FAQ: Finalizing Probate When an Older Will Exists and Getting Authority to Sell Real Property

Disclaimer: This is general information and not legal advice. Consult a licensed Idaho attorney about your specific situation before acting.

Detailed answer — what to know and the step-by-step path under Idaho law

If a decedent left a will that appears to be outdated, you can still complete probate and obtain authority to sell estate property, but you must follow Idaho probate procedures so the court recognizes who has authority and how assets should be handled. Below is a practical roadmap you can follow in most Idaho counties. Where Idaho law applies, see Idaho Code, Title 15 (Probate and Trust Code) for statutory authority: https://legislature.idaho.gov/statutesrules/idstat/Title15/.

1. Figure out whether the old will is still legally effective

A prior will remains valid in Idaho unless it was revoked by a later valid will, a written revocation, or physical act (e.g., tearing or burning) done with intent to revoke. If there is a later will, the court will determine which document is controlling.
If the will is “outdated” because facts changed (property sold, beneficiary died, marital status changed), that does not automatically revoke the document. The court applies Idaho probate rules to interpret the will and distribute the estate according to the valid, operative will and Idaho law.

2. Locate and present the original will to the probate court

Take the original will (if you have it) to the clerk of the district court in the county where the decedent was domiciled. If you do not have the original, you must explain the circumstances and be prepared to prove authenticity. The court will accept the will for probate filing.

3. Petition to open probate and seek appointment of a personal representative

To act for the estate (collect assets, pay debts, and sell property), someone must be appointed by the court as the personal representative (executor or administrator). Typical steps:

File a petition for probate (probate of will and appointment of personal representative) in the appropriate Idaho district court.
Give notice to heirs, beneficiaries, and interested parties as required by Idaho rules so they can object if appropriate.
If the court approves, it issues letters testamentary or letters of administration that formally authorize the personal representative to act on behalf of the estate.

These filings and procedures are governed by the Idaho probate statutes in Title 15 and local probate rules; the Idaho judiciary maintains resources and court forms that help explain local practice: https://isc.idaho.gov/.

4. Determine whether you need a court order to sell real property

General authority: A properly appointed personal representative typically has statutory authority to manage estate property, including selling assets, but the scope depends on the will, whether the sale is for payment of debts, and Idaho law. If the will expressly grants a power of sale to the personal representative, that can simplify the process.
When court approval is required: If the will does not specifically authorize a sale of real property, or if the sale would affect the rights of heirs or secured creditors, you will generally petition the court for an order authorizing the sale. The court examines whether the sale is necessary and in the best interest of the estate and beneficiaries.
Sale to pay debts or expenses: If the estate lacks sufficient liquid assets to pay debts, a sale of real estate to satisfy debts or provide distributions normally requires court authorization and proper notice to interested parties.

5. How to request and obtain court approval for a real estate sale

Prepare a petition or motion asking the probate court to authorize the sale. Explain why the sale is necessary, list the property, state how the sale price was determined, and disclose any interested-party relationships (e.g., if a beneficiary is the buyer).
Provide notice to all interested parties (heirs, devisees, creditors) as required by statute and court rule so they have an opportunity to object.
If the court approves, it issues an order authorizing the sale. The personal representative then signs the deed and completes the sale. Record the deed with the county recorder as required to transfer title.

6. Practical issues when the will appears outdated

Multiple wills: If more than one will is presented, the court will evaluate which will is valid (later valid will usually supersedes earlier ones).
Changed asset list: If the will references property that is no longer owned by the decedent (e.g., sold before death), the court and personal representative will identify the current assets and distribute the estate according to the will and Idaho law.
Missing beneficiaries or predeceased beneficiaries: If a beneficiary named in an older will died before the testator, Idaho law governs substitution or lapse and any anti-lapse rules that apply.

7. After the sale — closing the estate

Use sale proceeds to pay funeral expenses, taxes, creditor claims, and administrative costs.
Prepare an accounting for the court and beneficiaries if required.
Ask the court for final discharge of the personal representative once all tasks are complete and the beneficiaries have received their distributions.

When to get a lawyer

Talk to an Idaho probate attorney if any of the following apply:

There are competing wills or questions about revocation or validity.
Heirs or beneficiaries might contest the probate or a proposed sale.
The estate is complex (real estate in multiple counties, significant debt, or tax issues).
You need help drafting the petition to sell real property, or a buyer is an interested party.

Helpful hints — practical checklist to move forward

Locate the original will and any later testaments or codicils. Courts prefer originals.
Collect ownership documents for the property (deeds, mortgage statements, title reports).
Search for beneficiary designations and joint ownership that might transfer property outside probate (joint tenancy, beneficiary deed, TOD/POD accounts).
Make an initial asset inventory and estimate debts so you can explain why a sale might be necessary.
Prepare a simple timeline and list of potential interested parties (spouse, heirs, creditors) to include with your petition.
If you plan to sell to a family member or someone connected to the estate, disclose the relationship to the court and be prepared for extra scrutiny or requirements (e.g., independent appraisal).
Keep organized records of notices sent, appraisal or listing information, offers received, and court documents—these will be needed for any accounting.
Contact the county recorder where the property sits to confirm any local requirements to record probate-related documents after sale.

Key Idaho resources

Idaho Code, Title 15 (Probate and Trust Code): https://legislature.idaho.gov/statutesrules/idstat/Title15/
Idaho Supreme Court and Judicial Services (court information and local forms): https://isc.idaho.gov/

If you want, provide brief details about the estate (is there an original will, are there multiple wills, is the property jointly owned, are there mortgage liens, and which county the property is in) and I can outline the likely first court filings and documents you will need to start probate in Idaho.