There are websites out there that sell supposed one-size-fits-all estate planning documents. However, each state has different rules so it is hard to imagine how you can have one document that would be applicable in all jurisdictions.

That being stated let’s look at some of the specific Iowa probate rules.

Very Small Estates

When you use a last will as your vehicle of asset transfer the estate generally must be probated, but there are some exceptions. Here in Iowa you may be able to skip probate by preparing an affidavit if the assets in question do not exceed $25,000 in value.

Simplified Probate

It is also possible for the executor or executrix of an estate here in Iowa to petition the court to allow for a simplified probate process. This is only possible if the gross value of the estate is not in excess of $100,000.

Full Probate Process

Other estates are subject to the full Iowa probate process when a last will is used to express the final wishes of the decedent.

Probate can be a time-consuming process, and the heirs won’t receive their inheritances while the estate is being probated. Challenges can be presented before the probate court, and this can slow things down even more.

There are expenses that go along probate as well, and these costs can erode the value of the estate.

Probate Avoidance

It is possible to use legal devices that enable asset transfers outside of probate. One of these is the revocable living trust. If you convey assets into this type of trust you can call the shots while you’re still living as you act as trustee and beneficiary.

After your death the trustee that you name when you execute the trust agreement distributes the assets to your beneficiaries according to your written instructions.

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Ryan M. Denman and Dennis D. Duffy

Duffy Law Office

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

An estate must pass through the legal process of probate, and during this process it is possible for interested parties to come forward to contest the validity of a last will.

If you want to contest the will you must have sufficient grounds. The mere fact that you feel as though you were treated unfairly by the decedent is not going to be enough.

Each individual has the right to leave behind his or her resources as he or she sees fit. Your relationship to the person who passed away does not inherently entitle you to anything if the decedent has executed a last will leaving you out.

There are however certain criteria that can be utilized to challenge a last will successfully. One of these would be the contention that the individual in question was not of sound mind when he or she executed the last will.

Another one would be undue coercion. For a will to be valid the testator must execute it voluntarily without being forced or coerced.

The third one of the grounds that we would like to highlight here is that of fraud. If it can be proven that the testator was lured into signing the will under fraudulent circumstances the document could be invalidated.

And finally, there is the matter of improper execution. If the estate planning documents are not executed in accordance with the laws of the state of Iowa they can be ruled invalid by the probate court.

This is one of the reasons why you would do well to avoid do-it-yourself, so-called “one-size-fits-all”  estate planning downloads that you can buy on the Internet. When you work with an estate planning attorney who is licensed in the state of Iowa you can be certain that your last will has been properly executed.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

When you use a last will to express your final wishes the administration of the estate is not something that is done privately.

The administration of the estate is supervised by the probate court that is local to the deceased individual in question. Probate provides individuals or entities who have outstanding business with the estate to come forward seeking closure. Anyone who wanted to challenge the estate could do so during the probate process.

Probate can delay the distribution of assets to the rightful heirs for months and sometimes years and complicate cases. There are also considerable expenses that go along with the process. Because of these pitfalls people do look for ways to avoid probate.

There is no law saying you have to use a last will to direct the future transfer of your assets. You may have heard of revocable living trusts, and one of the primary reasons why people use these trusts is to avoid the probate process.

If you choose to use a revocable living trust in lieu of a last will you do still have to include a type of will called a “pour-over” will. This document directs any assets that you may have left your personal possession at the time of your death into the trust.

Learn more about the value of a revocable living trusts we urge you to take a moment to download our free report on the subject. If you click this link and fill the form that you see on the right we will send you access to this valuable free report: Iowa Living Trust Report

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Myth 1: Probate will take years and cost a lot of money.

While there are some probate cases that do end up taking a lot of time and money, the vast majority are simple affairs that proceed smoothly and efficiently through the courts. Also, there are more than one type of probate proceeding, and all states allow for at least one type of simplified or summary probate. If you’re worried about probate taking a long time or a lot of money, you can take steps to simplify your estate so you minimize what goes through probate.

Myth 2: Everything I own will have to go through probate.

Some of your property does not have to go through probate before new owners can have it. If, for example, you have a transfer-on-death bank account, or a bank account owned in joint tenancy with a right of survivorship, this property is not typically subject to probate transfer. You may also try to avoid probate by transferring your property to various kinds of trusts.

Myth 3: Your executor will have power to do anything he wants.

While your executor or estate administrator—the person who handles your property after you die—has a lot of power, one thing that is a definite no-no is the executor using his position for his own benefit. Executors are fiduciaries, meaning they have a legal duty to do what is in your estate’s best interests. They have very specific rules they have to follow, and if they don’t, they can get into a lot of trouble.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

In most situations, joint ownership is just not a good idea and we’ll discuss that below. But, first, we want to emphasize that joint ownership doesn’t really avoid probate.

Joint Ownership May Delay Probate, but it Doesn’t Avoid It

Joint ownership may delay probate, but it won’t avoid it.  Here’s an example:

Meghan and John put their assets in joint names to avoid probate.  John died and the assets to Meghan without probate.

A few years later, Meghan died.  Because the assets formerly owned jointly were now in Meghan’s individual name, probate was guaranteed.

