What is "Probate" for an Iowa Estate?
"Probate" is a term that is often mentioned (well, maybe not often) but many people don't understand what it really involves. Probate is the legal process where, through a court-supervised system, a deceased individual's assets are transferred to their rightful heirs/beneficiaries; taxes are paid; and debts/claims are handled. The probate process also includes the validation of a will.
It is not necessary to have the attorney who drafted the will handle the process. The "administrator" or "executor" can select whatever attorney they choose. The administrator or executor is the individual appointed by the court to handle the various steps in probating an estate.
In Iowa, the probate process primarily consists of 5 stages.
- The filing of the initial set of documents to open the estate.
- Publication of notice in a newspaper for filing of claims and giving notice to heirs and creditors.
- Waiting the time period for the filing of any claims or contests to the will.
- Filing of the report and inventory and payment of taxes.
- Distribution to beneficiaries/heirs and discharge of the executor/administrator.
Every state is different in how the probate process is administered and you should contact a knowledgeable attorney to handle the probate process. Feel free to contact me if you have any questions about the probate process in Iowa.
I am the Personal Representative of my father's estate, who was a resident of the state of Washington. I am the only heir. I am in the process of closing his estate by doing it myself without an attorney as it is a simple estate. However he does have real estate in Iowa and I need to transfer the title into my name. I did run an ad for 6 weeks in the local newspaper in Chariton Iowa for probate purposes. Is transfering the title something I can do myself?
To transfer that real property in Iowa, assuming it was solely in your father’s name, you will need to go through ancillary probate in Iowa through the courts. It is something that you can do yourself, however I strongly recommend getting legal counsel to assist.
I'm the sole inheritor and executor of my significant other's small estate. My lawyer is charging me not only for phone calls made to him by my deceased partner's children, which I did not authorize, but also for documents prepared and sent to them, namely copies of the newspaper article required to be run two times as well as the iinventory of the estate. Is it required by law that they be so notified? That I should have to pay for their phone calls at $175 an hour seems outrageous. Do I have any legal grounds for protesting either of these charges?
By statute, there is a ceiling for attorney fees (based on the size of the estate) and they have to be approved by the court before they can be paid. If he is charging you now for that work without court approval, he is in violation of the probate rules. At the court hearing on his fees, you can protest and object.
Having said that, charging for phone calls, letters, etc. is not unusual as the only thing we can charge for is our time, and those things do take time. Rather than have him deal with those requests, you as the executor can handle them and you can request that he direct all inquiries to you so that you don't get charged for those communications. That may result in some tension, as I'm inferring there may not be the best relationship with your partner's family.
Also, yes, there is an obligation to notify the "heirs" (children or parents) of the proceedings. I don't send out any other information to heirs other than a notice, unless the executor authorizes me to do so. The will, inventory, etc. are public record and family can use their own dime to get that information...if that is the route the executor wants to take.
My sister is the executor for my parent's estate. There are three sisters total. She has changed the locks on the house and will not give my sister or I access to the property which was our childhood home and will be divided between the three of us. Can she do this?
Thank you
As the executor, it is her legal responsibility to "marshall" (get control) all of the estate assets to make sure they are protected, inventoried and eventually sold or distributed for the beneficiaries/heirs and creditors. She will have to account for the assets under her control. It is not uncommon to do this to prevent someone from taking more than they are entitled to or to prevent fighting over the assets that are removed. Hope this helps.
My aunt died in may of 2008. She had a WILL in place and probate has opened. I am wondering what the process is in Iowa for the probate when there was a legal will in place and what is the usual time frame. The lawyer told my grandfather that they cannot do anything until four months from her death is this true?
The average time-frame for probate is about a year. This is dependent upon the efficiency of the attorney, the cooperation of the family and the cooperation of the executor/administrator. The four month period of the "freeze" is actually four months after the date of the second publication of notice, not death. Basically, during this 4 month period the freeze protects the executor from personal liability should they disburse assets, then you have a creditor come out of the woodwork and not have sufficient assets to pay a claim or the assets are paid to the wrong beneficiary.
