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Probate FAQs
What is probate?
Probate is a court-supervised procedure accounting for the debts and assets of a deceased individual and transferring those to their beneficiaries or heirs. Probate can occur with or without a will.
Due to the legal requirements, probate is a complex process of 15 to 20 steps, regardless of the size of the estate. There are also tax filings and notices to creditors that must be completed specifically according to Iowa probate laws. That means the probate is rarely completed without an attorney. If you are looking for an attorney to help you navigate the probate process, contact Hope Wood, JD.
What is is the difference between an estate and probate?
The term “estate:” describes the assets someone owns at the time of their death.
The term “probate” is the legal process for transferring or selling assets after the owner’s death.
What circumstances require probate in Iowa?
The short answer is when there are assets that do not automatically transfer by contract (e.g. life insurance) or by law (home held in joint tenancy). The court oversees the transfer of these assets to protect the interest of the deceased person.
Real estate: A will does not avoid probate in Iowa if it includes real estate owned by a single person. Probate is required to supervise the transfer or sale of real estate when there is no surviving owner. This is regardless of the value of the real estate. In some circumstances, a person may own the land where a mobile home is located. The mobile home can transfer without probate because it is treated like a vehicle. The land that is owned requires probate to transfer. Iowa does not have transfer on death deeds for real estate.
Bank accounts: If there is a surviving joint owner, it transfers to the survivor without the need for probate. If there is not a joint owner, and the accounts at the bank total $50,000 or more, then probate is required to supervise the transfer of the accounts. If the accounts at the bank are less than $50,000, then a small affidavit can be used to transfer the funds. Learn more about small estates and small estate affidavits.
Investment and retirement accounts: If there is a named beneficiary, the asset transfers to the named beneficiary without probate. If there is not a named beneficiary, then it transfers under the terms of the will or to the heirs-at-law, which requires probate if the value of the account is $50,000 or more.
Life insurance: Treated the same as investment and retirement accounts.
Learn more about when probate is necessary in Iowa.
Is probate a bad thing?
Probate is not a bad thing; it assures that all of your assets transfer to the correct beneficiary.
However, one disadvantage of probate is the delay in the transfer of assets. When creditors are allowed to make claims against the estate, the probate process takes a minimum of four months. Another disadvantage is the cost associated with the probate process, including required court costs that are calculated based on the gross value of the estate.
Although an attorney is not required for probate, it is often necessary for satisfying Iowa probate laws. The attorney can earn up to 2% of the value of the estate.
Does a will mean you can avoid probate?
A will does not avoid probate if the assets do not transfer by law to a surviving joint owner or beneficiary.
A will does not avoid probate in Iowa if it includes real estate owned by a single person. In this situation, the homeowner may want to create a revocable trust to transfer the home.
Additionally, a will does not avoid probate if the assets under a contract — such as a 401(k) or IRA — do not have a named beneficiary and are valued at more than $50,000.
Learn more about when probate is necessary in Iowa.
What does a probate attorney do?
A probate attorney represents the executor or the appointed administrator for the estate. The attorney files a petition with the court to open the estate, approve the Will, and appoint an executor. If there isn’t a Will, a qualified person files a petition with the court to administer the estate.
The attorney mails notice to beneficiaries, if there is a will, or to heirs, if there is not a will.
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 all of the assets of the estate.
The attorney oversees the accounting of the estate, like payment to valid creditors and the receipt of liquidated assets.
The attorney is responsible for getting an income tax clearance with the Iowa Department of Revenue, filing a final report, and coordinating payment of court costs.
Do I need to meet in person with a probate attorney?
Hope Wood, JD, can handle your probate case without needing to meet in person.
An initial meeting is held by telephone or Zoom video conference.
Paperwork can be electronically signed or mailed with prepaid return postage.
Communications are ongoing through email, phone, Zoom video conference (optional), and mail.
You can have full legal representation without meeting in person.
How much will probate cost?
SMALL ESTATES
As of January 1, 2022, Iowa law provides that court costs for both Small and Regular estates are calculated based on the value of the estate. The court costs are equal to two-tenths of one percent (.002) of the value of probate assets.
The attorney for a small estate is paid 3% of the gross value of the estate unless the legal services are itemized or a reasonable fee is approved by the court or as agreed in writing with the administrator if the agreement is filed with the court before the filing of the estate inventory. Interested parties may object and request a hearing as to the fees reported in the closing statement.
The attorney fee as of January 1, 2023, is $300 per hour. Hope Wood JD will provide an estimate for the time and cost needed to perform all of the legal services for the small estate.
REGULAR ESTATES
For a regular estate with a value of more than $200,000, the court costs are two-tenths of one percent of the value of the probate assets.
