633.1 SHORT TITLE.
This chapter shall be known and may be cited as the "Iowa
Probate Code". Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.1]
633.2 HOW PROBATE CODE TO TAKE EFFECT.
1. Effective date. This probate code shall take effect and
be in force on and after January 1, 1964. The procedure herein
prescribed shall govern all proceedings in probate brought after the
effective date of this probate code. It shall also govern further
procedure in proceedings in probate then pending, except to the
extent that, in the opinion of the court, its application in
particular proceedings or parts thereof would not be feasible or
would work injustice, in which event the former procedure shall
apply.
2. Rights not affected. No act done in any proceeding
commenced before this probate code takes effect and no accrued or
vested right shall be impaired by its provisions. When a right has
been acquired, extinguished, or barred upon the expiration of a
prescribed period of time governed by the provision of any statute in
force before this probate code takes effect, such provision shall
remain in force and be deemed a part of this probate code with
respect to such right. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.2] Section History: Recent Form
2005 Acts, ch 38, §51
633.3 DEFINITIONS AND USE OF TERMS.
When used in this probate code, unless otherwise required by the
context, or another division of this probate code, the following
words and phrases shall be construed as follows:
1. Administrator -- any person appointed by the court to
administer an intestate estate.
2. Bequeath -- includes the word "devise" when used as a
verb.
3. Bequest -- includes the word "devise" when used as a
noun.
4. Charges -- includes costs of administration, funeral
expenses, cost of monument, and federal estate taxes.
5. Child -- includes an adopted child but does not include a
grandchild or other more remote descendants, nor, except as provided
in sections 633.221 and 633.222, a biological child.
6. Clerk -- "Clerk of the District Court" in the county
in which the matter is pending and includes the term "Clerk of the
Probate Court".
7. Conservator -- a person appointed by the court to have the
custody and control of the property of a ward under the provisions of
this probate code.
8. Costs of administration -- includes court costs,
fiduciary's fees, attorney fees, all appraisers' fees, premiums on
corporate surety bonds, statutory allowance for support of surviving
spouse and children, cost of continuation of abstracts of title,
recording fees, transfer fees, transfer taxes, agents' fees allowed
by order of court, interest expense, including, but not limited to,
interest payable on extension of federal estate tax, and all other
fees and expenses allowed by order of court in connection with the
administration of the estate. Court costs shall include expenses of
selling property.
9. Court -- the Iowa district court sitting in probate and
includes any Iowa district judge.
10. Debts -- includes liabilities of the decedent which
survive, whether arising in contract, tort or otherwise.
11. Devise -- when used as a noun, includes testamentary
disposition of property, both real and personal.
12. Devise -- when used as a verb, to dispose of property,
both real and personal, by a will.
13. Devisee -- includes legatee.
14. Distributee -- a person entitled to any property of the
decedent under the decedent's will or under the statutes of intestate
succession.
15. Estate -- the real and personal property of either a
decedent or a ward, and may also refer to the real and personal
property of a trust described in section 633.10.
16. Executor -- means any person appointed by the court to
administer the estate of a testate decedent.
17. Fiduciary -- includes personal representative, executor,
administrator, guardian, conservator, and the trustee of any trust
described in section 633.10.
18. Full age -- the state of legal majority attained through
arriving at the age of eighteen years or through having married, even
though such marriage is terminated by divorce.
19. Functional limitations -- means the behavior or condition
of a person which impairs the person's ability to care for the
person's personal safety or to attend to or provide for necessities
for the person.
20. Guardian -- the person appointed by the court to have the
custody of the person of the ward under the provisions of this
probate code.
21. Guardian of the property -- at the election of the person
appointed by the court to have the custody and care of the property
of a ward, the term "guardian of the property" may be used, which
term shall be synonymous with the term "conservator".
22. Heir -- any person, except the surviving spouse, who is
entitled to property of a decedent under the statutes of intestate
succession.
23. Incompetent -- means the condition of any person who has
been adjudicated by a court to meet at least one of the following
conditions:
a. To have a decision-making capacity which is so impaired
that the person is unable to care for the person's personal safety or
to attend to or provide for necessities for the person such as food,
shelter, clothing, or medical care, without which physical injury or
illness may occur.
b. To have a decision-making capacity which is so impaired
that the person is unable to make, communicate, or carry out
important decisions concerning the person's financial affairs.
c. To have a decision-making capacity which is so impaired
that both paragraphs "a" and "b" are applicable to the
person.
24. Issue -- for the purposes of intestate succession,
includes all lawful lineal descendants of a person, whether
biological or adopted, except those who are the lineal descendants of
the person's living descendants.
25. Legacy -- a testamentary disposition of personal
property.
26. Legatee -- a person entitled to personal property under a
will.
27. Letters -- includes letters testamentary, letters of
administration, letters of guardianship, letters of conservatorship,
and letters of trusteeship.
28. Minor -- a person who is not of full age.
29. Person -- includes natural persons and corporations.
30. Personal representative -- includes executor and
administrator.
31. Property -- includes both real and personal property.
32. Surviving spouse -- the surviving wife or husband, as the
case may be.
33. Temporary administrator -- any person appointed by the
court to care for an estate pending the probating of a proposed will,
or to handle any special matter designated by the court.
34. Trustee -- the person or persons serving as trustee of a
trust described in section 633.10.
35. Trusts -- includes only those trusts described in section
633.10.
36. Will -- includes codicil; it also includes a testamentary
instrument that merely appoints an executor, and a testamentary
instrument that merely revokes or revives another will. Section History: Early Form
[C51, § 1286; R60, § 2318; C73, § 2336; C97, § 3280; C24, 27, 31,
35, 39, § 11860; C46, 50, 54, 58, 62, § 633.15; C66, 71, 73, 75,
77, 79, 81, § 633.3] Section History: Recent Form
94 Acts, ch 1046, §26; 97 Acts, ch 178, § 1, 2; 2005 Acts, ch 38,
§2--5, 51; 2006 Acts, ch 1010, §154; 2008 Acts, ch 1119, §14
Referred to in § 231E.3, 232.2, 249A.5, 450.1, 523A.102, 600A.2,
633.63, 633.89, 633.551
633.4 Repealed by 2000 Acts, ch 1188, § 4.
633.5 NONESTATE PROPERTY -- INSURANCE PROCEEDS.
A decedent's estate shall not include life insurance proceeds,
unless the proceeds are payable to the decedent's estate. Section History: Recent Form
94 Acts, ch 1153, §7
633.6 THROUGH 633.9 Reserved.
633.10 JURISDICTION.
In addition to the jurisdiction granted the district court under
the trust code, chapter 633A, or elsewhere, the district court
sitting in probate shall have jurisdiction of:
1. Estates of decedents and absentees.
The probate and contest of wills; the appointment of personal
representatives; the granting of letters testamentary and of
administration; the administration, settlement and distribution of
estates of decedents and absentees, whether such estates consist of
real or personal property or both.
2. Construction of wills.
The construction of wills during the administration of the estate,
whether said construction be incident to such administration, or as a
separate proceeding.
3. Conservatorships and guardianships.
The appointment of conservators and guardians; the granting of
letters of conservatorship and guardianship; the administration,
settlement and closing of conservatorships and guardianships.
4. Trusts and trustees.
a. The ongoing administration and supervision, including but
not limited to the appointment of trustees, the granting of letters
of trusteeship, trust administration, and trust settlement and
closing, of the following trusts:
(1) A trust that was in existence on July 1, 2005, and that is
subject to continuous court supervision.
(2) A trust established by court decree that is subject to
continuous court supervision.
b. A trust described in paragraph "a" shall be governed
by this chapter and the provisions of chapter 633A which are not
inconsistent with the provisions of this chapter.
c. A trust not described in paragraph "a" shall be
governed exclusively by chapter 633A and shall be subject to the
jurisdiction of the district court sitting in probate only as
provided in section 633A.6101.
d. Upon joint application by all trustees administering a
trust described in paragraph "a" and following notice to the
beneficiaries pursuant to section 633.40, the court shall release the
trust from further jurisdiction unless a beneficiary objects. The
court whose decree created the trust may release the trust from
continuous court supervision following notice to the beneficiary
pursuant to section 633.40. If such judicial release occurs for a
trust previously governed by this chapter, such trust shall be
governed by chapter 633A and the district court sitting in probate
only as provided in section 633A.6101.
5. Actions for accounting.
An action for an accounting against a beneficiary of a transfer on
death security registration, pursuant to chapter 633D. Section History: Early Form
[C73, § 2312; C97, § 225; C24, 27, 31, 35, 39, § 10763, 10764;
C46, 50, 54, 58, 62, § 604.3, 604.4; C66, 71, 73, 75, 77, 79, 81, §
633.10] Section History: Recent Form
85 Acts, ch 154, §1; 91 Acts, ch 36, §1; 97 Acts, ch 178, §3; 99
Acts, ch 56, §2; 2005 Acts, ch 38, §6--8, 55; 2005 Acts, ch 179,
§139; 2006 Acts, ch 1010, §155
Referred to in § 633.3, 633.27, 633.699B, 633A.1107
Applicability of law to trusts, see §633.699B
See also §633A.1107
633.11 DECLARATORY JUDGMENTS -- DETERMINATION OF
HEIRSHIP -- DISTRIBUTION.
During the administration of an estate, the district court sitting
in probate shall have full, legal and equitable powers to make
declaratory judgments in all matters involved in the administration
of the estate, including those pertaining to the title of real
estate, the determination of heirship, and the distribution of the
estate. It shall have full, legal and equitable powers to enter
final orders and decrees in all probate matters to effectuate its
jurisdiction and to carry out its orders, judgments and decrees. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.11]
633.12 COUNTY OF JURISDICTION.
The court of each county shall have original and exclusive
jurisdiction to administer the estates of all persons who are
residents of the county, or who were residents at the time of their
death, and all nonresidents of the state who have property, or who
die leaving property in the county subject to administration, or
whose property is afterwards brought into the county; to appoint
conservators for nonresidents having property in the county; and to
appoint conservators and guardians of residents of the county. Section History: Early Form
[C73, § 2312; C97, § 225; C24, 27, 31, 35, 39, § 10763, 10764;
C46, 50, 54, 58, 62, § 604.3, 604.4; C66, 71, 73, 75, 77, 79, 81, §
633.12]
633.13 EXTENT OF JURISDICTION.
The court of the county in which a will is probated, or in which
administration, conservatorship or guardianship is granted, shall
have jurisdiction coextensive with the state in the settlement of the
estate, and in the sale and distribution thereof.
A district judge or a district associate judge has statewide
jurisdiction to enter orders in probate matters not requiring notice
and hearing, although the judge is not a judge of or present in the
district in which the probate matter is pending. The orders shall be
made in conformity with the rules of the district in which the
probate matter is pending. Section History: Early Form
[R60, § 2472; C73, § 2319; C97, § 3265; C24, 27, 31, 35, 39, §
11825; C46, 50, 54, 58, 62, § 631.7; C66, 71, 73, 75, 77, 79, 81,
§ 633.13] Section History: Recent Form
83 Acts, ch 186, § 10119, 10201; 94 Acts, ch 1122, §2
633.14 CONCURRENT JURISDICTION.
When a case is originally within the jurisdiction of the courts of
two or more counties, the one which first takes cognizance thereof by
the commencement of the proceedings shall retain the same throughout.
Section History: Early Form
[C51, § 1274; R60, § 2306; C73, § 2318; C97, § 3264; C24, 27, 31,
35, 39, § 11824; C46, 50, 54, 58, 62, § 631.6; C66, 71, 73, 75,
77, 79, 81, § 633.14]
633.15 PROBATE COURT ALWAYS OPEN. Repealed by 2003
Acts, ch 151, § 62.
633.16 CONTROL OF PROBATE RECORDS.
The court shall have jurisdiction and supervision of the probate
records of the clerk, and may direct the destruction of records it
deems to be old, obsolete or unnecessary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.16] Section History: Recent Form
93 Acts, ch 70, §10
633.17 JUDGE DISQUALIFIED -- PROCEDURE.
When a judge is disqualified from acting in a probate matter, the
matter shall be heard before another judge of the same district, or
shall be transferred to the court of another district, or a judge of
another district shall be procured to hold court for the hearing of
the matter. Section History: Early Form
[C73, § 2317; C97, § 3263; C24, 27, 31, 35, 39, § 11823; C46,
50, 54, 58, 62, § 631.5; C66, 71, 73, 75, 77, 79, 81, § 633.17] Section History: Recent Form
83 Acts, ch 186, § 10120, 10201
Disqualification of judicial officer, see § 602.1606
633.18 RULES IN PROBATE.
1. Actions and proceedings under this chapter are subject to
rules prescribed by the supreme court under section 602.4201.
2. The judicial officers of a judicial district, excluding the
magistrates, acting under section 602.1213 may prescribe rules for
probate actions and proceedings within the district, but these rules
must be consistent with this chapter, and are subject to the approval
of the supreme court. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.18] Section History: Recent Form
83 Acts, ch 186, § 10121, 10201; 96 Acts, ch 1153, § 7
Rules adopted by the supreme court are published in the
compilation "Iowa Court Rules"
633.19 PROCESS REVOKED.
Any process or authority emanating from the court in probate
matters may for good cause be revoked and a new one issued. Section History: Early Form
[C51, § 1275; R60, § 2307; C73, § 2320; C97, § 3266; C24, 27, 31,
35, 39, § 11827; C46, 50, 54, 58, 62, § 631.9; C66, 71, 73, 75,
77, 79, 81, § 633.19]
633.20 REFEREE -- CLERK -- ASSOCIATE PROBATE JUDGE.
1. The chief judge of the judicial district may appoint a referee
in probate for the auditing of the accounts of fiduciaries and for
the performance of other ministerial duties the chief judge
prescribes. A person shall not be appointed as referee in a matter
where the person is acting as a fiduciary or as the attorney.
2. The chief judge of the judicial district may appoint the clerk
as referee in probate. In such cases, the fees received by the clerk
for serving in the capacity of referee are fees of the office of the
clerk of court and shall be deposited in the account established
under section 602.8108.
3. A person appointed as an associate probate judge shall have
jurisdiction to audit accounts of fiduciaries and to perform
ministerial duties and judicial functions as the court prescribes.
Section History: Early Form
[C73, § 2412; C97, § 3393; C24, 27, 31, 35, 39, § 12041; C46,
50, 54, 58, 62, § 638.1; C66, 71, 73, 75, 77, 79, 81, § 633.20] Section History: Recent Form
83 Acts, ch 186, § 10122, 10201; 93 Acts, ch 70, §11; 94 Acts, ch
1074, §11; 99 Acts, ch 93, §11; 2000 Acts, ch 1057, §17
633.20A PART-TIME ASSOCIATE PROBATE JUDGE --
APPOINTMENT -- REMOVAL -- QUALIFICATIONS.
The chief judge of a judicial district may appoint a part-time
associate probate judge and may remove the part-time associate
probate judge for cause following a hearing. The part-time associate
probate judge shall be an attorney admitted to practice law in this
state and shall be qualified for the position by training and
experience. Section History: Recent Form
99 Acts, ch 93, §12; 2000 Acts, ch 1154, §38
633.20B APPOINTMENT AND RESIGNATION OF FULL-TIME
ASSOCIATE PROBATE JUDGES.
1. Full-time associate probate judges shall be appointed by the
district judges of the judicial election district from persons
nominated by the county magistrate appointing commission. In the
case of a full-time associate probate judge to be appointed to more
than one county, the appointment shall be from persons nominated by
the county magistrate appointing commissions acting jointly and in
the case of a full-time associate probate judge to be appointed to
more than one judicial election district of the same judicial
district, the appointment shall be by a majority of the district
judges in each judicial election district.
2. In November of any year in which an impending vacancy is
created because a full-time associate probate judge is not retained
in office pursuant to a judicial election, the county magistrate
appointing commission shall publicize notice of the vacancy in at
least two publications in the official county newspaper. The
commission shall accept applications for consideration for nomination
as full-time associate probate judge for a minimum of fifteen days
prior to certifying nominations. The commission shall consider the
applications and shall, by majority vote, certify to the chief judge
of the judicial district not later than December 15 of that year the
names of three applicants who are nominated by the commission for the
vacancy. If there are three or fewer applicants, the commission
shall certify all applicants who meet the statutory qualifications.
Nominees shall be chosen solely on the basis of the qualifications of
the applicants, and political affiliation shall not be considered.
3. Within thirty days after a county magistrate appointing
commission receives notification of an actual or impending vacancy in
the office of full-time associate probate judge, other than a vacancy
referred to in subsection 2, the commission shall certify to the
chief judge of the judicial district the names of three applicants
who are nominated by the commission for the vacancy. The commission
shall publicize notice of the vacancy in at least two publications in
the official county newspaper. The commission shall accept
applications for consideration for nomination as full-time associate
probate judge for a minimum of fifteen days prior to certifying
nominations. The commission shall consider the applications and
shall, by majority vote, certify to the chief judge of the judicial
district the names of three applicants who are nominated by the
commission for the vacancy. If there are three or fewer applicants,
the commission shall certify all applicants who meet the statutory
qualifications. Nominees shall be chosen solely on the basis of the
qualifications of the applicants, and political affiliation shall not
be considered. As used in this subsection, a vacancy is created by
the death, retirement, resignation, or removal of a full-time
associate probate judge, or by an increase in the number of positions
authorized.
4. Within fifteen days after the chief judge of a judicial
district has received the list of nominees to fill a vacancy in the
office of full-time associate probate judge, the district judges in
the judicial election district shall, by majority vote, appoint one
of those nominees to fill the vacancy.
5. A full-time associate probate judge who seeks to resign from
the office of full-time associate probate judge shall notify in
writing the chief judge of the judicial district as to the full-time
associate probate judge's intention to resign and the effective date
of the resignation. The chief judge of the judicial district, upon
receipt of the notice, shall notify the county magistrate appointing
commission and the state court administrator of the actual or
impending vacancy in the office of full-time associate probate judge
due to resignation.
6. The supreme court may prescribe rules of procedure to be used
by county magistrate appointing commissions when exercising the
duties specified in this section. Section History: Recent Form
99 Acts, ch 93, §13, 15; 99 Acts, ch 208, § 62; 2003 Acts, ch 151,
§51, 64 Footnotes
Option to delay for up to 180 days, for budgetary reasons,
certification of nominees for an associate probate judgeship for the
period beginning March 16, 2009, and ending June 30, 2010; 2009 Acts,
ch 170, §54, 55; 2009 Acts, ch 179, §172, 173
633.20C FULL-TIME ASSOCIATE PROBATE JUDGES -- TERM,
RETENTION, QUALIFICATIONS.
1. Full-time associate probate judges shall serve terms and shall
stand for retention in office within the judicial election districts
of their residences as provided under sections 46.16 through 46.24.
2. A person does not qualify for appointment to the office of
full-time associate probate judge unless the person is at the time of
appointment a resident of the county in which the vacancy exists,
licensed to practice law in Iowa, and will be able, measured by the
person's age at the time of appointment, to complete the initial term
of office prior to reaching age seventy-two. An applicant for
full-time associate probate judge shall file a certified application
form, to be provided by the supreme court, with the chairperson of
the county magistrate appointing commission.
3. A full-time associate probate judge must be a resident of a
county in which the office is held during the entire term of office.
A full-time associate probate judge shall serve within the judicial
district in which appointed, as directed by the chief judge, and is
subject to reassignment under section 602.6108.
4. Full-time associate probate judges shall qualify for office as
provided in chapter 63 for district judges. Section History: Recent Form
99 Acts, ch 93, §14, 15
633.21 APPRAISERS' FEES AND REFEREES' FEES FIXED BY
RULE.
The district judges of each judicial district shall by rule fix
the fees of probate referees, and also provide, insofar as
practicable, a uniform schedule of compensation for inheritance tax
appraisers, other appraisers, brokers, and agents employed at estate
expense. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.21] Section History: Recent Form
83 Acts, ch 186, § 10123, 10201
633.22 PROBATE POWERS OF CLERK.
The clerk shall have and may exercise within the county all the
powers and jurisdiction of the court and of the judge thereof, in the
following matters:
1. The appointment of personal representatives who are residents
of the state, guardians and conservators for minors, the fixing and
determining of the amount of the bond, or waiving the same when
permitted by law or by will, and the approval of any and all bonds
given by fiduciaries in the discharge of their duties.
2. The examination and approval of all intermediate and
interlocutory accounts and reports of fiduciaries.
3. The admission of wills of decedents to probate, when not
contested, and the making of necessary orders in relation thereto,
including orders for the issuance of commissions to take depositions.
Proof may be made before the clerk in the same manner as is made in
open court.
4. The making of all necessary orders in relation to the personal
effects of a deceased person, where no objection is filed, and
perform all other acts within the clerk's jurisdiction, as provided
in this probate code.
5. The approval, when notice has been waived by all persons
interested, of petitions and reports, or joint petitions and reports,
in respect to the sale, mortgage, pledge, lease or exchange of
property pursuant to sections 633.386 to 633.400.
6. The entering of routine scheduling orders in probate matters
as established by the chief judge in each judicial district. Section History: Early Form
[C51, § 1276; R60, § 2308; C73, § 2315, 2321; C97, § 250, 3267,
3268; S13, § 3268; C24, 27, 31, 35, 39, § 11828, 11832, 11838;
C46, 50, 54, 58, 62, § 631.10, 632.1, 632.7; C66, 71, 73, 75, 77, 79,
81, § 633.22] Section History: Recent Form
94 Acts, ch 1050, §1; 2005 Acts, ch 38, §51
Referred to in § 633.23
633.23 CLERK'S ACTIONS REVIEWED.
Any person aggrieved by any order made or entered by the clerk
under the powers conferred in section 633.22, subsections 1 to 4, may
have the same reviewed in court upon motion filed within six months
or before the hearing on the final report of the fiduciary, whichever
is the earlier, and upon such notice as provided in section 633.40.
