Do You Need a Will?
What happens to my property at my death?
When people living in Iowa die, their property is transferred to other people in one of four ways:
- Through joint ownership, such as owning your home or bank account with another person as joint tenants with right of survivorship;
- Through a trust;
- By designation of a beneficiary, such as in an insurance policy or an individual retirement account; or through an account that is payable on death to another person;
- Under Iowa's probate laws, either when you die testate (with a will), or intestate (without a will).
What is a will?
A will is a document that allows any person of sound mind, who is 18 years of age or older, to dispose of all of their property at their death, if the property is not distributed by other means.
What happens if I do not make a will?
- If you do not arrange before your death for all of your property to transfer through joint ownership, a trust, or designation, then your remaining property, called your probate estate, automatically becomes subject to the probate laws when you die.
- Iowa's probate laws generally allow you to control who receives your property by executing a valid will.
- If you do not have a will, Iowa's probate laws distribute your estate as follows:
- If you are married, and you either have no children or all of your children are also your spouse's children, then your spouse will receive all of your property.
- If you have children who are not also your spouse's children, then your spouse will receive all of your exempt personal property that was owned by you as the head of the family, and one-half of all other real and other personal property. If this property does not equal at least $50,000, then your spouse will receive additional property to make the spouse's share equal to at least $50,000. The remaining property will be divided equally among your children.
- If a child has died, that child's children will receive the child's share.
- If you have no spouse when you die, then all of your property will go to your children in equal shares. If a child has died, that child's children will share the child's share, and so on down the line.
- If you have no descendants, then your estate goes to your parents. If you have no living parents, then the estate goes to your parent's closest descendants; i.e., first your siblings, then your nieces and nephews, etc. If there are no such relatives, then the estate goes to your grandparents and down from there. If you have none of these relatives, then your estate goes to the descendants of your deceased spouse. If there are no such descendants, then your estate goes to the state of Iowa.
Who must comply with the terms of my will?
With five major exceptions, everyone is bound by the terms of your will, and your estate must be distributed in the manner provided by your will. The five exceptions are:
- Your will controls how your estate is distributed only if it is a valid will. If a person contests the will and is able to show that it is not valid, then your estate will be distributed in the same manner as if you had not executed a will.
- Debts and charges of your estate must be paid to creditors, even if the payments would deplete your entire estate. Debts would include the cost of your funeral and last illness, medical or nursing home bills paid by Medicaid and all other personal and business debts.
- Your spouse does not have to accept the specific gifts contained in your will. Instead your spouse may elect against the will and your spouse will receive all of your exempt personal property that you owned as the head of a family, and approximately one-third in value of all other real and personal property that is not necessary for the payment of debts and charges. Your spouse must elect against the will in a timely manner or it will be presumed that your will controls the property given to your spouse.
- If you fail to provide in a will for your children that are born or adopted after the making of the will, then such children shall receive shares in the estate equal in value to what they would have received if you had died without a will, unless it appears from the will that the children were intentionally omitted.
- If you get divorced after making a will, then provisions of the will in favor of your ex-spouse are revoked unless you remarry your ex-spouse. If your spouse dies after you make a will, the provisions in the will giving the spouse part of your estate become ineffective, unless the intent is clear and explicit to the contrary.
What are the advantages of having a will?
Distributing your property through a will allows you to retain full control of your property until your death.
- Placing your property in a trust or in joint ownership may allow you to avoid probate, but providing for the transfer of your property in these ways may restrict your complete control of your property.
For example, if you place a child's name on your bank account as a joint tenant with right of survivorship, then the child has the immediate right to withdraw all of the money in the account and is not required to wait until your death to withdraw money. A will allows you to make specific gifts to individuals, such as specific items of jewelry, heirlooms, furniture, money or other property.
- Without a will, your property will be distributed in the manner determined by the administrator of your estate and approved by the court. No written or oral instructions that you may leave need to be followed if they are not part of your will. Your will may refer to a written statement, letter, or list of certain items of tangible personal property which are to be given to certain people. Iowa's law allows you to change those statements, letters, or lists from time to time without executing a new will, as long as the lists are specifically referred to in a will.
- A will allows you to nominate a person to serve as a guardian for any of your minor children. Without a will, a court will probably appoint a close relative as a guardian, who may be someone you would not want to be the guardian of your children.
- A will allows you to establish a trust to defer distributions of your property to minors. Without a trust, your minor children would be entitled to their share of your estate once they obtain the age of 18. Trust provisions can be placed in a will to defer these distributions until they are older than 18.
