What happens when a person dies without a Will? Good question. In this article, I will discuss what a Will does and doesn’t do, the myths and the law regarding Wills.
A Will is often referred to as your Last Will and Testament. But as one of my clients asked me: How do you know it is my last Will. We will just call it your Will.
What is a Will? A Will is a document that gives you written instructions to your loved ones and, more importantly, to the court, as to how you want your assets distributed upon your death. The Will describes your family, names the executor, states that your expenses at the time of your death, and any death taxes, shall be paid, and finally, states how the remaining assets, after the payment of expenses and taxes, are to be distributed. In order to be valid under Iowa law, all Wills must be in writing, signed by the testator (person making the Will), and declared by the testator to be the testator’s Will, and witnessed, at the testator’s request, by two competent persons who signed as witnesses in the presence of the testator and in the presence of each other. Signing your Will in front of a notary public will not qualify as being validly signed and witnessed.
What if there is not a valid Will? If there is not a valid Will (no Will or the Will was not validly signed and witnessed), property that would otherwise pass under the Will will pass under Iowa law. (It does not go to the state, as many people believe).
How does property pass under Iowa law? If your spouse survives you and if you have no children or all of your children are also children of your spouse, your spouse will inherit all property passing under the Will. If your spouse survives you and any of your children are not children of your spouse, your spouse will inherit only 50% of the property passing under the Will and your children will inherit the other 50%. If there is no spouse surviving you, your estate will pass to your children. If no children, then to your parents. If neither of your parents survive, then to your brothers and sisters, in equal shares.
The Will has to be court-administered. People often say “I am my mother’s executor,” meaning that they have been named executor in their mother’s Will. And their mother hasn’t even died yet! They will be an executor only after the mother has died and the Court has appointed them as executor. Just naming them in a will is not enough. Likewise, there are people who think they have inherited property because it was given to them in a Will. Like the executor, the property hasn’t transferred to them unless the Will went through the probate process and the Court, by its order, transferred the property to them.
There are a lot of additional issues regarding Wills which will be discussed in Part II.