Frequently Asked Questions

Here you’ll find the most common questions we receive regarding wills, trusts, power of attorney, and probate. Still need answers to questions not listed here? Contact us or schedule a appointment so we can help.

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Probate

Common Questions About Last Will and Testament

Basics

  • Yes, a resounding yes! A will is as much for your loved ones as it is for you. You want your legacy to be one of meaningful memories, not family fights.  

  • A will appoints an executor to distribute your personal property. Without an appointed executor, your heirs must work together to divide your belongings, sell your car, and handle other assets you own. Often, the heirs do not agree on what to do, especially since grief inflames emotions and makes it difficult to think things through rationally. 

    • A will also saves time and money for your loved ones. If an asset is required to transfer through the court-supervised probate process, a bond must be obtained, and court-approval is required for major transactions like the sale of a home. In your will, you can waive the bond requirement, which pays the bond using assets from the estate. A waiver of bond saves money and time. You can also waive court approval for the sale of a home. 

    • A will allows you to pass on gifts of money or property to a person or organization who would otherwise not inherit under Iowa law. If you don’t have a will, Iowa law determines who receives your assets.

    • A will allows you to appoint a person to be the guardian for your minor children if both parents pass away. The guardianship will last until the child turns 18 years old. Note that, when a court-ordered custody agreement is not in place, you can appoint a non-parent guardian in your will. This requires careful drafting and a legal analysis of your situation.

  • In general, the will requirements in Iowa include: 

    • The testator (the person making the will) must declare it is their own will and ask two people to act as witnesses. 

    • The will must be in writing, signed by the testator.

    • The will must be signed In the presence of two competent witnesses. 

    • The witnesses must also sign the will.

    Note: The full law on a valid will in Iowa is included in Iowa Code 633.279.

  • No, a will is always valid, regardless of the date it was signed, unless it has been revoked. 

  • There is no legal differentiation between types of wills. If a law firm is offering a simple will, it likely means there is no asset transfer planning or review (also called estate planning) and that the will does not contain a testamentary trust.  

  • A beneficiary is an individual named in a legal document (such as a will or contract) who will receive your assets upon your death.

  • An heir is a descendant as defined under law. Heirs receive assets when when no beneficiary is named. Distributions to heirs are controlled by Iowa law. (See Iowa Code 633.219)

  • 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.

Updating and Revoking a Will

  • A will can be updated and amended at any time. An amendment, legally called a codicil, must also be signed and witnessed. If there are several amendments, you may want to consider revoking the entire will and executing a new will. An amendment has to be written carefully so it does not conflict with certain provisions of your will.

  • You are not required to update your will after a divorce in Iowa, but it is highly encouraged. A will that includes an ex-spouse makes it difficult for your survivors, because it is likely to leave everything to that individual.

    If you don’t update your will after a divorce, the Iowa does provide some protection (See Iowa Code 633.271). After a marriage is dissolved, any provisions that favor the ex-spouse or relatives of the ex-spouse are revoked, unless the will specifically states that the gifts and appointments survive the dissolution of the marriage.

    If you would like the ex-spouse to inherit certain assets, you will want to create a new will.

  • A will in Iowa can be revoked in whole or in part only by being canceled or destroyed by an intentional act on the direction of the testator, with the intent to revoke the will. If you wish to cancel your will,you must sign the cancellation in the presence of two in-person witnesses. 

    A will that has been revoked cannot be revived unless the testator signs in the presence of two witnesses and follows the other requirements to create a legal, valid will. 

    A will can also be revoked by executing a new will, which automatically revokes  the prior will. In that case, all prior wills should be destroyed.  

    If an amendment (codicil) to the will is validly executed, it preserves the will and replaces or supplements specific provisions of the will. A well-drafted codicil does not terminate the will itself, but it can terminate specific parts of the will. (See Iowa Code 633.284.)

  • If this is your first child, you should get a new Will that includes the appointment of a guardian and creates a testamentary trust.

    If you have additional children born or adopted to you, it is not legally necessary to update your Will. Iowa Code Section 633.267 fills the gap if your Will is silent as to a child. It states that unless it appears from the Will that the omission was intentional, children born or adopted after the execution (signing) of your Will receive a share equal in value as if there was not a Will and they inherited under the laws of intestacy.

    For sentimental reasons, you may want to add your Child to your Will. An amendment to a Will is called a Codicil. A Codicil should only be prepared by an attorney because it has the same legal requirements as a Last Will and Testament.

