Can I Make My Own Will?

May 24, 2016

As long as your will conforms with the requirements set forth in Chapter 633 of the Iowa Code, or the Iowa Probate Code, you can certainly draft your own will and trust documents. That said, the more complicated your situation is, the less we recommend doing this. It is never a bad idea to discuss your estate planning needs with experienced and trustworthy estate lawyers, even if it is just to find out that you can in fact proceed on your own.

 

What are the Basic Requirements for Making a Will?

 

To make a legally valid will in Iowa, you must be at least 18 years old. You also must possess a clear understanding of what you are doing. You are also required to sign your will, unless it is physically impossible for you to do so. In that case, you can have somebody else sign for you, but it cannot be one of the people you have as a witness to your will.

 

Two Witnesses are Required When You Sign Your Will

 

To make your will official and legally binding in Iowa, there must be two witnesses who are at least 16 years old to you signing it. Neither witness can be a beneficiary in the will. If one of the beneficiaries is also one of the witnesses, they will inherit nothing unless that person is also an heir (an heir is a person who is so closely related to you that if you die without a will, they will inherit from you under Iowa law). If the witness beneficiary is an heir, that person can inherit only the amount he or she would receive under Iowa law if you had died without a will, regardless of what your will specifies. These rules are in place in large part to prevent family members from applying undue pressure on the person making the will.

 

What is a Self-Proved Provision?

 

Iowa law allows for what are referred to as self-proved wills. A self-proved will is a will that has a sworn statement attached, and has been signed by at least two non-beneficiary witnesses. The sworn statement provides that the will was made with full and complete knowledge of what you were doing and meets all the legal requirements set forth by the state of Iowa. This self-proved provision eliminates any need for those who witness your will to appear in court after your death to testify as to the authenticity of your will. We recommend all of our clients include a self-proved provision in their wills, so as to not burden those who act as witnesses.

 

What is a Codicil?

 

A codicil is an addition made to an already-executed will. A codicil can add a provision to a will, remove a provision, or modify an existing provision. Codicils are legal in Iowa, as long as all of the requirements outlined above are met.

 

Things to Keep in Mind if you Decide to Make Your Own Will

 

Iowa only allows people to bequeath property that is owned solely by the person wishing to do so. This means you cannot bequeath any property in a will that is co-owned with another person. You also cannot bequeath an asset that already has a named beneficiary, like a life insurance policy or a 401(k). Your beneficiaries also cannot receive any property that is necessary to pay off your debts and is in liquidation.

 

Your spouse does not have to accept the bequest you leave to him or her in your will. If it is less favorable than the statutory percentage allowed (what Iowa law provides in cases of those who die without a will), then the spouse can choose a statutory share instead. Iowa allows a spouse 1/3 of the estate of a husband or wife who dies intestate, so if your spouse leaves you less than 1/3 of the total value of the estate, you can choose the Iowa method instead. This is only for married couples, not for divorced couples.

 

Disinheriting Family

 

Iowa law allows parents to disinherit their children as long as the intention to do so is explicitly written in the will. If a child is born or adopted after the will has already been written, then the state of Iowa assumes this is a mistake and will give that child an equal portion of your estate that they would have received under the intestacy laws. Interestingly, you cannot disinherit a spouse under Iowa law.

 

As you can see, while you can make your own will in Iowa, there are many, many factors that must be taken into consideration when doing your own estate planning. If you have any questions about drafting or updating a will, contact one of our experienced estate planning attorneys  for an initial consultation.

 

 

 

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