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Iowa Will Requirements

Information and tips on making an Iowa Last Will and Testament. The statute governing Iowa Wills is contained in Chapter 633 Probate Code.

Who is the Testator?

An Iowa Last Will and Testament can be made by any person (called the testator) as long as they are of full age (18 years) and of sound mind. 633.264

Signing & Witnessing

An Iowa Willor Codicil needs to be:

  • In writing;

 

  • Signed by the testator;

 

 

  • Witnessed by two persons.

 

All parties need to sign in the presence of each other. If the testator cannot sign, a direction for another person to sign on his/her behalf is acceptable. 633.279(1) The witnesses must be at least 16 years old and competent to be a witness generally in the state of Iowa. 633.280

Can a spouse act as a witness?

No. Although the Iowa Last Will & Testament would still be valid if witnessed by the spouse, any gift to the spouse becomes void. The spouse would only receive the share which he/she would be entitled to under intestate succession (ie: as though the testator had died intestate). This rule applies to any other witness who is receiving a benefit under the Will. 633.281 You should always have two competent witnesses who are independent (not receiving any benefit under the Will).

How can I revoke or change my Iowa Will?

An Iowa Last Will & Testamentcan be revoked by:

  • Physically cancelling or destroying; or

 

  • Executing a subsequent Will.

 

When done by cancellation, this requires the revocation to be witnessed in the same manner as making a new Will. 633.284 Revocation can cause complex legal issues if not carried out properly. To ensure an Iowa Will is revoked properly, you should physically destroy the Will and execute a new Will (which expressly revokes all former Wills). This process should also be used for changing a Will.

Probate of Iowa Wills

What is the process for probating a Will in Iowa? If you are an executor of a deceased person’s Will, research your rights and obligations.

Who may request probate?

Any ‘interested person’ may petition the district court to probate the deceased’s Iowa Last Will & Testament 633.290. Interested persons include a spouse, beneficiaries named in the Will and heirs.

How do I start probate?

You need to file a verified petition in the district court of the proper county. The petition can ask for either or both:

  • To have the Iowa Will admitted to probate;

 

  • To appoint an executor. 633.290

 

What happens next?

The court may either determine the petition upon filing or set down a hearing date and time. The court may require notice of the hearing to be given. 633.293

Who is the executor?

The person named in the Iowa Will. However, if that person is unable or unwilling to act, then the court may appoint some other person. The order of preference is a beneficiary under the Will, a person nominated by the beneficiaries, a creditor of the decedent or such other person as the court determines to be qualified. 633.294

Witness Testimony

If the Iowa Last Will is self-proved then it may be admitted to probate without testimony of witnesses. 633.279 Otherwise, one or more witnesses need to give proof of execution by oral or written testimony. The requisite wording of the affidavit is provided by the statute. 633.295

The Probate Order

Once the court is provided with proof, it may admit the Iowa Last Will and Testament to probate. If there is insufficient proof, probate is disallowed 633.298. If probate is granted, the order generally also appoints an executor. 633.299

Notice Requirements

Once probate is given, the executor is required to give notice of the probate of the Iowa Will by publication and ordinary mail as required under section 633.304. If probate was granted without administration at the time, then the clerk of court gives notice to all interested persons pursuant to section 633.305.

Iowa Estate Tax

Inheritance tax in Iowa is calculated on each person’s share of the estate. This is unlike the federal estate tax, which is based on the entire estate. To determine how much inheritance tax is payable, refer to the inheritance tax rate schedule which is published by Iowa Department of Revenue. A return does not need to be filed when all assets pass to a surviving spouse, lineal ascendants or descendants, legally-adopted children and/or stepchildren (unless the estate is obliged to file a federal estate tax return). The Iowa Department of Revenue will not issue a clearance. If the estate must file, use Form IA 706 Iowa Inheritance/Estate Tax Return.

Contesting an Iowa Will

In order to successfully challenge an Iowa Will and Testament, there are certain conditions which need to be met. Also, the statute provides requirements and time limits depending on whether probate has been entered.

Who may contest?

Any person interested in the decedent’s estate. 633.310

Objecting to the Will prior to Probate

An interested person may file objections to the probate prior to the probate order. A trial must be set down to determine whether or not the instrument is the last Will of the deceased. 633.310

Contesting after Notice of Probate

A petition to set aside an Iowa Willmust be filed in the district court by the later of:

  • Four months from the second publication of the notice of probate; or

 

  • One month from the date of mailing the notice to all reasonably ascertainable heirs and devisees. 633.309

 

Grounds for challenging an Iowa Last Will and Testament

The person contesting must have appropriate grounds (reasons) for objecting to the Will. Merely being unsatisfied with the amount given is not a valid ground. A Will may be challenged on numerous grounds including:

  • The testator having lack of testamentary capacity at the time of executing the Iowa Will;

 

  • The Will was not executed properly;

 

 

  • The testator was under duress or coercion to sign the Will;

 

 

  • Fraud.