Section History: Early Form
[C97, § 251; C24, 27, 31, 35, 39, § 11834; C46, 50, 54, 58,
62, § 632.3; C66, 71, 73, 75, 77, 79, 81, § 633.23]
633.24 DOCKETING AND HEARING.
Upon the filing of such a motion, the clerk shall place the cause
or proceeding on the docket without additional docket fee, and the
matter shall stand for hearing or trial de novo in open court. Section History: Early Form
[C97, § 251; C24, 27, 31, 35, 39, § 11835; C46, 50, 54, 58,
62, § 632.4; C66, 71, 73, 75, 77, 79, 81, § 633.24]
633.25 VALIDITY OF CLERK'S ORDERS.
The records, orders, and judgments made and entered by the clerk,
as hereinbefore provided, and not reversed, set aside, or modified by
the court, shall stand, and shall be of the same force, validity, and
effect, and be entitled to the same faith and credit, as if they had
been made by the court. Section History: Early Form
[C97, § 252; C24, 27, 31, 35, 39, § 11836; C46, 50, 54, 58,
62, § 632.5; C66, 71, 73, 75, 77, 79, 81, § 633.25]
633.26 CLERK NOT TO PREPARE REPORTS.
A clerk of the district court or employee of the clerk shall not
act as attorney for a fiduciary, or make or assist in making,
drafting, or filling out any report of any fiduciary or any other
report to be filed in the clerk's office. Section History: Early Form
[C97, § 252; C24, 27, 31, 35, 39, § 11837; C46, 50, 54, 58,
62, § 632.6; C66, 71, 73, 75, 77, 79, 81, § 633.26] Section History: Recent Form
90 Acts, ch 1233, §38
633.27 PROBATE DOCKET.
The clerk shall keep a book to be known as the Probate Docket,
which shall show:
1. The name of every deceased person whose estate is administered
or whose will is admitted to probate, and the date of the person's
death.
2. The name of each person as to whom application for
conservatorship or guardianship is made.
3. The names of all the heirs in intestate estates and the
surviving spouse of such deceased intestate, and their ages and
places of residence, so far as they can be ascertained.
4. The title of each trust described in section 633.10 that has
not been released by the court from continuous court supervision.
5. A note of every sale of real estate made under the order of
the court, with a reference to the volume and page of the record
where a complete record thereof may be found. Section History: Early Form
[C73, § 2490; C97, § 3411; C24, 27, 31, 35, 39, § 11841; C46,
50, 54, 58, 62, § 632.10; C66, 71, 73, 75, 77, 79, 81, § 633.27] Section History: Recent Form
2005 Acts, ch 38, §9
633.27A DOCKETING GUARDIANSHIP AND CONSERVATORSHIP
PROCEEDINGS.
When a petition is filed for a conservatorship or guardianship, or
a combined petition as provided in section 633.627, the
administration thereof shall be treated as a separate proceeding,
with a separate docket number, from the date of the filing of the
petition. The clerk shall clearly indicate on the docket whether the
proceedings are voluntary or involuntary and whether a guardianship,
a conservatorship, or combined. Section History: Recent Form
89 Acts, ch 178, §7
633.28 DOCKETING TRUST PROCEEDINGS. Repealed by
2005 Acts, ch 38, § 50.
633.29 Repealed by 99 Acts, ch 144, § 15.
633.30 Repealed by 93 Acts, ch 70, § 15.
633.31 CALENDAR -- FEES IN PROBATE.
1. The clerk shall keep a court calendar, and enter thereon such
matters as the court may prescribe.
2. The clerk shall charge and collect the following fees in
connection with probate matters, which shall be deposited in the
account established under section 602.8108:
a. For services performed in
short form probates pursuant to
sections 450.22 and 450.44 .................... $ 15.00
b. For services performed in probate of
will without administration .................... 15.00
c. For filing and indexing a transcript 50.00
d. For taking and approving a bond,
or the sureties on a bond .................... 20.00
e. For entering a rule or order .................... 10.00
f. For certificate and seal .................... 10.00
g. For making a complete record where
real estate is sold .................... per 100 words .................... .20
h. For making a transcript or
copies of orders or records filed in
the clerk's office .................... per 100 words .................... .50
i. For certifying change of title .................... 20.00
j. For issuing commission to
appraisers .................... 2.00
k. For other services performed in the settlement of the
estate of any decedent, minor, person with mental illness, or other
persons laboring under legal disability, except where actions are
brought by the administrator, guardian, trustee, or person acting in
a representative capacity or against that person, or as may be
otherwise provided herein, where the value of the personal property
and real estate of such a person falls within the following indicated
amounts, the fee opposite such amount shall be charged.
(1) Up to $3,000.00 .................... 5.00
(2) 3,000.00 to 5,000.00 .................... 10.00
(3) 5,000.00 to 7,000.00 .................... 15.00
(4) 7,000.00 to 10,000.00 .................... 20.00
(5) 10,000.00 to 15,000.00 .................... 25.00
(6) 15,000.00 to 25,000.00 .................... 30.00
(7) For each additional $25,000.00 or
major fraction thereof .................... 50.00
l. For services performed in small
estate administration .................... 15.00
3. The fee set forth in subsection 2, paragraph "k", shall
not be charged on any property transferred to a testamentary trust
from an estate that has been administered in this state and for which
court costs have been assessed and paid. Section History: Early Form
[C97, § 3269; C24, 27, 31, 35, 39, § 11844; C46, 50, 54, 58,
62, § 632.13; C66, 71, 73, 75, 77, 79, 81, § 633.31] Section History: Recent Form
83 Acts, ch 186, § 10124, 10201; 88 Acts, ch 1258, §3; 89 Acts, ch
207, §2; 94 Acts, ch 1074, §12, 13; 96 Acts, ch 1129, § 113; 99 Acts,
ch 56, §3; 2004 Acts, ch 1120, §7; 2007 Acts, ch 180, §3; 2009 Acts,
ch 179, §64, 72
633.32 DELINQUENT INVENTORIES AND REPORTS.
1. On June 1 and December 1 of each year, the clerk shall notify
the fiduciary and the fiduciary's attorney of any delinquent
inventories or reports due by law in any pending estate, trust,
guardianship, or conservatorship, and that unless such delinquent
inventory or report is filed within sixty days thereafter, the matter
shall be reported to the presiding judge. If the delinquent
inventory is not filed within the time so specified, the fiduciary
will be subject to removal under the provisions of section 633.65 of
this Code.
2. On August 1 and February 1 of each year, the clerk shall
report to the presiding judge all delinquent inventories or reports
in estates, trusts, guardianships, or conservatorships on which such
notice has been given and no report or inventory has been filed in
response to the notice.
3. The reports required by this section shall indicate thereon
all cases in which the attorney, or the fiduciary or the fiduciary's
surety, is deceased, or insolvent, or cannot be found, or has removed
from this state, and where it is shown by said reports, or it
otherwise appears that there are no known assets belonging to the
estate, the judge may, on the judge's own motion, order said estate
closed, and may, in the judge's discretion, waive costs, or, on
reasonable notice to the fiduciary, tax costs against the fiduciary.
Such order shall not operate to prevent the reopening of such estate.
Section History: Early Form
[C97, § 3269; C24, 27, 31, 35, 39, § 11845; C46, 50, 54, 58,
62, § 632.14; C66, 71, 73, 75, 77, 79, 81, § 633.32] Section History: Recent Form
2000 Acts, ch 1150, §1
633.33 NATURE OF PROCEEDINGS IN PROBATE.
Actions to set aside or contest wills, for the involuntary
appointment of guardians and conservators, and for the establishment
of contested claims shall be triable in probate as law actions, and
all other matters triable in probate shall be tried by the probate
court as a proceeding in equity. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.33]
633.34 APPLICABILITY OF RULES OF CIVIL PROCEDURE.
All actions triable in probate shall be governed by the rules of
civil procedure, except as provided otherwise in this probate code.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.34] Section History: Recent Form
2005 Acts, ch 38, §51
633.35 REPORTS AND APPLICATIONS FOR ORDERS.
All petitions, reports, and applications for orders in probate
must be in writing, verified, acknowledged or certified, and
self-explanatory. If the petition, report, or application is
certified, substantially the following language shall be used: "I
certify under penalty of perjury and pursuant to the laws of the
state of Iowa that the preceding is true and correct." Section History: Early Form
[C97, § 3421; C24, 27, 31, 35, 39, § 12072; C46, 50, 54, 58,
62, § 638.35; C66, 71, 73, 75, 77, 79, 81, § 633.35] Section History: Recent Form
89 Acts, ch 35, §1
Referred to in § 450.58
633.36 ORDERS IN PROBATE.
All orders and decrees of the court sitting in probate are final
decrees as to the parties having notice and those who have appeared
without notice. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.36]
633.37 ORDERS WITHOUT NOTICE.
All orders entered without notice or appearance are reviewable by
the court at any time prior to the entry of the order approving the
final report. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.37]
633.38 TIME AND PLACE OF HEARING.
Except as otherwise provided in this probate code, the hearing of
any matter requiring notice shall be had at such time and place as
the court may fix. Section History: Early Form
[C73, § 2313; C97, § 3261; C24, 27, 31, 35, 39, § 11820; C46,
50, 54, 58, 62, § 631.2; C66, 71, 73, 75, 77, 79, 81, § 633.38] Section History: Recent Form
2005 Acts, ch 38, §51
633.39 PLACE OF HEARING -- NONCONTEST OR AGREEMENT.
In cases where no objection, resistance or appearance has been
filed, or by agreement, such hearing may be had at any place within
the judicial district. Section History: Early Form
[C97, § 3261; C24, 27, 31, 35, 39, § 11821; C46, 50, 54, 58,
62, § 631.3; C66, 71, 73, 75, 77, 79, 81, § 633.39]
633.40 NOTICE IN PROBATE PROCEEDINGS.
1. Court prescribing notice. Except as otherwise provided in
this probate code, the court shall fix the time and place of hearing
of any matter requiring notice and shall prescribe a time for the
hearing not less than twenty days after the date the notice is served
unless the court finds there is good cause shown to shorten the time
period to less than twenty days. The court shall also prescribe the
manner of service of the notice of such hearing.
2. Notice by publication. In the case of proceedings against
unknown persons or persons whose address or whereabouts are unknown,
the court shall prescribe that notice may be served by publication
within the time and in the manner provided by the rules of civil
procedure.
3. No notice by posting. No notice shall be served at any
time by posting.
4. Notice otherwise provided. In lieu of the foregoing the
notice may direct each interested party to file the party's
objections thereto in writing, if any, on or before a date certain,
to be set out in the notice and to be not less than twenty days after
the day the notice is served upon the party and that unless the party
does so file objections in writing that the party will be forever
barred from making any objections thereto. Said notice shall be
served upon each interested party personally in compliance with the
rules of civil procedure, or upon those parties not under legal
disability by ordinary United States mail. In the event objections
thereto are timely filed, the court shall fix the time and place of
the hearing for the judicial determination of the issues raised.
5. Notice by mail. When notice in probate proceedings is
served upon an interested party by United States mail, the service is
made and completed when the notice being served is enclosed in a
sealed envelope with the proper postage thereon addressed to the
interested party at the party's last known post office address and is
deposited in a mail receptacle provided by the United States postal
service. Section History: Early Form
[C73, § 2314; C97, § 3262; C24, 27, 31, 35, 39, § 11822; C46,
50, 54, 58, 62, § 631.4; C66, 71, 73, 75, 77, 79, 81, § 633.40] Section History: Recent Form
2005 Acts, ch 38, §51; 2009 Acts, ch 52, §2, 14
Referred to in § 633.10, 633.23, 633.237, 633.374, 633.376,
633.389, 633.478, 633.554, 633.568, 633.677, 633.702, 635.8 Footnotes
2009 amendment to subsection 1 applies to orders setting hearings
entered on or after July 1, 2009; 2009 Acts, ch 52, §14
633.41 CONSULAR REPRESENTATIVES -- NOTICE.
Whenever in the course of the administration of any estate, it
shall appear that any subject, citizen, or national of a foreign
country is interested as an heir, devisee, legatee, or otherwise, and
the address of such person is unknown to the personal representative,
the personal representative shall give notice by mail to the consular
representative of such country for Iowa of the pendency of such
proceedings and of the particular interest of such foreign subject.
If such consular representative shall not have filed the
representative's designation and address with the clerk, then such
notice shall be mailed to the chief diplomatic representative of such
foreign country at Washington, D.C. Failure to give such notice
shall in no event and in no manner affect title to property. Section History: Early Form
[C27, 31, 35, § 11845-b1; C39, § 11845.1; C46, 50, 54, 58, 62,
§ 632.15; C66, 71, 73, 75, 77, 79, 81, § 633.41]
633.42 REQUESTS FOR NOTICE.
At any time after the issuance of letters testamentary or of
administration upon a decedent's estate, any person interested in the
estate may file with the clerk a written request, in triplicate, for
notice of the time and place of all hearings in such estate for which
notice is required by law, by rule of court, or by an order in such
estate. The request for notice shall state the name and post office
address of such person and the name and post office address of the
attorney, if any, for the party requesting the notice. The clerk
shall docket the request, and transmit the duplicates to the personal
representative of the estate of the decedent and to the personal
representative's attorney of record, if any. Thereafter, the
personal representative shall, unless otherwise ordered by the court,
serve, by ordinary mail, upon such person, or the person's attorney,
if any, a notice of each hearing. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.42] Section History: Recent Form
93 Acts, ch 111, §1
Referred to in § 633.43, 654.4A
633.43 NOTICE AND APPEARANCE.
In any matter pending in the probate court, the attorney general
may request notice of all hearings therein as provided by section
633.42, and may, with the approval of the court, intervene in behalf
of the public interest. The court, on its own motion, in any such
matter involving the public interest, may direct the fiduciary to
give notice of the hearing to the attorney general. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.43]
633.44 WAIVER OF SERVICE OF NOTICE.
Any notice required under this probate code, or by order of court,
may be waived in writing by the person, or the fiduciary, entitled to
receive such notice. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.44] Section History: Recent Form
2005 Acts, ch 38, §51
633.45 NOTICE OF ORDER SERVED ON FIDUCIARY AND
ATTORNEY.
When the court makes an order affecting a fiduciary, it shall be
served upon the fiduciary and the fiduciary's attorney of record in
such manner as the court may prescribe. Section History: Early Form
[R60, § 2474, 2475, 2476; C73, § 2479, 2480, 2481; C97, § 3403,
3404; S13, § 3403; C24, 27, 31, 35, 39, § 12055, 12056; C46, 50,
54, 58, 62, § 638.15, 638.16; C66, 71, 73, 75, 77, 79, 81, § 633.45]
633.46 PROOF OF PUBLICATION.
Proof of the publication of all notices that are by this probate
code or by order of court required to be published shall be made by
an affidavit of the publisher or of any employee having knowledge of
the facts. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.46] Section History: Recent Form
2005 Acts, ch 38, §51
633.47 PROOF OF SERVICE AND PAYMENT OF COSTS.
Proof of service of any notice, required by this probate code or
by order of court, including those by publication, shall be filed
with the clerk. The costs of serving any notice given by the
fiduciary shall be paid directly by the estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.47] Section History: Recent Form
2003 Acts, ch 151, §52; 2005 Acts, ch 38, §51
633.48 CERTIFIED COPIES AFFECTING FOREIGN REAL
ESTATE.
A certified copy of any proceedings, order, judgment, or deed,
affecting real estate in any county other than that in which
administration or conservatorship is originally granted, shall be
furnished to the clerk of the court of the county where such real
estate is situated. Upon receipt of the certified copy, the clerk of
court shall assign a probate case number to the certified copy and
file the copy using the name of the probate proceeding in the county
sending the copy. The file created by the county receiving a
certified copy as provided in this section shall not be considered an
active file for administrative purposes. Section History: Early Form
[C97, § 3265; C24, 27, 31, 35, 39, § 11826; C46, 50, 54, 58,
62, § 631.8; C66, 71, 73, 75, 77, 79, 81, § 633.48] Section History: Recent Form
99 Acts, ch 144, §12
633.49 TRANSFER TO ANOTHER COUNTY.
In any proceeding in probate, the court may, upon written showing,
supported by affidavit, and on such notice to interested parties as
the court may prescribe, transfer such proceeding to any other
county, when it is made to appear that such transfer will be in
furtherance of justice. Thereupon, the matter shall be pending in
such other county. Section History: Early Form
[C24, 27, 31, 35, 39, § 11829; C46, 50, 54, 58, 62, § 631.11;
C66, 71, 73, 75, 77, 79, 81, § 633.49]
633.50 CERTIFIED COPY OF TRANSFERRING COURT'S
RECORDS.
The clerk of the court which orders such a transfer shall retain
the original files and papers, but shall make a certified copy
thereof and of all record entries pertaining to the proceedings. The
clerk of court shall at once file the same in the office of the clerk
of the court to which the transfer has been made. Section History: Early Form
[C24, 27, 31, 35, 39, § 11830; C46, 50, 54, 58, 62, § 631.12;
C66, 71, 73, 75, 77, 79, 81, § 633.50]
Referred to in § 633.51
633.51 FILING OF CERTIFIED COPY BY RECEIVING COURT.
The clerk of the court to which the proceedings are transferred
shall file, within a new file of the clerk's county, the certified
copy of the record entries referred to in section 633.50. Section History: Early Form
[C24, 27, 31, 35, 39, § 11831; C46, 50, 54, 58, 62, § 631.13;
C66, 71, 73, 75, 77, 79, 81, § 633.51] Section History: Recent Form
99 Acts, ch 144, §13
633.52 MISTAKES CORRECTED.
Mistakes in settlements may be corrected at any time before the
final discharge of any fiduciary on such notice, if any, as the court
may direct. Section History: Early Form
[C51, § 1432; R60, § 2457; C73, § 2474; C97, § 3398; C24, 27, 31,
35, 39, § 12049; C46, 50, 54, 58, 62, § 638.9; C66, 71, 73, 75,
77, 79, 81, § 633.52]
633.53 SUBMISSION AND RETENTION OF VOUCHERS AND
RECEIPTS.
In all accountings filed by fiduciaries, vouchers or receipts for
all disbursements shall be filed or submitted by the fiduciary upon
written request of any interested party, or upon order of court.
After an order, or decree, has been entered approving such
accounting, any vouchers or receipts which have been filed may be
withdrawn under order of the court. Vouchers or receipts not filed,
or which have been withdrawn, shall be preserved by the fiduciary
until the accounting of such fiduciary becomes final. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.53]
633.54 THROUGH 633.62 Reserved.
633.63 QUALIFICATION OF FIDUCIARY -- RESIDENT.
1. Any natural person of full age, who is a resident of this
state, is qualified to serve as a fiduciary, except the following:
a. One who is under legal incompetency or is a chronic
alcoholic or a spendthrift.
b. Any other person whom the court determines to be
unsuitable.
2. Banks and trust companies organized under the laws of the
United States or state banks, when approved by the superintendent of
banking under section 524.1001, and trust companies authorized to
engage in trust business pursuant to section 524.1005, are authorized
to act in a fiduciary capacity in Iowa.
3. A private nonprofit corporation organized under chapter 504,
Code 1989, or current chapter 504 is qualified to act as a guardian,
as defined in section 633.3, or a conservator, as defined in section
633.3, if the corporation does not possess a proprietary or legal
interest in an organization which provides direct services to the
individual.
4. The state or a local substitute decision maker as defined in
section 231E.3 is authorized to act in a fiduciary capacity in this
state in accordance with chapter 231E. Section History: Early Form
[C51, § 1304, 1305; R60, § 2336, 2337; C73, § 2345, 2346; C97, §
3288, 3289; C24, 27, 31, 35, 39, § 11871, 11872; C46, 50, 54, 58,
62, § 633.27, 633.28; C66, 71, 73, 75, 77, 79, 81, § 633.63] Section History: Recent Form
85 Acts, ch 31, § 1; 86 Acts, ch 1131, § 1; 89 Acts, ch 178, § 8;
89 Acts, ch 257, §32; 96 Acts, ch 1129, § 105; 98 Acts, ch 1118, § 1;
2003 Acts, ch 108, §108; 2004 Acts, ch 1049, §191; 2004 Acts, ch
1175, §394; 2005 Acts, ch 175, §144, 145
Referred to in § 217.41, 231E.10, 256.66, 256.88, 260C.32, 262.9,
303.7, 303.9, 501A.601, 524.107, 633.64, 633.65, 633.649, 635.1
633.64 QUALIFICATION OF FIDUCIARY -- NONRESIDENT.
The court may, upon application, appoint the following
nonresidents as fiduciaries:
1. Natural persons. A natural person who is a nonresident of
this state and who is otherwise qualified under the provisions of
section 633.63, provided a resident fiduciary is appointed to serve
with such nonresident fiduciary; and provided further that the court,
for good cause shown, may appoint such nonresident fiduciary to serve
alone without the appointment of a resident fiduciary.
2. Banks and trust companies. Banks and trust companies
organized under the laws of the United States or of another state and
authorized to act in a fiduciary capacity in another state, if banks
and trust companies of this state are permitted to act as fiduciary
under similar conditions in the state where such bank or trust
company is located. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.64]
Referred to in § 524.107, 633.65, 633.649, 635.1
633.65 REMOVAL OF FIDUCIARY.
When any fiduciary is, or becomes, disqualified under sections
633.63 and 633.64, has mismanaged the estate, failed to perform any
duty imposed by law, or by any lawful order of court, or ceases to be
a resident of the state, then the court may remove the fiduciary.
The court may upon its own motion, and shall upon the filing of a
verified petition by any person interested in the estate, including a
surety on the fiduciary's bond, order the fiduciary to appear and
show cause why the fiduciary should not be removed. Any such
petition shall specify the grounds of complaint. The removal of a
fiduciary after letters are duly issued to the fiduciary shall not
invalidate the fiduciary's official acts performed prior to removal.
