Q. I was named “personal representative” (executor) in my mother’s will. She has now died, and I have been trying to carry out this responsibility. I have taken the will to banks and other institutions and shown them the part that says I am personal representative, but none of them will acknowledge my authority and say I have to have a probate. Do I really have to do this?
A. Your designation as personal representative in your mother’s will sets forth her choice to have you handle that responsibility. However, before you legally have that authority, you must be appointed personal representative by the court.
Once you are appointed by the court, you will receive a document called “letters testamentary” which verifies your authority. Upon presenting them a certified copy of this document, banks, title companies and other institutions will acknowledge your authority to handle the assets.
Idaho has an excellent probate law that allows great flexibility and efficiency in this process.
In most cases, the cost-effective way to have you appointed personal representative is petitioning the court for an “informal probate of will and informal appointment of personal representative.” This can be presented as soon as five days after death. Basically, this petition under oath sets forth the basic facts, including the date of death and the names and addresses of the beneficiaries under the will and of any other persons who would be beneficiaries if there had been no will. After you are appointed personal representative, you will be obligated to so notify these individuals. The original of the will is submitted to the court.
If there is a question as to the validity of the will, such as arguments that the decedent was incompetent or under duress when the will was executed, or that there is a different alleged will, it is normally wise to instead file a “petition for formal probate of will and formal appointment of personal representative.” In that case, prior notice is given to all parties with a legal interest in the matter, and a hearing is set at which all parties can present their positions. Then the court determines whether or not this is indeed the valid will.
Once the personal representative is appointed, Idaho law is flexible as to the extent of remaining probate activities. After payment of debts and estate expenses, the personal representative has the authority to distribute the remaining assets of the estate in accordance with the will without obtaining court approval, but then the will and the actions of the personal representative would be subject to challenge by any parties with a legal interest in the matter.
Alternatively, the estate can be formally closed in a hearing to obtain court approval of the will’s validity and the distribution.
Robert E. Farnam is an attorney practicing in Idaho Falls. This column is provided by the 7 th District Bar Association as a public service. Submit questions to “It’s the Law,” PO Box 50130, Idaho Falls, ID 83405, or by email to email@example.com. This column is for general information. Readers with specific legal questions should consult an attorney. A lawyer referral service is provided by calling the Idaho State Bar Association in Boise at 208-334-4500.
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