Detailed Answer
When a decedent domiciled in Idaho leaves real property located in another state, the transfer process depends on both Idaho’s probate rules and the laws of the state where the property sits (the situs state). If all heirs agree and the estate qualifies for summary procedures in Idaho, you may avoid formal ancillary probate in Idaho—but you still must satisfy the situs state’s requirements for transferring real property.
1. Confirm In-State Probate Requirements
Idaho offers a small estate affidavit process for personal property under $100,000 under Idaho Code §15-6-702 (Small Estate Affidavit). However, that provision does not apply to real property. If the decedent died intestate (without a will), heirs inherit under Idaho Code §15-2-202 (Order of Distribution).
2. Gather Required Documents
- Certified copy of the decedent’s death certificate.
- Original will or certified copies of letters testamentary/administration (if any) from the Idaho probate court.
- Proof of heirship (e.g., family tree summary or prior Idaho probate filings).
3. Review Situs State Transfer Options
Real property transfers are governed by the situs state. Many states allow a non-probate conveyance—such as an affidavit of heirship or a quitclaim deed signed by all heirs—to pass title without opening full ancillary probate. Check the county recorder or clerk’s office for the correct form or statutory reference in the situs state.
4. Prepare and Execute a Non-Probate Transfer Instrument
Draft an affidavit or deed that includes:
- Decedent’s name, date of death, and last known domicile.
- Legal description of the out-of-state property interest.
- Names, addresses, and signatures of all heirs agreeing to the transfer.
- A statement confirming no ancillary probate is open in the situs state.
5. Notarization and Recording
Have all heirs sign before a notary public. Then record the affidavit or deed with the county recorder in the jurisdiction where the property is located. Pay any recording fees and transfer or documentary stamp taxes required by that state.
6. Finalize Title and Notify Stakeholders
Obtain a certified copy of the recorded instrument. Provide copies to any mortgage company, title insurer, and local tax assessor to ensure the public records reflect the new ownership and to avoid future title disputes or tax penalties.
Helpful Hints
- Verify with the situs state whether a simple deed or affidavit suffices in place of ancillary probate.
- Maintain a clear chain of documents: death certificate, Idaho probate filings, transfer instrument, and recorded deed.
- Check for mortgages, liens, or unpaid property taxes before transferring title.
- Confirm that the affidavit or deed meets the situs state’s form and filing requirements.
- Consider obtaining a title insurance endorsement after transfer to guard against unknown claims.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For advice tailored to your situation, consult a qualified attorney.