Sunday, October 05, 2008

Compensation for Executor in Iowa Probate

In Iowa, the fee for the executor is set by the court and is based upon a state statute. Their fee is also based upon the size of the estate, as reported on the inventory filed with the probate court. Iowa Code section 633.197 provides that the personal representative (executor or administrator) fee shall not exceed $220.00 for the first $5,000 of probate assets, and then 2% on all assets over $5,000.00. All assets of the estate are included in the fee determination, with the exception of life insurance payable to others.

Any compensation received by a personal representative is taxable income to that individual. Thus, if a personal representative is a beneficiary, they may want to consider whether to waive their fee and thus increase their inheritance, which may be free of tax, or to take their compensation and pay income tax on that amount.

36 comments:

Anonymous said...

Do assets with beneficiaries need to be included in the estate for purposes of determining compensation for the Executor?

Matthew Gardner said...

It depends on the asset, but normally, yes. If it is life insurance payable to a named beneficiary other than the estate, it is excluded. Other assets with named beneficiaries (retirement, annuities, etc.) are included in the calculation.

Anonymous said...

The amounts you mentioned for compensation ie 220.00 up to $5000
etc is that an annual fee and what if there are two trustees? Do the courts allow additional compensation for especially contentious situations.

Matthew Gardner said...

For executors (you mention trustees), it is a one time fee. Some judges split the fee in 1/2, some may give each the full. There is a different fee structure for trustees. If there are extraordinary issues involved (litigation for example) the court can award extraordinary fees to an executor and the attorney. There are special rules to follow before extraordinary fees are granted.

Anonymous said...

My father recently passed away and had unsecured credit card debt in the amount of $2000. Should I pay that debt or accept my executor fee of 2% (which almost equals the $2000)? Then I likely pay tax on the $2000. His estate is close to being insolvent at this point after paying secured debt. Will the credit card co. just write it off if not paid?

Matthew Gardner said...

Anonymous-

Expenses of administration have a higher priority then the general creditors, so you might as well pay yourself your fee and the taxes. If there isn't enough funds to pay any other claims, the credit card company is out of luck on payment, but you should make sure the final order addresses that matter.

Anonymous said...

What can a person do if the lawyer and the exector of the estate request more than the percentage given by law.

Anonymous said...

Is the grose or net amount of the estate subject to compensation of executor or lawyers.o

Anonymous said...

what percentage of an estate is subject to lawyers and what percentage to executors.

Matthew Gardner said...

Several replies to M/M Anonymous:

Gross amount of estate is subject to fee calculation.

By statute, the 2% fee ceiling is the same for executors and attorneys. Often different in actual application.

If attorney/executor asks for more, the court should not grant it. HOWEVER, there can be reasons for extraordinary fees. See http://www.iowaestateplan.com/2007/08/iowa-attorney-fees-in-probate.html

Anonymous said...

Wife dies of cancer. Leaves all
retirement funds, bonds etc. to
husband. He commits suicide one
month after her death. His parents
take all her assets. Is this legal?
($1,500,000) She had parents and
siblings living.

Matthew Gardner said...

Anonymous-

While I wouldn't say this is common, it is is a typical example that I give about how property can pass at death. Named beneficiaries inherit, without conditions or limitations. Thus, if one spouse dies, leaves all to surviving spouse, and the surviving spouse dies 10 minutes (or 10 years) later, the surviving spouse directs where those assets go. They can direct by their will/trust if they have one, otherwise the intestate laws will direct those assets. Short answer - nothing illegal about this.

Anonymous said...

My sposue and son are beneficiaries of my fatherinlaw s estate along with my brother in law. My brother in law is executor of the estate. He has drug the estate out for 2 years becuase he was using the house as his residence and to run 2 business out of. There is also farmland that is part of the estate and income has come in from that land now the house has sold but most of the money from the account is gone as it was used to pay expenses fro my brother in law living in the house. We have contacted the attorney representing the estate as we feel this estate has been mis managed and the brother in law should have to pay back rent,utilities and money that came in from the rent on the farmland and that we feel he should get executor fees the attorney has said we have no legal right to ask any of this.

Matthew Gardner said...

2 year estate anonymous-

This is a difficult situation where an executor has personally benefitted from delaying the estate. When it comes time for the final report for the estate, that will be an opportunity for you to object to his handling of the estate and seek some sort of compensation for his actions. You have a chance to present your argument to the judge and let the judge rule. The executor's argument could be that he was "safeguarding" the property. No bright line test and limited information from a blog post, but certainly could get it before a judge and have the judge determine. DON'T sign a consent to the Final Report if you want to have your complaint heard.

Anonymous said...

Matthew Thanks for taking the time to answer my questions.

Anonymous said...

Matthew - can you challenge a court approved executor fee? If so, what is the process in Iowa? Thanks.

Matthew Gardner said...

Challenging a court-approved fee - If the court has already approved the fee, it may be difficult. If you had notice of the fee application, and didn't object, you may not be able to challenge it. If you had notice, objected and lost, you can appeal before an appeal deadline. If you didn't have notice of the hearing on fees, you could object at the time of the hearing on the Final Report as to the approved fees. The Final Report is the point where you can air your grievances or attempt to resolve them with the other side.

