Probate Questions and Answers
Authored By: Legal Hotline for Older Iowans
Probate is the formal court process of distributing an estate at death. Probate is often necessary to transfer title to the estate's assets, settle claims of creditors, and resolve disputes between heirs or other people. Here are answers to some common questions about probate.
If I have a will, does my estate have to be probated?
Having a will does not determine whether your estate must be probated. The kind of property you own, how you own it, and whether there are claims against it usually determine if you must probate. Probate is not necessary if title to your property can be legally transferred in other ways and all parties can agree.
My estate is small, does it have to be probated?
The need for probate does not normally depend on the size of your estate. For example, if you are the sole owner of any real property, your estate will have to be probated so your heirs will have clear title to the property. This is true no matter how small your estate. On the other hand, if the size of your estate is less than $25,000 and you are not the sole owner of any real property, your estate may not have to be probated.
How long does probate take?
Most estates can be probated in less than one year. When an estate is probated, notices are given to creditors so they can make claims for payment. Estates must be closed three years from the date of the second publication of these notices. In some cases, a judge may approve keeping the estate open for a longer period.
How much can an attorney charge to probate an estate?
Iowa law says that attorneys and Executors can each receive $220 for estates less than $5000. For estates over $5,000, they can each receive $220 plus 2% of the amount over $5000. If the estate is complicated, a judge can order higher fees. You can also negotiate the fees to pay an attorney. If you negotiate a fee, you should do so at the time you hire the attorney. All fee arrangements should be in writing.
What are some alternatives to probate?
- Joint Tenancy. You can own property as joint tenants with right of survivorship so that your property will automatically pass to the other owner at your death.
- Use of Beneficiaries. You can also name beneficiaries on many kinds of property such as life insurance, IRA's, bank accounts and CD's. That way the property is distributed at the time of your death to the named beneficiary.
- Estate Under $25,000. If your estate is under $25,000 and does not include solely owned real property, your beneficiaries or heirs can generally have a special affidavit prepared that tells third parties how to distribute your property.
- Living Trusts. Living trusts are sometimes used to avoid probate. If a trust is used, your assets are transferred into the trust. When you die, the trustee distributes your property according to your directions in the trust.
If you have a large estate, you may need to do more extensive estate planning. It is important to understand different types of ownership and how each relates to the need to probate an estate. You should consult an attorney before making any changes to your estate plan.