    If your Will was prepared by Hope Wood JD, contact us for the simple process to amend your existing Will.

Special Life Circumstances

  • Yes!  A will may be even more important if you’re unmarried. If all of your assets are titled or owned in your name and you do not have a will, they will transfer under Iowa intestate laws.  If you don’t want your assets transferring to heirs as determined by Iowa law, then you will need a will and asset transfer plan.  

    A will allows you to gift belongings to other family members or friends. Or you may want to leave a charitable gift to your favorite nonprofit organization. A will and asset transfer plan alleviates the burden on your surviving friends and family because it describes your wishes for your personal belongings and assets.

  • A will is a private document, and each person has to meet the mental competence requirements to sign their own will.  No one else can give instructions for the drafting of the will or sign it.  

    However, an adult child can support their parent by referring them to an attorney to assist with the process and even helping them make the appointment. The parent must attend the appointment, but it is up to the attorney to decide whether to allow the adult child in the room.

    To encourage your parents to get a will, explain that the will is for their survivors and not for themselves. It is a love letter to their family members. Without a will, disagreements over the sale and distribution of personal property may occur. It is often scary to think about the end of life, but knowing there is a will in place provides peace of mind. 

  • Possibly. It depends on the mental competence of the individual at the time of signing.  

    A will is possible if the individual has:

    • A full and intelligent knowledge of the act in which they are engaged (signing their own will)

    • A full knowledge of the property they possess

    • An intelligent perception and understanding of the disposition they desire to make of the property and of the people who will be transferred to

    Even if someone doesn’t have sufficient mental capacity to make a contract or to attend to ordinary business matters, they may still be able to make a will. See Willer v. Dohse, 225 Iowa 606 (1938).

  • Even if many of your assets are held in joint ownership or have a beneficiary designation, it is important to set a contingency plan in place in case the joint owner or beneficiary dies around the same time.

    For example, it’s not uncommon for elderly spouses to die within the same year as each other. When the surviving spouse dies, the assets are in single ownership and often transfer through a will. 

  • While a person is alive, they do not have to provide or disclose the contents of their will to anyone else. The only exception is a court-appointed conservator, who is required to submit the testator’s will to the Clerk of Court for the county where the conservatorship was established.    

    After the testator passes away, the person in possession of the will should provide a copy. If they don’t, a petition can be filed with the court to require the production of the will by the person believed to be in possession of the will.  (See Iowa Code 633.290) 

    There is a legal requirement for the person with custody of a will to file the will with the Clerk of Court after the testator passes. This is typically done in the county where the decedent had a homestead or permanent residence. (See Iowa Code 633.285)

Process

  • The answer is a qualified “yes” — followed by a big BUT. A will must meet several requirements to be considered valid under Iowa law. If those requirements are not met, your will could be contested and possibly voided by a court.

    When you write your own will, you lose the peace of mind that comes from knowing that everything is taken care of for your loved ones. That peace of mind is certainly worth the few hundred dollars it takes to have an attorney prepare your estate documents for you.  Learn more about writing your own will. 

  • There is no legal requirement to use a lawyer to draft a will. However, there are many several critical reasons to hire a lawyer to create your will. An experienced attorney who prepares a will and provides asset-transfer planning (i.e., estate planning) is the best investment for your loved ones.  

    The importance of using an experienced attorney to prepare a will cannot be overstated. A will is only part of the process to ensure that your assets transfer to your heirs without headaches. An experienced attorney like Hope Wood, JD, not only prepares a will but also provides asset-transfer planning and power of attorney documents for financial and health care decisions.

  • A DIY will doesn’t cost anything. You can also purchase forms online or in an office supply store for a nominal amount. However, there are disadvantages to all of these options. The DIY and purchased will form won’t offer the peace of mind you’re seeking because the will may not be valid, and you can’t predict whether your wishes will be fulfilled.

    On the other hand, using a “low-cost” attorney means you won’t get to discuss how your assets transfer after your death.

    A will is only part of the process to assure your assets transfer to your heirs without headaches. The affordable Will in a Day® package includes an asset transfer plan, as well as health care and financial powers of attorney documents. The cost is a flat fee based on your family situation. See what you might pay for a will with Hope Wood, JD.

  • Some businesses do sell a last will and testament form. You may be able to fill out the form online or print the form from an online will business. However, this form only gets you halfway through the process. A will is only valid if it is signed in the presence of two witnesses.