Section History: Early Form
[C51, § 1306, 1509, 1510; R60, § 2338, 2561, 2562; C73, § 2247,
2251, 2496--2500; C97, § 3198, 3201, 3416--3418; S13, § 3228-g; C24,
27, § 12066--12068, 12600, 12604, 12643; C31, 35, § 12066--12068,
12600, 12604, 12643, 12644-c12; C39, § 12066--12068, 12600, 12604,
12643, 12644.12; C46, 50, 54, 58, 62, § 638.29--638.31, 668.27,
668.31, 671.12, 672.12; C66, 71, 73, 75, 77, 79, 81, § 633.65]
Referred to in § 231E.7, 524.1007, 524.1008, 633.32, 633.649
633.66 APPOINTMENT OF SUCCESSOR FIDUCIARY.
When any fiduciary fails to qualify, dies, is removed by the
court, or resigns, and such resignation is accepted by the court, the
court may, and if the fiduciary were the sole or last surviving
fiduciary, and the administration has not been completed, the court
shall appoint another fiduciary in the former's place. Section History: Early Form
[C51, § 1303, 1307; R60, § 2335, 2339; C73, § 2347, 2348; C97, §
3290, 3291; C24, 27, 31, 35, 39, § 11873, 11874; C46, 50, 54, 58,
62, § 633.29, 633.30; C66, 71, 73, 75, 77, 79, 81, § 633.66]
Referred to in § 633.649
633.67 POWERS OF SURVIVING COFIDUCIARY.
When the instrument creating the estate or trust requires two or
more fiduciaries, and a vacancy occurs on account of the death,
resignation, or removal of one of the fiduciaries, during the period
of the vacancy thus created, the remaining fiduciary or fiduciaries
shall have all the rights, titles and powers, whether discretionary
or otherwise, of all the fiduciaries. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.67]
Referred to in § 633.649
633.68 POWERS OF SUCCESSOR FIDUCIARY.
When a successor fiduciary is appointed, the successor shall have
all the rights, powers, titles and duties of the predecessor, except
that the successor shall not exercise powers given in the instrument
creating the powers that by its express terms are personal to the
fiduciary therein designated. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.68]
Referred to in § 633.649
633.69 SUBSTITUTION -- EFFECT.
The substitution of a fiduciary shall occasion no delay in the
administration of an estate. The periods herein specified within
which acts are to be performed after the appointment of a fiduciary
shall, unless otherwise ordered by the court, be computed from the
issuing of the letters to the first fiduciary. Section History: Early Form
[C51, § 1308; R60, § 2340; C73, § 2349; C97, § 3292; C24, 27, 31,
35, 39, § 11875; C46, 50, 54, 58, 62, § 633.31; C66, 71, 73, 75,
77, 79, 81, § 633.69]
Referred to in § 633.649
633.70 PROPERTY DELIVERED -- PENALTY.
Upon the removal of any fiduciary, the fiduciary shall be required
by order of the court to deliver to the person who may be entitled
thereto all the property in the fiduciary's hands or under the
fiduciary's control belonging to the estate, and if the fiduciary
fails or refuses to comply with any proper order of the court, the
fiduciary may be committed to the jail of the county until the
fiduciary does. Section History: Early Form
[C51, § 1509; R60, § 2561, 2563; C73, § 2251, 2252, 2501, 2502;
C97, § 3201, 3419; C24, 27, 31, 35, 39, § 12069, 12601, 12602;
C46, 50, 54, 58, 62, § 638.32, 668.28, 668.29; C66, 71, 73, 75, 77,
79, 81, § 633.70]
Referred to in § 633.649
Removal of fiduciary under § 633.65 constitutes effective turnover
order; see R.Prob.P. 7.1
633.71 LEGAL EFFECT OF APPOINTMENT.
By qualifying as fiduciary any person, resident or nonresident,
submits to the jurisdiction of the court making the appointment of
the fiduciary and, in addition, shall be deemed to agree that:
1. All property coming into the fiduciary's hands is subject to
the jurisdiction of the court wherein are pending the proceedings in
which the fiduciary is serving, and
2. The fiduciary is subject to all orders entered by the court in
the proceedings in which the fiduciary is serving and that notices
served upon the fiduciary with respect thereto in compliance with the
procedure prescribed by the probate code shall have the same force
and effect as if such service had been personally made upon the
fiduciary within the state.
3. The fiduciary shall be subject to the jurisdiction of the
courts of this state in all actions and proceedings against the
fiduciary arising from or growing out of the fiduciary relationship
and activities and that the service of process in such actions and
proceedings may be made upon the fiduciary by serving the original
notice upon the fiduciary outside this state and that such service
shall have the same force and effect as though the service had been
personally made upon the fiduciary within this state.
4. The clerk of the court in which is pending the proceedings in
which the fiduciary is serving is the lawful attorney or resident
agent of such nonresident fiduciary upon whom service of process may
be made whether such process be an order of the court entered in the
proceedings in which the fiduciary is serving or an original notice
of an action arising from or growing out of the fiduciary
relationship and activities of the nonresident fiduciary. Section History: Early Form
[C71, 73, 75, 77, 79, 81, § 633.71] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.649
633.72 MANNER OF SERVICE.
1. Service of an original notice of an action or process upon a
nonresident fiduciary as herein provided may be made upon such
fiduciary either by:
a. Delivering four copies of said notice or of said process
to the clerk of court wherein the proceedings in which such fiduciary
is serving are pending; or
b. Mailing four copies of said original notice or of said
process by certified mail addressed to said clerk of court by the
clerk's official title.
2. Upon receipt of said copies, such clerk of court shall
immediately acknowledge and accept service thereof on behalf of the
nonresident fiduciary by writing thereon or attaching thereto written
acknowledgment and acceptance of such service on behalf of such
nonresident fiduciary, giving the date thereof.
3. The clerk of court shall forthwith:
a. File one copy in the action or proceedings to which it
relates if pending in the court of which the clerk is clerk, or
transmit such notice or process and acknowledgment and acceptance of
the service thereof by certified mail to the clerk of court in which
the action or proceedings is pending.
b. Mail one copy of such original notice or process and a
copy of the written acknowledgment and acceptance of service thereof
by certified mail to the nonresident fiduciary at the last address of
such fiduciary as shown by the records in the proceedings in which
such fiduciary is serving.
c. Mail one copy of such original notice or process and a
copy of the written acknowledgment and acceptance of service thereof
by certified mail to the attorney of record for such fiduciary.
d. Retain a copy of such original notice or process for the
clerk's files.
4. Said service upon the clerk of court as herein provided shall
have the same force and effect as if served upon the nonresident
fiduciary personally within the state of Iowa on the date stated in
said acknowledgment and acceptance of such service by the clerk of
court. Section History: Early Form
[C71, 73, 75, 77, 79, 81, § 633.72]
Referred to in § 633.649
633.73 THROUGH 633.75 Reserved.
633.76 TWO OR MORE FIDUCIARIES -- EXERCISE OF
POWERS.
Where there are two or more fiduciaries, they shall all concur in
the exercise of the powers conferred upon them, unless the instrument
creating the estate provides to the contrary. In the event that the
fiduciaries cannot concur upon the exercise of any power, any one of
the fiduciaries may apply to the court for directions, and the court
shall make such orders as it may deem to be to the best interests of
the estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.76]
Referred to in § 633.649
633.76A EXCEPTION -- VOTING OF PUBLICLY TRADED
SECURITIES.
Where there are two or more fiduciaries, a fiduciary may delegate
to another fiduciary the power to vote publicly traded securities,
unless the instrument creating the estate provides to the contrary.
The delegating fiduciary shall not be personally liable for the
manner in which such securities are voted by the fiduciary to whom
the power is delegated. Section History: Recent Form
91 Acts, ch 36, §2
Referred to in § 633.649
633.77 RECEIPTS BY ONE FIDUCIARY.
One of the several fiduciaries may receive and receipt for any
money, which receipt shall be given by the fiduciary in the
fiduciary's own name only, and the fiduciary must individually
account for all the money thus received and receipted for by the
fiduciary, and this shall not charge any cofiduciary, except insofar
as it can be shown to have come into the cofiduciary's hands. Section History: Early Form
[C51, § 1442; R60, § 2467; C73, § 2478; C97, § 3402; C24, 27, 31,
35, 39, § 12054; C46, 50, 54, 58, 62, § 638.14; C66, 71, 73, 75,
77, 79, 81, § 633.77]
Referred to in § 633.649
633.78 THIRD PARTIES PROTECTED.
A person who in good faith pays or transfers to a fiduciary any
money or other property which the fiduciary as such is authorized to
receive, is not responsible for the proper application thereof by the
fiduciary; and any right or title acquired from the fiduciary in
consideration of such payment or transfer is not invalid in
consequence of a misapplication by the fiduciary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.78]
Referred to in § 633.649
633.79 FIDUCIARIES CONSIDERED AS ONE.
In an action against several fiduciaries, in their fiduciary
capacity, they shall be considered one person, and judgment may be
taken against all as such, although not all were served with notice.
Section History: Early Form
[C51, § 1437; R60, § 2462; C73, § 2489; C97, § 3410; C24, 27, 31,
35, 39, § 12062; C46, 50, 54, 58, 62, § 638.22; C66, 71, 73, 75,
77, 79, 81, § 633.79]
Referred to in § 633.649
633.80 FIDUCIARY OF A FIDUCIARY.
A fiduciary has no authority to act in a matter wherein the
fiduciary's decedent or ward was merely a fiduciary, except that the
fiduciary shall file a report and accounting on behalf of the
decedent or ward in said matter. Section History: Early Form
[C51, § 1438; R60, § 2463; C73, § 2483; C97, § 3406; C24, 27, 31,
35, 39, § 12058; C46, 50, 54, 58, 62, § 638.18; C66, 71, 73, 75,
77, 79, 81, § 633.80]
Referred to in § 633.649
633.81 SUIT BY AND AGAINST FIDUCIARY.
Any fiduciary may sue, be sued and defend in such capacity. Section History: Early Form
[R60, § 1452; C73, § 2275; C97, § 3224; C24, 27, 31, 35, 39, §
12582; C46, 50, 54, 58, 62, § 668.10; C66, 71, 73, 75, 77, 79,
81, § 633.81]
Referred to in § 633.649
633.82 DESIGNATION OF ATTORNEY.
The designation of the attorney employed by the fiduciary to
assist in the administration of the estate shall be filed in the
estate proceedings. The designation shall state the attorney's name,
post-office address, and telephone number. The designation shall
clearly state the name of the attorney who is in charge of the case
and the attorney's name shall not be listed by firm name only. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.82; 82 Acts, ch 1060, § 1]
Referred to in § 633.649
633.83 CONTINUATION OF BUSINESS.
Upon a showing of advantage to the estate, the court may authorize
the fiduciary to continue any business of the estate for the benefit
thereof. The order may be without notice, or after such notice as
the court may prescribe. The court may on its own motion, and upon
the application of any interested party shall, review such
authorization, and upon such review, may revoke or modify the same.
The order may provide:
1. For the conduct of the business solely by the fiduciary, or
jointly with one or more other persons; for the formation of a
partnership for the conduct of such business; or for the formation
of, or for the fiduciary to join in the formation of a corporation
for the conduct of such business;
2. For the extent of the liability of the estate, or any part
thereof, or of the fiduciary, for obligations incurred in the
continuation of the business;
3. As to whether liabilities incurred in the conduct of the
business are to be chargeable solely to the part of the estate set
aside for use in the business, or to the estate as a whole;
4. As to the period of time for which the business may be
conducted; and
5. Such other conditions, restrictions, regulations and
requirements as the court may order. Section History: Early Form
[C51, § 1327; R60, § 2359; C73, § 2407; C97, § 3337; C24, 27, 31,
35, 39, § 11956; C46, 50, 54, 58, 62, § 635.52; C66, 71, 73, 75,
77, 79, 81, § 633.83]
Referred to in § 633.649
633.84 DELEGATION OF AUTHORITY.
Under order of court, with or without notice, a fiduciary may
engage, at estate expense, outside specialists, and may delegate to
them, or consult with them for advice regarding the performance of
aspects of the estate management which require professional skills or
facilities which the fiduciary does not possess, or does not possess
in sufficient degree, and the fiduciary may employ, at estate
expense, subordinates and agents to perform ministerial acts and
carry on or complete details of estate business under the policies
and terms established by the fiduciary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.84]
Referred to in § 633.86, 633.649
633.85 LIABILITY OF FIDUCIARY EMPLOYING AGENTS.
The fiduciary shall not be personally liable for the acts or
omissions of any such specialist, subordinate or agent, unless it can
be shown that said acts or omissions would have been a breach of duty
by the fiduciary had the fiduciary personally done it, and that,
1. The fiduciary directed or permitted the breach; or
2. The fiduciary did not select or retain the said specialist,
subordinate or agent with reasonable care; or
3. The fiduciary did not properly supervise the specialist,
subordinate or agent; or
4. The fiduciary approved, acquiesced or cooperated in the
neglect, omission, misconduct or default by the specialist,
subordinate or agent. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.85]
Referred to in § 633.649
633.86 REDUCTION OF FEES WHEN AGENTS ARE EMPLOYED.
The court shall, in fixing the fees of any fiduciary, consider the
compensation allowed to any person employed by the fiduciary under
the provisions of section 633.84. If the court determines that the
services rendered by such person were services that would normally
have been performed by the fiduciary, the compensation of the
fiduciary may, in the court's discretion, be reduced by all or any
part of the compensation allowed to any such person. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.86]
Referred to in § 633.649
633.87 DEPOSIT OF MONEY IN BANKS.
A fiduciary may deposit moneys and other assets belonging to the
estate in any banking institution authorized to do business in the
state of Iowa. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.87]
Referred to in § 633.649
633.88 LAW GOVERNING ADMINISTRATION OF ESTATES OF
NONRESIDENTS.
Except as otherwise provided in this probate code, all provisions
of the law relating to the administration of domestic estates and to
the fiduciaries appointed therein, shall apply to the administration
of the estate of a nonresident, the appointment of the fiduciary
therein, and the granting of letters. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.88] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.649
633.89 POWER OF FIDUCIARY OR CUSTODIAN TO DEPOSIT
SECURITIES.
A fiduciary as defined in section 633.3, holding securities, and a
bank as defined in section 524.103, which is holding securities as a
managing agent or as a custodian, including a custodian for a
fiduciary, may deposit securities in a clearing corporation, as
defined in section 554.8102, which is located within or without the
state of Iowa, if the clearing corporation is federally regulated. A
depositing bank is subject to rules adopted by the superintendent of
banking, with respect to state banks, and by the comptroller of the
currency, with respect to national banking associations.
Certificates representing deposited securities of the same class
of the same issuer may merge securities deposited by a fiduciary, or
by a bank acting as a managing agent or custodian, with securities
deposited by any other person and may be held in the name of the
clearing corporation or its nominee. The records of a depositing
fiduciary and a depositing bank acting as a managing agent or
custodian at all times must identify the persons on whose behalf
securities have been deposited. Title to deposited securities may be
transferred by entry on the books of a clearing corporation without
physical delivery of the securities.
On demand by the owner, a bank depositing securities in a clearing
corporation as a managing agent or as a custodian shall identify in
writing the securities so deposited. On demand by any party to the
accounting of a fiduciary, the fiduciary shall identify in writing
the securities deposited in a clearing corporation for its account as
fiduciary.
This section applies regardless of the date of the agreement,
instrument, or court order under which the fiduciary or bank was
appointed. Section History: Early Form
[C75, 77, 79, 81, § 633.89] Section History: Recent Form
96 Acts, ch 1138, §79, 84
Referred to in § 524.1006, 633.649
633.90 THROUGH 633.92 Reserved.
633.93 LIMITATION ON ACTIONS AFFECTING DEEDS.
No action for recovery of any real estate sold by any fiduciary
can be maintained by any person claiming under the deceased, the
ward, or a beneficiary, unless brought within five years after the
date of the recording of the conveyance. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.93]
Referred to in § 633.649
633.94 PLATTING.
When it is for the best interests of the estate in order to
dispose of real property, the court may, upon application by the
fiduciary, or any other interested person, after notice and upon good
cause shown, authorize the fiduciary, either alone or together with
other owners, to plat any land belonging to the estate in accordance
with the statutes in regard to platting. The court may authorize the
fiduciary to execute any instruments which may be required of the
titleholder or proprietor in connection with the platting of such
land. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.94]
Referred to in § 633.649
See also chapter 354
633.95 RELEASE OF LIENS AND MORTGAGES.
Any fiduciary qualified under the laws of this state may, without
prior order of court, release or discharge, in whole or in part any
mortgage, judgment or other lien held by the estate. Section History: Early Form
[C51, § 1337; R60, § 2369; C73, § 2383; C97, § 3319; S13, §
3307-a; C24, 27, 31, 35, 39, § 11897, 11929; C46, 50, 54, 58, 62,
§ 633.53, 635.18; C66, 71, 73, 75, 77, 79, 81, § 633.95]
Referred to in § 633.98, 633.649
See § 636.26
633.96 SPECIFIC PERFORMANCE VOLUNTARY.
When an estate is under such an obligation to convey property as
might be enforced by suit for specific performance, the fiduciary may
without prior order of court execute such conveyance. Section History: Early Form
[C51, § 1435, 1436; R60, § 2460, 2461; C73, § 2487, 2488; C97, §
3409; C24, 27, 31, 35, 39, § 12061; C46, 50, 54, 58, 62, §
638.21; C66, 71, 73, 75, 77, 79, 81, § 633.96]
Referred to in § 633.98, 633.649
633.97 SPECIFIC PERFORMANCE INVOLUNTARY.
When an estate is under obligation to convey property, the court
may, upon application of any interested person, with or without
notice as the court may direct, require the fiduciary to execute such
a conveyance. Section History: Early Form
[C51, § 1435, 1436; R60, § 2460, 2461; C73, § 2487, 2488; C97, §
3409; C24, 27, 31, 35, 39, § 12061; C46, 50, 54, 58, 62, §
638.21; C66, 71, 73, 75, 77, 79, 81, § 633.97]
Referred to in § 633.98, 633.649
633.98 CERTIFICATE OF APPOINTMENT AND AUTHORITY.
When any instrument executed in accordance with sections 633.95 to
633.97, inclusive, is to be recorded in a county other than the
county in which the estate is pending, there shall also be recorded a
certificate executed by the clerk of the court making the
appointment, with seal affixed, showing the name of the court making
the appointment, the date of the same, and that such fiduciary had
not been discharged at the time of the execution of such instrument.
Section History: Early Form
[C97, § 3308; SS15, § 3308; C24, 27, 31, 35, 39, § 11898; C46,
50, 54, 58, 62, § 633.54; C66, 71, 73, 75, 77, 79, 81, § 633.98]
Referred to in § 633.649
633.99 FEDERAL STOCK AUTHORITY TO PURCHASE.
When the court shall enter an order authorizing the fiduciary to
execute a mortgage to encumber any property of the estate to secure a
loan obtained from any association or corporation created, or which
may be created, by authority of the United States and as an
instrumentality of the United States, the court may authorize the
fiduciary to purchase stock in an association or corporation, when
such a purchase of stock is necessary or required as an incident to,
or condition of, obtaining the loan, and to mortgage the estate
property for such purpose, as well as to make payment for the stock
so purchased from the proceeds of the loan so obtained. Section History: Early Form
[C35, § 11951-g1; C39, § 11951.1; C46, 50, 54, 58, 62, §
635.41; C66, 71, 73, 75, 77, 79, 81, § 633.99]
Referred to in § 633.649
633.100 WAIVER OF EXEMPTION.
Any deed or mortgage executed by a fiduciary under order of court
shall have the effect of waiving any exemption as to homestead or
otherwise of any person owning an interest in said real estate as
fully as such owner could do if the owner were sui juris. Section History: Early Form
[C35, § 11951-g3, 12644-g1, -g2, -g3, -g4, -g5; C39, § 11951.3,
12644.21--12644.25; C46, 50, 54, 58, 62, § 635.43, 673.1--673.5;
C66, 71, 73, 75, 77, 79, 81, § 633.100]
Referred to in § 633.649
633.101 APPRAISAL.
At any time that the court may determine it to be to the best
interests of the estate, it may order an appraisal of any or all of
the property of an estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.101]
Referred to in § 633.649
633.102 COSTS AND EXPENSES.
In connection with the sale, mortgage, lease, pledge or exchange
of property, the court may authorize the fiduciary to pay, out of the
proceeds realized therefrom or out of other funds of the estate, the
customary and reasonable auctioneers' and brokers' fees and any
necessary expenses for abstracting, survey, revenue stamps, and other
necessary costs and expenses in connection therewith. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.102]
Referred to in § 633.649
633.103 Repealed by 99 Acts, ch 124, § 32.
633.104 THROUGH 633.107 Reserved.
633.108 SMALL DISTRIBUTIONS TO MINORS -- PAYMENT.
Whenever a minor becomes entitled under the terms of a will to a
bequest or legacy, or to a share of the estate of an intestate, and
the value of the bequest, legacy, or share does not exceed the sum of
twenty-five thousand dollars, the personal representative may pay the
bequest, legacy, or share to a custodian under any uniform transfers
to minors Act. Receipt by the custodian, when presented to the court
or filed with the report of distribution of the fiduciary, shall have
the same force and effect as though the payment had been made to a
duly appointed and qualified conservator for the minor. Section History: Early Form
