Should you enter probate alone?


Why Probate?

Probate is a court-supervised procedure for transferring assets of a deceased person.   

Certain assets must go through probate under Iowa law.  Assets that have to be transferred through probate are property that was in sole ownership of the deceased person with no named beneficiary or payable on death certificate. A few examples are a house with a single owner, single ownership bank accounts with no payable on death certificate and investment accounts with no named beneficiary.

Probate can be a good thing if there is concern among family members that a will will not be followed or real estate may be sold at less than market value.

What does an attorney do? 

An attorney represents the executor for the estate.  The attorney files a petition with the court to open the estate, approve the will, and appoint an executor.  The attorney publishes notice of probate in the paper and mails notice to creditors.  The attorney is responsible for applying for clearance from Iowa Medicaid and the Iowa Department of Revenue.  The attorney files an inventory of the estate and gives notice to benefiaries if there is a will, or to heirs if there is not a will.  The attorney oversees the accounting of the estate like payment to valid creditors and receipt of liquidated assets.   The attorney is responsbile for filing a full inventory of the estate assets with the court and for filing certain reports required by law.

Why is probate necessary if there is a will?

If real estate is only in the deceased person's name, probate is required to transfer the real estate to the beneficiary in the will.  This may change in the future as the Iowa legislature, in 2017, proposed a bill to provide a transfer on death deed for real estate.  If a bank account is named only in the deceased person's name and it is valued at over $50,000, probate is necessary.  If there is a safety deposit box that does not authorize an indivdual access, the bank will require an appointment of an executor to access the safety deposit box.  These are a few examples.

How much will probate cost?

The court costs are calculated based on the value of the estate.  The larger the assets, the larger the estate.  The court costs do not consider the debts of the deceased.  The attorney is paid from the estate assets and Iowa law allows up to 2% of the estate for payment.  The executor may receive up to 2% of the estate for his or her administration of the estate. There are strategies, through estate planning with an attorney, that would allow under law or under contract for your assets to transfer without opening an estate in probate. This is called transfer “outside of probate”.