    A will is a single part of your asset transfer plan for your family, but it is not the entire plan. An online form may say the right thing, but it may not do the right thing for your situation. For example, if an asset is incorrectly titled, then your family may end up in probate court or the asset may transfer to an unintended person.

  • Yes, in some circumstances. A will can be drafted and provided to the testator (the person signing the will) with instructions from a qualified, Iowa-licensed attorney on how to sign the document to ensure it will be enforceable in court. Two witnesses, who cannot inherit under the will or by law, are required to watch you sign the document.

    At the beginning of the COVID-19 pandemic, Hope Wood, JD, began offering virtual wills. The Iowa governor waived the in-person signing requirement in a disaster proclamation. Hope Wood, JD, has become the premier law firm in Iowa preparing wills virtually, no matter where in the state you live. Book a virtual appointment.

  • The executor is the person named in the will to carry out its provisions. You should choose someone responsible, organized and trustworthy. You should also select a successor executor, in case the primary executor declines the appointment after you are deceased.

    You do not need consent from the person you appoint as your executor. The appointed executor does not sign the will. It is helpful to discuss your intentions with that person in advance, but you don’t need to do so to get your will completed and signed.

    Spouses commonly name each other as the executor of their wills, but it is not required.

    If you own substantial assets, you could name a bank or financial institution. A financial institution will charge for their role as executor, whereas an individual may waive their legal right to receive compensation for their services.

  • Iowa law requires two individuals for the witnessing of a Will. It is strongly recommended to use uninterested individuals as witnesses. A witness should not be a named beneficiary of the will or one of the signer’s descendants. A family member through a marriage, who is not named in the Will, can be a witness. For example, a daughter-in-law can witness a will for a mother-in-law. It is best not to use anyone with a relationship to the family, but sometimes that is unavoidable. A person who may inherit under the will or under the laws of intestacy can witness the will, but that person then forfeits a certain part of the inheritance. (See Iowa Code 633.281).

    Instructions in the video below to sign a Last Will and Testament in Iowa.

    https://www.youtube.com/watch?v=-oky6Qkpd_U

  • A witness does not get a copy of the will and does not have the authority to read the will. The signer declares that the document is their last will and testament and asks for each individual to be a witness to the signer’s execution (signing) of the will. The signature of the witness typically follows a paragraph like the following: 

    “The foregoing instrument, consisting of ____ (____) pages, including this page, was declared by Ron Swanson in our view and presence to be his Will and was signed and subscribed by Ron Swanson in our view and presence and at his request and in the view and presence of Ron Swanson and in the view and presence of each other, we, the undersigned, witnessed and attested the due execution of the Will of Ron Swanson on this the ____ day of _____, 202_.”

  • Yes, The Proclamation of Disaster Emergency that was in place in Iowa during the beginning of the pandemic that authorized remote witnessing of legal documents has ended. Last Will and Testament must be witnessed in person.

  • A notarized affidavit is not required for a will to be valid in Iowa. However, there are advantages to having your will notarized.  

    The legal term for a notarized will is a “self-proved will.” An affidavit to create a self-proved will may be made at the time the will is signed or after the signing. A self-proved will is an affidavit of the testator and witnesses who signed and witnessed the will in one another’s presence. The testator and witnesses sign the affidavit and the notary public signs and seals the affidavit.  The affidavit is kept with the Will; it is not an actual page of the will. 

    The benefit of having a self-proved will is that the witnesses do not have to be found later to testify that they were present at the time of the signing of the Will. A search for a witness creates an unnecessary cost for the estate and often results in a long delay. If a witness cannot be found, there will be additional court documents and attorney fees. In contrast, a self-proved will may be admitted to the court in probate without the testimony of witnesses.

    Note: The language for a self-proved will is available in Iowa Code 633.279(2)(a).

  • A notary public who is qualified through their own state to act as a notary public. Until recently, a notary public had to be in the same room as the signer for the document to be legally notarized. Now, the signer can be on a different continent and have a document notarized through a Remote Online Notary (RON).

  • Iowans can file their original will with the Clerk of Court in their county. However, you’re not required to file your will. In some circumstances, doing so can even cause issues, like when an amended or revoked will is not updated with the Clerk.

  • A testamentary trust is written into a will and is only effective if the conditions named in the will occur. A testamentary trust is funded by naming the trustee as the beneficiary for your financial assets after your death. For example, in a life insurance policy, you can name as a beneficiary: “Leslie Knope as Trustee of the Ron Swanson Testamentary Trust.”  

