Sunday, April 08, 2018

Avoiding Probate Just Got a Little Easier...For Certain Estates

Currently in Iowa, if a decedent owns personal property that totals $25,000 or less, and that property would normally pass under a Will or the intestate statute, you can skip probate with just an affidavit.  The governor recently signed a bill that increased that figure up to $50,000 (for deaths after July 1, 2018), along with a few extra new additions to the affidavit.

So...what does that mean lawyer boy?  This:

  • If the dead person owned real estate, the affidavit doesn't work.
  • If the dead person owned other types of property that all together total more than $50,000, the affidavit doesn't work.
  • You still have to pay inheritance taxes, if any are due.
  • You still have to pay the creditors, if any.
  • You still have to pay the state back for any Medicaid debts due.
  • Otherwise, you use the affidavit to transfer those small estates.

Here's a common scenario where the affidavit could be used:
John Smith passes away.  When he died, he owned his truck, lived in an apartment, had a checking account with $5,000 in it, a savings account balance of $32,670, and the complete collection of all the Journey albums and CD's issued.  As his 3 children are carefully dividing dad's Journey album collection, the question comes around to who is going to handle the job of getting the bank account money and the truck.  Contrary to the belief of some, the bank won't just hand over money to the family "just because they are family".  However, if dad had a will that left his assets to his kids -or- dad did not have a will, but he did not have a spouse and his kids are all surviving, one of the kids could provide the affidavit with the super-secret language to the bank and the bank will issue a check for the bank account balances.  That child can then pay any bills dad left behind (rent, utilities, etc.) and then divide the rest out to their siblings.  No probate.  No public notice.  Lower attorney fees.

There are different examples where this affidavit could be used (some even include scenarios where the decedent has a multi-million dollar estate) to transfer assets that: (1) don't have a beneficiary listed or (2) don't have a joint owner, but (3) total less than the $50,000.  When you are talking about minimum probate fees in the $2,000 range and timeframe of 7 months to a year or more, this could be an opportunity to simplify the process, shorten the time, and save funds.  

Before you try to do this on your own (which you can...but you can do a lot of stuff on your own, like surgery, but that doesn't mean you should) visit with a Trusts and Estates Iowa attorney to walk you through the steps and save yourself some time and frustration.