Probate Frequently Asked Questions

What Is Probate?

Probate is the process of transferring property by presenting a Last Will and Testament of a person after his/her death and to ask the court to have it admitted to Court supervise process, or by asking the Court to invoke the intestate process, for a person who does not have a Will. The Will  has no legal authority until it is admitted to the Court and approved as the Decedents Last Will.

If I Have a Will, Can I Avoid Probate?

The Will is used to start the Probate process. To be of any effect the Will must be filed and approved with a Petition to start the Probate process. If no one petitions the court to have the Will admitted  to probate, it will not start the probate process. But it will not transfer any asset unless the Will is admitted to the court and approved as the Last Will of the decedent. With a Last Will property only through the use of the Court system, and with its protection, can assets be transferred to the persons selected by the Decedent. If a person does not have a Will, assets can be transferred through the court probate process, called an Intestate Probate, to the heirs in the manner and the rules selected by the legislature.

How Long Does Probate Take?

Normal Probate can take as little as six to seven  months. Some very complex estates can take many years. During this time assets can be sold, creditors may get paid and the heirs may receive some assets or financial support. There is however a minimum time, usually 4 months, to give notice to creditors and heirs tax returns. During this time the fiduciary must gather and inventory assets, file and allow claims to be filed.

Is There a Time Limit To Start Probate?

In Iowa the process to file a Will should occur within 5 years of the death. However, it is advisable to start probate as soon as possible after a person passes. Iowa law states the probate process, starts with a petition to admit the Will and should be started within 5 years of the death. A delay in starting the  probate can result in loss of records and assets and could harm beneficiaries or creditors.

What Are The Costs of Probate?

The Court costs are based on the size of the estate, primarily. In Iowa, the executors attorney fees are to be approved by the court and must be a reasonable fee, with a maximum of 2% of the estate value of assets (excluding insurance) for ordinary services but in unusual situations, a larger fee may be allowed by the court (ie if there is a law suit involved or business to be managed or unusual tax problems).

Can a Probate Proceeding Be Challenged?

Yes, by an heir of the decedent or other interested person can contest the Will or the appointment of the executor, or both. The reasons for contesting a will include:

  1. Lack of Testamentary Capacity: the testator did not have the mental ability necessary to make a will
  2. Undue Influence: the testator was improperly influenced by a third party in making the will
  3. Improper execution of documents
  4. Fraud: The testator was induced by fraud to make the will
  5. Revocation: The will was revoked, either through the execution of a later Will, or by simply revocation of the presented will
  6. Forgery: The signature of the testator was forged

Does Joint Owned Property Go Through Probate?

Legal title transfers by joint ownership rules, not by the Will. But the property is listed in the probate inventory and may be managed by the fiduciary. Real estate owned by husband and wife jointly can avoid probate and goes to the surviving spouse directly. Usually a surviving spouse affidavit is used to clear title issues. So too joint bank accounts. Real estate owned as “tenants in common” does go through probate.

Do Accounts With Beneficiaries Go Through Probate?

IRAs, 401(k)s, investment accounts, bank accounts, and life insurance policies with listed beneficiaries transfer by the contract that established the beneficiary designation, but the property is listed and reported in the probate inventory. The listed beneficiaries need to submit a death certificate and fill out some forms in order to receive their money.

Do I Need an Attorney to Probate a Will?

While there is no requirement that an attorney probate a Will, it is generally advisable to hire an attorney to assist in the process. The process has unique rules and potential liability to the fiduciary who takes on the the job as Executor. He or she is best advised to have an attorney. An attorney will have the necessary experience and knowledge to expedite the process and avoid unnecessary expense and delays.

If I Hire an Attorney, Do I Need to Go To Court house ?

With a properly drafted Will many actions by the fiduciary may be able to avoid the Court. But the fiduciary will file written report s of the actions and must get approval of what occurs at the time the Final Report is filed. Even if a court hearing is necessary, the probate attorney will not usually require your presence in most cases, unless there is a contested matter (ie a lawsuit).

When Are Taxes, If Any, Due?

Iowa inheritance and estate tax if any are required to be paid in your estate matter, the tax return and tax payment will usually be due within 9 months of the decedent's death. The final personal income tax return of decedent is due by April 15th of the year following the decedent's death. The estate will also file a fiduciary income tax return. There may be other taxes, such as income taxes on distributions or IRA distributions, which may be due, and a qualified tax professional should be consulted.

What Are Ways I Can Avoid Probate?

If a person uses a Revocable Trust instead of a Will, the court supervised probate process can be avoided.

How to maximize social security benefits.

  • If you can afford to do so and are healthy, then you should consider:
    • Delaying the start of the benefits until you are at full retirement age (age 66-67 for most people). Delaying the start of benefits until you are age 70 years old will increase the benefits about 8% per year.
    • If you are married, you can do one of the following:
      • The higher wage earner can “file a restricted application” to get the spouse's benefit if, and while the spouse receives their personal retirement benefits; or
      • The higher wage earner at age 66 “files and suspends” that spouse's retirement benefits, and the lower wage earner spouse applies for their personal retirement benefit and spouse's benefits.
  • Claim your benefits while you are working if you are at full retirement age. If at FRA (age 66-67 for most people) you can continue to work and earn an income without a reduction of social security benefits. If you are younger than FRA, then you may lose $1.00 for every $2.00 of earned income in excess of the annual amount set by social security (2014: $15,480 for a single person, or $41,400 for a married couple).
  • You can have rental income, stock options, dividends, and interest or other unearned income without the loss of social security benefits.
  • A single person, never married, with a life expectancy of 75 years, you are likely to do better to take social security benefits as soon as possible when you are eligible (usually age 62-63). If your life expectancy is age 83 years or more, you are likely to do better by delaying the benefits until you are age 70. If your life expectancy is between 75 and 83, then the age to start social security benefits will be between age 63 and 69.
  • Children's benefits. If a parent dies, then each natural child, adopted child or step-child who is under the age of 18 years (or up to age 19 if a full time student) and unmarried, may apply for children's benefits of the deceased parent's retirement benefits. Receipt of the deceased parent's or step-parent's retirement benefits is subject to a family maximum. Receiving the benefits by the child does not decrease the surviving parent's right to receive spousal benefits if the surviving spouse is eligible.

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