[C39, § 12077.1; C46, 50, 54, 58, 62, § 638.41; C66, 71, 73,
75, 77, 79, 81, § 633.108; 81 Acts, ch 193, § 1; 82 Acts, ch 1052, §
1] Section History: Recent Form
95 Acts, ch 63, §3; 2000 Acts, ch 1150, §2; 2005 Acts, ch 38, §10
Referred to in § 633.649
See also chapter 565B, § 633.574, 633.681, R.C.P. 1.1228
633.109 INABILITY TO DISTRIBUTE ESTATE FUNDS.
Any fiduciary having in the fiduciary's possession or under the
fiduciary's control any funds, moneys or securities due or to become
due to any other person to whom payment or delivery cannot be made as
shown by the report of the fiduciary on file, may, upon order of
court, deposit such property with the clerk and take the receipt of
the clerk for the same. Such receipt shall specifically state from
whom said property was derived, the description thereof, and the name
of the person entitled to the same. Thereafter, such funds shall be
held and disposed of by the clerk in accordance with the provisions
of chapter 636. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.109]
Referred to in § 633.649
See § 636.31, 636.34
633.110 RECEIPTS TAKEN.
If such fiduciary shall otherwise discharge all the duties imposed
by such appointment, the fiduciary may take the receipts of the clerk
for such funds, moneys, or securities so deposited, which receipts
shall specifically set forth from whom said funds, moneys, or
securities were derived, the amount thereof, and the name of the
person to whom due or to become due, if known. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.110]
Referred to in § 633.649
See § 636.32
633.111 FINAL DISCHARGE PERIOD.
Such fiduciary may file such receipts with the final report, and
if it shall be made to appear to the satisfaction of the court that
the fiduciary has in all other respects complied with the law
governing the appointment and duties, the court may approve such
final report and enter the fiduciary's discharge. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.111]
Referred to in § 633.649
See § 636.33
633.112 DISCOVERY OF PROPERTY.
The court may require any person suspected of having possession of
any property, including records and documents, of the decedent, ward,
or the estate, or of having had such property under the person's
control, to appear and submit to an examination under oath touching
such matters, and if on such examination it appears that the person
has the wrongful possession of any such property, the court may order
the delivery thereof to the fiduciary. Such a person shall be liable
to the estate for all damages caused by the person's acts. Section History: Early Form
[C51, § 1334, 1439; R60, § 2366, 2464; C73, § 2379, 2484; C97, §
3315, 3407; C24, 27, 31, 35, 39, § 11925, 12059; C46, 50, 54, 58,
62, § 635.14, 638.19; C66, 71, 73, 75, 77, 79, 81, § 633.112]
Referred to in § 633.113, 633.649
Similar provisions, § 630.19, 680.10
633.113 COMMITMENT.
If, upon being served with an order of the court requiring
appearance for interrogation, as provided in section 633.112, any
person fails to appear in accordance therewith, or if, having
appeared, the person refuses to answer any question which the court
thinks proper to be put to the person in the course of such
examination, or if the person fails to comply with the order of the
court requiring the delivery of the property to the fiduciary, the
person may be committed to the jail of the county until the person
does. Section History: Early Form
[C51, § 1335; R60, § 2367; C73, § 2380; C97, § 3316; C24, 27, 31,
35, 39, § 11926; C46, 50, 54, 58, 62, § 635.15; C66, 71, 73, 75,
77, 79, 81, § 633.113] Section History: Recent Form
2008 Acts, ch 1031, §68; 2008 Acts, ch 1032, §84
Referred to in § 633.649
633.114 COMPROMISE OF CLAIMS HELD BY AN ESTATE.
When it appears for the best interest of the estate, the fiduciary
may, subject to approval of the court, effect a compromise with any
debtor or other obligor, or extend, renew, or in any other manner,
modify the terms of any obligation owing to the estate. If the
fiduciary holds a mortgage, pledge, or other lien upon property of
another person, the fiduciary may, in lieu of foreclosure, accept a
conveyance or transfer of such encumbered assets from the owner
thereof in satisfaction of the indebtedness secured by such lien, if
it appears for the best interests of the estate, and if the court
shall so order. Section History: Early Form
[C51, § 1336; R60, § 2368; C73, § 2382; C97, § 3318; C24, 27, 31,
35, 39, § 11928; C46, 50, 54, 58, 62, § 635.17; C66, 71, 73, 75,
77, 79, 81, § 633.114]
Referred to in § 633.649
633.115 COMPROMISE OF CLAIMS AGAINST AN ESTATE.
When a claim against an estate has been filed, or suit thereon is
pending, the creditor and the fiduciary may, if it appears for the
best interests of the estate, subject to approval of the court,
compromise the claim, whether it is due or not due, absolute or
contingent, liquidated or unliquidated. Section History: Early Form
[C51, § 1336; R60, § 2368; C73, § 2382; C97, § 3318; C24, 27, 31,
35, 39, § 11928; C46, 50, 54, 58, 62, § 635.17; C66, 71, 73, 75,
77, 79, 81, § 633.115]
Referred to in § 633.649
633.116 ABANDONMENT OF PROPERTY.
When any property is valueless, or is so encumbered, or in such
condition, that it is of no benefit to the estate, the court may
order the fiduciary to abandon it, or make such other disposition of
it as may be suitable in the premises. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.116]
Referred to in § 633.649
633.117 ENCUMBERED ASSETS.
When any assets of the estate are encumbered by mortgage, pledge
or other lien, the fiduciary may pay such encumbrance or any part
thereof, renew or extend any obligation secured by the encumbrance,
or may convey or transfer such assets to the creditor in satisfaction
of the lien, in whole or in part, whether or not the holder of the
encumbrance has filed a claim, or the fiduciary may purchase lands
claimed or contracted for by the decedent, if it appears to be for
the best interests of the estate and if the court shall so order.
The making of such payment shall not increase the share of the
distributee entitled to such encumbered assets. Section History: Early Form
[C51, § 1380; R60, § 2412; C73, § 2428; C97, § 3354; C24, 27, 31,
35, 39, § 11977; C46, 50, 54, 58, 62, § 635.72; C66, 71, 73, 75,
77, 79, 81, § 633.117]
Referred to in § 633.649
See also § 633.423
633.118 ATTORNEY APPOINTED FOR PERSONS NOT
REPRESENTED.
At or before the hearing in any proceedings under this probate
code, where all the parties interested in the estate are required to
be notified thereof, the court, in its discretion, may appoint some
competent attorney to represent any interested person who has been
served with notice and who is otherwise unrepresented. The
appointment of an attorney under the provisions of this section,
shall be in lieu of appointment of a guardian ad litem provided for
in the rules of civil procedure. Section History: Early Form
[C97, § 3423; C24, 27, 31, 35, 39, § 12074; C46, 50, 54, 58,
62, § 638.37; C66, 71, 73, 75, 77, 79, 81, § 633.118] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.120, 633.121, 633.649
633.119 ORDER AND AUTHORITY THEREUNDER.
The order making the appointment of such attorney must specify the
names of the parties, so far as known, for whom the attorney is
appointed, and the attorney will be authorized to represent such
parties in all such proceedings subsequent to the appointment. Section History: Early Form
[C97, § 3423; C24, 27, 31, 35, 39, § 12075; C46, 50, 54, 58,
62, § 638.38; C66, 71, 73, 75, 77, 79, 81, § 633.119]
Referred to in § 633.649
633.120 COMPENSATION.
Any attorney so appointed under the authority of section 633.118
shall be paid for services out of the estate, as a part of the costs
of administration, a fee to be fixed by the court, and upon
distribution of the estate, the fee may be charged to the party
represented by the attorney. Section History: Early Form
[C97, § 3423; C24, 27, 31, 35, 39, § 12076; C46, 50, 54, 58,
62, § 638.39; C66, 71, 73, 75, 77, 79, 81, § 633.120]
Referred to in § 633.649
633.121 SUBSTITUTION -- DIVISION OF FEE.
The court may substitute another attorney for the one first
appointed under the authority of section 633.118, in which case the
fees must be divided in proportion to the services rendered. Section History: Early Form
[C97, § 3423; C24, 27, 31, 35, 39, § 12077; C46, 50, 54, 58,
62, § 638.40; C66, 71, 73, 75, 77, 79, 81, § 633.121]
Referred to in § 633.649
633.122 SETTLEMENT CONTESTED.
The acts of the fiduciary without prior approval of court after
notice, may be contested by any interested person at or before the
entry of the order discharging the fiduciary. Section History: Early Form
[C51, § 1431; R60, § 2456; C73, § 2475; C97, § 3399; C24, 27, 31,
35, 39, § 12050; C46, 50, 54, 58, 62, § 638.10; C66, 71, 73, 75,
77, 79, 81, § 633.122]
Referred to in § 633.649
633.123 PRUDENT INVESTMENTS -- FIDUCIARIES.
1. When investing, reinvesting, purchasing, acquiring,
exchanging, selling, or managing property for the benefit of another,
a fiduciary shall consider all of the following circumstances along
with the circumstances identified in section 633A.4302, if
applicable:
a. The length of time the fiduciary will have control over
the estate assets and the anticipated costs of complying with the
provisions of this section.
b. The unique nature of all of the following:
(1) The duties of a personal representative or conservator.
(2) The assets, income, expenses, and distribution requirements
of the estate.
(3) The needs and rights of the beneficiaries or the ward.
c. The express provisions of a will, codicil, or other
controlling instrument.
2. The standards identified in this section shall be applied
differently than similar standards for investment and management of
trust property. Special consideration shall be given to the expected
term of estates. Because some estates will have limited duration,
there may be situations where an investment or a change in an
investment is not warranted. Section History: Recent Form
2007 Acts, ch 134, §7, 28
Referred to in § 633.649 Footnotes
Section applies to all estates, conservatorships, and trusts under
court supervision and in existence on or after July 1, 2007; 2007
Acts, ch 134, §28
633.123A INVESTMENTS IN INVESTMENT COMPANIES AND
INVESTMENT TRUSTS.
1. Notwithstanding any other provision of law, a bank or trust
company acting as a fiduciary, in addition to other investments
authorized by law for the investment of funds by a fiduciary or by
the instrument governing the fiduciary and in the exercise of its
investment discretion or at the direction of another person
authorized to direct investment of funds held by the fiduciary, may
invest and reinvest such funds in the securities of an open-end or
closed-end management investment company or investment trust
registered under the federal Investment Company Act of 1940, 15
U.S.C. § 80a-1 et seq. Investment and reinvestment under this
section is allowed as long as the portfolio of such investment
company or investment trust consists substantially of investments not
otherwise prohibited by chapter 633A, subchapter IV, part 3, or by
the governing instrument.
Investment and reinvestment under this section is not precluded
merely because the bank or trust company or an affiliate of the bank
or trust company provides the services of an investment advisor,
custodian, transfer agent, registrar, sponsor, distributor, or
manager to the investment company or investment trust and receives a
reasonable fee for the services.
2. This section is applicable to all fiduciaries whether the
will, agreement, or other instrument under which they are acting now
exists on or before July 1, 1996. Section History: Recent Form
96 Acts, ch 1008, §3; 99 Acts, ch 125, §105, 109; 2005 Acts, ch
38, §55
Referred to in § 412.4, 633.649
633.124 INVESTMENT MAY BE HELD IN NAME OF NOMINEE OF
BANK OR TRUST COMPANY.
Any state or national bank or trust company, when acting with the
consent of its cofiduciary, if any, may cause any investment held in
any such capacity to be registered and held in the name of a nominee
or nominees of such bank or trust company. Such cofiduciary is
hereby empowered to give such consent unless it is specifically
forbidden in the instrument creating the fiduciary relationship.
Such bank or trust company shall be liable for the acts of any such
nominee with respect to any investment so registered. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.124]
Referred to in § 633.649
633.125 RECORDS OF BANK OR TRUST COMPANY TO SHOW
OWNERSHIP.
The records of said bank or trust company shall at all times show
the ownership of any such investment, which investment shall be in
the possession and control of such bank or trust company and be kept
separate and apart from the assets of such bank or trust company. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.125]
Referred to in § 633.649
633.126 DEFINITIONS.
1. "Common trust fund" means a fund maintained by a bank or
trust company exclusively for the collective investment and
reinvestment of moneys contributed thereto by that bank or trust
company, or by another bank or trust company at least eighty percent
of the voting stock of which is owned or controlled by a bank holding
company which owns or controls at least eighty percent of the voting
stock of the bank or trust company maintaining the common trust fund,
in its capacity as a fiduciary or cofiduciary.
2. "Fiduciary", for the purposes of this section and sections
633.127 to 633.129, means acting in any of the following capacities,
namely: testamentary trustee appointed by any court, trustee under
any written agreement, declaration or instrument of trust, executor,
administrator, guardian, or conservator, custodian under chapter
565B, or other capacity permitted under any state or federal law or
regulation governing collective investment funds maintained by a bank
or trust company. Section History: Early Form
[C62, § 533A.1--533A.5; C66, 71, 73, 75, 77, 79, 81, § 633.126] Section History: Recent Form
92 Acts, ch 1012, § 2
Referred to in § 633.129, 633.649
633.127 ESTABLISHMENT OF COMMON TRUST FUNDS.
Any bank or trust company qualified to act as fiduciary in this
state may establish common trust funds, or may utilize one or more
common trust funds previously established by it, for the purpose of
furnishing investments to itself as fiduciary, or to itself and
others, as cofiduciaries, or to another bank or trust company as
fiduciary or cofiduciary; and may, as a fiduciary or cofiduciary,
invest funds which it lawfully holds for investment in interests in
common trust funds maintained by it or by another bank or trust
company at least eighty percent of the voting stock of which is owned
or controlled by a bank holding company which owns or controls at
least eighty percent of the common stock of the bank or trust company
investing such funds, if such investment is not prohibited by the
instrument, judgment, decree, or order creating such fiduciary
relationship, and if, in the case of cofiduciaries, the bank or trust
company procures the consent of its cofiduciaries to such investment.
If the instrument creating the fiduciary relationship gives to the
bank or trust company the exclusive right to select investments, the
consent of the cofiduciary shall not be required. Section History: Early Form
[C58, § 532.21; C62, § 532.21, 533A.1--533A.5; C66, 71, 73, 75,
77, 79, 81, § 633.127]
Referred to in § 633.126, 633.129, 633.649
633.128 COURT ACCOUNTINGS.
Unless ordered by a court of competent jurisdiction, the bank or
trust company operating such common trust funds is not required to
render a court accounting with regard to such funds; but it may, by
application to the court, secure approval of such an accounting on
such conditions as the court may establish.
When an accounting of a common trust fund is presented to a court
for approval, the court shall assign a time and place for hearing,
and order notice thereof by: (1) Publication once each week for
three consecutive weeks in a newspaper of general circulation,
published in the county in which the bank or trust company operating
the common trust fund is located, the first publication to be not
less than twenty days prior to the date of hearing, and (2) sending
by ordinary mail not less than fourteen days prior to the date of
hearing, a copy of the notice prescribed to all beneficiaries of the
trust participating in the common trust fund whose names are known to
the bank or trust company from the records kept by it in the regular
course of business in the administration of said trusts, directed to
them at the addresses shown by such records, and (3) such further
notice, if any, as the court may order. Section History: Early Form
[C58, § 532.21; C62, § 532.21, 533A.1--533A.5; C66, 71, 73, 75,
77, 79, 81, § 633.128]
Referred to in § 633.126, 633.129, 633.649
633.129 UNIFORMITY OF INTERPRETATION.
Sections 633.126 to 633.128 shall be so interpreted and construed
as to effectuate their general purpose to make uniform the law of
those states which enact the common trust funds. Section History: Early Form
[C62, § 533A.4; C66, 71, 73, 75, 77, 79, 81, § 633.129]
Referred to in § 633.126, 633.649
633.130 THROUGH 633.138 Repealed by 96 Acts, ch
1138, § 82, 84.
633.139 THROUGH 633.143 Reserved.
633.144 MORTGAGES AND JUDGMENTS.
Judgments rendered by any court in the state of Iowa and mortgages
belonging to an estate, trust, or to a person under conservatorship
may, without prior order of court, be released, discharged or
assigned, in whole or in part as to any particular property, and
deeds may be executed in performance of real estate contracts entered
into before the creation of the estate, trust, or conservatorship, by
any foreign fiduciary, receiver, referee, assignee or commissioner,
or by any other person acting in a fiduciary capacity appointed by a
court of record of any foreign state or country, where a statement is
filed by said fiduciary that no fiduciary, receiver, referee,
assignee, or commissioner has been appointed and qualified in this
state. Such release, satisfaction, discharge, assignment or deed may
be made without any order of court in any manner or by any instrument
which would be valid and effective if made by a like officer
qualified under the law of this state. Section History: Early Form
[S13, § 3307-a; C24, 27, 31, 35, 39, § 11897; C46, 50, 54, 58,
62, § 633.53; C66, 71, 73, 75, 77, 79, 81, § 633.144]
Referred to in § 633.145, 633.649
633.145 CERTIFICATE OF APPOINTMENT AND AUTHORITY.
Before any instrument executed by such foreign fiduciary or
officer as authorized by section 633.144 shall be effective, a
certificate executed by the court or clerk making the appointment,
with seal attached, if such officer has a seal, shall be recorded.
Such certificates shall state the name of the court making such
appointment, the date of the appointment, and that such fiduciary or
officer has not been discharged at the time of the execution of said
instrument. Section History: Early Form
[C97, § 3308; SS15, § 3308; C24, 27, 31, 35, 39, § 11898; C46,
50, 54, 58, 62, § 633.54; C66, 71, 73, 75, 77, 79, 81, § 633.145]
Referred to in § 633.649
633.146 FILING OF CERTIFICATE.
The certificate aforesaid shall be filed for record:
1. In the case of judgments, in the office of the clerk in which
the judgment is of record or in which it has been filed, and
2. In the case of mortgages and deeds executed in performance of
real estate contracts, in the office of the appropriate county
recorder. Section History: Early Form
[C97, § 3308; SS15, § 3308; C24, 27, 31, 35, 39, § 11899; C46,
50, 54, 58, 62, § 633.55; C66, 71, 73, 75, 77, 79, 81, § 633.146]
Referred to in § 633.649
633.147 RECORD.
Such certificate shall be recorded by the proper officer in the
judgment records of the court in which the same appears of record, or
in the appropriate chattel or real estate records, as the case may
be. Section History: Early Form
[C97, § 3308; SS15, § 3308; C24, 27, 31, 35, 39, § 11900; C46,
50, 54, 58, 62, § 633.56; C66, 71, 73, 75, 77, 79, 81, § 633.147]
Referred to in § 633.649
633.148 MAINTAINING ACTIONS.
When there is no administration of an estate nor a petition
therefor pending, in this state, a foreign fiduciary may maintain
actions and proceedings in this state subject to the requirements and
conditions imposed upon nonresident suitors generally. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.148]
Referred to in § 633.649
633.149 FILING OF BOND.
At the time of commencing any action or proceeding in any court of
this state, the foreign fiduciary shall file with the court an
authenticated copy of the fiduciary's appointment, and of the
fiduciary's official bond, if the fiduciary has given a bond. If the
court believes that the security furnished by the fiduciary in the
domiciliary administration is insufficient to cover the proceeds of
the action or the proceeding, or for any other reason or cause, it
may at any time order the action or proceeding stayed until
sufficient security is furnished in the action or proceeding. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.149]
Referred to in § 633.649
633.150 THROUGH 633.154 Reserved.
633.155 SELF-DEALING BY FIDUCIARY PROHIBITED.
No fiduciary shall in any manner engage in self-dealing, except on
order of court after notice to all interested persons, and shall
derive no profit other than the fiduciary's distributive share in the
estate from the sale or liquidation of any property belonging to the
estate. Every application of a fiduciary seeking an order under the
provisions of this section shall specify in detail the reasons for
such application and the facts justifying the requested order. The
notice shall have a copy of the application attached, or, if
published, it shall contain a detailed statement of the reasons and
facts justifying the requested order. Section History: Early Form
[C51, § 1427; R60, § 2452; C73, § 2473; C97, § 3397; C24, 27, 31,
35, 39, § 12048; C46, 50, 54, 58, 62, § 638.8; C66, 71, 73, 75,
77, 79, 81, § 633.155]
Referred to in § 633.156, 633.649
633.156 DEPOSITS BY CORPORATE FIDUCIARIES.
Section 633.155 shall not be construed to prohibit a corporate
fiduciary from making a deposit of estate funds in its own banking
department or in the banking department of an affiliated bank. For
purposes of this section, "affiliated bank" means any bank that
controls, directly or indirectly, the fiduciary or is controlled,
directly or indirectly, by an entity which also controls, directly or
indirectly, the fiduciary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.156] Section History: Recent Form
95 Acts, ch 164, §1
Referred to in § 633.649
633.157 LIABILITY FOR PROPERTY OF ESTATE.
Every fiduciary shall be liable for, and chargeable in the
fiduciary's accounts with, all of the estate that comes into the
fiduciary's possession at any time, including all the income
therefrom; but the fiduciary shall not be accountable for any debts
due to the estate or other assets of the estate that remain
uncollected without the fiduciary's fault. The fiduciary shall not
be entitled to profit from the increase in value of any asset of the
estate, nor shall the fiduciary be chargeable with loss resulting,
without the fiduciary's fault, from the decrease in value or the
destruction of any part of the estate, excepting, only to the extent
of the fiduciary's pro rata share in such gain or loss as one of the
distributees of the estate. Section History: Early Form
[C51, § 1425, 1427; R60, § 2450, 2452; C73, § 2471, 2473; C97, §
3395, 3397; C24, 27, 31, 35, 39, § 12046, 12048; C46, 50, 54, 58,
62, § 638.6, 638.8; C66, 71, 73, 75, 77, 79, 81, § 633.157]
Referred to in § 633.649
633.158 LIABILITY FOR PROPERTY NOT A PART OF
ESTATE.