    A trust isn’t just for people with large assets. And, in most families, it isn't for tax-planning purposes. A testamentary trust is part of your will and takes effect on your death; there is no management of the trust during your lifetime. 

    • Trusts for minor children: A basic will—one that you can purchase online or through an office supply store—will not include a trust.  Will in a Day® for parents with minor children automatically includes a testamentary trust.  Without the trust, minor children will have access to their full inheritance at age 18.  In the trust, you set out what ages and what amounts are distributed to the children.

    • Trusts for surviving spouse and adult children: A revocable trust in tandem with a will can prevent your assets from being subject to the court's probate process. Creating a revocable trust means a surviving spouse doesn't have to update his or her will in the future to avoid probate for adult children beneficiaries.  

    • Life insurance and trusts: The easiest way to fund a trust for your children is to take out a life insurance policy and name the trust as the beneficiary.   A life insurance policy can also be designated to pay for your funeral and burial, which costs an average of $10,000. Without planning, these costs have to be paid by the survivors.

  • Creating a revocable trust is like creating a business that is separate from you as an individual. A revocable trust is not a person, just like an LLC. This is why the assets of the trust are not required to go through the court-supervised probate process to transfer to beneficiaries. However, a trust must be created and funded correctly in order to be an effective asset-transfer plan.

    A revocable trust requires two things: 

    • A legal written document naming the grantor, trustee, and beneficiary, with a notarized signature by the grantor 

    •  Assets titled in the name of the trust  

    The legal, written document identifies the grantor (also called a settlor or trustor) as the person who is transferring the assets into the name of the trust. A joint trust has multiple grantors and is common for spouses or a group of family members.

    A trust names a beneficiary or group of beneficiaries. The grantor can be the beneficiary during their lifetime, but the trust must name another beneficiary to be valid. A trust also names an event or events when the trust must terminate and the assets be distributed to the named beneficiaries.  

    A revocable trust can be amended or completely revoked with the consent of all of the trustees. In contrast, an irrevocable trust cannot be amended or revoked. 

    A revocable trust is a document separate from your will. It is only effective after it is signed and funded. Opening a bank account in the name of the trust and depositing a nominal amount of money is all that is necessary to fund the trust.  If the trust is not funded, it is not valid. 

    A revocable trust is more expensive than a testamentary trust, but it can save your beneficiaries from having to go through the court-supervised probate process. It is also a private document, whereas a testamentary trust is filed with the court and is court-supervised.

    Schedule a consultation for a Revocable Trust.

  • You want to name a guardian, along with an alternate guardian, who is someone you trust to stand in your shoes as a parent. It’s best if the guardian lives close to where you live, but it is not required. You can appoint someone who lives in a different state, but, in that case, your child(ren) may need to move. The guardian is not required to move to where the children live.  

    If you are unsure of who to appoint as a guardian, ask yourself who would file a petition with the court to be appointed as the child’s guardian. Do you want that person to be appointed?  Would you prefer someone else?  Would there be competing petitions, like maternal and paternal grandparents competing for the appointment?  

    If you do not appoint a guardian in your will, you are placing your child(ren) in an emotionally difficult situation. Remember that you can always amend your will in the future to change the guardian. Don’t let uncertainty about who to appoint prevent you from completing your will. Name the most appropriate person at this stage in your life with the understanding that you can change your will at a later date.

  • No. The person named in your will must still file a petition with the court in order to be appointed as a guardian. And they can decline the appointment. This is why you should list one or more alternate guardians in your will. 

  • Your will is a private document, and you do not have to inform the appointed guardian of their inclusion in your will. If you appoint one grandparent in lieu of the other, it doesn’t prevent the non-appointed grandparent from intervening in the court action. However, a guardian appointed in a parent’s will is given preference by the Court if that person is qualified and suitable. (See Iowa Code 232D.308)

  • Every child has a legal parent from birth unless there is a court order terminating legal rights. It is possible for a non-parent to be appointed the guardian of your minor child if you die, but there are very specific legal steps that must be taken in advance for your wishes to be fulfilled.

