General DefinitionA decedent's intestate estate is defined as any part of the estate not effectively disposed of by a valid will. Sec. 15-2-101.
Order of DistributionThe portion of the estate not passing to the surviving spouse, if any, is distributed as follows:
- To the descendents of the decedent equally. Those of more remote degree take by representation;
- If there is no surviving descendents, to parent or the parents equally;
- If there is no surviving descendents or parent, the descendents of the parents share the remaining estate by right of representation;
- If there is no surviving descendents, parent or descendents of a parent, but the decedent is survived by one or more grandparents or descendents of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the decendents of the paternal grandparents if both are deceased, the descendents taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or descendents of grandparents on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half. Sec. 15-2-103.
All property left unclaimed through an estate, escheats to the state's public school permanent endowment fund. Sec. 14-113.
Common Law or Community PropertyIdaho is a community property, spousal share state.
CapacityThe testator of a valid will must be at least 18 years (or an emancipated minor) of age and be of sound mind at the time of the drafting. Sec. 15-2-501.
DraftingA will must be made in writing and signed by the testator or in the testator's name by some other person in the testator's presence and by his direction. In addition, the will must be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Sec. 15-2-502. However, a holographic will is valid, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. Sec. 15-2-503.
BeneficiariesA beneficiary includes a person who has any present or future interest, vested or contingent and includes the owner of an interest by assignment or other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust. Sec. 15-1-201.
ModificationsA will or codicil can be revoked either by a subsequent writing or by burning, canceling, tearing or obliterating it with the intention to revoke its contents. The act of revocation may occur either by the testator or at his or her direction and in his or her presence. Sec. 15-2-507.
A dissolution, divorce or annulment occurring after the establishment of a will revokes any disposition of property made by the will to the former spouse. The divorce or annulment also revokes any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as fiduciary, trustee, conservator, guardian or other fiduciary, unless the will expressly provides otherwise. Property and powers not passing to a former spouse due to divorce or annulment passes as if the former spouse failed to survive the testator. A decree of separation which does not terminate the status of husband and wife is not a dissolution or divorce for the purposes of this section. Sec. 15-2-508.
Naming of Personal RepresentativeNormally, a decedent will name a fiduciary in his or her will. However, if no fiduciary is named or in the case of an intestate estate, the probate court will appoint one according to the following priority:
- Surviving spouse of the decedent who is a devisee of the decedent;
- Other devisees of the decedent;
- Surviving spouse of the decedent;
- Other heirs of the decedent;
- Forty-five days after the death of the decedent, any creditor;
- If sixty days pass after the appointment of a personal representative have lapsed and a fiduciary has not been appointed, the personal representative
In order to acquire the powers and undertake the duties of a personal representative, a person must be appointed by order of the court or registrar, qualify and be issued letters of administration. Sec. 15-3-103.
Prior to receiving letters, the personal representative shall qualify by posting any required bond and by filing a statement of acceptance of the duties of the office. In the statement of acceptance, the personal representative must swear an oath to perform the duties of a personal representative according to Idaho law. Sec. 15-3-601.
Submission of WillIn order for a testamentary transfer to be valid, the will must be declared to be valid by an order of the probate court. However, a will which has not been probated may be admitted as evidence of a devise if no court proceeding concerning the succession or administration of the estate has occurred. Sec. 15-3-102.
NotificationsThe personal representative must notify the heirs and devisees within 30 days of his or her appointment as the personal representative. The notice must be mailed by first class mail. Sec. 15-3-705.
Notice to creditors of the estate may be published in a newspaper of general circulation once a week for three consecutive weeks. The notice allows creditors the opportunity to bring forth their claims within a four month period or have their claims forever barred. Sec. 15-3-801(a).
InventoryThe personal representative must prepare, within three months of his or her appointment, an inventory of property owned by the decedent at the time of death. The inventory must list with reasonable detail the fair market value and any encumbrance of each asset as of the date of the decedent's death. A copy of the inventory must be sent to every interested person who requests it and an original copy of the inventory must be filed with the court. Sec. 15-3-706.
Homestead, Exempt Property and the Spousal ShareThe homestead allowance is exempt from and has priority over all claims against the estate. The amount of the homestead allowance shall be $50,000. The homestead allowance is not a right to claim ownership of, or succession to, any homestead owned by the decedent at the time of the decedent's death but is only the right to claim the sum. Sec. 15-2-402.
In addition to any homestead allowance, the decedent's surviving spouse is entitled from the estate to value, not exceeding $10,000 in excess of any security interests therein, in tangible personal property including, but not limited to, household furniture, automobiles, furnishings, appliances, family heirlooms and personal effects. Sec. 15-2-403.
Community PropertyIf a decedent dies without a will or if any part of his/her estate is not effectively disposed of by will, the portion of the intestate estate of the decedent which the surviving spouse takes as follows:
- The one-half (1/2) of community property which belongs to the decedent passes to the surviving spouse.