Hope this helps.
My father-in-law died and left a small to no estate. Six months prior to his death his wife died and left a $10K life insurance benefit which had not been paid when he died. We want this money paid directly to the funeral home. The insurance company would like a Small Estate Affidavit to release the the funds to the funeral home. We would like to file this form ourselves, however, my father-in-lwa left a house which we gave back to the bank becasue the mortage was more than the value of the home. Can we file the Small Estate Affidavit to get the funeral home paid or does the $10K need to go to the mortgage company?
My father died and left an old mobile home jointly owned with my sister, she sold it for $2000. to repay herself for the funeral and a few hundred dollars in his bank account which I am jointly listed on. I am going to pay his final utility bills and all that is left are 2 credit cards which total around $4000.00. He only had old furniture and dishes which we had to disposed of (none of it was useable). We can not pay an attorney to open an estate and do not want to be held responsible for his credit cards. The phone company wants an affidavit from the estate admin. (which there is not one)to release the capitol credits to one of us. How do I get this affidavit? Can I write one myself?) And what happens if we do nothing about his estate?
My question is about the 2% attorney fee described in Matt Gardner's blog. Does the 2% refer to the value listed on the Report and Inventory filed, or is it 2% of the value of the estate determined by the sale of those assets? In the case of farm real estate sold by auction, the actual value may be substantially above or below the value listed on the inventory. The attorney for my husband's family estates filed an amendment when the actual value (determined by auction) increased over the inventory value, taking his 2% of the increased value, and then for my family estate, refused to file an amendment when the actual value (determined by auction) was considerably less than the value listed in the inventory taking his 2%
of the higher value listed in the inventory. Since the Iowa Code referred to in the blog only says 2% of the gross assets, my question is, 2% of what?
Marlene Miller
Our Mother died in October of 2007 in Iowa and everything but a co-op apartment in Phoenix, AZ that she owned outright was in her trust. She was not able to put the co-op in the trust because of the co-op's rules. It had been for sale 3 months before she died and when I, as executor of the estate, mentioned the co-op to the lawyer who drew up her trust, nothing was said about taking it off the market after her death. The co-op has never sold. Are we legally able keep it up for sale, or do we have to go through probate? The price is under $35,000 and somewhere I read that property under a certain dollar amount is exempt or can be easily transferred with a simple affidavit. If we need to go through probate with it, do we have to get a lawyer in Arizona, or can an Iowa lawyer do it since she was a legal resident of Iowa and only spent winters in Phoenix? Thank you.
My Aunt wishes to leave her farm in Iowa to her Grandson. She has 3 living children and one son has predeceased her (he has two children) She wants her grandson to pay the heirs (children) for their share of the farm after her death. It appears to me that the children will inherit the farm and then sell it to the grandson for a set price they have agreed upon. Can she dictate the sale in her will? The children all agree that the farm should be sold. Can she force the sale to her grandson? Will this need to be probated?
If the farm is just in her name at her death, then yes, it is likely necessary for probate. As to the question on forcing the sale of the farm, she could make the gift contingent upon entering into a sales agreement with the other family. Or, she could leave the farm in trust, avoid probate and give instructions to the trustee on selling the farm.
My mother died, a resident of Texas, in August of 08. In her will she left a farm located in Iowa to me and my sister 50/50. My sister and I are both residents of Texas. Her will was probated in Texas and I am the exector. The farm has a value of over $500,000. To transfer the title, is it necessary to probate the will in Iowa ?
