint probate is to be based on the death date of the last of the couple to die.  

Another scenario, grandma died forty years ago. In her will, she left her home as a life estate to one of her daughters. Grandma died having no debt and the only asset in her name was the home. Upon grandma’s death, the family didn’t file a probate and considered letting the daughter live in the home for the rest of life constituted satisfaction of grandma’s will and that they could just probate the asset when the daughter passed. Now the daughter has passed and there is an asset in the name of a woman who has been gone for forty years. Grandma had five children, who all had children, and now with three generations of children, grandchildren, great-grandchildren, and even some of them adopted, some living, and some deceased, the family can’t sell the home because no one can sign the deed of sale. The asset cannot be probated because it’s been forty years, significantly past the three-year statute of limitations. What can they do?

In the above scenario, there is still a way to sell and distribute this asset. This would require petitioning the court for a Determination of Heirs. In this petition, a list of all heirs, both living and deceased and their relationship to the subject must be submitted. The court will schedule a hearing to determine the heirs and the distribution of the asset(s). This can be a much more costly endeavor and best avoided if possible because you must ensure that you have accounted for all possible heirs to the assets. Those who were adopted will be required to show documentation that a proper adoption took place and not just “hey they took me in and raised me,” scenario. Often branches of the family loose contact. You can’t just distribute to only the family members that have remained close and in good standing with the family. You may need to hire an expert heir researcher or a private detective to track down the estranged family members. Every effort must be made to find all the heirs.

Even if all heirs are known, it can still get costly simply in the amount of communication and mailing of documents to all the heirs as they have a right to be informed of the proceedings. It can also be a lengthy process, which impacts the sale of the asset. Say for instance the family decides to sell the property because the market is at its peak, but by the time all heirs are found, all documents are obtained proving heirship, and the Court rules on the Petition the market may have already started to dip back down. Now not only have you spent probably a few thousand dollars on this process, and maybe more if heirs were difficult to find, but now money is being lost because the market is on a decline again by the time the process is complete. This is also the kind of distribution that is best to seek the help of an attorney.

The most ideal scenario is to talk to your elderly, and even young parents with children, family members into doing a will or trust, to make things simpler. But no matter their decision, even with a will, a probate must be started within three years of their death.