DO YOU NEED A WILL?
What is a Will?
A will is a set of written
instructions that direct how
property will be divided and
distributed at death. Each state
has its own requirements for
legal wills.
Who May Make a Will?
Iowa's requirements for a valid
will are -- the will maker
(testator) must be at least 18
years old, be of sound mind, and
the will must be in written
form. Finally, it must be
witnessed by at least two
persons over the age of 16 who
are competent. It must be signed
according to the technical
formalities set by the state and
beneficiaries of the will may
not serve as witnesses to its
signing.
When May a Will be Changed by
the Maker?
Wills may be changed as often as
their makers wish, as long as
they are of sound mind. Changes
sometimes are made as amendments
called codicils.
What are the Restrictions on
Disposing of Property Under a
Will?
You may dispose of property
anyway you wish with some
restrictions because a surviving
spouse is entitled to a portion
of the estate under Iowa law. A
married spouse may not be
excluded. There are certain
other restrictions a lawyer can
explain.
Must Something be Left to the
Children?
No, but if a person wishes to
disinherit a child, it should be
stated specifically. "I have
intentionally made no provision
for my son, John," would be an
example.
Can I Nominate a Person to be
Guardian or Trustee for my
Children?
Yes. The court will make the
final appointment, but you can
name someone you would like
appointed. Iowa gives priority
to the person you nominate.
Does Having a Will Increase
Probate Expenses?
No. Property to be administered
and taxes to be paid will not
increase probate expenses under
a will. In fact, the presence of
a will frequently reduces
expenses, such as may be the
case of property placed in joint
tenancy or in a revocable trust.
These arrangements are not
better than a properly drafted
will but become better when
supplemented by a will.
How Long is a Will Effective?
It is effective as long as it is
not revoked or changed, and it
may be changed as often as the
maker wishes, as long as the
maker remains in sound mind.
But, wills should be reviewed
from time to time because things
are acquired, and weddings,
divorces, births, adoptions and
deaths occur. Those changes in
our lives can require an update
in a will. The tax laws change
periodically and can affect the
transfer of property under a
will.
When is a Will Effective?
A will goes into effect upon the
death of the maker, when it is
filed for probate. Property
owned by the testator (maker of
the will) is not affected until
the will is probated.
What Happens if I Die Without a
Will?
Iowa has laws which deal with
this occurrence of determining
how your property will be
divided and disposed of in a
manner you might not prefer or
approve. Failing to have a will
can cause worry, inconvenience
and added expense to family and
other heirs. Make your wishes
known.
Can Joint Tenancy Substitute for
a Will?
This is a type of co-ownership
in which the share of a deceased
person goes automatically to the
surviving joint tenant or
tenants. This is a useful device
for certain types of assets in
addition to a will, but creating
a joint-tenancy or changing it
can raise legal and tax
questions. This kind of
arrangement requires the
consultation of an attorney
before it is created because, in
many instances, a well thought
out will is preferable to such
an arrangement.
Is a Revocable Trust a
Substitute for a Will?
Even after a revocable trust has
been set up to distribute the
assets of a decedent, a properly
drawn will still is advisable in
case all assets have not been
transferred to the trust prior
to death.
Who Should Draft a Will?
Lawyers are trained to do this
job and understand the many
pitfalls, which can change what
a will accomplishes from what
the maker of the will had
intended. Easily avoided little
mistakes can cause serious
problems. A lawyer can foresee
the stumbling blocks based on
education and experience and
recommend the best course for
each situation.
May a Person Dispose of Property
Through Any Means Other Than a
Will?
Yes. Joint tenancy, life
insurance proceeds and IRA and
other retirement plans can
convey property. And you may
make gifts to your heirs during
your lifetime up to and beyond
tax-free limits, if you wish.
Such gifts and conveyances can
positively affect your estate,
income and inheritance taxes.
Lawyers are educated in these
areas, helping you determine
your best interests and that of
your heirs. A well thought out
will is usually part of the
overall plan of most persons.
Adapted from a brochure
prepared and
printed by the Iowa State Bar
Association.
-- January 2, 2002.
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