Helping you solve the problems of probate

Can you avoid probate in the first place? YES!

Can you survive probate if you have to do it? YES!

Will you need help? YES!

Will you know how much it will cost? YES!

 

What is Probate?

Probate is a court-supervised procedure for transferring assets of a deceased person if the assets don’t transfer by law or contract.   

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 a probate 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?

It depends on the assets of the decedent and how they are titled. If real estate is only in the decedent’s name, probate is required to transfer the real estate to the beneficiary in the will.  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 are stocks certificates, traded on the stock exchange, and they are owned by the decedent without a transfer on death designation, then probate is necessary for the transfer even if the will states who inherits the stocks. These are a few of many examples.

When is probate not necessary?

This depends on each individual situation and this information relates to Iowa law. In general, if there is a joint account holder, joint tenant, payable on death designee or designated beneficiary for all of your assets, then probate is not necessary. If you have an account that is soley owned by you that is valued at less than $50,000.00, there is a small estate affidavit that can be used by your heirs to transfer the asset without court-supervised probate. This is not a guarantee and the laws changes so it is best to have a plan for asset transfers at death.

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”.

Do you have to go through probate?

If there are assets of the decedent that do not transfer by law or by contract, then they have to go through court-supervised probate to transfer to the rightful beneficiary in a will or an heir under Iowa law. A common, yet unfortunate, example is when a spouse owns a home and the deed is in the name of the spouse who dies. If the decedent’s will leaves the home to the surviving spouse, but that person is not on the deed to the house, it can only be transferred by court-supervised probate.