Every fiduciary shall be chargeable in the fiduciary's accounts
with property not a part of the estate that comes into the
fiduciary's hands at any time, and shall be liable to the persons
entitled thereto, if:
1. The property was received under a duty imposed upon the
fiduciary by law in the capacity of fiduciary; or
2. The fiduciary has commingled such property with the assets of
the estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.158]
Referred to in § 633.649
633.159 JUDGMENT -- EXECUTION.
If judgment is rendered against a fiduciary for costs in any
action prosecuted or defended by the fiduciary in that capacity,
execution shall be awarded against the fiduciary as for the
fiduciary's own debt, if it appears to the court that such action was
prosecuted or defended without reasonable cause. Section History: Early Form
[C51, § 1433; R60, § 2458; C73, § 2477; C97, § 3401; C24, 27, 31,
35, 39, § 12053; C46, 50, 54, 58, 62, § 638.13; C66, 71, 73, 75,
77, 79, 81, § 633.159]
Referred to in § 633.649
633.160 BREACH OF DUTY.
Every fiduciary shall be liable and chargeable in the fiduciary's
accounts for neglect or unreasonable delay in collecting the credits
or other assets of the estate or in selling, mortgaging or leasing
the property of the estate; for neglect in paying over money or
delivering property of the estate the fiduciary shall have in the
fiduciary's hands; for failure to account for or to close the estate
within the time provided by this probate code; for any loss to the
estate arising from the fiduciary's embezzlement or commingling of
the assets of the estate with other property; for loss to the estate
through self-dealing; for any loss to the estate arising from
wrongful acts or omissions of any cofiduciaries which the fiduciary
could have prevented by the exercise of ordinary care; and for any
other negligent or willful act or nonfeasance in the fiduciary's
administration of the estate by which loss to the estate arises. Section History: Early Form
[C51, § 1428; R60, § 2453; C73, § 2482; C97, § 3405; C24, 27, 31,
35, 39, § 12057; C46, 50, 54, 58, 62, § 638.17; C66, 71, 73, 75,
77, 79, 81, § 633.160] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.649
633.161 EXAMINATION OF FIDUCIARIES.
The fiduciary may be examined under oath by the court upon any
matter relating to the fiduciary's accounts. Section History: Early Form
[C51, § 1424; R60, § 2449; C73, § 2470; C97, § 3395; C24, 27, 31,
35, 39, § 12045; C46, 50, 54, 58, 62, § 638.5; C66, 71, 73, 75,
77, 79, 81, § 633.161]
Referred to in § 633.649
633.162 PENALTY.
In fixing the fees of any fiduciary, the court shall take into
consideration any violation of this probate code by the fiduciary,
and may diminish the fee of such fiduciary to the extent the court
may determine to be proper. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.162] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.649
633.163 THROUGH 633.167 Reserved.
633.168 OATH -- CERTIFICATION.
Every fiduciary, before entering upon the duties of the
fiduciary's office, shall subscribe an oath or certify under
penalties of perjury that the fiduciary will faithfully discharge the
duties imposed by law, according to the best of the fiduciary's
ability. Section History: Early Form
[C51, § 1276, 1316, 1317, 1496; R60, § 2308, 2348, 2349, 2548;
C73, § 2246, 2321, 2362, 2363; C97, § 3197, 3267, 3268, 3301; S13, §
3268; C24, 27, 31, 35, 39, § 11828, 11838, 11887, 12577, 12579;
C46, 50, 54, 58, 62, § 631.10, 632.7, 633.43, 668.5, 668.7; C66, 71,
73, 75, 77, 79, 81, § 633.168] Section History: Recent Form
2007 Acts, ch 134, §8, 28 Footnotes
2007 amendment to this section applies to fiduciaries appointed on
or after July 1, 2007; 2007 Acts, ch 134, §28
633.169 BOND.
Except as herein otherwise provided, every fiduciary shall execute
and file with the clerk a bond with sufficient surety or sureties, as
hereinafter provided. It shall be conditioned upon the faithful
discharge of all the duties of the fiduciary's office according to
law, including the duty to account. It shall be procured at the
expense of the estate, if an approved surety company bond is
furnished. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.169]
633.170 AMOUNT OF BOND.
1. How determined. Except as herein otherwise provided, the
court or the clerk shall fix the penalty of the bond in an amount
equal to the value of the personal property of the estate, plus the
estimated gross annual income of the estate during the period of
administration.
2. Bonds fixed by clerk. Unless a bond is waived by will
under the authority of section 633.172, or by other instrument
creating the estate, or in accordance with section 633.173, or by
prior order of court, the clerk shall fix the bond in the amount
provided by subsection 1 of this section. The clerk shall not
thereafter increase or decrease a bond. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887, 12578; C46, 50, 54,
58, 62, § 631.10, 632.7, 633.32, 633.43, 668.6; C66, 71, 73, 75, 77,
79, 81, § 633.170]
633.171 APPROVAL BY CLERK.
The bond shall not be deemed sufficient until it has been examined
and approved by the clerk who shall endorse such approval thereon.
In the event that the bond is not approved, the fiduciary shall,
within such time as the court or the clerk directs, secure and file a
bond with satisfactory surety or sureties. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.171]
633.172 WILL -- WAIVER OF BOND.
1. When, by the terms of the will, the testator has directed or
expressed the desire that no bond shall be required, such direction
or expression shall be construed to be a waiver of the posting of a
bond by the fiduciary for all purposes, and no bond shall be required
unless the court for good cause finds it proper to require one; if no
bond is initially required, the court may nevertheless, for good
cause, at any subsequent time require that a bond be given.
2. Unless otherwise required by the instrument creating the
relationship, or by order of court, bank and trust companies shall
not be required to provide any bond. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.172] Section History: Recent Form
86 Acts, ch 1131, § 2
Referred to in § 633.170, 633.175
633.173 WAIVER OF BOND BY DISTRIBUTEES.
If the distributees, in writing waive the statutory requirement
that a bond shall be filed by the fiduciary with the clerk, and the
court finds that the interests of the creditors will not thereby be
prejudiced, no bond shall be required. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.173]
Referred to in § 633.170
Attorneys acting as fiduciaries, see Iowa Ct.R. 39.13
633.174 GUARDIANS -- BOND.
When the guardian appointed for a person is not the conservator of
the property of that person, no bond shall be required of the
guardian, unless the court for good cause finds it proper to require
one. If no bond is initially required, the court may, nevertheless,
for good cause, at any subsequent time, require that a bond be given.
Section History: Early Form
[C51, § 1276, 1316, 1317, 1496; R60, § 2308, 2348, 2349, 2548;
C73, § 2246, 2321, 2350, 2362, 2363; C97, § 3197, 3267, 3268, 3293,
3301; S13, § 3268; C24, 27, § 11828, 11838, 11876, 11887, 12579; C31,
35, § 11828, 11838, 11876, 11887, 12579, 12644-c10; C39, § 11828,
11838, 11876, 11887, 12579, 12644.10; C46, 50, 54, 58, 62, §
631.10, 632.7, 633.32, 633.43, 668.7, 672.9; C66, 71, 73, 75, 77, 79,
81, § 633.174]
633.175 WAIVER OF BOND BY COURT.
The court, for good cause shown, may exempt any fiduciary from
giving bond, if the court finds that the interests of creditors and
distributees will not thereby be prejudiced. However, the court,
except as provided in section 633.172, subsection 2, shall not exempt
a conservator from giving bond in a conservatorship with total assets
of more than twenty-five thousand dollars, excluding real property,
unless it is a voluntary conservatorship in which the petitioner is
eighteen years of age or older and has waived bond in the petition.
Section History: Early Form
[C51, § 1276, 1316, 1317, 1496; R60, § 2308, 2348, 2349, 2548;
C73, § 2246, 2321, 2350, 2362, 2363; C97, § 3197, 3267, 3268, 3293,
3301; S13, § 3268; C24, 27, 31, 35, 39, § 11828, 11838, 11876,
11887, 12577; C46, 50, 54, 58, 62, § 631.10, 632.7, 633.32, 633.43,
668.5; C66, 71, 73, 75, 77, 79, 81, § 633.175] Section History: Recent Form
91 Acts, ch 36, § 5; 92 Acts, ch 1012, § 3; 2008 Acts, ch 1119,
§15, 39
Administering moneys paid by United States department of veterans
affairs, see § 633.622
Attorneys acting as fiduciaries, see Iowa Ct.R. 39.13 Footnotes
2008 amendment to this section applies to conservatorships in
existence on or after July 1, 2008; 2008 Acts, ch 1119, §39
633.176 REDUCTION OF BOND BY DEPOSIT.
Personal property of the estate may be deposited with a bank or
trust company located in the state of Iowa upon such terms as may be
prescribed by order of the court. The amount of the bond of the
fiduciary may be then reduced as the court may determine. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.176]
633.177 DEPOSIT IN LIEU OF BOND.
The court may permit the fiduciary to deposit cash or other
prescribed securities of the fiduciary's own in lieu of bond. Section History: Early Form
[C51, § 1276, 1316, 1317; R60, § 2308, 2348, 2349; C73, § 2321,
2350, 2362, 2363; C97, § 3267, 3268, 3293, 3301; S13, § 3268; C24,
27, 31, 35, 39, § 11828, 11838, 11876, 11887; C46, 50, 54, 58,
62, § 631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §
633.177]
633.178 LETTERS.
Upon the filing of an oath of office or certification and a bond,
if any is required, the clerk shall issue letters under the seal of
the court, giving the fiduciary the powers authorized by law. Section History: Early Form
[C51, § 1319; R60, § 2351; C73, § 2365; C97, § 3303; C24, 27, 31,
35, 39, § 11889; C46, 50, 54, 58, 62, § 633.45; C66, 71, 73, 75,
77, 79, 81, § 633.178] Section History: Recent Form
2007 Acts, ch 134, §9, 28 Footnotes
2007 amendment to this section applies to fiduciaries appointed on
or after July 1, 2007; 2007 Acts, ch 134, §28
633.179 REVIEW BY CLERK WHEN INVENTORY IS FILED.
At the time the inventory of the estate is filed, the clerk shall
review the amount of bond, and report to the court as to any apparent
insufficiency thereof. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.179]
633.180 BOND CHANGED.
The court may at any time require a new bond, or increase or
decrease the amount of the penalty of the bond of any fiduciary, when
good cause therefor appears. Section History: Early Form
[C51, § 1510; R60, § 2562; C73, § 2247; C97, § 3198; C24, 27, §
12604; C31, 35, § 12604, 12644-c9; C39, § 12604, 12644.09; C46,
50, 54, 58, 62, § 668.31, 672.9; C66, 71, 73, 75, 77, 79, 81, §
633.180]
633.181 OBLIGEES OF BOND -- JOINT AND SEVERAL
LIABILITY.
The bond of the fiduciary shall run to the use of all persons
interested in the estate, and shall be for the security and benefit
of such persons. The sureties shall be jointly and severally liable
with the fiduciary, and with each other. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.181]
633.182 QUALIFICATIONS FOR SURETIES.
Qualifications for sureties on probate bonds shall be the same as
those provided by section 636.4 or section 636.14, provided, however,
that no attorney shall act as surety on any such bond. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.182]
633.183 AUTHORITY FOR FIDUCIARY AND SURETY TO ENTER
INTO AGREEMENT FOR DEPOSIT OF PROPERTY OR JOINT CONTROL.
It shall be lawful for the fiduciary to agree with the fiduciary's
surety for the deposit of any or all moneys and other property of the
estate with a bank, safe deposit or trust company, authorized by law
to do business as such, or other depository approved by the court, if
such deposit is otherwise proper, in such manner as to prevent the
withdrawal of such moneys or other property without the written
consent of the surety, or on order of the court made on such notice
to the surety as the court may direct. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.183]
See also §636.47
633.184 RELEASE OF SURETIES BEFORE ESTATE FULLY
ADMINISTERED.
1. Release for cause. For good cause, the court may, before
the estate is fully administered, order the release of the sureties
of the fiduciary and require the fiduciary to furnish a new bond.
2. Extent of liability of original and new sureties. The
original sureties shall be liable for all breaches of the obligation
of the bond up to the time of filing of the new bond and the approval
thereof by the clerk, but not for acts and omissions of the fiduciary
thereafter. The new bond shall bind the sureties thereon with
respect to acts and omissions of the fiduciary from the time when the
sureties on the original bond are no longer liable therefor. Section History: Early Form
[C51, § 1318; R60, § 2350; C73, § 2364; C97, § 3302; C24, 27, 31,
35, 39, § 11888; C46, 50, 54, 58, 62, § 633.44; C66, 71, 73, 75,
77, 79, 81, § 633.184]
633.185 INSOLVENCY OF FIDUCIARY.
If, at any time, a fiduciary becomes insolvent after qualifying as
such fiduciary, and after the maturity of a debt owing by such
fiduciary to the estate, then the fiduciary and the sureties on the
bond shall be liable to the estate for the indebtedness owing by the
fiduciary to the estate. If the fiduciary is not solvent at any time
after qualification and after the maturity of the debt, the sureties
on the bond shall not be liable to the estate for the indebtedness.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.185]
633.186 SUIT ON BOND.
1. Execution of bond deemed as appearance. The execution and
filing of the bond by a fiduciary, any other provisions of law
notwithstanding, shall be deemed an appearance by the surety in the
proceeding for the administration of the estate including all
hearings with respect to the bond.
2. Summary enforcement in proceedings for administration.
Subject to the provisions of subsection 3 hereof, the court may, upon
the breach of the obligation of the bond of a fiduciary, after notice
to the obligors on the bond and to such other persons as the court
directs, summarily determine the damages as a part of the proceeding
for the administration of the estate, and by appropriate process
enforce the collection thereof from those liable on the bond. Such
determination and enforcement may be made by the court upon its own
motion or upon application of a successor fiduciary, or of any other
interested person. The court may hear the application at the time of
settling the accounts of the defaulting fiduciary or at such other
time as the court may direct. Damages shall be assessed on behalf of
all interested persons and may be paid over to the successor or other
nondefaulting fiduciary and distributed as other assets held by the
fiduciary in the fiduciary's official capacity.
3. Enforcement by separate suit. If the estate is already
distributed, or if, for any reason, the procedure to recover on the
bond provided in subsection 2 hereof, is inadequate, any interested
person may bring a separate suit in a court of competent jurisdiction
on the person's own behalf for damages suffered by the person by
reason of the default of the fiduciary.
4. Bond not void upon first recovery. The bond of the
fiduciary shall not be void upon the first recovery, but may be
proceeded upon from time to time until the whole penalty is
exhausted.
5. Denial of liability by surety -- intervention. If the
court has already determined the liability of the fiduciary, the
sureties shall not be permitted thereafter to deny such liability in
any action or hearing to determine their liability; but the surety
may intervene in any hearing to determine the liability of the
fiduciary. Section History: Early Form
[C51, § 1387, 1389, 1509; R60, § 2419, 2421, 2561; C73, § 2251,
2435; C97, § 3201, 3361; C24, 27, 31, 35, 39, § 11984, 11985,
12603; C46, 50, 54, 58, 62, § 635.79, 635.80, 668.30; C66, 71, 73,
75, 77, 79, 81, § 633.186]
Referred to in § 633.487
See § 636.20
633.187 LIMITATION OF ACTION ON BOND.
No proceedings upon the bond of a fiduciary shall be brought
subsequent to two years after the discharge of the fiduciary or six
months after the discovery of fraud, whichever is later. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.187]
633.188 THROUGH 633.196 Reserved.
633.197 COMPENSATION.
Personal representatives shall be allowed such reasonable fees as
may be determined by the court for services rendered, but not in
excess of the following commissions upon the gross assets of the
estate listed in the probate inventory, which shall be received as
full compensation for all ordinary services:
For the first one thousand dollars, six percent;
For the overplus between one and five thousand dollars, four
percent;
For all sums over five thousand dollars, two percent.
For purposes of this section, the gross assets of the estate shall
not include life insurance proceeds, unless payable to the decedent's
estate. Section History: Early Form
[C51, § 1429; R60, § 2454; C73, § 2494; C97, § 3415; C24, 27, 31,
35, 39, § 12063; C46, 50, 54, 58, 62, § 638.23; C66, 71, 73, 75,
77, 79, 81, § 633.197] Section History: Recent Form
94 Acts, ch 1153, §8; 2005 Acts, ch 38, §11
See also § 633.86 and 633.162
633.198 ATTORNEY FEE.
There shall also be allowed and taxed as part of the costs of
administration of estates as an attorney's fee for the personal
representative's attorney, such reasonable fee as may be determined
by the court, for services rendered, but not in excess of the
schedule of fees herein provided for personal representatives. Section History: Early Form
[C24, 27, 31, 35, 39, § 12064; C46, 50, 54, 58, 62, § 638.24;
C66, 71, 73, 75, 77, 79, 81, § 633.198]
633.199 EXPENSES AND EXTRAORDINARY SERVICES.
Such further allowances as are just and reasonable may be made by
the court to personal representatives and their attorneys for actual
necessary and extraordinary expenses and services. Necessary and
extraordinary services shall be construed to include but not be
limited to services in connection with real estate, tax issues,
disputed matters, nonprobate assets, reopening the estate, location
of unknown and lost heirs and beneficiaries, and management and
disposition of unusual assets. Relevant factors to be considered in
determining the value of such services shall include but not be
limited to the following:
1. Time necessarily spent by the personal representatives and
their attorneys.
2. Nature of the matters or issues and the extent of the services
provided.
3. Complexity of the issues and the importance of the issues to
the estate.
4. Responsibilities assumed.
5. Resolution.
6. Experience and expertise of the personal representatives and
their attorneys. Section History: Early Form
[C51, § 1430; R60, § 2455; C73, § 2495; C97, § 3415; C24, 27, 31,
35, 39, § 12065; C46, 50, 54, 58, 62, § 638.25; C66, 71, 73, 75,
77, 79, 81, § 633.199] Section History: Recent Form
2007 Acts, ch 134, §10, 28 Footnotes
2007 amendments to this section apply to estates of decedents
dying on or after July 1, 2007; 2007 Acts, ch 134, §28
633.200 COMPENSATION OF OTHER FIDUCIARIES AND THEIR
ATTORNEYS.
The court shall allow and fix from time to time the compensation
for fiduciaries, other than personal representatives, and their
attorneys for such services as they shall render as shown by an
itemized claim or report made and filed setting forth what such
services consist of during the period of time they continue to act in
such capacities. Section History: Early Form
[C51, § 1515; R60, § 2567; C73, § 2256; C97, § 3205; C24, 27, §
12599; C31, 35, § 12065-d1, 12599; C39, § 12065.1, 12599; C46,
50, 54, 58, 62, § 638.26, 668.26; C66, 71, 73, 75, 77, 79, 81, §
633.200]
633.201 COURT OFFICERS AS FIDUCIARIES.
Judges, clerks, and deputy clerks serving as fiduciaries shall not
be allowed any compensation for services as such fiduciaries. A
judge, clerk, or deputy clerk serving as a fiduciary may be
compensated for fiduciary services if the services are for a family
member's estate, trust, guardianship, or conservatorship. For
purposes of this section, "family member" means a spouse, child,
grandchild, parent, grandparent, sibling, niece, nephew, cousin, or
other relative or individual with significant personal ties to the
fiduciary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.201] Section History: Recent Form
2007 Acts, ch 86, §9
633.202 AFFIDAVIT RELATIVE TO COMPENSATION.
In no case shall the compensation of fiduciaries and their
attorneys be allowed or paid until there shall have been filed with
the clerk of the district court in which administration of the estate
is pending an affidavit of the fiduciary, or attorney, as the case
may be, stating that there is no contract, agreement, or arrangement,
either oral or written, express or implied, contemplating any
division of compensation for such services, or participation therein,
directly or indirectly, by any other person, firm, or corporation
with such fiduciary or attorney, unless it be with a regular and bona
fide law partner, or with one jointly serving with them in the same
capacity in relation to the estate in which such compensation is
allowed, in which event the affidavit shall show such fact. Section History: Early Form
[C31, 35, § 12065-d2; C39, § 12065.2; C46, 50, 54, 58, 62, §
638.27; C66, 71, 73, 75, 77, 79, 81, § 633.202]
Referred to in § 633.203
633.203 AFFIDAVIT FOR CORPORATE FIDUCIARY.
In any case where a corporation is acting as a fiduciary under and
by virtue of the provisions of chapter 524, division X, the affidavit
required by section 633.202 shall be executed and made by an officer
of such corporation. Section History: Early Form
[C31, 35, § 12065-d3; C39, § 12065.3; C46, 50, 54, 58, 62, §
638.28; C66, 71, 73, 75, 77, 79, 81, § 633.203]
633.204 FEES OF DECEASED FIDUCIARY.
When a fiduciary dies, all fees to which the fiduciary's personal
representative and the fiduciary's attorney are entitled shall be a
charge against the estate assets until paid. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.204]
633.205 THROUGH 633.209 Reserved.
633.210 RULES OF DESCENT.
The estate of a person dying intestate shall descend as provided
in sections 633.211 to 633.226. Section History: Early Form
[C51, § 1390; R60, § 2422; C73, § 2436; C97, § 3362; C24, 27, 31,
35, 39, § 11986; C46, 50, 54, 58, 62, § 636.1; C66, 71, 73, 75,
77, 79, 81, § 633.210]
Referred to in § 910.3B
633.211 SHARE OF SURVIVING SPOUSE IF DECEDENT LEFT NO
ISSUE OR LEFT ISSUE ALL OF WHOM ARE ISSUE OF SURVIVING SPOUSE.
If the decedent dies intestate leaving a surviving spouse and
leaving no issue or leaving issue all of whom are the issue of the
surviving spouse, the surviving spouse shall receive the following
share:
1. All the value of all the legal or equitable estates in real
property possessed by the decedent at any time during the marriage,
which have not been sold on execution or by other judicial sale, and
to which the surviving spouse has made no relinquishment of right.
2. All personal property that, at the time of death, was, in the
hands of the decedent as the head of a family, exempt from execution.
3. All other personal property of the decedent which is not
necessary for the payment of debts and charges. Section History: Early Form
[C51, § 1329, 1390, 1394, 1421; R60, § 2361, 2422, 2477, 2479;
C73, § 2371, 2436, 2440; C97, § 3312, 3362, 3366; C24, 27, 31, 35,
39, § 11918, 11986, 11990, 11991; C46, 50, 54, 58, 62, § 635.7,
636.1, 636.5, 636.6; C66, 71, 73, 75, 77, 79, 81, § 633.211] Section History: Recent Form
85 Acts, ch 19, §1
Referred to in § 633.210, 633.218, 633.246, 633.267, 633.272,
633.436, 633A.3106
633.212 SHARE OF SURVIVING SPOUSE IF DECEDENT LEFT
ISSUE SOME OF WHOM ARE NOT ISSUE OF SURVIVING SPOUSE.
