Checklist for Probating a Will

Introduction

When someone dies with a will, a surviving family member or other person close to the decedent must ensure that the decedent’s wishes specified in the will are followed. This usually requires the will to be “probated” or submitted to and administered by the court in the jurisdiction where the decedent lived.

This checklist provides a general overview of the probate process.  It is intended for educational purposes only. Those tasked with probating a will at the death of a loved one should seek legal counsel to initiate the process. This checklist assumes that the steps in What to Do Immediately After the Death of a Loved One have been followed. Additionally, the individual seeking to probate the will must have received the death certificate and must be emotionally ready to begin the administration process.   

State law governs the administration of a will. While this checklist specifically references Iowa law, individuals must be careful to follow the law of the state where the decedent passed away or where the decedent owned real property. While “any interested person,”[1] may initiate the probate process, it is generally initiated by the person nominated in the will to be the executor. For more information about the role of an executor, read Trustees, Executors, and Administrators: The Duties of Fiduciaries.

Locating the Will

• Finding the Original Will
  • Find the original will and any amendments.[2] Hopefully, directions were given by the decedent about where to locate the will.
  • A copy of the will is not ideal.[3] If only a copy is found, contact the attorney’s office that prepared the document and check with the local Clerk of Court to see if the will was taken there for safekeeping.[4]
  • Check any safe deposit boxes. Please be aware that access will depend on the documents available.[5] If no documents are available, then the bank may open the box at least 30 days after the death.[6]
  • If you cannot locate the original will, a legal presumption exists that the decedent destroyed the will with the intent to revoke it.[7] Although that presumption is rebuttable, this showing may be difficult, especially if someone chooses to contest the will.  

Initiating the Will Administration Process

• Once found, the custodian of the will must deliver it to the Clerk of Court.[8]
  • If the value of individually owned assets is less than $200,000, a simplified estate administration may be available.[9]
  • If the value of assets is less than $50,000 and the individual owned no real estate, then no court administration may be necessary, and transfer may occur via affidavit.[10]
• Any interested person may file a petition in the district court of the county where the decedent resided to admit the will to probate and request the appointment of an executor.[11]
  • The Clerk of Court will provide Letters Testamentary to the named executor after the judge issues an order appointing the executor and the executor files a Court Officer’s Oath pledging they will complete their Executor duties and responsibilities.[12]
  • The attorney representing the estate and helping with administration will file a Designation of Attorney.[13]
  • Although the court usually appoints the executor the decedent nominated in the will, the executor must be qualified to serve.[14]
  • The petition for probate must generally be filed within five years after the death of the decedent.[15]
• Inventory and Reports
  • The executor must provide an initial inventory to the court within 90 days after appointment.[16] See the Locating Assets & Debts section below for further information.
    • Information found after the initial inventory must be filed with the court 30 days after discovery.[17]
  • Each asset owned by the decedent must be assigned a documented date of death value.[18] This may be obtained in the following ways:
    • Account statements documenting the date of death value for each financial account.
    • An appraisal from a third party may establish the value of the following:
      • Vehicles
      • Equipment
      • Real Estate
      • Business Interests
  • An interlocutory report is due 18 months after opening the estate.[19]
  • A final report is necessary before the executor can be relieved of responsibilities. The report is completed after the distribution of assets.[20] The deadline for the final report is three years after the second newspaper publication.[21] See Notice of Probate, below, for additional information.
  • Any fees taken by the executor or attorney must be approved by the court and accompanied by an affidavit.[22]

Notice of Probate

• The executor must notify all beneficiaries via mail that probate has been opened and the executor appointed.[23]
• The executor must notify heirs and the surviving spouse, if any, that probate has been opened and an executor appointed.[24]
  • Notices to spouses require additional information.[25]
• The executor must generally publish a Notice of Probate of Will with Administration in a newspaper for two weeks. The paper must be distributed in the decedent’s county of residence.[26]
  • An affidavit called the Proof of Publication from the newspaper must be completed.[27]
  • All claims against the decedent’s estate must be made within four months after the second publication or they are forever barred.[28]
  • Notices mailed to known creditors will be barred one month after the notice is sent or within four months after the publication of the second notice, whichever is later.[29]

• The executor must notify the state’s estate recovery unit about the decedent’s death via an online portal. The notice is also filed with the court.[30]

