A will is a signed,
witnessed formal written (typed) statement about how you direct your
property to be given away after you die. In Iowa your signature
must be witnessed by two disinterested witnesses that you request to
watch you sign your will. You have to watch them sign their names
as witnesses, too. Picture yourself seated, having read the will
word for word, agreeing that it is a correct statement of your
intent, that you have not overlooked anything or anyone, and see
yourself sign your full name while the two witnesses watch.
A will has to be
admitted to probate within 5 years of your death, or it is as if you
died without a will. Someone who dies without a will, is said to
die “intestate.” If you leave a will when you die, then, if the
will is admitted to probate, you are said to have died “testate.”
In either case the words come from Testament. Your will is your last
testimony on the topic.
In order to get your
will admitted to probate, your lawyer will need to have the
original. He will also prepare an affidavit for one of the two
witnesses to sign unless the will has been acknowledged before a
Notary when you signed it. The lawyer takes the Will to the
Courthouse and files it with the Clerk. She keeps it. She makes a
permanent record of it. Public notice is given. And notice is
mailed to interested persons.
From the date of
second publication of the notice in the newspaper, anyone not named
in the will has 4 months to file an objection to the will. If
someone objects, there will be a hearing or trial on the objection.
If no one objects within the 4 months, they are thereafter barred
from ever objecting. People named in the will have 30 days to
object from when they get a mailed notice unless the 4 months for
everyone else has not run out.
Picture your lawyer
taking your original will to the Courthouse and giving it to the
Clerk of Court who puts it in her permanent files. Picture a legal
notice in the newspaper. And consider who might file an objection
and why. (In my thirty years of practice I have never seen someone
contest a will.) The point of the process is to prove: (1) that you
left a will; (2) that you signed it freely; and (3) that you knew
the natural objects of your bounty when you did it.
In my practice I
always use two subscribing witnesses. If I prepare the Will, I
usually act as one of the witnesses and I have Dawn sign as the
other witness. We have several pointed questions we ask to satisfy
ourselves that you have not overlooked anyone; and that you have
expressed your intent correctly. If you are going to leave out
someone, it is my practice to name them. I usually draft a sentence
that says: “I am not unmindful of so and so, but choose to make no
provision for him in this Will.”
I always instruct
clients to keep their Will in a bank lock box. I routinely do not
keep wills I have drafted myself. I will do it if I am asked; but I
routinely give the client the original; and ask them to rent a bank
lock box if they do not already have one.
A Will also allows
you to nominate someone you trust to serve as the Executor of your
estate. The Executor will work closely with the lawyer handling
your estate to gather up your assets, see to it that any taxes and
bills are paid, prepare an accounting and distribute your property
to the beneficiaries named in your Will.
It is my practice to
advise clients to include a power of sale in the Will. This enables
the Executor to sell your real estate without the attorney for the
Executor having to prepare, file and give notice of a Petition for
authority to sell the real estate, if the real estate needs to be
sold.
If you have minor
children, your Will will also nominate a Guardian to care for the
children in the event that their other parent is also deceased or
otherwise incapacitated.
On three other pages
that follow I will take up three different forms of a Will. This
page was written on 04190.
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