 

If execution is in issue, the witnesses’ proof cannot be accepted by affidavit. Oral testimony is required. 633.295

Excluding Spouse or Child from Your Iowa Will

Many people ask about disinheriting their spouse or children from the Will. Any disinheritance must be clearly expressed in the Iowa Last Will and Testament. It should never be attempted without an attorney (who may provide the appropriate clause and proper course of action). Some rights remain in place despite a property exclusion made in the Will.

Disinheriting a Spouse

If you try to exclude your spouse from receiving an inheritance under your Iowa Last Will and Testament (or if you leave a nominal amount to your spouse), he/she is still entitled to a specified part of your property under the state legislation. 633.236 What is my spouse entitled to?

  • Your spouse has the right to an election to take under the Will. Your spouse may elect keep his/her share under your Will or may refuse to take under it.

 

  • If your spouse elects to take against your Iowa Will, his/her share will be:
    • 1/3 of your real property possessed by you at any time during the marriage;

     

  • All your personal property which is exempt from execution;
  • 1/3 of all other personal property that is not necessary for the payment of debts. 633.238

 

 

  • Alternatively, instead of the share in real property, your spouse may elect to occupy the homestead. This will not affect your spouse’s rights to personal property as described above. 633.240

 

 

  • The court may also set of a reasonable allowance for the support of your spouse out of your estate for 12 months following your death. 633.374

 

Excluding Children

Disinheriting a child may be easier than not providing for your spouse; however this should also be done expressly and with proper legal advice. A disinherited child still has entitlements in limited circumstances:

  • If you have a dependent child living with your spouse, then the court may allow a reasonable amount for the support of such child from your estate for a period of 12 months following your death. 633.374

 

  • The court may also provide a 12 month allowance for your children who are:
    • under 18;

     

  • between 18 and 22 years if a student;
  • dependent because of a physical or mental disability (any age). 633.376

 

Also, if you made an Iowa Will prior to a child’s birth or adoption and the Will does not provide for that child, then he/she are entitled to a portion of your estate. The portion is based on what he/she would have received under the Iowa laws of intestacy. This rule applies unless it appears from your Iowa Last Will and Testament that such omission was intentional. 633.267

Dying without an Iowa Will

The Iowa intestate legislation applies to any person who dies without making a valid Iowa Will. The rules of descent firstly provide for your spouse and then for your other heirs.

How much does my spouse receive?

  • If there are no surviving children or grandchildren – all of the estate;

 

  • If you left issue (all of whom are also issue of your spouse) – your entire estate;

 

 

  • If there are surviving issue (some of whom are not issue of your spouse):
      • ½ of your real property;

     

  • All personal property exempt from execution; and
  • ½ of all other personal property which is not necessary for the payment of debts.

 

 

  • The spouse’s share may be increased in order to make up the minimum of $50,000 (even if that means giving the spouse the whole of the net estate). 633.212

 

Who gets the balance?

Any amount not inherited by the spouse is distributed in the following priority:

  • Firstly to your children, or grandchildren if a child has predeceased (the children of a deceased child take equally the share their parent would have taken);

 

  • If there are no children or grandchildren – your parents equally (or the survivor);

 

 

  • If both parents predeceased – ½ to each respective parent’s issue. If there are no issue on one side, then the whole estate goes to the other parent’s issue.

 

 

  • If you have no other relatives such as grandparents, great-grandparents or their issue, then your estate goes to your deceased spouse’s issue.

 

 

  • If no person qualifies, then all your property goes to the state of Iowa. 633.219

 

This is so confusing. Can you give me an example?

Here are some case studies of what happens to a person’s property if they die without an Iowa Last Will & Testament. Note these case studies exclude personal property which is exempt from execution, since all such property goes to the spouse: Intestacy rights of wife & children where husband dies without a Will: Kym passed away without a Will. He had two children with his wife Sara. His estate is worth $300,000. Who gets what? Sara: $300,000, Sara & Kym’s Children: Nil. Distribution of wife’s intestate estate – share of husband, children & wife’s child from former partner: Ashley died leaving an estate of $300,000. She had no will. She had two children to her husband Alan, to whom she was married for 15 years. Ashley also has a child from a former partner. Who gets what? Alan: $150,000, Alan & Ashley’s 2 children: $50,000 each, Ashley’s child from former partner: $50,000. Wife died with no Will leaving husband, children & stepchild. Who inherits? Rose died leaving $300,000. She had no will. She has two children to her husband Ray. Ray also has a child from a former partner. Who gets what? Ray: $150,000, Ray & Rose’s children: $75,000 each, Ray’s child from former partner: Nil. Intestate succession where widow dies without a Will. Share of children & grandchildren: Leon died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3) Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Iowa Will Forms

Note: Before making an Iowa Will, we recommend you read up on vital information on preparing, signing and witnessing a Last Will and Testament and on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

Iowa Will Form: Married with adult children
Iowa Will Form: Married with adult and/or minor children, includes a trust for minor children
Iowa Will Form: Married with no children

Iowa Will Form: Single with adult children
Iowa Will Form: Single with adult and/or minor children, includes a trust for minor children
Iowa Will Form: Single with no children

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