    To make your intention known to the court, you must appoint a guardian in your will. Then, after your death, the person you appoint has to petition the court to be appointed the child’s guardian. The legal parent can consent to the guardianship. (See Iowa Code 232D.203)

    If the legal parent does not consent, then a hearing will be scheduled. At the hearing, the person appointed as guardian in the will (the petitioner) must prove by clear and convincing evidence that:

    • They are serving as a de facto guardian

    • There has been a proven lack of consistent parental participation in the life of the minor by the parent.  

    See Iowa Code 232D.204(1)(b) for a list of factors the court may consider.

    If the petitioner does not know the location of the parent, he or she must make diligent efforts to locate the parent. This includes using a skip trace, which can typically be done for a flat fee by a private investigator. Other diligent efforts include asking friends and family that know the parent and searching social media and court records.

  • A testamentary trust is an inexpensive way to extend the life of the assets you leave for your children. It appoints a trustee who manages and distributes the funds on behalf of your designated beneficiaries.  

    If you choose the Will in a Day® package and have children under the age of 18, your will automatically includes a testamentary trust. Assets held in a trust are not accessible by the beneficiary. A testamentary trust is written in a will and is only effective when the conditions of your will are satisfied.  

    One of the conditions is that you and your spouse have passed away, and another is that the child has reached an age at which you are comfortable with them receiving their full inheritance. A common age selected by parents is 25.

    A testamentary trust is an inexpensive way to keep your child(ren) from blowing through their inheritance.  It authorizes the trustee to distribute the assets at their discretion while also following the instructions of the trust. The testamentary trust also indicates reasons the assets can be distributed, such as for health care, education, and cost-of-living expenses.

Parents and Families

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Common Questions About Probate

Basics

  • 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.

  • 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.

  • 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 $100,000 or more, then probate is required to supervise the transfer of the accounts. If the accounts at the bank are less than $100,000, 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 $100,000 or more.

    Life insurance: Treated the same as investment and retirement accounts.

    Learn more about when probate is necessary in Iowa.

  • 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.

  • 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 $100,000.

    Learn more about when probate is necessary in Iowa.

  • 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. description

  • 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.

  • 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.

    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.

  • 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.

  • Iowa does not have a tax on the value of the estate. Certain individuals are required to pay inheritance tax on the assets they inherit from a decedent of Iowa.

    The Federal government has estate tax, however, most estates are exempt from paying estate tax.

    • In 2024, estate assets that do not exceed $13.61M are exempt from estate tax. This is indexed to inflation.

    • On December 31, 2025, the exemption amount will terminate and reset to the 2017 rate of $5.6M, adjusted for the intervening years of inflation (2018-2025). A law passed by Congress and signed by the President can set an estate tax rate for January 1, 2026 and after, or eliminate estate tax altogether.

    • For common questions about federal estate tax, visit the IRS website.

  • 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.

  • 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).

  • 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.

  • Yes. If you are paid executor or administrator fees, you must report it as income for the year that you collect the fee.

  • 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.

  • Item descriptionStarting 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.

  • 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 $100,000, 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.

  • 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.

  • 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.

  • 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 $100,000, 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.

  • 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.

  • 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.

  • 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).

  • 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.

  • 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.

  • 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.

  • Yes, but it is going away. In 2021, the Iowa legislature passed a law to phase out inheritance tax. If a person dies in Iowa in 2021, the heirs that are not exempt from paying inheritance tax pay twenty percent (20%) less than the amount calculated in 2020. In 2022, the amount owed is forty percent (40%) less, and each following year an additional twenty percent (20%) is reduced from the 2020 formula. If a person dies in 2025 or any year after, no inheritance tax is owed. The persons who are exempt from paying inheritance tax are parents, spouses, children and all lineal descendants. If you inherit an asset due to a death occurring earlier than 2025, and are not exempt, then inheritance tax is owed to the Iowa Department of Revenue. An inheritance tax, if owed, is due on assets of any value except for life insurance if the person is a named beneficiary. If you are a joint account owner with the decedent and did not contribute to the account and are not exempt, then inheritance tax is owed. If you are a joint owner of real estate and are not exempt, then inheritance tax is owed. Inheritance tax has to be paid nine (9) months from the first full month following the date of death. Harsh penalties and interest are owed if the tax is not paid on time. A person who lives outside the state of Iowa has to pay Iowa inheritance tax if they are not exempt. A person who inherits from a decedent who lives outside the State of Iowa is subject to the inheritance tax laws of the state of the decedent.