If the decedent dies intestate leaving a surviving spouse and
leaving issue some of whom are not the issue of the surviving spouse,
the surviving spouse shall receive the following share:
1. One-half in value of all the legal or equitable estates in
real property possessed by the decedent at any time during the
marriage, which have not been sold on execution or by other judicial
sale, and to which the surviving spouse has made no relinquishment of
right.
2. All personal property that, at the time of death, was in the
hands of the decedent as the head of a family, exempt from execution.
3. One-half of all other personal property of the decedent which
is not necessary for the payment of debts and charges.
4. If the property received by the surviving spouse under
subsections 1, 2 and 3 of this section is not equal in value to the
sum of fifty thousand dollars, then so much additional of any
remaining homestead interest and of the remaining real and personal
property of the decedent that is subject to payment of debts and
charges against the decedent's estate, after payment of the debts and
charges, even to the extent of the whole of the net estate, as
necessary to make the amount of fifty thousand dollars. Section History: Early Form
[C51, § 1410; R60, § 2495; C73, § 2455; C97, § 3379; S13, § 3379,
3381-a; C24, 27, 31, 35, 39, § 12017; C46, 50, 54, 58, 62, §
636.32; C66, 71, 73, 75, 77, 79, 81, § 633.212] Section History: Recent Form
85 Acts, ch 19, §2
Referred to in § 633.210, 633.218, 633.246, 633.267, 633.272,
633.436, 633A.3106
633.213 APPRAISAL.
Prior to the settlement of every intestate estate in which there
is a surviving spouse, and in which appraisal has not been waived by
the surviving spouse and all the heirs of the decedent, the court,
upon application of the personal representative, the surviving
spouse, or any of the heirs of the decedent, shall appoint three
competent disinterested appraisers to appraise the estate and to make
their report to the court, at the time as the court may direct by
order, unless the court, after notice, finds further appraisal
unnecessary. In the appraisement, the homestead, if any, shall be
appraised separately. Section History: Early Form
[C24, 27, 31, 35, 39, § 12018; C46, 50, 54, 58, 62, § 636.33;
C66, 71, 73, 75, 77, 79, 81, § 633.213] Section History: Recent Form
84 Acts, ch 1067, § 47
Referred to in § 633.210, 633.214
633.214 PROCEDURE DETERMINED BY COURT.
At the time it appoints the appraisers provided for by section
633.213 the court shall prescribe the kind of notice and the method
of service thereof, whether by publication or otherwise. Section History: Early Form
[C24, 27, 31, 35, 39, § 12019; C46, 50, 54, 58, 62, § 636.34;
C66, 71, 73, 75, 77, 79, 81, § 633.214]
Referred to in § 633.210
633.215 NOTICE.
Such notice shall designate the names of the appraisers, the time
and place of the appraisement, and the date on which the appraisers
shall file with the clerk the report of their appraisement, directed
to all persons interested in such appraisement. Section History: Early Form
[C24, 27, 31, 35, 39, § 12020; C46, 50, 54, 58, 62, § 636.35;
C66, 71, 73, 75, 77, 79, 81, § 633.215]
Referred to in § 633.210
633.216 OBJECTIONS.
All persons interested in such report and having objections to it
and the appraisement, shall file their objections within ten days
after the date fixed in said notice for the filing of the report of
such appraisement. Section History: Early Form
[C24, 27, 31, 35, 39, § 12021; C46, 50, 54, 58, 62, § 636.36;
C66, 71, 73, 75, 77, 79, 81, § 633.216]
Referred to in § 633.210
633.217 TRIAL.
Such objections, if any, shall be tried to the court as in equity,
and the court shall enter a final order in the matter. Section History: Early Form
[C24, 27, 31, 35, 39, § 12022; C46, 50, 54, 58, 62, § 636.37;
C66, 71, 73, 75, 77, 79, 81, § 633.217]
Referred to in § 633.210
633.218 RIGHT OF SPOUSE TO SELECT PROPERTY.
After such proceedings, and after payment of debts and charges,
the surviving spouse shall have the right to select from the property
so appraised, at its appraised value thus fixed, property equal in
value to the amount to which the spouse is entitled under section
633.211 or 633.212 which selection shall be in writing filed with the
clerk of court. Section History: Early Form
[C24, 27, 31, 35, 39, § 12023; C46, 50, 54, 58, 62, § 636.38;
C66, 71, 73, 75, 77, 79, 81, § 633.218]
Referred to in § 633.210
633.219 SHARE OF OTHERS THAN SURVIVING SPOUSE.
The part of the intestate estate not passing to the surviving
spouse, or if there is no surviving spouse, the entire net estate
passes as follows:
1. To the issue of the decedent per stirpes.
2. If there is no surviving issue, to the parents of the decedent
equally; and if either parent is dead, the portion that would have
gone to such deceased parent shall go to the survivor.
3. If there is no person to take under either subsection 1 or 2
of this section, the estate shall be divided and set aside into two
equal shares. One share shall be distributed to the issue of the
decedent's mother per stirpes and one share shall be distributed to
the issue of the decedent's father per stirpes. If there are no
surviving issue of one deceased parent, the entire estate passes to
the issue of the other deceased parent in accordance with this
subsection.
4. If there is no person to take under subsection 1, 2, or 3 of
this section, and the decedent is survived by one or more
grandparents or issue of grandparents, half the estate passes to the
paternal grandparents, if both survive, or to the surviving paternal
grandparent if only one survives. If neither paternal grandparent
survives, this half share shall be further divided into two equal
subshares. One subshare shall be distributed to the issue of the
decedent's paternal grandmother per stirpes and one subshare shall be
distributed to the issue of the decedent's paternal grandfather per
stirpes. If there are no surviving issue of one deceased paternal
grandparent, the entire half share passes to the issue of the other
deceased paternal grandparent and their issue in the same manner.
The other half of the decedent's estate passes to the maternal
grandparents and their issue in the same manner. If there are no
surviving grandparents or issue of grandparents on either the
paternal or maternal side, the entire estate passes to the decedent's
surviving grandparents or their issue on the other side in accordance
with this subsection.
5. If there is no person to take under subsection 1, 2, 3, or 4
of this section, and the decedent is survived by one or more
great-grandparents or issue of great-grandparents, the estate passes
equally to each set of great-grandparents, or to their issue, if any
survive, per stirpes.
6. If there is no person to take under subsection 1, 2, 3, 4, or
5 of this section, the portion uninherited shall go to the issue of
the deceased spouse of the intestate, per stirpes. If the intestate
has had more than one spouse who died in lawful wedlock, it shall be
equally divided between the issue, per stirpes, of those deceased
spouses.
7. If there is no person who qualifies under either subsection 1,
2, 3, 4, 5, or 6 of this section, the intestate property shall
escheat to the state of Iowa. Section History: Early Form
[C51, § 1408--1411, 1413, 1414; R60, § 2436, 2437, 2439, 2440,
2495--2497; C73, § 2453--2458, 2460; C97, § 3378--3382, 3387; S13, §
3379, 3381-a, -b, -c; C24, 27, 31, 35, 39, § 12016, 12017,
12024--12028, 12035; C46, 50, 54, 58, 62, § 636.31, 636.32,
636.39--636.43, 636.50; C66, 71, 73, 75, 77, 79, 81, § 633.219] Section History: Recent Form
93 Acts, ch 111, §2; 95 Acts, ch 63, §4; 2000 Acts, ch 1012, §1
Referred to in § 633.210, 633.267, 633.304, 633.305, 633A.3106,
633A.3109
633.220 AFTERBORN HEIRS -- TIME OF DETERMINING
RELATIONSHIP.
Heirs of an intestate, begotten before the intestate's death but
born thereafter, shall inherit as if they had been born in the
lifetime of the intestate and had survived the intestate. With this
exception, the intestate succession shall be determined by the
relationships existing at the time of the death of the intestate. Section History: Early Form
[C51, § 1284, 1285; R60, § 2316, 2317; C73, § 2334, 2335; C97, §
3279; S13, § 3279; C24, 27, 31, 35, 39, § 11858; C46, 50, 54, 58,
62, § 633.13; C66, 71, 73, 75, 77, 79, 81, § 633.220]
Referred to in § 633.210
633.221 BIOLOGICAL CHILD -- INHERIT FROM MOTHER.
Unless the child has been adopted, a biological child shall
inherit from the child's biological mother, and she from the child.
Section History: Early Form
[C51, § 1415; R60, § 2441; C73, § 2465; C97, § 3384; C24, 27, 31,
35, 39, § 12030; C46, 50, 54, 58, 62, § 636.45; C66, 71, 73, 75,
77, 79, 81, § 633.221] Section History: Recent Form
94 Acts, ch 1046, §27
Referred to in § 633.3, 633.210
633.222 BIOLOGICAL CHILD -- INHERIT FROM FATHER.
Unless the child has been adopted, a biological child inherits
from the child's biological father if the evidence proving paternity
is available during the father's lifetime, or if the child has been
recognized by the father as his child; but the recognition must have
been general and notorious, or in writing. Under such circumstances,
if the recognition has been mutual, and the child has not been
adopted, the father may inherit from his biological child. Section History: Early Form
[C51, § 1416, 1417; R60, § 2442, 2443; C73, § 2466, 2467; C97, §
3385; C24, 27, 31, 35, 39, § 12031; C46, 50, 54, 58, 62, §
636.46; C66, 71, 73, 75, 77, 79, 81, § 633.222] Section History: Recent Form
86 Acts, ch 1086, § 1; 94 Acts, ch 1046, §28
Referred to in § 633.3, 633.210
633.223 EFFECT OF ADOPTION.
1. Except as provided in subsection 3, a lawful adoption
extinguishes the right of intestate succession of an adopted person
from and through the adopted person's biological parents. The
adopted person inherits from and through the adoptive parents in the
same manner as a biological child inherits from and through the
child's biological parents.
2. Except as provided in subsection 3, a lawful adoption
extinguishes the right of intestate succession of a biological parent
from and through the parent's biological child who is adopted. The
adoptive parents inherit from and through the adopted person in the
same manner as biological parents inherit from and through the
parents' biological child.
3. An adoption of a person by the spouse or surviving spouse of a
biological parent has no effect on the relationship for inheritance
purposes between the adopted person and that biological parent or
biological parent's heirs. An adoption of a person by the spouse or
surviving spouse of a biological parent after the death of the other
biological parent has no effect on the relationship for inheritance
purposes between the adopted person and the deceased biological
parent's heirs.
4. A person inherits through an adopted person, an adoptive
parent, or a biological parent of an adopted person only if the
adopted person, adoptive parent, or biological parent of an adopted
person would have inherited under subsection 1, 2, or 3. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.223; 81 Acts, ch 194, § 1] Section History: Recent Form
94 Acts, ch 1046, §29
Referred to in § 633.210
633.224 ADVANCEMENTS -- IN GENERAL.
When the owner of property transfers it as an advancement to a
person who would be an heir of such transferor were the latter to die
at that time, and the transferor dies intestate, then the property
thus advanced shall be counted toward the share of the transferee in
the estate, (which for this purpose only shall be increased by the
value of the advancement at the time the advancement was made). The
transferee shall have no liability to the estate for such part, if
any, of the advancement as may be in excess of the transferee's share
in the estate as thus determined. Every gratuitous inter vivos
transfer is presumed to be an absolute gift, and not an advancement.
Such presumption is rebuttable. Section History: Early Form
[C51, § 1419, 1420; R60, § 2445, 2446; C73, § 2459; C97, § 3383;
C24, 27, 31, 35, 39, § 12029; C46, 50, 54, 58, 62, § 636.44; C66,
71, 73, 75, 77, 79, 81, § 633.224]
Referred to in § 633.210, 633.225, 633.226
633.225 VALUATION OF ADVANCEMENTS.
An advancement under section 633.224 shall be valued as of the
time when the advancee came into possession or enjoyment or as of the
date of the death of the intestate, whichever first occurs. Section History: Early Form
[C51, § 1419, 1420; R60, § 2445, 2446; C73, § 2459; C97, § 3383;
C24, 27, 31, 35, 39, § 12029; C46, 50, 54, 58, 62, § 636.44; C66,
71, 73, 75, 77, 79, 81, § 633.225]
Referred to in § 633.210
633.226 DEATH OF ADVANCEE BEFORE INTESTATE.
If an advancee under section 633.224 dies before the intestate,
leaving an heir who takes from the intestate, the advancement shall
be taken into account in the same manner as if it had been made
directly to such heir. If such heir is entitled to a lesser share in
the estate than the advancee would have been entitled to, had the
advancee survived the intestate, then the heir shall be charged with
only such proportion of the advancement as the amount the heir would
have inherited, had there been no advancement, bears to the amount
which the advancee would have inherited, had there been no
advancement. Section History: Early Form
[C51, § 1419, 1420; R60, § 2445, 2446; C73, § 2459; C97, § 3383;
C24, 27, 31, 35, 39, § 12029; C46, 50, 54, 58, 62, § 636.44; C66,
71, 73, 75, 77, 79, 81, § 633.226]
Referred to in § 633.210
633.227 ADMINISTRATION GRANTED.
Where there is no will, administration shall be granted to any
qualified person on the petition of:
1. The surviving spouse;
2. The heirs of the decedent;
3. Creditors of the decedent;
4. Other persons showing good grounds therefor. Section History: Early Form
[C51, § 1311, 1312; R60, § 2343, 2344; C73, § 2354, 2355; C97, §
3297; C24, 27, 31, 35, 39, § 11883; C46, 50, 54, 58, 62, §
633.39; C66, 71, 73, 75, 77, 79, 81, § 633.227]
Referred to in § 635.1
633.228 TIME ALLOWED.
To file such petition, there shall be allowed, commencing with the
death of the decedent:
1. To the surviving spouse, a period of twenty days;
2. To each other class in succession, a period of ten days.
The period allowed each class shall be advanced to the period
allowed the preceding class if there is no member of such preceding
class. Any member of any class may file such petition after the
expiration of the period allowed to the member if letters have not
been issued prior thereto. Section History: Early Form
[C51, § 1313; R60, § 2345; C73, § 2356; C97, § 3298; C24, 27, 31,
35, 39, § 11884; C46, 50, 54, 58, 62, § 633.40; C66, 71, 73, 75,
77, 79, 81, § 633.228]
Referred to in § 635.1
633.229 PETITION FOR ADMINISTRATION OF AN INTESTATE
ESTATE.
The petition for administration of an intestate estate shall
contain the following:
1. The name, domicile and date of death of the decedent.
2. If the decedent was domiciled outside the state at the time of
the decedent's death, a statement that the decedent had property
within the county in which the petition is filed, or any other basis
for jurisdiction in such county.
3. The name and address of the surviving spouse, if any, and the
name and address of each heir so far as known to the petitioner.
4. The estimated value of the personal property of the estate
plus the estimated gross annual income of the estate during the
period of administration. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.229]
633.230 NOTICE IN INTESTATE ESTATES.
1. In intestate matters, the administrator, as soon as letters
are issued, shall cause to be published once each week for two
consecutive weeks in a daily or weekly newspaper of general
circulation published in the county in which the estate is pending,
and at any time during the pendency of administration that the
administrator has knowledge of the name and address of a person
believed to own or possess a claim which will not or may not be paid
or otherwise satisfied during administration, provide by ordinary
mail to each such claimant at the claimant's last known address, a
notice of appointment which shall be in substantially the following
form:
NOTICE OF APPOINTMENT OF ADMINISTRATOR AND NOTICE TO CREDITORS
In the District Court of Iowa
in and for ...... County.
In the Estate of ......, Deceased
Probate No. ....
To All Persons Interested in the Estate of ......, Deceased, who
died on or about ...... (date):
You are hereby notified that on the .... day of ...... (month),
... (year), the undersigned was appointed administrator of the
estate.
Notice is hereby given that all persons indebted to the estate are
requested to make immediate payment to the undersigned, and creditors
having claims against the estate shall file them with the clerk of
the above named district court, as provided by law, duly
authenticated, for allowance, and unless so filed by the later to
occur of four months from the second publication of this notice or
one month from the date of the mailing of this notice (unless
otherwise allowed or paid) a claim is thereafter forever barred.
Dated this .... day of ...... (month), ... (year)
....................
Administrator of the estate
....................
Address
....................
Attorney for the administrator
....................
Address
Date of second publication .... day of ...... (month), ... (year)
(Date to be inserted by publisher)
2. An action based upon the failure to give notice by mail
required by this section, section 633.304 or 633.305, to heirs of a
decedent or to persons known by the personal representative to own or
possess a claim in any estate in which the personal representative
was discharged prior to July 1, 1989, shall not be maintained in any
court in this state unless commenced prior to July 1, 1991. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.230] Section History: Recent Form
84 Acts, ch 1080, § 1, 2; 89 Acts, ch 35, §2; 90 Acts, ch 1036, §
1; 2000 Acts, ch 1058, §66
Referred to in § 590.1, 633A.3109, 635.13
633.231 NOTICE IN INTESTATE ESTATES -- MEDICAL
ASSISTANCE CLAIMS.
1. Upon opening administration of an intestate estate, the
administrator shall, in accordance with section 633.410, provide by
ordinary mail to the entity designated by the department of human
services, a notice of opening administration of the estate and of the
appointment of the administrator, which shall include a notice to
file claims with the clerk within the later to occur of four months
from the second publication of the notice to creditors or six months
from the date of mailing of this notice, or thereafter be forever
barred.
2. The notice shall be in substantially the following form:
NOTICE OF OPENING ADMINISTRATION OF ESTATE, OF APPOINTMENT OF
ADMINISTRATOR, AND NOTICE TO CREDITOR
In the District Court of Iowa
In and for .... County.
In the Estate of ......, Deceased
Probate No. ....
To the Department of Human Services Who May Be Interested in the
Estate of ......, Deceased, who died on or about .... (date):
You are hereby notified that on the ... day of .... (month), ...
(year), an intestate estate was opened in the above-named court and
that ...... was appointed administrator of the estate.
You are further notified that the birthdate of the deceased is
.... and the deceased's social security number is ...-..-.... The
name of the spouse is ..... The birthdate of the spouse is .... and
the spouse's social security number is ...-..-...., and that the
spouse of the deceased is alive as of the date of this notice, or
deceased as of .... (date).
You are further notified that the deceased was/was not a disabled
or a blind child of the medical assistance recipient by the name of
....., who had a birthdate of .... and a social security number of
...-..-...., and the medical assistance debt of that medical
assistance recipient was waived pursuant to section 249A.5,
subsection 2, paragraph "a", subparagraph (1), and is now
collectible from this estate pursuant to section 249A.5, subsection
2, paragraph "b".
Notice is hereby given that if the department of human services
has a claim against the estate for the deceased person or persons
named in this notice, the claim shall be filed with the clerk of the
above-named district court, as provided by law, duly authenticated,
for allowance, and unless so filed by the later to occur of four
months from the second publication of the notice to creditors or six
months from the date of the mailing of this notice, unless otherwise
allowed or paid, the claim is thereafter forever barred.
Dated this ... day of .... (month), ... (year)
...........
Administrator of estate
...........
Address
..........
Attorney for administrator
..........
Address
Date of second publication
... day of .... (month), ... (year)
Section History: Recent Form
2001 Acts, ch 109, §1; 2002 Acts, ch 1119, §97; 2007 Acts, ch 134,
§11
Referred to in § 633.410, 635.13
633.232 THROUGH 633.235 Reserved.
633.236 RIGHT OF ELECTIVE SHARE OF SURVIVING
SPOUSE.
When a married person domiciled in Iowa at the time of death dies,
the surviving spouse shall have the right to take an elective share
under the provisions of sections 633.237 through 633.246. If the
surviving spouse has a conservator, the court may authorize or direct
the conservator to elect the share as the court deems appropriate
under the circumstances. Section History: Early Form
[C51, § 1407; R60, § 2435; C73, § 2452; C97, § 3376; S13, § 3376;
C24, 27, 31, 35, 39, § 12006, 12010; C46, 50, 54, 58, 62, §
636.21, 636.25; C66, 71, 73, 75, 77, 79, 81, § 633.236] Section History: Recent Form
88 Acts, ch 1064, §1; 2005 Acts, ch 38, §12
Referred to in § 633.237, 633.245, 633.246, 633.247, 633.264,
633.647
Effect on medical assistance eligibility, see § 249A.3(11) and
633.246A
633.237 PRESUMPTION AGAINST FILING ELECTIVE SHARE.
1. Following the appointment of a personal representative of the
estate of the decedent, who is not the spouse, the personal
representative shall cause to be served a written notice upon the
surviving spouse pursuant to section 633.40, subsection 5, notifying
the surviving spouse that unless, within four months after service of
the notice, the spouse files an election in writing with the clerk of
court electing the share as set forth in section 633.236 and sections
633.238 through 633.246, the spouse shall be deemed to take under the
will or to receive the intestate share. If, within the four-month
period following service of the notice, an affidavit is filed setting
forth that the surviving spouse is incapable of making the election
and does not have a conservator, the personal representative shall
make application to the court for an order pursuant to section
633.244.
2. Following the death of a settlor of a revocable trust, the
trustee of such revocable trust who is not the spouse shall cause to
be served a written notice upon the surviving spouse pursuant to
section 633.40, subsection 5, notifying the surviving spouse that
unless, within four months after service of the notice, the spouse
files an election with the trustee electing the share as set forth in
section 633.236 and sections 633.238 through 633.246, the spouse
shall be deemed to take under the terms of the revocable trust. If,
within the four-month period following service of the notice, an
affidavit is filed setting forth that the surviving spouse is
incapable of making the election and does not have a conservator, the
trustee shall make application to the court for an order pursuant to
section 633.244.
3. If the surviving spouse has a conservator, notice shall be
given to the conservator and the spouse pursuant to subsections 1 and
2.
