Wills and Probate Questions & Answers
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 have a will?
If you do not have a will, any property that is not transferred by other means (for example by joint ownership, a trust, or designation of a beneficiary) is distributed under Iowa's probate laws in the following order:
• Spouse and Children. Your spouse will receive all your property if you either have no children or all of your children are also your spouse's children. If you have children from a previous marriage, your spouse will receive a portion of your property with the rest to be divided equally among your children from the previous marriage. If you have no spouse, your property will go to your children. If a child has died, that child's children will share the child's share, and so on down the line.
• Parents. If you have no spouse or descendants, your property will go to your parents.
• Brothers and Sisters. If you have no living spouse, children or parents, then the estate goes to your brothers and sisters, then your nieces and nephews, etc.
• Other Relatives. If none of the above relatives are living, 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.
• State of Iowa. If there is no one in any of the above groups, then your estate goes to the state of Iowa.
What are some advantages of a will?
Advantages include the ability to:
• keep full control over your property until your death,
• make specific gifts either directly or by referring to a written list,
• nominate a guardian for minor children,
• create a trust for minor children,
• name who you want to administer your estate,
• avoid a bond, and
• lower taxes.
How do I make a will?
To make a valid will in Iowa, you need to do the following:
• put it in writing;
• signed by you, or by someone signing your name in your presence and at your direction;
• witnessed at your request by two competent persons;
• 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. You do this 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 made 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 you lived at the time of execution.
How can a will be revoked?
You can revoke a will by executing another will or by revoking or cancelling your will with the intent to revoke it.
When should I change my will?
You should review your will for possible changes if:
• you change your mind about who you want to inherit your property,
• you get married or divorced,
• your child, grandchild or other person is born, adopted or reaches the age of majority
• your spouse, child, or other beneficiary dies or has a serious illness,
• you have a substantial change in the size of your estate,
• you acquire property in another state,
• tax, property, trust or probate laws change, or
• you move to another state.
Must a will be probated?
Probate is an official court process which does the following:
• allows the transfer of 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.
• allows your will to be established as your official will.
• 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.
• distributes funds in an account of a bank or other institution when 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.
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 $50,000 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.
For additional information on wills, probate and other issues of importance to older Iowans, please contact the Legal Hotline for Older Iowans at 1-800-992-8161. The Legal Hotline for Older Iowans is a project of Iowa Legal Aid.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
- Call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161.
- Apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.