    2020 and earlier Iowa inheritance tax schedule

    Iowa inheritance tax instructions

    Iowa Inheritance Tax Code 450

  • No. It is required to be reported on your 1040 income tax return, however it is not taxable. You may have to pay inheritance tax on the amount that you inherit. Learn about Iowa inheritance tax.

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Common Questions About Revocable Trusts

Basics

  • Creating a revocable trust is like creating a business that is separate from you as an individual. A revocable trust is not a person, just like an LLC. This is why the assets of the trust are not required to go through the court-supervised probate process to transfer to beneficiaries. However, a trust must be created and funded correctly in order to be an effective asset-transfer plan.

    A revocable trust requires two things: 

    • A legal written document naming the grantor, trustee, and beneficiary, with a notarized signature by the grantor 

    •  Assets titled in the name of the trust  

    The legal, written document identifies the grantor (also called a settlor or trustor) as the person who is transferring the assets into the name of the trust. A joint trust has multiple grantors and is common for spouses or a group of family members.

    A trust names a beneficiary or group of beneficiaries. The grantor can be the beneficiary during their lifetime, but the trust must name another beneficiary to be valid. A trust also names an event or events when the trust must terminate and the assets be distributed to the named beneficiaries.  

    A revocable trust can be amended or completely revoked with the consent of all of the trustees. In contrast, an irrevocable trust cannot be amended or revoked. 

    A revocable trust is a document separate from your will. It is only effective after it is signed and funded. Opening a bank account in the name of the trust and depositing a nominal amount of money is all that is necessary to fund the trust.  If the trust is not funded, it is not valid. 

    A revocable trust is more expensive than a testamentary trust, but it can save your beneficiaries from having to go through the court-supervised probate process. It is also a private document, whereas a testamentary trust is filed with the court and is court-supervised.

    Add a Revocable Trust when you schedule a Will in a Day®

  • A testamentary trust is written into a will and is only effective if the conditions named in the will occur. A testamentary trust is funded by naming the trustee as the beneficiary for your financial assets after your death. For example, in a life insurance policy, you can name as a beneficiary: “Leslie Knope as Trustee of the Ron Swanson Testamentary Trust.”  

    A trust isn’t just for people with large assets. And, in most families, it isn't for tax-planning purposes. A testamentary trust is part of your will and takes effect on your death; there is no management of the trust during your lifetime. 

    • Trusts for minor children: A basic will—one that you can purchase online or through an office supply store—will not include a trust.  Will in a Day® for parents with minor children automatically includes a testamentary trust.  Without the trust, minor children will have access to their full inheritance at age 18.  In the trust, you set out what ages and what amounts are distributed to the children.

    • Trusts for surviving spouse and adult children: A revocable trust in tandem with a will can prevent your assets from being subject to the court's probate process. Creating a revocable trust means a surviving spouse doesn't have to update his or her will in the future to avoid probate for adult children beneficiaries.  

    • Life insurance and trusts: The easiest way to fund a trust for your children is to take out a life insurance policy and name the trust as the beneficiary.   A life insurance policy can also be designated to pay for your funeral and burial, which costs an average of $10,000. Without planning, these costs have to be paid by the survivors.

  • A trust is an entity created and governed under the state law in which it was formed. A trust involves the creation of a fiduciary relationship between a grantor, a trustee, and a beneficiary for a stated purpose. A trust may be created by any of the following methods:

    A declaration by the owner of property that the owner holds the property as trustee;

    A transfer of property by the owner during the owner's lifetime to another person as trustee;

    A transfer of property by the owner, by will or by other instrument taking effect upon the death of the owner, in trust, to another person as trustee or

    An exercise of a power of appointment to another person as trustee or an enforceable promise to create a trust.

    Source: Internal Revenue Service

  • The grantor (also known as trustor, settlor, or creator) is the creator of the trust relationship and is generally the owner of the assets initially contributed to the trust. The grantor generally establishes in the trust instrument the terms and provisions of the trust relationship between the grantor, the trustee, and the beneficiary. These will usually include the following:

    The rights, duties, and powers of the trustee;

    Distribution provisions;

    Ability of the grantor to amend, modify, revoke, or terminate the trust agreement;

    The designation and selection of a trustee or successor trustees; and

    The designation of the state under which the terms and provisions of the trust agreement are to be governed.

    Source: Internal Revenue Service

  • The trustee obtains legal title to the trust assets and is required to administer the trust on behalf of the beneficiaries according to the express terms and provisions of the trust agreement. A fiduciary is an individual or organization charged with the duty to act for the benefit of another. A trustee is a fiduciary.