4. The notice provisions under subsections 1 and 2 are not
applicable if the surviving spouse is a personal representative of
the estate or a trustee of a revocable trust or if the surviving
spouse or the spouse's conservator files, at any time, an election to
take under the will, receive the intestate share, or take under the
revocable trust. If the surviving spouse fails to file an election
under this section within four months of the decedent's death, it
shall be conclusively presumed that the surviving spouse elects to
take under the will, receive the intestate share, or take under the
revocable trust.
5. Upon application of the surviving spouse or the spouse's
conservator filed before the time for making the election expires,
the court may extend the period in which the surviving spouse may
make the election. Section History: Early Form
[C73, § 2452; C97, § 3376; S13, § 3376; C24, 27, 31, 35, 39, §
12007, 12010; C46, 50, 54, 58, 62, § 636.22, 636.25; C66, 71, 73,
75, 77, 79, 81, § 633.237] Section History: Recent Form
84 Acts, ch 1080, § 3; 88 Acts, ch 1064, §2; 2005 Acts, ch 38,
§13; 2009 Acts, ch 52, §3, 14
Referred to in § 633.236, 633.241, 635.13 Footnotes
2009 amendment to subsection 4 applies to estates of decedents and
revocable trusts of settlors dying on or after July 1, 2009; 2009
Acts, ch 52, §14
633.238 ELECTIVE SHARE OF SURVIVING SPOUSE.
1. The elective share of the surviving spouse shall be limited to
all of the following:
a. One-third in value of all the legal or equitable estates
in real property possessed by the decedent at any time during the
marriage which have not been sold on execution or other judicial
sale, and to which the surviving spouse has made no express written
relinquishment of right.
b. All personal property that, at the time of death, was in
the hands of the decedent as the head of a family, exempt from
execution.
c. One-third of all personal property of the decedent that is
not necessary for the payment of debts and charges.
d. One-third in value of the property held in trust not
necessary for the payment of debts and charges over which the
decedent was a grantor and retained at the time of death the power to
alter, amend, or revoke the trust, or over which the decedent waived
or rescinded any such power within one year of the date of death, and
to which the surviving spouse has not made any express written
relinquishment.
2. The elective share described in this section shall be in lieu
of any property the spouse would otherwise receive under the last
will and testament of the decedent, through intestacy, or under the
terms of a revocable trust. Section History: Early Form
[C51, § 1329, 1390, 1394, 1421; R60, § 2361, 2422, 2477, 2479;
C73, § 2371, 2436, 2440; C97, § 3312, 3362, 3366; C24, 27, 31, 35,
39, § 11918, 11986, 11990, 11991; C46, 50, 54, 58, 62, § 635.7,
636.1, 636.5, 636.6; C66, 71, 73, 75, 77, 79, 81, § 633.238] Section History: Recent Form
2005 Acts, ch 38, §14; 2009 Acts, ch 52, §4, 14
Referred to in § 614.14, 633.236, 633.237, 633.239, 633.240,
633,246 Footnotes
2009 amendment to subsection 1, unnumbered paragraph 1, applies to
estates of decedents and revocable trusts of settlors dying on or
after July 1, 2009; 2009 Acts, ch 52, §14
633.239 SHARE TO EMBRACE HOMESTEAD.
The share of the surviving spouse in such real estate shall be set
off in such manner as to include the homestead, or so much thereof as
will be equal to the share allotted to the spouse pursuant to section
633.238 unless the spouse prefers a different arrangement, but no
such different arrangement shall be allowed unless there is
sufficient property remaining to pay the claims and charges against
the decedent's estate. Section History: Early Form
[C51, § 1395; R60, § 2426; C73, § 2441; C97, § 3367; C24, 27, 31,
35, 39, § 11992; C46, 50, 54, 58, 62, § 636.7; C66, 71, 73, 75,
77, 79, 81, § 633.239] Section History: Recent Form
2005 Acts, ch 38, §15
Referred to in § 633.236, 633.237
633.240 ELECTION TO RECEIVE HOMESTEAD.
In estates in which the surviving spouse has filed an election and
in all intestate estates, whether an election is filed or not, the
surviving spouse or the spouse's conservator, if applicable, may, in
lieu of the spouse's share in the real property possessed by the
decedent at any time during the marriage, which has not been sold on
execution or other judicial sale, and to which the surviving spouse
has made no express written relinquishment of right, elect to receive
a life estate in the homestead. Such election shall be made and
entered of record as provided in section 633.245. In making such
election, the surviving spouse shall have all the rights as to the
personal property provided in section 633.238, subsection 1,
paragraphs "b", "c", and "d". In case of failure to make
such election, the right to receive the life estate in the homestead
shall be waived. Section History: Early Form
[C97, § 3377; S13, § 3377; C24, 27, 31, 35, 39, § 12012; C46,
50, 54, 58, 62, § 636.27; C66, 71, 73, 75, 77, 79, 81, § 633.240] Section History: Recent Form
88 Acts, ch 1064, §3; 2005 Acts, ch 38, §16
Referred to in § 633.236, 633.237, 633.245, 633.246, 633.647
633.241 TIME FOR ELECTION TO RECEIVE LIFE ESTATE IN
HOMESTEAD.
If the surviving spouse does not make an election to receive the
life estate in the homestead and file it with the clerk within four
months from the date of service of notice under section 633.237, it
shall be conclusively presumed that the surviving spouse waives the
right to make the election. The court on application may, prior to
the expiration of the period of four months, for cause shown, enter
an order extending the time for making the election. Section History: Early Form
[C97, § 3377; S13, § 3377; C24, 27, 31, 35, 39, § 12013; C46,
50, 54, 58, 62, § 636.28; C66, 71, 73, 75, 77, 79, 81, § 633.241] Section History: Recent Form
84 Acts, ch 1080, § 4; 2005 Acts, ch 38, §17; 2008 Acts, ch 1119,
§16, 39
Referred to in § 633.236, 633.237 Footnotes
2008 amendments to this section apply to estates of decedents
dying on or after July 1, 2008; 2008 Acts, ch 1119, § 39
633.242 RIGHTS OF ELECTION PERSONAL TO SURVIVING
SPOUSE.
The right of the surviving spouse to take an elective share, and
the right of the surviving spouse to receive a life estate in the
homestead, are personal. They are not transferable and cannot be
exercised for the spouse subsequent to the spouse's death. If the
surviving spouse dies prior to filing an election, it shall be
conclusively presumed that the surviving spouse does not take such
elective share. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.242] Section History: Recent Form
2005 Acts, ch 38, §18
Referred to in § 633.236, 633.237
633.243 FILING ELECTIONS.
The filing of the elective share and the election to receive a
life estate in the homestead shall be filed in the office of the
clerk in which the decedent's estate is being administered and served
on the trustee of the revocable trust. The court where the election
is filed shall have exclusive jurisdiction over all matters regarding
elections under this chapter. Section History: Early Form
[C24, 27, 31, 35, 39, § 12010; C46, 50, 54, 58, 62, § 636.25;
C66, 71, 73, 75, 77, 79, 81, § 633.243] Section History: Recent Form
2005 Acts, ch 38, §19
Referred to in § 633.236, 633.237
633.244 INCOMPETENT SPOUSE -- ELECTION BY COURT.
In case an affidavit is filed that the surviving spouse is
incapable of determining whether to take the elective share, or to
elect to receive a life estate in the homestead, and does not have a
conservator, the court shall fix a time and place of hearing on the
matter and cause a notice thereof to be served upon the surviving
spouse in such manner and for such time as the court may direct. At
the hearing, a guardian ad litem shall be appointed to represent the
spouse and the court shall enter such orders as it deems appropriate
under the circumstances. The guardian ad litem shall be a practicing
attorney. Section History: Early Form
[S13, § 3376, 3377; C24, 27, 31, 35, 39, § 12011, 12014; C46,
50, 54, 58, 62, § 636.26, 636.29; C66, 71, 73, 75, 77, 79, 81, §
633.244] Section History: Recent Form
88 Acts, ch 1064, §4; 90 Acts, ch 1271, § 1513; 2005 Acts, ch 38,
§20
Referred to in § 229.27, 633.236, 633.237, 633.245, 633.246
633.245 RECORD OF ELECTION.
The elections of the surviving spouse under section 633.236,
633.240 or 633.244 shall be entered on the proper records of the
court. Section History: Early Form
[C73, § 2452; C97, § 3376; S13, § 3376; C24, 27, 31, 35, 39, §
12008; C46, 50, 54, 58, 62, § 636.23; C66, 71, 73, 75, 77, 79,
81, § 633.245]
Referred to in § 633.236, 633.237, 633.240
633.246 ELECTION NOT SUBJECT TO CHANGE.
An election by or on behalf of a surviving spouse to take the
share provided in section 633.211, 633.212, 633.236, 633.238,
633.240, or 633.244 shall be binding and shall not be subject to
change except for such causes as would justify an equitable decree
for the rescission of a deed. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.246] Section History: Recent Form
2009 Acts, ch 52, §5, 14
Referred to in § 633.236, 633.237 Footnotes
2009 amendment to this section applies to estates of decedents and
revocable trusts of settlors dying on or after July 1, 2009; 2009
Acts, ch 52, §14
633.246A MEDICAL ASSISTANCE ELIGIBILITY.
Unless precluded from doing so under the terms of a premarital
agreement, the failure of a surviving spouse to make an election
under this division constitutes a transfer of assets for the purpose
of determining eligibility for medical assistance pursuant to chapter
249A to the extent that the value received by making the election
would have exceeded the value of property received absent the
election. Section History: Recent Form
2000 Acts, ch 1060, §7; 2005 Acts, ch 38, §21; 2006 Acts, ch 1104,
§2
633.247 SETTING OFF ELECTIVE SHARE OF SURVIVING
SPOUSE.
The share of the surviving spouse under section 633.236 may be set
off by the mutual consent of all parties in interest, or by referees
appointed by the court. An application to have the share set off by
referees shall be made by an interested party in writing by filing
with the clerk of court. A copy of such application shall be sent to
all interested parties. Section History: Early Form
[C51, § 1396, 1397; R60, § 2427, 2428; C73, § 2443, 2444; C97, §
3369; S13, § 3377; C24, 27, 31, 35, 39, § 11994, 12015; C46, 50,
54, 58, 62, § 636.9, 636.30; C66, 71, 73, 75, 77, 79, 81, § 633.247]
Section History: Recent Form
84 Acts, ch 1080, § 5; 88 Acts, ch 1064, §5; 2005 Acts, ch 38, §22
Referred to in § 633.253
633.248 REFEREE -- NOTICE.
In the absence of mutual consent of all interested parties to the
appointment of referees, the court shall fix a time and place for
hearing upon such application and of the fact that referees will be
appointed if such application is granted, and shall prescribe the
time and manner of the service of notice of the hearing. Section History: Early Form
[C51, § 1398; R60, § 2429; C73, § 2445; C97, § 3370; C24, 27, 31,
35, 39, § 11995; C46, 50, 54, 58, 62, § 636.10; C66, 71, 73, 75,
77, 79, 81, § 633.248] Section History: Recent Form
2005 Acts, ch 38, §23
Referred to in § 633.253
633.249 MODE OF SETTING OFF SHARE IN REAL ESTATE.
The referees may employ a surveyor, and may cause the shares in
real estate to be set off by legally sufficient land descriptions.
They shall make a report of their proceedings to the court as early
as reasonably possible. Section History: Early Form
[C51, § 1399; R60, § 2430; C73, § 2446; C97, § 3371; C24, 27, 31,
35, 39, § 11996; C46, 50, 54, 58, 62, § 636.11; C66, 71, 73, 75,
77, 79, 81, § 633.249]
Referred to in § 633.253
633.250 REPORT -- DELINQUENCY.
The court may require a report by such a time as it deems
reasonable. If the referees fail to obey this or any other of its
orders, the court may discharge them and appoint others in their
stead, and impose upon the first referees the payment of all costs
previously made, unless they show good cause against it. Section History: Early Form
[C51, § 1400; R60, § 2431; C73, § 2447; C97, § 3372; C24, 27, 31,
35, 39, § 11997; C46, 50, 54, 58, 62, § 636.12; C66, 71, 73, 75,
77, 79, 81, § 633.250]
Referred to in § 633.253
633.251 CONFIRMATION -- NEW REFERENCE.
The court may set the report for hearing and prescribe the notice
to be given to interested parties. The court may confirm the report,
or may set it aside and refer the matter to the same or other
referees, at its discretion. Section History: Early Form
[C51, § 1401; R60, § 2432; C73, § 2448; C97, § 3373; C24, 27, 31,
35, 39, § 11998; C46, 50, 54, 58, 62, § 636.13; C66, 71, 73, 75,
77, 79, 81, § 633.251]
Referred to in § 633.253
633.252 CONFIRMATION CONCLUSIVE -- POSSESSION.
An order confirming a report of the referee shall be binding and
conclusive unless appealed within thirty days and the surviving
spouse may bring an action to obtain possession of any assets set
apart to the surviving spouse. Such elective share constitutes a
judgment lien in favor of such surviving spouse against the possessor
of such assets. Section History: Early Form
[C51, § 1402; R60, § 2433; C73, § 2449; C97, § 3373; C24, 27, 31,
35, 39, § 11999; C46, 50, 54, 58, 62, § 636.14; C66, 71, 73, 75,
77, 79, 81, § 633.252] Section History: Recent Form
2005 Acts, ch 38, §24
Referred to in § 633.253
633.253 RIGHT CONTESTED.
Nothing in sections 633.247 through 633.252 shall prevent any
person interested from controverting the right of the surviving
spouse to the share thus set apart before confirmation of the report
of the referees. Section History: Early Form
[C51, § 1403; R60, § 2434; C73, § 2450; C97, § 3374; C24, 27, 31,
35, 39, § 12000; C46, 50, 54, 58, 62, § 636.15; C66, 71, 73, 75,
77, 79, 81, § 633.253]
633.254 SALE -- DIVISION OF PROCEEDS.
If it appears to the court, upon application of the personal
representative, the surviving spouse, or the report of the referee,
that the property, or any part of it, cannot be advantageously
divided, the court may order the whole, or any part of such property,
sold, and the share of the surviving spouse in the proceeds paid over
to the surviving spouse. Section History: Early Form
[C51, § 1404; R60, § 2478; C73, § 2451; C97, § 3375; C24, 27, 31,
35, 39, § 12001; C46, 50, 54, 58, 62, § 636.16; C66, 71, 73, 75,
77, 79, 81, § 633.254]
Referred to in § 633.256, 633.258
633.255 PURCHASE OF NEW HOMESTEAD.
In case the homestead is sold, the surviving spouse may use any or
all of the spouse's share to procure a homestead which shall be
exempt from liability for all debts from which the former homestead
would have been exempt. Section History: Early Form
[C51, § 1406; C73, § 2451; C97, § 3375; C24, 27, 31, 35, 39, §
12002; C46, 50, 54, 58, 62, § 636.17; C66, 71, 73, 75, 77, 79,
81, § 633.255]
633.256 SECURITY TO AVOID SALE.
No sale shall be made under section 633.254 if anyone interested
gives security to the satisfaction of the court, conditioned to pay
the surviving spouse the appraised value of the share with seven
percent interest on the same, within such reasonable time as the
court may fix, not exceeding one year. Section History: Early Form
[C51, § 1405; C73, § 2451; C97, § 3375; C24, 27, 31, 35, 39, §
12003; C46, 50, 54, 58, 62, § 636.18; C66, 71, 73, 75, 77, 79,
81, § 633.256]
633.257 SECURITY BY SURVIVING SPOUSE.
If no such arrangement is made, the surviving spouse may keep the
property by giving like security to pay the claims of all others
interested upon like terms. Section History: Early Form
[C51, § 1405; C73, § 2451; C97, § 3375; C24, 27, 31, 35, 39, §
12004; C46, 50, 54, 58, 62, § 636.19; C66, 71, 73, 75, 77, 79,
81, § 633.257]
633.258 SALE PROHIBITED.
Such sale under section 633.254 shall not be ordered so long as
those in interest shall express a contrary desire and agree upon some
mode of sharing and dividing the rents, profits, or use thereof, or
shall consent that the court shall order the division of such rents,
profits or use. Section History: Early Form
[C51, § 1405; R60, § 2478; C73, § 2451; C97, § 3375; C24, 27, 31,
35, 39, § 12005; C46, 50, 54, 58, 62, § 636.20; C66, 71, 73, 75,
77, 79, 81, § 633.258]
633.259 THROUGH 633.263 Reserved.
633.264 DISPOSAL OF PROPERTY BY WILL.
Subject to the rights of the surviving spouse to take an elective
share as provided by section 633.236, any person of full age and
sound mind may dispose by will of all the person's property, except
an amount sufficient to pay the debts and charges against the
person's estate. Section History: Early Form
[C51, § 1277, 1407; R60, § 2309, 2435; C73, § 2322, 2452; C97, §
3270, 3376; S13, § 3376; C24, 27, 31, 35, 39, § 11846, 12006;
C46, 50, 54, 58, 62, § 633.1, 636.21; C66, 71, 73, 75, 77, 79, 81, §
633.264] Section History: Recent Form
2005 Acts, ch 38, §25; 2006 Acts, ch 1030, §77
633.265 PROCEDURE PRESCRIBED BY WILL.
When the interests of creditors will not thereby be prejudiced, a
testator may prescribe the entire manner in which the testator's
estate shall be administered, and, also, the manner in which the
testator's affairs shall be conducted until the testator's estate is
finally settled. Section History: Early Form
[C51, § 1326; R60, § 2358; C73, § 2406; C97, § 3336; C24, 27, 31,
35, 39, § 11955; C46, 50, 54, 58, 62, § 635.51; C66, 71, 73, 75,
77, 79, 81, § 633.265]
See also § 633.172
633.266 ADJUSTED GROSS ESTATE.
Unless otherwise defined, "adjusted gross estate" in a will
means the entire value of the gross estate as determined under the
federal estate tax less the aggregate amount of the deductions
allowed by sections 2053 and 2054 of the Internal Revenue Code as
defined in section 422.3. Section History: Early Form
[82 Acts, ch 1053, § 1] Section History: Recent Form
2006 Acts, ch 1140, §9--11
Referred to in § 633A.1102
Internal Revenue Code definition is updated regularly; for
applicable definition in a prior tax year, refer to Iowa Acts and
Code for that year Footnotes
2006 amendment takes effect May 30, 2006, and applies
retroactively to January 1, 2005, for tax years beginning on or after
that date; 2006 Acts, ch 1140, §10, 11
633.267 CHILDREN BORN OR ADOPTED AFTER EXECUTION OF
WILL.
If a testator fails to provide in the testator's will for any of
the testator's children born to or adopted by the testator after the
execution of the testator's last will, such child, whether born
before or after the testator's death, shall receive a share in the
estate of the testator equal in value to that which the child would
have received under section 633.211, 633.212, or 633.219, whichever
section or sections are applicable, if the testator had died
intestate, unless it appears from the will that such omission was
intentional. Section History: Early Form
[C51, § 1284, 1285; R60, § 2316, 2317; C73, § 2334, 2335; C97, §
3279; S13, § 3279; C24, 27, 31, 35, 39, § 11858; C46, 50, 54, 58,
62, § 633.13; C66, 71, 73, 75, 77, 79, 81, § 633.267] Section History: Recent Form
88 Acts, ch 1064, §6; 2008 Acts, ch 1119, §17, 39
Referred to in § 633.477 Footnotes
2008 amendments to this section apply to estates of decedents
dying on or after July 1, 2008; 2008 Acts, ch 1119, § 39
633.268 PRESUMPTION ATTENDING DEVISE TO SPOUSE.
Where the testator's spouse is named as a devisee in a will, it
shall be presumed, unless the intent is clear and explicit to the
contrary, and except as provided in section 633.272, that such devise
is in lieu of the intestate share and homestead rights of the
surviving spouse. Section History: Early Form
[C97, § 3270; C24, 27, 31, 35, 39, § 11847; C46, 50, 54, 58,
62, § 633.2; C66, 71, 73, 75, 77, 79, 81, § 633.268]
633.269 AFTER ACQUIRED PROPERTY.
Any property acquired by the testator after the making of the
testator's will shall pass thereby, and in like manner as if title
thereto were vested in the testator at the time of making the will,
unless the intent is clear and explicit to the contrary. Section History: Early Form
[C51, § 1278; R60, § 2310; C73, § 2323; C97, § 3271; C24, 27, 31,
35, 39, § 11849; C46, 50, 54, 58, 62, § 633.4; C66, 71, 73, 75,
77, 79, 81, § 633.269]
633.270 CONTRACTUAL OR MUTUAL WILLS.
No will shall be construed to be contractual or mutual, unless in
such will the testator shall expressly state the intent that such
will shall be so construed. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.270]
633.271 EFFECT OF DIVORCE OR DISSOLUTION.
1. If after making a will the testator is divorced or the
testator's marriage is dissolved, all provisions in the will in favor
of the testator's spouse or of a relative of the testator's spouse,
including but not limited to dispositions, appointments of property,
and nominations to serve in any fiduciary or representative capacity,
are revoked by the divorce or dissolution of marriage, unless the
will provides otherwise.
2. Unless the will provides otherwise, in the event the testator
and spouse remarry each other, the provisions of the will revoked by
the divorce or dissolution of marriage shall be reinstated unless
otherwise revoked by the testator, except for provisions in favor of
a person who died prior to the remarriage which shall not be
reinstated.
3. For the purposes of this section, "relative of the
testator's spouse" means a person who is related to the divorced
testator's former spouse by blood, adoption, or affinity, and who,
subsequent to a divorce or dissolution of marriage, ceased to be
related to the testator by blood, adoption, or affinity. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.271] Section History: Recent Form
2000 Acts, ch 1150, §3; 2005 Acts, ch 38, §26
633.272 PARTIAL INTESTACY.
If part but not all of the estate of a decedent is validly
disposed of by will, the part not disposed of by will shall be
distributed as provided herein for intestate estates. If the
testator left a surviving spouse, and the spouse does not take an
elective share, the spouse shall receive, in addition to the property
given to the spouse by the will, so much of the intestate property
subject to the payment of its proportionate share of debts and
charges as the spouse would receive pursuant to section 633.211 or
633.212. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.272] Section History: Recent Form
94 Acts, ch 1165, §42; 2007 Acts, ch 134, §12, 28
Referred to in § 633.268 Footnotes
2007 amendments to this section apply to estates of decedents
dying on or after July 1, 2007; 2007 Acts, ch 134, §28
633.273 ANTILAPSE STATUTE.
1. If a devisee dies before the testator, leaving issue who
survive the testator, the devisee's issue who survive the testator
shall inherit the property devised to the devisee per stirpes, unless
from the terms of the will, the intent is clear and explicit to the
contrary.
