“Probate” is a term most have heard, but few know what it means. Some know it has something to do with a Will, but don’t know how. More than a few have been told it is something to avoid, but are not sure why.
What is probate? Probate is a process to help ensure that the debts of a deceased person are paid and the remaining assets are appropriately distributed.
Is probate a lawsuit? No. In fact, the people involved will usually never go to the courthouse. However, a judge supervises the probate process.
Why is a judge involved? First, the judge is neutral. Just as importantly, the judge has the ability to give the personal representative the authority to access and transfer assets (i.e., money in the deceased person’s bank account).
Can I avoid probate if I have a Will? No. Probate may be necessary whether or not you left a Will.
If that is true, why should I have a Will? If the deceased person left a Will, the Will identifies the people who are to receive the assets. If there is no Will, the State of Idaho decides who will receive the assets. In my opinion, it is always better to have a Will so that you can control who will receive those assets.
What is a personal representative? This is what most people call an executor. It is the person who takes on the responsibility to make sure the deceased person’s bills are paid and (if there is money left) distributes the assets.
Do my debts have to be paid before my children can receive an inheritance from me? A creditor must be given notice of the probate. If the creditor then submits its claim in time, the debt must be paid first.
If there are not enough assets to pay the debts, does the personal representative have to pay those bills from his/her own money? No.
Is probate required? No.
So why go through probate? I will address this in my next post.
*Steve Wright is an Idaho licensed attorney. This column is provided for informational purposes only and should not be construed as legal advice, which requires a specific discussion of specific circumstances.
© 2026 Steven J Wright