Three Questions About Probate: Part One

“Death is not the end. There remains the litigation over the estate.”

- Ambrose Bierce

The death of a loved one is a difficult time in anyone’s life. Being thrust into the role of executor can sometimes feel overwhelming. At my initial meeting with an executor of an estate, I often find that the best place to start is to answer the the three questions that are the subject of my next three blogs. First:

What is probate?

“Probate” can be used in two different ways. As a noun, “probate” means the judicial process of validating a will. A will must be submitted to the courts to make sure first that it is valid, second that its terms are legal, and third that its terms are carried out. As a verb, “probate” is the procedural steps an executor takes to settle an estate. Taking these steps is known as probating the will.

You may have noticed that one thing is consistent in both of these definitions: a will. In order to use the term “probate,” the deceased person must have prepared a will. If there is no will, it is not probate. There is still a procedure for distributing the estate, however. That procedure is called administration, and we’ll talk about it more on Friday.

Probating a will can take several different forms. If people know anything about probate, they almost always know about the judicial proceeding. This, however, is not always the most appropriate means of probating an estate. An estate with a low total value and no debts might qualify for a simple procedure called “small estate administration.” In Iowa, the maximum value for small estate administration is $100,000.

In even smaller estates, an affidavit can suffice in place of the probate process. To utilize this method, the estate must have a value of less than $25,000 and cannot include real property. The waiting period required before an estate can be closed is forty (40) days.

Choosing an inappropriate or improper method of dealing with your estate can be fatal. Always seek the advice of an attorney when dealing with a complex issue like probate.

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Lawyer Joke of the Day:

"You seem to be in some distress," said the kindly judge to the witness. "Is anything the matter?"

"Well, your Honor," said the witness, "I swore to tell the truth, the whole truth and nothing but the truth, but every time I try, some lawyer objects."