§ 15-2-405 — SOURCE — DETERMINATION — DOCUMENTATION — MISCELLANEOUS PROVISIONS

If the estate is otherwise sufficient, property specifically devised, including the provisions pursuant to section 15-2-513, Idaho Code, may not be used to satisfy rights to the homestead allowance or exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance or exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there is no guardian of a minor child. The personal representative may execute an instrument to establish the homestead allowance or exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief. Despite any language to the contrary in this chapter, the homestead allowance and exempt property are not mandatory or automatic, but rather must be applied for by the surviving spouse and/or children, as appropriate, as set forth in this title. Even though the allowance and the right to apply for exempt property are not claims against estates, the manner of and time period for applying for the allowance or the exempt property shall be the same as set forth in sections 15-3-801, 15-3-803 and 15-3-804, Idaho Code; provided however, that the personal representative shall not be required to give actual notice to a surviving spouse or a minor or disabled child of the right to apply for the homestead allowance or the exempt property, and provided further that any notice actually given by the personal representative does not need to make any additional or special reference to an application by the surviving spouse or minor or disabled or adult children also being barred if not submitted within the time period set forth in the notice. Also, the personal representative shall not be liable to the surviving spouse, minor or disabled or adult child, any creditor, or any other successor to the estate in the same manner as provided in section 15-3-801 (c), Idaho Code, as a result of giving or failing to give notice. The homestead allowance and exempt property may not be enforced or applied for on behalf of a surviving spouse or a minor or adult child of the decedent by a creditor of the surviving spouse or a minor or disabled or adult child of the decedent, or by any person or entity claiming by, through, or because of the surviving spouse or minor or disabled or adult child of the decedent. Despite any language to the contrary in other sections of this chapter, the homestead allowance and exempt property do not take precedence over reasonable administrative costs and expenses of the estate of the decedent.

Legislative History

[(15-2-405) 15-2-404, as added by 1971, ch. 111, sec. 1, p. 233; am. and redesig. 2001, ch. 294, sec. 6, p. 1042; am. 2004, ch. 123, sec. 4, p. 414; am. 2008, ch. 182, sec. 5, p. 550.]