If you think, “Well, that’s okay.  When one of us dies, the other can do good estate planning then and avoid probate” consider this example:

Ruth and Kirk put their assets in joint names to avoid probate. 

They were both killed in a car crash and all assets went through probate.            

Joint ownership only avoids probate if there is a surviving joint owner.  And, as we illustrate in the Meghan and John example, joint ownership only really delays probate.  There is no probate avoidance.

How to Avoid Probate

For many people, the best way to avoid probate is with a fully funded revocable living trust. The trust offers benefits and minimal real pitfalls; it does avoid probate for all assets that the trust owns. This is key. Your assets must be in the name of the trust to avoid probate.

If you own assets jointly, consult with a qualified estate planning attorney to determine the best way to completely avoid probate. Owning assets jointly won’t only often does not work.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Almost all of our clients want to avoid probate so they save time, money, and hassle; and, keep their private affairs private.  Here are 6 assets that absolutely avoid probate.

1. Revocable Living Trust Assets.  If your asset is titled in the name of your trust, it avoids probate, absolutely.

2.  Jointly Owned Assets.  If you own an asset as joint tenants, with right of survivorship, with one or more individuals (and you die first), the asset will avoid probate.

3.  Beneficiary Designation Assets.  If you own a beneficiary designation asset and name an individual or trust (not your estate) as a beneficiary, the asset will avoid probate.

4.  In Trust for Assets.  Assets that have the “in trust for” designation, absolutely avoid probate.  You still own your asset, but it has a beneficiary named.

5.  Pay on Death Assets.  Assets with a “pay on death” designation, avoid probate.  You own your asset during your lifetime, but a beneficiary is named.

6.  Transfer of Death Assets.  Assets with a “transfer on death” designation, avoid probate just like the “pay on death” version.  Name an individual or trust beneficiary.

These are 6 types of assets that avoid probate, absolutely.  However, but for the revocable living trust, each of the other 5 assets have significant pitfalls.  The most significant of which are loss of control and the unintentional disinheritance of children.  Consult with a qualified estate planning attorney to ensure you may good choices.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Avoiding probate is a common goal; many clients walk in the door with avoiding probate as a priority.  We can definitely avoid probate, but won’t recommend that you use jointly owned property to do it.  Owning property as joint tenants with right of survivorship is fraught with problems; and, there are other ways to avoid probate.

The best way to avoid probate is with a fully funded revocable living trust.  With the help of a qualified estate planning attorney, you design, draft, execute, and fund the trust.  The title of your assets (excepting qualified assets) is changed from your individual name or from joint names to the name of your trust.

Qualified assets are your tax deferred retirement assets; changing the tile of qualified assets accelerates all of the income tax.  Yikes!  Don’t do that.  Your estate planning attorney will give you specific instruction on how to fund your assets into your trust.

Regarding retirement assets, you do name your trust as the beneficiary of your retirement accounts.  This doesn’t change the title and it doesn’t accelerate income tax.

The title of life insurance policies can be transferred to the trust; and, be sure to change the designated beneficiary of the policy to your trust, as well.

Jointly owned property is NOT the best way to avoid probate because:

• It only avoids probate on the first death.  Probate is guaranteed at the second death, if there’s not good planning.
• Joint property often disinherits children and always disinherits children from a previous relationship.
• Jointly owned property can be seized by your joint owners’ creditors or divorcing spouse.
• It’s a loss of control.
• Your joint owner can force sale of the property.
• Your joint owner could take all of the assets out of the account; he or she owns 100% of the total assets, as do you

Wanting to avoid probate is completely normal; but, avoid probate with the help of a qualified estate planning attorney, not jointly owned property.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

When you serve as executor and probate an estate, there are many new responsibilities.  Understanding these probate terms will make your job much easier.

Administrator – the person who carries out the duties of the executor if the decedent died without a will

Bequest – an old term used to describe personal property transferred in a will

Estate – everything the decedent owned at death

Estate taxes – taxes assessed at death based upon the value of the decedent’s estate

Executor – the person who probates the decedent’s estate; the executor gathers, manages, and distributes estate property, pays last bills and taxes, and deals with the probate court.

Decedent – the person who died

Devise – an old term used to describe real estate transferred in a will

Inherit – to receive property from a decedent

Intestate – the decedent died without a will

Intestate succession – the state dictated method for distributing the decedent’s assets if he died without a will.

Issue – direct descendents of the decedent (i.e. children, grandchildren, and great grandchildren)

Letters of testamentary – the document, issued by the probate court, which authorizes the executor to administer the estate (i.e. probate the estate)

Minor – any person under the age of 18

Personal property – all property other than real estate

Pour-over-will – a will that is executed in conjunction with a revocable living trust.  The only beneficiary of the will is the trust.

Pretermitted heir – a child or the grandchild of a deceased child who is not named in the will.  Most states presume that the decedent wanted to provide for all of his children, so if the child is not mentioned, he is entitled to receive his fair share.

Probate – a court proceeding required to settle an estate wherein the court validates the decedent’s will, the executor is appointed, debts and taxes are paid, and assets are distributed to named beneficiaries.

If you have questions about serving as executor or probating an estate, consult with a qualified estate planning – probate attorney.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.