The reasons for the challenge are critical in the process and the chance for success.

Anonymous said...

Matthew -

How is widowers allowance calculated?

Also, what about the house if it is only in the name of the deceased does the house go to the estate if it pays it off. or does the estate have to pay it off and hand it over to the surviving spouse.

Finally, are executors guaranteed payment?

Matthew Gardner said...

The surviving spouse allowance is not subject to a exact calculation, but is based on several factors. Some factors include the lifestyle enjoyed by the spouse and the condition of the estate.

There are special rules for the homestead and surviving spouses. It is possible for the spouse to choose to stay in the homestead for life (life estate) in lieu of the spousal share. It can be a delicate process to allocate the spousal share in some situations. Rather than looking at it on an asset-by-asset basis, look at the big picture to determine the spousal share amount and how to set aside that share.

Final question (you are only allowed three before the meter starts ticking), the executor is high on the list of who gets paid in the estate. I wouldn't say guaranteed, but pretty high on the priority list.

Anonymous said...

Your blog is a great service, thank you so much.
I am seeking guidelines for exactly which estate executor's expenses are appropriate/reasonable to be compensated for in Iowa. Is there such a document? Where should I look?

Matthew Gardner said...

There really isn't any particular document to look to. Iowa Code 633.199 just provides some general language, such as "reasonable" and "necessary". The court has to approve, and thus beneficiaries could object to the court.

Anonymous said...

I am a legal assistant and have come across a situation of my 20 years I have never broached.

1. Decedent, before death, put almost all checking/savings accounts as PODs. Annuities and 401K plan all have benifciary designations. Can the attorney still take fees on those accounts eventhough theoretically they would have passed outside of the estate if they had not probated? (I have included them in the inventory.)

2. One of the checking accounts were an "or" account so the grandchild would have access to money in case of an emergency. She has already take the money. Since it is included in the inventory can we take a fee on that amount too? If the answer is yes, can we make her/him pay part of the attorney fee, if necessary, if there is not enough cash available?

Let me know your thoughts.

Matthew Gardner said...

Probate legal assistant-

All of those POD assets (passing outside probate), which are properly included on the inventory, are subject to the fee calculation. Same with the joint account. However, getting the joint tenant to pay could be a challenge if they don't cooperate.

Anonymous said...

Isn't there rules the executor have to follow in order to get more than the standard estate fee? Don't they have to request that to the court a certain way?

Matthew Gardner said...

Yes, there are rules to follow for "extraordinary fees" for attorneys and executors. Iowa Code § 633.199 sets out the conditions. Also, extraordinary fees, per the probate rules, need to be itemized and notice given to all interested parties.

rhonda brown said...

My mother passed recently and I am executor of her estate, such as it is. She has no property, vehicles, savings, annuities etc. She has left over $6000 in credit card debt. Her income tax refund will be less than $2000. Do I have to file probate for this? What do I do about the CC debt? Do they just right this off?

Matthew Gardner said...

Sorry about the passing of your mother.

You won't need to go through probate. The credit card company will likely just wipe out the debt, although it is possible they could open the estate and get assets (but not for $6,000). They may try to get you to pay for it. (Don't)

Anonymous said...

Matthew

Recently my mother set up a will and was told the executor could not live out of the state of Iowa. Is this true?

Matthew Gardner said...

False. The executor can live wherever they would like to live. However, the Iowa code provides that if there is an out of state executor serving, an Iowa resident may be required to be appointed as co-executor. However, that requirement is frequently waived by the court under certain conditions. (For example, keeping the assets in Iowa.)

Anonymous said...

I was made Executor of my mothers estate and she passed last spring. In the will she left a farm to my sisters that was sold while she was alive to pay for her nursing home care and listed me as the POD of the account that was set up. I planed to split up the account to my sisters after death not even taking an executor fee because I felt it was what she would want. Sisters lawyer is asking for full amount of farm sale without deductions for nursing home. Hows that possible when I was POD of the account and didn't have to give them a dime. will states that I am to have all cash account even though I had no intent on keeping it. I"m lost....

Matthew Gardner said...

Anonymous executor- You are correct. POD property is your's. Few exceptions, but that is the general rule.

There are also some applicable laws about property that is bequeathed but no longer part of the deceased's estate. (Today's word is "ademption").

You should consult with your attorney for specific application of these issues. Unless you need an Iowa attorney...

gdolly said...

Is the 2% compensation over the first $5,000.00 a combined amount for the executor and the estate attorney or is this an amount that can be collected by each?







Matthew Gardner said...

The 2% fee is a separately allowable fee for the attorney *and* the executor.

Anonymous said...

2 of 3 beneficiaries asked the designated executors of their fathers Will to decline. The executors signed the paper of declination and then 1 of the 2 beneficiaries appointed them self executor and the court approved. The third beneficiary was not notified of any of this. Is this legal in Iowa?

Anonymous said...

How does one go about challenging the executor fees? My husbands family was never told how much the executor fees would be and didn't find out until they saw it on the Final Report from the attorney's office. They have not signed the report yet.

Matthew Gardner said...

To challenge the fees for an executor, you would need to do the following: (1) Don't sign a release and consent if offered to you; (2) either file an objection or attend the hearing on the final report to note your concerns/objections. You should have some rational basis for objecting.