My Uncle died in October 2005 and my aunt (his wife) died the next year. They had no children. I am one of four beneficiaries (nieces and nephews) of the estate. The majority of the estate has been distributed, but there are still loose ends to tie up, according to the estate attorney (executor), so it has not been finalized. It's been over three years since my uncle died and over two since my aunt died. Isn't this unusual? The attorney is very arrogant and has not been helpful to us at all. What can we do to get this estate finalized? It's terribly insulting to the memory of my uncle who befriended and trusted this attorney. What can I do? We all just want this thing to be over and done with!
We have an attorney in Iowa who wishes to list an deferred annuity as an asset to probate. (Annuitant is deceased).
Am I correct in the fact that a annuity with a properly noted beneficiary or beneficiaries in Iowa is able to bypass probate and go direct to the named beneficiary as would a life insurance policy?
While the annuity may not be subject to probate court jurisdiction and bypasses probate, it will still be listed on the report and inventory that is filed in the probate proceedings.
My mom passed away and my dad is the surviving spouse and everything was held jointly and he is the beneficiary of the life insurance policy ($1K face value) - we shouldn't have to go through Iowa Probate for that should we?
My mom passed away and my dad is the surviving spouse and everything was held jointly and he is the beneficiary of the life insurance policy ($1K face value) - we shouldn't have to go through Iowa Probate for that should we?
Kris
Assuming we're talking about Iowa and from what you indicated, it probably is unlikely that you'll need to go through probate given the assets are passing outside of the probate process. However, if there were creditors involving your mother only, probate gives the opportunity to pull those creditors out and potentially dispense of their claims, if any. Also, depending on the estate tax exposure and your father's financial situation, there may be reasons to examine using a disclaimer to have assets "skip" your dad as the beneficiary and be redirected elsewhere.
After a person dies, is there a time limit as to when the will goes into probate or is filed in the state of Iowa?
My recently deceased mother left a will naming me as her executor. I have two brothers. She left several CDs that were TOD accounts and those have already been divided and distributed to my brothers and me by the local bank and a financial securities firm. At the time of death she has been renting an apartment for 10 years and owned no property of any type. The only asset was her checking account. The bank has allowed me complete control over that account and the plan is for me to wait about 6-9 months to make sure everything is clear before writing three equal checks to be distributed to my brothers and myself before closing out the account. Question: Though my mom's attorney suggested this plan should work just fine others have suggested that there has to be an estate filed. The bank seemed comfortable with all of this but how about the courts? Will I need to feed that system or can we just call this process over and done with?
Mother died in Iowa March 2009. I was named executor but declined. Estate not opened. Credit Union which holds mortgage on her house does not want to expend the time and effort to remove her things and offered to let us enter property and clean out home. We all live out of state and declined. Now the credit union is saying we (or I) could continue making the house payments and live in the home. They don't care who's paying - just so it's paid. Home needs many, many improvements/repairs before sellable. She has many judgement liens against home for unpaid credit cards. I was told creditors within 5 years could force property into probate but most likely wouldn't. Am I facing any type of risk by making the house payments and living in the house? Could I get the title transferred several years later without probate? I don't want to break any laws but if it is merely a waiting game I would take the risk. Home was valued at $86k, balance on home $43k. Liens - unknown. Thanks for any advice.
my brother passed on april 2nd. He has 1 child 18 yrs. The only asset he had was a checking account that has 2400.00 in it and a car worth $1,000. (No realestate) He owes credit card debt in the amount of $5,000 between 3 cards. Do we need to go thru probate?
You don’t indicate your state, so this information is only relevant to Iowa. No, probate is not required for non real estate assets of that dollar amount. However, to get the property (bank and car) out of his name will require a specific affidavit. The creditors would be entitled to be paid for the debt, but they may just ignore it as it is probably not worth pursuing for them. If you were to recover those assets, it is possible that the creditors could ask for that in the future. However, I wouldn’t pay any creditors without going through probate as you don’t know how much to pay them and you may not know about other creditors that may be out there.