    Source: Internal Revenue Service

  • The beneficiaries are those entitled to receive benefits from the trust.

    Source: Internal Revenue Service

  • "Grantor Trust" is a term used in the Internal Revenue Code to describe any trust over which the grantor or other owner retains the power to control or direct the trust's income or assets. If a grantor retains certain powers over or benefits in a trust, the income of the trust will be taxed to the grantor, rather than to the trust. (Examples, the power to decide who receives income, the power to vote or to direct the vote of the stock held by the trust or to control the investment of the trust funds, the power to revoke the trust, etc.) All "revocable trusts" are by definition grantor trusts. An "irrevocable trust" can be treated as a grantor trust if any of the grantor trust definitions contained in Internal Code §§ 671, 673, 674, 675, 676, or 677 are met. If a trust is a grantor trust, then the grantor is treated as the owner of the assets, the trust is disregarded as a separate tax entity, and all income is taxed to the grantor.

    Source: Internal Revenue Service

  • An irrevocable trust is a trust, which, by its terms, cannot be modified, amended, or revoked. For tax purposes an irrevocable trust can be treated as a simple, complex, or grantor trust, depending on the powers listed in the trust instrument. A revocable trust may be revoked and is considered a grantor trust (IRC § 676). State law and the trust instrument establish whether a trust is revocable or irrevocable. If the trust instrument is silent on revocability, then most states consider the trust revocable.

    Source: Internal Revenue Service

  • A testamentary trust is created by a will, which begins its existence upon the death of the person making the will, when property is transferred from the decedent's estate. Testamentary trusts are simple or complex trusts. A testamentary trust is irrevocable by definition, as it comes into being at the death of the grantor. A living person creates an Inter Vivos trust during that person's lifetime. An Inter Vivos Trust can be established as revocable or irrevocable. An Inter Vivos Trust can be a simple, complex, or grantor trust depending on the trust instrument.

    Source: Internal Revenue Service

    A testamentary trust cannot own assets during the grantor's lifetime. This is why a testamentary trust isn’t used to avoid probate.

    The term Inter Vivos means “while alive”. An Inter Vivos trust can own assets during the life of the grantor. Inter Vivos trusts are also known as Living Trusts, Revocable Trusts, and Irrevocable Trusts. This type of Trust is often used to avoid probate. This Trust is effective during the grantor's lifetime. Assets can be retitled into the Trust so the asset avoids probate. created, the Trust can own assets

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Common Questions About Power of Attorney

Basics

  • A power of attorney is a legal document appointing a person to act as your agent in certain situations. You may have heard these terms used:

    • Health care power of attorney

    • Financial power of attorney

    • Durable power of attorney

    In Iowa, attorneys typically separate the health care power of attorney from the financial one to avoid confusion. Scroll down to learn more about these terms.

  • Sometimes known as a medical power of attorney, typically this document appoints a person to act on your behalf when your attending doctor determines you are unable to make your own health care decisions. When the attending doctor determines that you are competent, health care decisions revert back to you.

  • Also known as a statutory power of attorney, this document appoints a person to manage your property and assets. The document specifies when it becomes effective (see below for more information) and what specific property can be managed by the agent. Iowa Code 633B (Subchapter II) offers a thorough list of powers you can grant to your appointed representative. 

  • The term “durable” means that your agent can act on your behalf even when you are incapacitated. In Iowa, the power of attorney document—if it is prepared consistently with state law—is considered durable unless otherwise stated. The power of attorney document specifies whether it covers health care or financial decisions, or both, and the specific authority granted to the agent.

  • The document itself states what circumstances must occur for the agent to act on your behalf. The default language for a health care power of attorney authorizes the agent to act when your attending doctor states that you are unable to make your own health care decisions. If you have specific instructions for your agent, they should be made in writing in the document. It is advised to provide a copy of the power of attorney to your doctor and to your agent.

    A financial power of attorney may be effective at the moment of signing or on the occurrence of a specific condition. If the authority is effective on the condition of incapacity, the document should include that the determination of incapacity is made in writing by your attending physician.

  • Experts advise using a lawyer to help you prepare power of attorney documents. The cost is normally between $50-100 per document. 

  • Although free or low-cost online forms may seem like the path of least resistance, experts do not recommend using a power of attorney document that is not prepared by a lawyer. If cost is a concern for you, you can contact your state or local legal aid office about options. 