- As to separate property:
(A) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(B) If there is no surviving issue but the decedent is survived by a parent or parents, one-half (1/2) of the intestate estate;
(C) If there are surviving issue of the deceased spouse, one-half (1/2) of the intestate estate. Sec. 15-2-102
Quasi-Community PropertyQuasi-community property is defined as real property located in Idaho and all personal property wherever acquired or located which would have been community property is acquired while domiciled in Idaho. Sec. 15-2-201(b).
If the decedent is married at the time of his/her death, and owns quasi-community property one-half of the quasi-community property belongs to the surviving spouse and the other one-half is subject to the will or estate plan, if any, left by the decedent. If no plan is left by the decedent, the property goes to the surviving spouse. Sec. 15-2-201(a).
Debts and DistributionsIf the applicable assets of the estate are insufficient to pay all claims in full, the personal representative will make payments in the following order:
- costs and expenses of administration;
- funeral expenses;
- debts and taxes with preference under federal law;
- medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent prior to death;
- debts and taxes with preference under other laws of Idaho;
- all other claims. Sec. 15-3-805.
Idaho does not have an estate tax or an inheritance tax.
Income Tax Charitable Deductions and/or Credits
Idaho allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Idaho Code Ann. §63-3011A.
Idaho also allows a credit against income tax equal to 50% of the total amount of charitable contributions made during the year. However, the amount allowable as a credit cannot exceed the lesser of 50% of the taxpayer's total income tax liability or $500. For corporations, the credit is limited to the lesser of 10% of total income or franchise tax liability or $5000. To qualify for the credit, the contribution must be made to an organization meeting the requirements and description found in Idaho Code Ann. §63-3029A.
In addition to the types of organizations listed in Sec. 63-3029A, Idaho allows a similar credit against income equal to 50% of the total amount of charitable contributions made during the year. For individuals, the amount allowable as a credit cannot exceed the lesser of 20% of the taxpayer's total income tax liability or $100. For corporations, the credit is limited to the lesser of 10% of total income or franchise tax liability or $500. The credit is allowed for charitable contributions to the following organizations listed by name:
- The Anchor House or its foundation.
- The Children's Home Society of Idaho, Inc.
- The Idaho Youth Ranch or its foundation
- Kinderhaven or its foundation.
- The Women's and Children's Alliance or its foundation.
- Children's Village, Inc. or its foundation.
- Idaho Drug Free Youth, Inc. or its foundation.
- Gem Youth Services or its foundation.
- The Hope House, Inc. or its foundation.
- North Idaho Children's Home or its foundation.
- The Shepherd's Home, Inc. or its foundation.
- A Project Safe Place located in Idaho.
- The Learning Lab, Inc. or its foundation.
- A Center for Independent Living located in Idaho.
- Project P.A.T.C.H.
- Planned assistance for troubled children.
- Any nonprofit substance abuse center licensed by the Department of Health and Welfare.
- A nonprofit rehabilitation facility located within the State of Idaho or its foundation. Idaho Code Ann. §63-3029C.
Gift Annuity Requirements
Idaho, a "notification" state, regulates the issuance of charitable gift annuities under Idaho Insurance Code Sec. 41-114. Idaho Insurance Code Sec. 41-114 provides that organizations exempt under Sec. 501(c)(3) are exempt from standard insurance regulation and issuing charitable gift annuities does not constitute engaging in the business of insurance. Idaho Insurance Code Sec. 41-120 provides the conditions under which an annuity is considered a qualified gift annuity not subject to insurance regulation.
To qualify, charities must have been in continuous operation for at least three years (or be a successor/affiliate of an organization that meets this condition) and have a minimum of $100,000 in unrestricted assets (cash, cash equivalents or publicly traded securities exclusive of the assets funding the annuity agreement and adjusted for inflation).
Notification ProcessCharities must notify the Idaho Department of Insurance on the date of entering into the first qualified charitable gift annuity agreement in order to comply with state law. The notice must contain the signature of an officer or director of the charity, identify the organization, certify that the charity is a qualifying organization and that the annuities offered are qualifying charitable gift annuities.
Failure to comply may result in a civil penalty not to exceed $1,000 for each annuity issued by the charitable organization that does not qualify under Sec. 41-120(5).
Disclosure LanguageGift annuity agreements issued must include the following state-required disclosure language in the annuity agreement (in a separate paragraph and print size no smaller than that used in the agreement):
"A qualified charitable gift annuity is not insurance under the laws of this state and is not subject to regulation by the department of insurance or protected by a guaranty association affiliated with the department."
Reserve RequirementsIdaho does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsOnce notification is given to the state, no further reporting is required.
State Contact InformationCarol Anderson
Idaho Department of Insurance
700 West State Street 3rd Floor
Boise, ID 83720-0043
Phone: (208) 334-4309