My father lived and passed away in Iowa about April 15, 2009. My brother has confiscated all of his property such as a car and apartment contents, and safe deposit box items which supposedly included some cash and a copy of my father's will. My brother is keeping the will a secret and is not telling any family members what property or assets were present at the time of Dad's death. He claims it is his privilege as he says he is named executor in the will.
What do we as the other surviving children need to do to make sure my Dad's valid will actually gets disposed of according to Iowa law? Specifically, if we need to do anything such as filing claims or petitions with the court, what are the filings needed and what are the deadlines for those filings? How do we make sure the property and the will are not simply brushed under the rug and diverted to my brother's personal use?
Any info is appreciated. We are afraid of missing any deadlines or due dates. Thanks!
i am a co-adminstrater with my sister in our mothers estate. i live in iowa, and my brother lives in nevada. there is a house and several vehicles as assets, plus other items. my sister wants to come to iowa and take the cars and other items back to nevada to sell, i do not want this to happen, i want to inventory everything and then sell from iowa if decided. do i have the right to not let her take anything out of state to sell?
It is possible that you may be able to prevent/object to the removal of assets from the state. Sometimes orders have requirements that the assets remain in Iowa in order to be subject to the court’s jurisdiction. You should consult with your attorney, if you have one. Finally, I’ll leave you with this section of the Iowa Code:
633.76 Two or more fiduciaries - exercise of powers.
Where there are two or more fiduciaries, they shall all concur in the exercise of the powers conferred upon them, unless the instrument creating the estate provides to the contrary. In the event that the fiduciaries cannot concur upon the exercise of any power, any one of the fiduciaries may apply to the court for directions, and the court shall make such orders as it may deem to be to the best interests of the estate.
A friend of mine who lived in Iowa the last 11 months passed away. Her assets are money in IRA, and other banks which is an amount of nearly 150 - 200k Will I need to go thru a probate and will I need to go thru it in Iowa only or any other state is ok?
What is the designated time period allowed for creditors to file any claim against an estate?
Terri-
A creditor has until the later of: (1) four months after the date of the second publication of notice in a newspaper or (2) 30 days after notice is mailed to them. However, like many matters in the legal world, there are exceptions to these rules and you should consult with a legal advisor for your specific application.
Arathi-
If Iowa was the permanent residence of the friend, you need to go through probate in the state of that residence. If there is property in another state, you may also need to go through ancillary probate in that state as well.
My father, an Iowa resident passed away in May. I'm an Indiana resident... My sister, an Iowa resident ( half sister) was appointed administrator with my blessing. The only legal documents I have received as an heir was a copy of the notice to creditors (P-224). Do I as an heir need to take any action to assure myself of any inheritance due to me? Is this form sent to heirs as well as creditors? Do I need to take any action or file with the court clerk?
Thanks for posting on our blog. Very good (& common) question. You can always request copies of the court documents from your sister or the attorney or directly from the court. You can also go to www.iowacourtsonline.com and see what has been filed with the courts.
You are entitled to an accounting for all activity in the estate from the date opened until closed and they can’t close the estate until that you either approve it or waive it.
The form you received is sent to heirs and creditors alike. Assuming your sister doesn’t take the position that you aren’t not an heir and close the estate, you should be fine. In many estates, it is not uncommon for there to be little activity or reason for communications. In fact, for the first 4 months, there is a general “freeze” on estate activity until the assets and creditors are fully known. An estate takes about on average a year to probate.
When does a will become public record in Iowa? How would I obtain a copy at that time? Thanks.
A will becomes public record in Iowa when it is filed with the clerk of court's death. By statute, if someone has possession of a person's will, they are required to file it with the clerk of court. Once filed, anyone can get a copy of it by contacting the clerk of court's office and paying any copy fees.
My wifes mother passed away. Does probate need to know about CD's in our childrens name if the are either OR. Also what moneys that are already inherited does probate need to know about.