The court costs are not reduced by the debts of the deceased. The attorney may be paid up to 2% of the gross value of the estate. The executor may also receive up to 2% of the gross value estate for his or her administration of the estate.
What are the court costs for probate?
There are flat fees for specific portions of the estate. It is $20 to process the bond and $10 per court order.
The main cost is two-tenths of one percent of the probate assets listed in the estate inventory. (2/10) * .01 = .002. For example, if the probate assets are valued at $100,000, then that part of the court cost is $200.
View a full schedule of probate court costs in Iowa. As of 2022, the court costs for small estates are calculated the same as regular estates.
Exclusions for court cost calculations include: real estate in joint tenancy, financial assets with a surviving joint owner or surviving beneficiary, and real estate located outside of Iowa.
How long does probate take?
An estate with one or two assets, one beneficiary, and zero to one creditor can be completed in 5-6 months — if personal income taxes do not need to be filed and if the estate has an organized and motivated attorney and executor.
With Hope Wood JD, small estates and estates valued under $350,000, typically take 12-18 months.
Learn more about how long probate takes.
Why does probate take so long?
There are a variety of reasons probate can take a year or more.
Probate procedures, like court hearings, naturally extend the time required.
The attorney is too busy to work on the case and uses the statutory deadlines as personal deadlines.
Multiple creditors and creditor claims against the estate. There are legal requirements for notifying creditors and handling creditor claims.
Real estate owned by the decedent may need more time to sell.
The initial delay regarding sale of real estate may come from indecision among beneficiaries about whether to transfer or sell real estate.
Income tax filing requirements for the year of death cannot be filed until the following year.
The Iowa Department of Revenue is currently taking more than three months for an income tax acquittance and more than six months for processing inheritance tax returns (last updated July 13, 2023).
What are the deadlines for probate in Iowa?
The most commonly cited deadline for probate is 4 months.
This is because there is a four-month waiting period from the second publication in the newspaper. From the time of the second publication, beneficiaries named in the last will and testament have the right to object to the will and creditors have a right to file claims against the estate.
The steps leading up to the publication in the newspaper are important. If you don’t complete them in a timely manner, the estate gets off to a slow start.
Before the legal notice can be published in the newspaper, the following need to happen:
The petition for probate needs to be filed with the clerk of court.
If a bond is not waived in the will, waivers need to be collected from all beneficiaries or a bond needs to be applied for.
If there is not a will, waivers need to be collected from all beneficiaries or a bond needs to be applied for.
A bond must be provided to the clerk of court to file with the case.
The clerk of court processes the case and sends it to the judge for review. When the judge approves the petition, the court will issue a letter of appointment to the executor.
As you can see, the bond requirement can cause a big delay. Waiver of bond is one of the most important benefits of having a will prepared by an experienced attorney. The cost of a bond will likely be more expensive for your beneficiaries than the cost of a last will and testament.
Read more about how to save money with a last will and testament.
When should I start the probate process?
It is ideal for probate to start within a few weeks of the decedent’s death. I recommend taking time to grieve and process the loss before jumping into the legal process of administering the estate.
If you have the original last will and testament, you can start as soon as you are ready; there is no legal requirement to start within a certain number of days from the date of death. If there isn’t a last will and testament, Iowa law (section 633) controls the process and distribution of assets.
A will must be probated within five years of the death of the decedent. (Iowa Code 633.331)
An executor or interested person can petition for probate of the will or of the estate at any time within three years of the death of the decedent. However, the later you file, the more difficult the administration will be for the executor.
What is small estate probate?
Starting July 1, 2020, estates in Iowa that are valued at less than $200,000 are eligible for the small estate probate laws (See Iowa Code 635).
The previous law covered estates valued at less than $100,000.
This means more estates are eligible for the lower costs available in the small estate process.
Learn more about probate for small estates in Iowa.
Is probate necessary when there is a will?
It depends on the assets of the decedent and how they are titled. If the 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 valued at over $50,000, probate is necessary.
If there are stock certificate owned by the decedent without a transfer-on-death designation, then probate is necessary for the transfer, even if the will states who should inherit the stocks.
These are a few of many examples. However, there are strategies, through estate planning with an attorney, that allow your assets to transfer without opening an estate in probate. This is referred to an asset that can transfer “outside of probate.” If real estate is owned, a revocable trust may be an effective option to avoid probate.
Do I have to go through probate?
If there are assets that do not transfer by law or by contract, then they have to go through court-supervised probate to transfer to the rightful beneficiary 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 and is not owned in joint tenancy with full rights of survivorship with the surviving spouse. If the decedent’s will leaves the home to the surviving spouse, but that person is not on the deed to the house, the property has to be transferred by the court-supervised probate process.
