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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