Cliff-
Yes, in Iowa, all assets in which the decedent had an ownership interest should be disclosed on the probate inventory. When you say "already inherited", I'm not sure what you mean. If you referring to life insurance or another asset that was paid to a named beneficiary, then yes, that needs to be included. Joint assets need to be shown as well.
This is admittedly a presumptuous question to direct to an attorney, but here goes. In the case of a simple estate, consisting of one in-state condo, a checking account, three investment accounts, amiable survivors who are not going to contest anything, and no debts, is it at all possible for reasonably intelligent co-executors to go through the probate process without an attorney? If so, what references could be used to understand the process? Or is the process so complicated that passing Probate 101 in law school is absolutely necessary? What attorney fee is reasonable for something straightforward like this?
John-
Fair question. And a common question.
With the advent of the internet, you can pretty much do anything on your own. (Brain surgery, tax returns, vasectomy, etc.) Whether it is cost effective or creates long-term problems can be another issue. The process isn't necessarily that "complicated". The issue is knowing what steps are necessary, when are they completed and what are the requirements for each step. (For example, you have opening the estate, publishing proper notice and giving notice, filing the inventory with the court, handling the transfer/sale of assets, tax returns for the estate and closing the estate.)
The clerk of court won't be much help as they are instructed to not give legal advice. I'm not aware of any Iowa-specific probate DIY publications. The Iowa Code, which is available online and in libraries, provides some of the requirements but it isn't set out in an easy to follow "manual" form. I'm not trying to drum up business, but just being honest in that I'm not aware of a resource that guides you through the various steps. I've had clients that have looked at doing it on their own, but they always come back to me at some point, normally before they can get started.
Attorney fees is a fair question. If you've seen my other blog posts on our site and at www.iowaestateplan.com, you'll see many attorneys will charge based upon the size of the estate. (Iowa Code caps the amount at 2% of the gross estate). I charge the lesser of my hourly rate or the 2%.
Let me know if there is anything further I can do or if I can be of assistance. We handle probate matters throughout the state of Iowa and would appreciate the opportunity to be of service to you.
In Iowa how can a relative not be mentioned in a will, but according to the decendent still " provide for that nephew." In 1999, my Aunt who told me that I was not mentioned in her will but would still be provided for. Also she told me that she wanted my inheritance ( CDs ? ) to be passed immediately to me upon her death. She also had two letters which I saw in the enclosing envelopes also in 1999. I wonder if these were placed in her letters of instruction.
There are different ways in which someone can be "provided" for after one's death, but not actually listed in a will. Some examples include listing someone as a joint owner on an account or having them listed as a named beneficiary. Either of these result in property passing to someone else, regardless of a Will. However, there are tax issues to be aware of for Iowa decedents and this simplified "estate planning" can be dangerous.
Probate process in Iowa.
My father William G. Le Clair of Sioux City dies recently, September, and had left a will. I had asked my brother about it but I have yet to see it. How do I make sure that it has followed the proper probate process in Iowa? Which government agency do I need to contact.
Thanks,
Bill A. Le Clair
Bill-
Unfortunately, there is not a government agency that gets involved. Once a will is filed by someone, the state courts and judges oversee the process. If there is a will, it is required that it be filed with the court by the person that has the will. In order to make someone file it when they fail to do so, however, requires that someone take the step to get the court involved to push the process. In other words, you may be the party that will need to take the initiative.
Matt Gardner
Hello and thank you for your web site. My dad passed away in Iowa on Oct. 26, 2009 he said he left his will at my brothers home in Las Vegas and he has said several times he does have a will. We were in Iowa the last 4 weeks before his death he died from cancer. He was very high functioning and died in his sleep. We did complete a power of attorney for finiancial and all other issues before he passed and my brother went to the bank and signed his name onto the account. Howeever after we got off the plane on Monday the 26th just after leaving him hours before, were he seemed very strong we were told by hospice he had passed. My brother signed onto my fathers checking account with my father consent thru the power of attorney for all fininacial. Their is a very small amount of money in the accout the bank stated my brother could not take out any of the money or close the account without a will or being named the executor. My father had some stock and a vehicle (paid for) that is it. Can we get access with the power of attorney to his account without going thru probate their is no one to contest the will to our knowledge. My fahter was a resident of Waterloo Iowa.