Do I need an attorney for probate?
In Iowa, probate requires an attorney to represent the executor of the estate.
A common misconception is who the attorney represents in probate. The attorney represents the executor as a fiduciary; the attorney does not represent the estate or the individual beneficiaries.
A designation of attorney must be signed by the proposed or appointed executor and filed with the court to identify their role.
When is probate not necessary?
This depends on each individual situation. 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 under Iowa law.
If you have an account that is solely owned by you that is valued at less than $50,000, 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 does change, so it’s best to have a plan for asset transfers at death.
What is the difference between an executor, administrator, and personal representative?
An executor is a person appointed by the court to administer the estate of a decedent who has a valid last will and testament (testate estate). The court will give preference to the executor named in the decedent’s will.
An administrator is a person appointed by the court to administer the estate when there isn’t a last will and testament (intestate estate).
Personal representative is a term that applies to both administrator and executor.
How do I sell a house without probate?
In Iowa, if a person dies owning real estate, probate is required – if there is no surviving joint tenant with right of survivorship.
The real estate ownership information can be found on a deed with your county recorder’s office. The court-supervised probate process is required to supervise the sale of property, regardless of the value of the real estate.
For example, if an acre of land is owned with no surviving joint tenant and is valued at $5,000, probate is still required. A small estate affidavit cannot be used for real estate (Iowa Code 633.356).
Why do I have to list all assets in the estate inventory?
The probate process is confusing and overwhelming, and this is a common sticking point.
For the estate inventory, Iowa law requires the following:
A list of all assets owned by the decedent
The ownership of the asset (joint or individual)
The designated beneficiary of the asset (if one is named)
The value of the asset on the date of death
Any asset that could be subject to taxes has to be included in the estate inventory. Even if no taxes are required to be paid, the asset still needs to be included. This legal requirement pulls all assets of the decedent into the estate inventory.
The good news is that – with a letter of appointment issued by the court at the start of the probate process – the executor has legal authority to obtain this information from the financial institution.
The even better news is that when you hire Hope Wood, JD to be your probate attorney, you’re guided through the land mines of the estate inventory and the entire probate process.
Will I pay inheritance tax?
For deaths occurring in 2025, the answer is no. Until then, the State of Iowa requires inheritance tax for certain heirs. There are exemptions to the tax for some relationships; inheritance tax is not required for a spouse, children, grandchildren, great-grandchildren, or parents.
In your will, you may state that inheritance tax is paid from the assets of the estate. For example, a sibling, cousin, or personal friend will be required to pay several thousand dollars in inheritance tax on the gift you leave for them. View inheritance tax requirements in Iowa.
How do bank accounts transfer after death?
If it is a joint account, the account will transfer to the surviving joint owner. If there is no surviving owner, the account will transfer to a payable on death (POD) beneficiary if one is listed on your account. A POD designation is not an automatic part of opening a checking account, savings account, money market account or certificate of deposit. Each of these accounts allow for a designated POD beneficiary. If you do not have one on your account, contact your bank to complete the paperwork. If it is a joint account, both owners will need to complete the paperwork.
If there is no surviving owner of the account and there is not a POD with the account, then the account will transfer under your Last Will and Testament. If you don’t have a Last Will and Testament, then it will transfer to your intestate heirs-at-law as determined by Iowa statute. Resource: Iowa Code 633.210.
Will my loved one’s estate require a probate bond?
If your loved one died with a will that waived the bond, then no bond will be required for probate. If your loved one died without a will, then you will have to apply for a waiver.
A probate bond is like an insurance policy on the estate’s administrator, in case they mishandle the assets of the estate. The bond is calculated based on the value of the estate.
The premium owed for the bond is often $500 for every $100,000 of the estate’s value. Under this calculation, a $300,000 estate requires a $1,500 bond premium payment.
Learn more about bonds.
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Executor's Workbook
Executor's Workbook
Complimentary Guide for Probate Clients
Our handy workbook outlines everything an executor or administrator needs to know about the probate process.
When you hire Hope Wood JD, you’ll receive a coil-bound copy of our step-by-step guide in the mail, plus a downloadable PDF.
Learn More About Probate
Blog Posts by Hope Wood, JD
What does probate mean?
Learn about confusing legal terms like “in probate” and “outside probate” and how they might apply to your case.
How long does probate take?
Learn how and when to start the probate process, as well as the deadlines for probate in Iowa.
What is a small estate in Iowa?
Learn what qualifies as a small estate, when probate is required, and how to file an affidavit.