- In the absence of a will, the court will require a fiduciary bond to be posted by the administrator or executor of your estate. The cost of the bond will be taken from your estate, thereby reducing the value of your estate.
- A will allows you to nominate a person to be the executor of your estate.
- A will allows additional expenses to the estate to be avoided by streamlining the administration of your estate.
- A will can allow you to distribute your estate in a manner that can generate substantial tax savings which would not be possible if your estate was distributed according to Iowa's probate law.
- A will can direct the responsibility for payment of taxes by the estate before it is distributed.
How do I make a will?
To make a valid will in Iowa the following requirements must be met:
- It must be in writing;
- It must be signed by you, or by someone signing your name in your presence and at your direction;
- It must be witnessed at your request by two competent persons;
- You must declare to the witnesses that the will is your will;
- You and the witnesses must sign in the presence of each other;
- You must have the capacity to make a will and must be at least 18 years old.
- Although not legally required, you should make a will "self-proved" at the time it is made by signing, with the two witnesses, affidavits that describe how the will was executed. Then it will not be necessary to find the witnesses and have them testify about the execution of the will when the will needs to be proven.
- Although you are not legally required to have an attorney write and help you execute a will, the assistance of an attorney can help ensure that the will is valid and your estate will be distributed as you desire.
- If you executed a will outside the state of Iowa, it remains valid if it is in writing, signed by you, and was executed in the manner prescribed by the law either of the place where you executed it or where your domicile was at the time of execution.
How can a will be revoked?
- A will can be revoked by being canceled or destroyed by you or at your direction, with the intention of revoking it.
- You can also revoke a will by executing another will. A will that is revoked by cancellation must be witnessed in the same manner as in the making of a new will.
- You cannot revive a will which has been revoked except by re-executing the will or by executing another will or codicil.
When should I make a will?
Prudent persons should periodically review and update all of their legal documents. Wills should be made or changed, or at least reviewed for possible changes, when the following events occur:
- You change your mind about whom you wish to inherit your property.
- You get married or divorced.
- A child, grandchild or other person whom you might wish to make a beneficiary is born, adopted, or reaches the age of majority.
- A spouse, child, or other beneficiary of your will dies, becomes disabled or has a serious illness.
- You have a substantial change in the size of your estate.
- You acquire property in another state.
- Tax, property, probate or trust laws change.
- You move to another state.
- You change who you want to be the executor, trustee or guardian named in your will.
Must a will be probated?
Probate is an official court process which serves the following specific purposes:
- It allows the transfer of clear title to real estate that you owned at your death which was not held in joint tenancy with someone else who had the right of survivorship.
- It allows your will to be established as your official will in order to dispose of your estate.
- It allows your estate to be distributed to your intended beneficiaries after the payment of all debts and charges against your estate, and cuts off further claims by your creditors against the property distributed. In many cases, it is not necessary to probate a will.
For example, if there is no dispute concerning your will and how your property is to be distributed, and if your estate contains no real estate to which title needs to be cleared, then the only reason to probate an estate is to cut off future claims of your creditors.
- If the beneficiaries of your will agree among themselves who is to pay your creditors, or if your creditors do not wish to make any further claims against your property, then there is no need to probate a will and your estate can be informally distributed among your beneficiaries.
- It will be necessary to probate your will if part of your estate contains funds in a account of a bank or other institution and the account is only in your name without a designation of beneficiary. If the account is held as joint tenants, then the surviving joint tenant can obtain the funds from the account without probate.
- An alternative to having an account in joint tenancy, while still avoiding probate, is to establish a payable on death (P.O.D.) account, which is an account on which you designate a beneficiary to receive the funds in the account and those funds are payable on death.
- A will does not need to be probated in order to transfer the title to a car or other vehicle since such a transfer can be done by affidavit.
- If you own real estate as joint tenants with your spouse, probate is not necessary to clear title to the property since there is no inheritance tax due on the transfer to your spouse. Your spouse will be required to prepare and sign an affidavit of surviving spouse that must be filed at the clerk of court's office in the county where the real estate is located in order to complete the transfer.
- If you own real estate as joint tenants with people other than your spouse, you will not be required to file probate, but you will need to receive a clearance of inheritance tax from the Iowa Department of Revenue and Finance.
- If you own real estate solely in your name, probate is required to transfer clear title to the property.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website . A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.