Probate is the process of court-supervised administration of an estate. If you have a will, upon your death your executor will present it to the court. It is a common misconception that merely possessing the will vests someone with the authority to act. In order for a will to be effective, it must be admitted to probate. If you die without a will, the probate court still has control over the assets of your estate.
Probate is necessary where there are assets which cannot be transferred. For example, real estate titled in the decedent’s name cannot be sold without passing through probate. Investments which have no beneficiary designation generally require probate to transfer them to the heirs.
Banks and financial institutions may ask to see the “letters of appointment” or “letters testamentary.” This is the official document, issued by the clerk of court, which empowers the personal representative to act on behalf of the estate.
Court supervision of the probate process ensures that your executor or the court-appointed administrator handles your estate fairly, legally and according to your wishes. To ensure that the will or the rules of inheritance are followed, the personal representative has a duty to report the assets, debts and disbursements of the estate to the court. The personal representative will also file tax returns on behalf of the decedent and the estate.
Iowa law requires that notice of probate be published in a local newspaper. The notice must be published for two consecutive weeks. After that, the estate must remain open for four months before it can be closed. During this time, the personal representative will sell real estate, liquidate assets, pay creditors and make disbursements to beneficiaries. There may be other factors which require a longer probate period, but in general the probate of an estate should take about six months.
Attorney’s fees and court costs cannot be paid until the estate closes. In Iowa, attorney’s fees are statutorily-controlled and are approximately 2 percent of the gross value of the estate. The personal representative is also entitled to fees in the same amount. By comparison, other methods of asset disposal (like a revocable trust) have no fee caps.
The probate of an estate is fairly straightforward. Court-supervised administration of an estate is neither lengthy nor overly expensive and has the benefit of ensuring that all of the assets of the estate have been disposed of properly and legally.
Information provided by Ross Barnett, attorney for Abendroth and Russell Law Firm, 2560 73rd St., Urbandale, 278-0623, www.ARPCLaw.com.