Sunday, December 29, 2013

Too Embarrassed to Ask "What is Probate"?: Fear No More: Probate in Iowa

"Probate" is a term that is often mentioned (well, maybe not often) but many people don't understand what it really involves. Probate is the legal process where, through a court-supervised system: (1) a deceased individual's assets are transferred to their rightful heirs/beneficiaries; (2) taxes are paid; and (3) debts/claims are handled. The probate process also includes the validation of a will.  (How else can you prove it is the last will of the decedent.)  Probate also determines the rightful heirs and beneficiaries.  Quite the tool that probate.

It is not necessary to have the attorney who drafted the will handle the process. The "administrator" or "executor" can select whatever attorney they choose.  The "administrator" or "executor" is the individual appointed by the court to handle the various steps in probating an estate.  If there is a will, they are called the executor.  If there is no will, they are called the administrator.  (Impress your friends with that information.  Your welcome.)

In Iowa, the probate process primarily consists of 5 stages.
  1. The filing of the initial set of documents to open the estate.
  2. Publication of notice in a newspaper for filing of claims and giving notice to heirs and creditors.
  3. Waiting the time period for the filing of any claims or contests to the will.
  4. Filing of the report and inventory and payment of taxes.
  5. Distribution to beneficiaries/heirs and discharge of the executor/administrator.

Every state is different in how the probate process is administered and you should contact a knowledgeable attorney to handle the probate process. Feel free to contact me if you have any questions about the probate process in Iowa.

3 comments:

Louise | Philadelphia Estate Planning Attorney said...

This post answered some of the questions that I have in mind regarding wills and trusts. I often deal with second thoughts to inquire about matters related to these even if I know that this is something that must be planned and well thought of.
Thanks for sharing these data. Looking forward to more posts like this one.

Dr. Mongo Lloyd said...

The whole probate thing is scaring the hell out of me, personally. I'm in Iowa, and my mother passed away on Sept. 10th. She had her will done at Drake Legal Clinic, so it's a student handling things. I'm the only beneficiary, and I'm going to be executor since my cousin signed a paper saying she didn't want to do it, and nominated me. Which I'm cool with, I guess.

My cousins were at the meeting and asked how long until I can sell the house. The student replied with "probate will probably take 5-7 months." I think what he heard from the cousins was "how long until *insert my name* gets his money?" There's really not going to be much money to be made, anyway, and here's why: The only real asset she had was her house, which is worth around $60,000. Her total debts, including the mortgage, come up to about $45,000. Obviously the only way I can pay these creditors is going to be with the sale of the house. Do I REALLY have to wait 7 months to sell the house and pay her debts? If so, it's all a moot point anyway, because waiting that long will put the house into foreclosure and no one but the mortgage company will get paid in that case! I was under the impression that the executor can sell any assets necessary to pay off debts? That was exactly what she put in her will.

Matthew Gardner said...

Dr. Lloyd-

No, you don't need to wait 7 months to sell. Once you are appointed, you can sell immediately. However, you can't make distributions or pay creditors until after a certain period of time. (You can pay the mortgage out of closing on the sale of the house, but other creditors have to wait.)