I have a question my grandmother passed away in December 2008 and left a will and we have been dealing with a lawyer in Iowa. The lawyer is stating that there is a mandatory fee of 20,000.00 for lawyer fees and we are wondering if this a state regulation.
Thank you,
Jennifer Lalk
FALSE. The insinuation that there is a mandatory fee of 2% for attorneys is entirely inaccurate. On the Iowa Estate Plan blog, there is a post http://www.iowaestateplan.com/2007/08/iowa-attorney-fees-in-probate.html regarding attorney fees. The statute indicates that the 2% is the maximum, except in special situations. It is up to the court's discretion, but there is no regulation for a mandatory fee, until the court orders such a fee.
As to use of a power of attorney in Iowa after the principal (the person that signed the power of attorney), that power to the individual acting on their behalf ends upon death of the principal. For small estates, there is a procedure to use an affidavit post-death to transfer assets. (I'll blog on that soon.) However, you should certainly be aware of any debts out there, especially if the decedent received any Medicaid benefits during their life, or their spouse did.
My mother died in march she had an insurance policy w/ beneficiary to my deceased brother/ sister in law she had the insurance company pay the funeral expences and sent the balance to the 6 heirs of the estate. does she have to pay any tax. and should this money paid to the funeral home be part of the inventory report for us to pay as part of the gross estate Phil Burl. ia.
Phil-
If I'm following your facts, I believe that the balance of the insurance payments that were made to the 6 heirs are gifts from your sister-in-law, IF she was the beneficiary of the policy. If the estate was the beneficiary, then no gift tax. Gifts above $13,000 per individual, per year in 2009 are taxable. The insurance would also be included on the inventory for the estate, although who the beneficiary is would also dictate whether it is included for court costs and attorney fees. To fully answer your questions, I would need additional information. Please feel free to contact me to discuss.
My sister in law was just the beneficiary of the insurance policy she was not named in the will. Her son was because the will stated that my brothers children get his share. my sister in law says that it is no ones bussiness that the money she got should not be entered into the inventory report and the lawyer should not get 2% of the insurance money.So does an outside beneficiary have to disclose their money to the lawyer for the estate to close and should the lawyer get the 2%of that money (under $10,000) Thanks Phil Burl. Ia.
Phil-
That policy was an asset of the decedent and should be listed on the inventory. As to whether it is considered for the attorney's fee depends on the beneficiary designation of the policy.
Matt Gardner
My mother-in-law recently passed away and my wife is named general power of attorney in their will. She has two brothers. Her father, my father-in-law is in a nursing home with Alzheimers. They owned their home jointly at my mother-in-laws passing. Their attorney went to the nursing home without the consent of family to have my father-in-law sign papers removing my mother-in-law from the deed. My father-in-law has no understanding of what he signed. Is this legal and was it necessary to have my mother-in-law removed from the deed in Iowa?
Tim-
If your mother-in-law was on the deed, she can't be removed during her life without her consent. However, at her passing any ownership rights that she had passed automatically to her husband, with or without any documentation. There is an affidavit that can be filed which establishes that a joint tenant is deceased and provides record of the surviving joint owner. That may have been what was signed, but it is odd to handle it in that fashion.
If the estate is only worth approximately $4000.00, do we need to go through probate? He has no real estate and there is a will.
If the total estate assets are less than $25,000.00, and there is no real estate, you can provide an Affidavit for Distribution of Property to someone holding funds in order to have those funds distributed and not go through probate. However, probate also deals with who the heirs/beneficiaries are, if there is a question about that. Probate also deals with creditors that may be out there.