Process

  • If you haven’t done so already, now is the best time to get your power of attorney document made because you never know what will happen in the future. If you prepare your document before you face incapacity issues, you will have peace of mind knowing that your wishes will be carried out and that your family won’t have to face difficult decisions without your pre-determined instructions. Additionally, if a condition of incapacity is long-term, a person may need to get court permission through a guardianship or conservatorship to make decisions for you. This is an expensive and time consuming process.

  • First, call to mind the people you trust to act in your best interest. A power of attorney can be a family member, friend, work colleague, or a professional.  

    A financial power of attorney should be an organized individual who makes good financial decisions. A bank may be appointed, but they will collect a fee for their services.  

    The health care power of attorney should be someone that will follow your wishes, regardless of what other people may want for you. A minor cannot be named as a power of attorney.

  • The document is signed by the principal—the person appointing an agent to act on their behalf. 

  • No, the document only needs to be signed by the principal. However, you should give a copy of the document to your agent and your doctor. The document may include a statement indicating that the agent has been notified and consents to the appointment, but it is not required for a valid power of attorney in Iowa.

  • A financial power of attorney requires an acknowledged signature by a notary public.  

    Signing a health care power of attorney can be done in one of two ways:

    •  It can be signed and dated in the presence of two witnesses; or

    •  It can be signed and dated before a notary public.  

    If you go the witness route, one of them cannot be a relative by blood, marriage, or adoption. Neither witness can be an attending health care provider. If you use two witnesses to sign your health care power of attorney document, you do not need a notary public.

  • Iowa has authorized the use of a remote online notary (RON). This option allows the document to be notarized using virtual technology, rather than signing in person. 

    An in-person notary public can be found at your bank, local UPS center, public library, or employer. Because there are legal requirements to act as a notary public, not every location listed here will have one, so it’s best to call ahead.

  • In your power of attorney document, you may include specific instructions regarding health care decisions, including end-of-life decisions. However, the document does not need to include these to be considered valid. 

  • The power of attorney is only valid during your lifetime, so after-death instructions are not legally enforceable. However, you can include a separate section in your health care power of attorney to appoint someone to make decisions after your death, including which ceremonies to perform and what to do with your remains. This individual does not need to be the same person as your health care agent. The language in this section must be consistent with Iowa Code Chapter 144C.

  • If you are the principal—the person who signed the document—you can revoke the power of attorney at any time by communicating to your appointed agent orally or in writing that you revoke the power.  

    You may also notify your current health care provider of a revocation. You may do this yourself, or have someone else tell your doctor.

    Best practice for revoking your power of attorney is to work with your lawyer to execute a new document that names a new agent, then send a written notice to your former agent the revocation of authority. 

  • Your health care power of attorney has a duty to act consistently with your expressed desires. If your desires are unknown, the power of attorney must act in your best interest, taking into account your current medical condition and prognosis.  

    To have a health care power of attorney removed, a district court must find that the agent is acting in a manner contrary to your wishes. Any interested person may file a petition to be appointed as your guardian under Iowa Code 633.

    To remove a financial power of attorney, a qualified person must file a petition for the district court to review the conduct and actions of the appointed agent. The list of qualified persons is included in Iowa Code 633B.116.

  • If a doctor finds that you are not competent, you cannot appoint a power of attorney. Instead, a person concerned for your well-being will need to petition the court to be appointed as your guardian and/or conservator. A guardianship and/or conservatorship often includes the involvement of an attorney, has annual reporting requirements, and may have court costs.  

    A power of attorney is a private document that is not supervised by the court and does not require annual reports. That’s why it’s best to prepare a power of attorney document when you are healthy and well. 

  • Yes, you may name an alternate power of attorney and a second alternate power of attorney in the document. The document should say when the alternate has the authority to act. By naming an alternate, you won’t have to update the document if your primary appointment is not able or declines to act.

  • No, under Iowa Code 144B.6, the power of attorney has the priority to make health care decisions for the principal.

  • Yes, unless the document states otherwise, the power of attorney is suspended after the court appoints a conservator.

  • An advanced directive is a legal document that informs your health care providers and loved ones about your desires if you are unable to make your own decisions. An advanced directive instructs the named power of attorney about your wishes regarding life-sustaining procedures.  

    The health care power of attorney document can also include additional instructions to your agent for end-of-life health care. For example, you could include that you would like in-home hospice.

    Find additional information about advanced directives on the Living Wills page.

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