Locating Assets & Debts

• Once appointed, the executor must locate the assets and debts of the decedent.[31]
• To access accounts and other assets, the executor will present the Letters Testamentary (Letters of Appointment)[32] to third parties in possession of the decedent’s assets.[33]
  • As noted in the Will Administration Process section above, the executor must file an inventory 90 days after appointment showing the assets they have located at that time.[34]
• The executor is responsible for possessing the decedent’s real and personal property, except for property exempt to the spouse.[35]
  • The surviving spouse may remain on the homestead.[36]
  • The executor must take reasonable steps to safeguard the property, pay any expenses related to the property, and collect any income generated by the property.
  • Unless otherwise provided by the decedent’s will, any expenses should be paid from the residuary estate and all income is considered part of the residuary estate.[37]
• The executor must locate the documentation for assets that shows how the assets were owned.[38]
  • This includes finding the management documents (bylaws, operating agreement, buy-sell, etc.) for any closely held business interests.[39]
  • Assets held in joint tenancy with right of survivorship will pass to the surviving owner apart from the probate process.
  • Assets with a legitimate transfer on death or payable on designation will also pass to the designated beneficiary automatically.
• The executor should secure copies of the following documents by presenting the Letters Testamentary[40]:
  • Last 12 months of bank statements.
  • Tax Returns. If copies of federal taxes are needed, use Form 4506-T and 56.[41]
• The executor should obtain a copy of the decedent’s credit report from Equifax, Experian, and TransUnion and review for open accounts.[42] 
• The executor may use online services to help locate life insurance policies[43], pensions[44], and retirement accounts.[45]
• The executor must locate the mailing addresses for heirs and beneficiaries.
  • Heirs are those that would receive the estate if no estate plan was made.[46]
  • Legatees are those named in the will.[47] They are also referred to as beneficiaries[48] or devisee.[49]

Notify Financial Institutions and Government Agencies. [50]

• Send the Department of Transportation a request that the decedent’s identity card be flagged as “deceased.” This request should be accompanied by a copy of the death certificate.[51] For more information on vehicles read Vehicles: A Quick Guide After the Death of a Loved One.

• Send the original passport and certified copy of the death certificate to the U.S. Department of State, along with a request to “cancel and return” or destroy.[52]
• Alert Equifax, Experian, and TransUnion of the death by sending the death certificate and other required information.[53] 
• Obtain a copy of the decedent’s credit report from Equifax, Experian, and TransUnion to review for fraudulent activities.
• Place the decedent on the Deceased Do-Not-Contact List to remove the individual from marketing campaigns.[54]
• Notify the local USDA-FSA county office or Service Center of the death.[55]
  • File Form FSA-325 to receive farm payments owed to decedent.[56]

Digital Accounts and Assets

• Google[72] and Apple[73] have account features where the company will contact a designated individual who is authorized to act.
• Facebook will follow the directives of the decedent or “memorialize” the account. They will not give the login and password to the account.[74] 
• If access is needed to an email, an executor may be able to obtain access if they were given express permission by the decedent. The provider has the right to ask for a court order finding that the email access is “reasonably necessary for administration.”[75] 

Tax Forms

• The executor should obtain an EIN for the Estate.[57] This can be obtained online[58] or with form SS-4.[59]
• The executor should file Form 56. This notifies the IRS that the executor is responsible for the estate’s tax filings and the decedent’s final tax return(s).[60]
• Estate Tax. If estate tax is owed, the executor is responsible to file Forms 706 and 8971.[61]
  • These forms are due 9 months after the date of death.
  • The executor should file Form 706, even if estate tax is not due, if the surviving spouse wishes to elect portability of the deceased spouse’s unused exclusion.
• Decedent’s Final Tax Return. The executor is responsible to file the decedent’s final income tax return (IRS Form 1040) for the partial year in which the decedent lived, using the decedent’s social security number.
  • This form is typically, due on April 15^th of the year following death. For example, if Winston died March 20, 2022, the final tax return for Winston would cover Jan 1 – March 20, 2022 and be due April 15, 2023. [62]
  • If copies of prior years’ tax returns cannot be located, copies can be obtained from the IRS using Form 4506.[63]
• Estate Income Tax Return. [64] An income tax return must be filed for the estate on an annual basis until the estate is closed.[65] This is Form 1041, which is filed using the EIN obtained after death.[66]  This form must be filed even if all income is passing through directly to the beneficiaries.
• State Income Tax Forms.
  • The executor must file state income tax returns for any income tax owing in the decedent’s state of residence.[67]
  • If any of the decedent’s assets were located out of state, the executor may need to file tax returns for those states as well.
• Consider Additional State Taxes.[68]
  • In some states, there is a state-level estate tax imposed on assets.[69]
  • In other states, there is an inheritance tax.[70] This is when certain beneficiaries are taxed on what they receive from the estate. The estate can still be liable for the taxes[71]

Distribution

• After all assets have been located, additional claims against the estate are time barred, and the court has a complete inventory on file, the executor may initiate the distribution process.[76]
• The executor must first pay the administrative costs, expenses, and debts of the decedent.[77]
• The executor may then distribute the remaining assets according to the will and state laws.[78]
  • The executor must distribute specific assets named in the will within 12 months after being appointed.[79]
  • The executor should secure signed receipts from those who receive the assets.[80]
  • The executor may also request the beneficiaries to sign waivers of accounting and notice of final report.[81]
• The executor should ensure that all documents associated with the estate administration are physically copied and placed in a safe location – such as an attorney’s office or with another trusted beneficiary.
• The executor should consider creating a digital record of all documents[82]  by saving them in two or three secure electronic locations.