2. A person who would have been a devisee under a class gift, if
the person had survived the testator, is treated as a devisee for
purposes of this section, provided the person's death occurred after
the execution of the will, unless from the terms of the will, the
intent is clear and explicit to the contrary. Section History: Early Form
[C51, § 1287; R60, § 2319; C73, § 2337; C97, § 3281; C24, 27, 31,
35, 39, § 11861; C46, 50, 54, 58, 62, § 633.16; C66, 71, 73, 75,
77, 79, 81, § 633.273] Section History: Recent Form
89 Acts, ch 130, §1; 95 Acts, ch 63, §5
Referred to in § 633.274
633.274 EXCEPTION TO ANTILAPSE STATUTE.
The devise to a spouse of the testator, where the spouse does not
survive the testator, shall lapse notwithstanding the provisions of
section 633.273, unless from the terms of the will, the intent is
clear and explicit to the contrary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.274]
633.275 TESTAMENTARY ADDITIONS TO TRUSTS.
A devise or bequest, the validity of which is determinable by the
law of this state, may be made by a will to the trustee of a trust
established, or to be established, by the testator, or by the
testator and some other person or persons, or by some other person or
persons, including a funded or unfunded life insurance trust,
although the trustor has reserved some or all rights of ownership of
the insurance contracts, if the trust is identified in the testator's
will, and if its terms are set forth in a written instrument other
than a will executed before or concurrently with the execution of the
testator's will, or in the valid last will of a person who has
predeceased the testator regardless of the existence, size, or
character of the corpus of the trust. The devise or bequest is not
invalid because the trust is amendable or revocable, or both, or
because the trust was amended after the execution of the will or
after the death of the testator. Unless the testator's will provides
otherwise, the property so devised or bequeathed shall not be deemed
to be held under a testamentary trust of the testator, but shall
become a part of the trust to which it is given and shall be
administered and disposed of in accordance with the instrument or
will setting forth the terms of the trust, including any amendments
thereto made before the death of the testator, regardless of whether
any such amendment was made before or after the execution of the
testator's will, and, if the testator's will so provides, including
any amendments to the trust made after the death of the testator. A
revocation or termination of the trust before the death of the
testator causes the devise or bequest to lapse. This section does
not invalidate a devise or bequest made by a will executed prior to
January 1, 1964. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.275, 633.276; 81 Acts, ch 195,
§ 1]
Referred to in § 633.277
Adopted from uniform testamentary additions to trust Act
633.276 SEPARATE IDENTIFICATION OF BEQUEST.
A will may refer to a written statement, letter, or list to
dispose of items of tangible personal property not otherwise
specifically disposed of by the will, except tangible personal
property used in trade or business. Tangible personal property, for
purposes of this section, includes household goods, furnishings,
furniture, personal effects, clothing, jewelry, books, works of art,
ornaments, and automobiles. If the writing is dated and is either in
the handwriting of the testator or is signed by testator, and if it
describes the items and distributees with reasonable certainty, the
personal representative shall distribute the described items of
tangible personal property to the distributees entitled to them. The
writing may be referred to as one to be in existence at the time of
the testator's death. The writing may be prepared before or after
the execution of the will. The writing may be altered, added to, or
changed in any respect by the testator after its preparation, and it
may be a writing which has no significance apart from its effect upon
the dispositions made by the will. Property passing by the writing
shall be considered as property passing as a specific bequest under
will. Section History: Early Form
[81 Acts, ch 195, § 2]
Referred to in § 450.4
633.277 UNIFORMITY OF INTERPRETATION.
Section 633.275 shall be so construed as to effectuate its general
purpose to make uniform the law of those states which have adopted a
similar provision. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.277]
633.278 DEVISE OF ENCUMBERED PROPERTY.
When any property subject to a mortgage, other lien or security
interest, is specifically devised, the devisee shall take such
property so devised subject to such mortgage, other lien or security
interest, unless the will provides expressly or by necessary
implication that such mortgage, other lien or security interest be
otherwise paid. If there is a testamentary direction to discharge
such mortgage, other lien or security interest, the rules of
abatement specified in section 633.436 shall be applied. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.278]
633.279 SIGNED AND WITNESSED.
1. Formal execution. All wills and codicils, except as
provided in section 633.283, to be valid, must be in writing, signed
by the testator, or by some person in the testator's presence and by
the testator's express direction writing the testator's name thereto,
and declared by the testator to be the testator's will, and
witnessed, at the testator's request, by two competent persons who
signed as witnesses in the presence of the testator and in the
presence of each other; provided, however, that the validity of the
execution of any will or instrument which was executed prior to
January 1, 1964, shall be determined by the law in effect immediately
prior to said date.
2. Self-proved will. An attested will may be made
self-proved at the time of its execution, or at any subsequent date,
by the acknowledgment thereof by the testator and the affidavits of
the witnesses, each made before a person authorized to administer
oaths and take acknowledgments under the laws of this state, and
evidenced by such person's certificate, under seal, attached or
annexed to the will, in form and content substantially as follows:
Affidavit
State of ...... )
County of ...... ) ss
We, the undersigned, ........., ......... and ........., the
testator and the witnesses, respectively, whose names are signed to
the attached or foregoing instrument, being first duly sworn, declare
to the undersigned authority that said instrument is the testator's
will and that the testator willingly signed and executed such
instrument, or expressly directed another to sign the same in the
presence of the witnesses, as a free and voluntary act for the
purposes therein expressed; that said witnesses, and each of them,
declare to the undersigned authority that such will was executed and
acknowledged by the testator as the testator's will in their presence
and that they, in the testator's presence, at the testator's request,
and in the presence of each other, did subscribe their names thereto
as attesting witnesses on the date of the date of such will; and that
the testator, at the time of the execution of such instrument, was of
full age and of sound mind and that the witnesses were sixteen years
of age or older and otherwise competent to be witnesses.
.........
Testator
.........
Witness
.........
Witness
Subscribed, sworn and acknowledged before me by ........, the
testator; and subscribed and sworn before me by ....... and .......,
witnesses, this ... day of ...... (month), ... (year)
............
Notary Public, or other officer
(Seal) authorized to take and certify
acknowledgments and
administer oaths
A self-proved will shall constitute proof of due execution of such
instrument as required by section 633.293 and may be admitted to
probate without testimony of witnesses. Section History: Early Form
[C51, § 1281; R60, § 2313; C73, § 2326; C97, § 3274; C24, 27, 31,
35, 39, § 11852; C46, 50, 54, 58, 62, § 633.7; C66, 71, 73, 75,
77, 79, 81, § 633.279] Section History: Recent Form
2000 Acts, ch 1058, §56
Referred to in § 622.1
633.280 COMPETENCY OF WITNESSES.
Any person who is sixteen years of age, or older, and who is
competent to be a witness generally in this state, may act as an
attesting witness to a will. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.280]
633.281 INTEREST OF WITNESSES.
No will is invalidated because attested by an interested witness;
but any interested witness shall, unless the will is also attested by
two competent and disinterested witnesses, forfeit so much of the
provisions therein made for the interested witness as in the
aggregate exceeds in value, as of the date of the decedent's death,
that which the interested witness would have received had the
testator died intestate. No attesting witness is interested unless
the witness is devised or bequeathed some portion of the testator's
estate. Section History: Early Form
[C51, § 1282, 1283; R60, § 2314, 2315; C73, § 2327, 2328; C97, §
3275; C24, 27, 31, 35, 39, § 11854; C46, 50, 54, 58, 62, § 633.9;
C66, 71, 73, 75, 77, 79, 81, § 633.281]
633.282 DEFECT CURED BY CODICIL.
If a codicil to a defectively executed will is duly executed, and
such will is clearly identified in said codicil, the will and the
codicil shall be considered as one instrument and the execution of
both shall be deemed sufficient. Section History: Early Form
[C97, § 3274; C24, 27, 31, 35, 39, § 11853; C46, 50, 54, 58,
62, § 633.8; C66, 71, 73, 75, 77, 79, 81, § 633.282]
633.283 WILL EXECUTED IN FOREIGN STATE OR COUNTRY.
A will executed outside this state, in the mode prescribed by the
law, either of the place where executed or of the testator's
domicile, shall be deemed to be legally executed, and shall be of the
same force and effect as if executed in the mode prescribed by the
laws of this state, provided said will is in writing and subscribed
by the testator. Section History: Early Form
[C97, § 3309; C24, 27, 31, 35, 39, § 11893; C46, 50, 54, 58,
62, § 633.49; C66, 71, 73, 75, 77, 79, 81, § 633.283]
Referred to in § 633.279
633.284 REVOCATION -- CANCELLATION -- REVIVAL.
A will can be revoked in whole or in part only by being canceled
or destroyed by the act or direction of the testator, with the
intention of revoking it, or by the execution of a subsequent will.
When done by cancellation, the revocation must be witnessed in the
same manner as the making of a new will. No will, nor any part
thereof, which shall be in any manner revoked, or which shall be or
become invalid, can be revived otherwise than by a re-execution
thereof, or by the execution of another will or codicil in which the
revoked or invalid will, or part thereof, is incorporated by
reference. Section History: Early Form
[C51, § 1288, 1289; R60, § 2320, 2321; C73, § 2329, 2330; C97, §
3276; S13, § 3276; C24, 27, 31, 35, 39, § 11855; C46, 50, 54, 58,
62, § 633.10; C66, 71, 73, 75, 77, 79, 81, § 633.284]
633.285 CUSTODIAN -- FILING -- PENALTY.
After being informed of the death of the testator, the person
having custody of the testator's will shall deliver it to the court
having jurisdiction of the testator's estate. Every person who
willfully refuses or fails to deliver a will after being ordered by
the court to do so shall be guilty of contempt of court. The person
shall also be liable to any person aggrieved for the damages which
may be sustained by such refusal or failure. Section History: Early Form
[C51, § 1291, 1292; R60, § 2323, 2324; C73, § 2338, 2339; C97, §
3282; C24, 27, 31, 35, 39, § 11862; C46, 50, 54, 58, 62, §
633.17; C66, 71, 73, 75, 77, 79, 81, § 633.285]
Referred to in § 633.286
633.286 DEPOSIT OF WILL WITH CLERK.
The clerk shall maintain a file for the safekeeping of wills.
There shall be placed therein wills deposited with the clerk by
living testators or by persons on their behalf, and wills of deceased
testators not accompanied by petitions for the probate thereof, when
deposited with the clerk by persons having custody thereof as
provided in section 633.285. Section History: Early Form
[C51, § 1290; R60, § 2322; C73, § 2331; C97, § 3277; C24, 27, 31,
35, 39, § 11856; C46, 50, 54, 58, 62, § 633.11; C66, 71, 73, 75,
77, 79, 81, § 633.286]
Referred to in § 633.645
633.287 MANNER OF DEPOSIT.
Every such will shall be enclosed in a sealed wrapper. The clerk
shall indorse thereon the name of the testator, the name of the
depositor, the date of deposit, and, if provided, the name of the
person to be notified of the deposit of such will upon the death of
the testator. The clerk shall hold such will until disposed of as
provided in section 633.288 or 633.289. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.287]
Referred to in § 633.645
633.288 DELIVERY BY CLERK DURING LIFETIME OF
TESTATOR.
During the lifetime of the testator, such will shall be delivered
only to the testator, or to some person authorized by the testator by
an order in writing duly acknowledged. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.288]
Referred to in § 633.287, 633.645
633.289 DELIVERY BY CLERK AFTER DEATH OF TESTATOR.
After being informed of the death of a testator, the clerk shall
notify the person, if any, named in the indorsement on the wrapper of
said will. If no petition for the probate thereof has been filed
within thirty days after the death of the testator, it shall be
publicly opened, and the court shall make such orders as it deems
appropriate for the disposition of said will. The clerk shall notify
the executor named therein and such other persons as the court shall
designate of such action. If the proper venue is in another court,
the clerk, upon request, shall transmit such will to such court, but
before such transmission, the clerk shall make a true copy thereof
and retain the same in the clerk's files. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.289]
Referred to in § 633.287, 633.645
633.290 PETITION FOR PROBATE OF WILL.
At the time the will of a decedent is filed with the clerk, or
thereafter, any interested person may file a verified petition in the
district court of the proper county:
1. To have the will admitted to probate;
2. For the appointment of the executor.
A petition for probate may be combined with a petition for
appointment of the executor, and any person interested in either the
probate of a will or in the appointment of the executor, may petition
for both. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.290]
Referred to in § 635.1
633.291 CONTENTS OF PETITION FOR PROBATE OF WILL.
A petition for probate of a will shall state:
1. The name, domicile, and date of death of the decedent.
2. If the decedent was not domiciled in the state at the time of
the decedent's death, then, that the decedent had property within the
county in which the petition is filed, or any other basis for
jurisdiction in such county. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.291]
633.292 CONTENTS OF PETITION FOR APPOINTMENT OF
EXECUTOR.
A petition for the appointment of an executor shall state the name
and address of the person nominated or proposed as executor, and that
such person is qualified to act as executor. If the person proposed
in said petition is not the person nominated in the will, the
petition shall state the reason why the person nominated is not
proposed as executor. Unless bond is waived in the will, the
petition shall state the estimated value of the personal property of
the estate plus the estimated gross annual income of the estate
during the period of administration. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.292]
633.293 HEARING UPON PETITION.
Upon the filing of a petition for probate of a will, the court or
the clerk may, in its or the clerk's discretion, hear it forthwith,
or at such time and place as the court or clerk may direct, with or
without requiring notice, and upon proof of due execution of the
will, admit the same to probate. Section History: Early Form
[C51, § 1294; R60, § 2326; C73, § 2341; C97, § 3284; S13, § 3284;
C24, 27, 31, 35, 39, § 11865; C46, 50, 54, 58, 62, § 633.20; C66,
71, 73, 75, 77, 79, 81, § 633.293]
Referred to in § 633.279
633.294 ORDER OF PREFERENCE FOR APPOINTMENT OF
EXECUTOR.
Letters testamentary may be granted to one or more persons found
to be qualified. Preference for appointment shall be in the
following order:
1. The person designated in the will;
2. Any beneficiary named in the will, or a person nominated by
the beneficiaries;
3. Any creditor of the deceased, or a person nominated by such
creditor;
4. Such other person as the court may find to be qualified. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.294]
633.295 TESTIMONY OF WITNESSES.
The proof may be made by the oral or written testimony of one or
more of the subscribing witnesses to the will. If such testimony is
in writing, it shall be substantially in the following form executed
and sworn to after the death of the decedent:
In the District Court of Iowa In and for ...... County
In the Matter of the Estate of ......
......, Deceased
Probate No. ....
Testimony of Subscribing
Witness on Probate of Will.
State of ...... )
...... County ) ss
I, ......, being first duly sworn, state:
I reside in the County of ......, State of ........; I knew the
testator on the .... day of ...... (month), ... (year), the date of
the instrument, the original or exact reproduction of which is
attached hereto, now shown to me, and purporting to be the last will
and testament of the said ........, deceased; I am one of the
subscribing witnesses to said instrument; at the said date of said
instrument, I knew ......, the other subscribing witness; that said
instrument was exhibited to me and to the other subscribing witness
by the testator, who declared the same to be the testator's last will
and testament, and was signed by the testator at .........., in the
County of ......, State of ........, on the date shown in said
instrument, in the presence of myself and the other subscribing
witness; and the other subscribing witness and I then and there, at
the request of the testator, in the presence of said testator and in
the presence of each other, subscribed our names thereto as
witnesses.
...........
Name of witness
...........
Address
Subscribed and sworn to before me this ... day of ...... (month),
... (year)
...........
Notary Public in and for the
(Seal) State of ......
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.295] Section History: Recent Form
2000 Acts, ch 1058, §56
Referred to in § 633.296, 633.319
633.296 DEPOSITION.
If it is desired to prove the execution of the will by deposition,
rather than by use of the affidavit form provided in section 633.295,
upon application, the clerk shall issue a commission to some officer
authorized by the law of this state to take depositions, with the
will annexed, and the officer taking the deposition shall exhibit it
to the witness for identification, and, when identified by the
witness, shall mark it as "Exhibit ..." and cause the witness to
connect the witness' identification with it as such exhibit. Before
sending out the commission, the clerk shall make and retain in the
clerk's office a true copy of such will. Section History: Early Form
[C97, § 3285; C24, 27, 31, 35, 39, § 11866; C46, 50, 54, 58,
62, § 633.21; C66, 71, 73, 75, 77, 79, 81, § 633.296]
633.297 WITNESSES UNAVAILABLE.
If all of such witnesses are deceased or otherwise not available,
then it shall be permissible to prove said will by the sworn
testimony of two credible disinterested witnesses that the signature
to the will is in the handwriting of the person whose will it
purports to be, and that the signatures of the witnesses are in the
handwriting of such witnesses, or it may be proved by other
sufficient evidence of the execution of such will. Section History: Early Form
[C46, 50, 54, 58, 62, § 633.22; C66, 71, 73, 75, 77, 79, 81, §
633.297]
Other evidence, proof, § 622.24
633.298 ORDER ADMITTING OR DISALLOWING PROBATE OF
WILL.
The court or the clerk shall enter an order either admitting said
will to probate, or disallowing probate because of insufficient proof
thereof. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.298]
633.299 ORDER APPOINTING EXECUTOR.
If a petition for appointment of an executor has been filed, the
order admitting the will to probate shall include appointment of an
executor thereof, unless the court or clerk shall determine that no
appointment should be made at such time. Section History: Early Form
[C51, § 1299, 1302; R60, § 2331, 2334; C73, § 2332, 2333; C97, §
3278; C24, 27, 31, 35, 39, § 11857; C46, 50, 54, 58, 62, §
633.12; C66, 71, 73, 75, 77, 79, 81, § 633.299]
633.300 CERTIFICATE OF PROBATE.
When a will has been admitted to probate the clerk shall have a
certificate of such fact, endorsed thereon or annexed thereto, signed
by the clerk and attested by the seal of the court; and, when so
certified, it, or the transcript of the record properly
authenticated, may be read in evidence in all courts without further
proof. Section History: Early Form
[C51, § 1300; R60, § 2332; C73, § 2342; C97, § 3286; C24, 27, 31,
35, 39, § 11867; C46, 50, 54, 58, 62, § 633.23; C66, 71, 73, 75,
77, 79, 81, § 633.300] Section History: Recent Form
93 Acts, ch 70, §13
Referred to in § 633.301
633.301 COPY OF WILL FOR EXECUTOR.
When a will has been admitted to probate and certified pursuant to
section 633.300, the clerk shall cause a certified copy thereof to be
placed in the hands of the executor to whom letters are issued. The
clerk shall retain the will in a separate file provided for that
purpose until the time for contest has expired, and promptly
thereafter shall place it with the files of the estate. Section History: Early Form
[C51, § 1295, 1298; R60, § 2327, 2330; C73, § 2343, 2344; C97, §
3287; S13, § 3287; C24, 27, 31, 35, 39, § 11868; C46, 50, 54, 58,
62, § 633.24; C66, 71, 73, 75, 77, 79, 81, § 633.301] Section History: Recent Form
93 Acts, ch 70, §14; 2003 Acts, ch 151, §53
Referred to in § 633.302
633.302 CLERK FILING COPIES OF WILL.
When the clerk places an original will in a separate file as
provided in section 633.301, the clerk shall place and keep a true
copy of such will in the probate file containing the proceedings in
the estate which it governs. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.302]
633.303 CHARITABLE TRUSTS -- COPY OF WILLS TO
ATTORNEY GENERAL. Repealed by 2009 Acts, ch 35, § 3. See §
633A.5107 and 633A.5108.
633.304 NOTICE OF PROBATE OF WILL WITH
ADMINISTRATION.
On admission of a will to probate, the executor, as soon as
letters are issued, shall cause to be published once each week for
two consecutive weeks in a daily or weekly newspaper of general
circulation published in the county in which the estate is pending
and at any time during the pendency of administration that the
executor has knowledge of the name and address of a person believed
to own or possess a claim which will not or may not be paid or
otherwise satisfied during administration, provide by ordinary mail
to each such claimant at the claimant's last known address, and as
soon as practicable give notice, except to any executor, by ordinary
mail to the surviving spouse, each heir of the decedent and each
devisee under the will admitted to probate whose identities are
reasonably ascertainable, at such persons' last known addresses, a
notice of admission of the will to probate and of the appointment of
the executor, in which shall be included a notice that any action to
set aside the probate of the will must be brought within the later to
occur of four months from the date of the second publication of the
notice or one month from the date of mailing of this notice or
thereafter be forever barred, and in which shall be included a notice
to debtors to make payment, and to creditors having claims against
the estate to file them with the clerk within four months from the
second publication of the notice, or thereafter be forever barred.
As used in this section, "heir" means only such person as
would, in an intestate estate, be entitled to a share under section
633.219.
The notice shall be substantially in the following form:
Notice of Probate of Will, of Appointment of Executor, and Notice to
Creditors
In the District Court of Iowa
in and for .... County. Probate No.
....
In the Estate of ......, Deceased
To All Persons Interested in the Estate of ......, Deceased, who died
on or about ...... (date):
You are hereby notified that on the .. day of .... (month), ..
(year), the last will and testament of ........, deceased, bearing
date of the .. day of .... (month), .. (year), was admitted to
probate in the above named court and that ........ was appointed
executor of the estate. Any action to set aside the will must be
brought in the district court of said county within the later to
occur of four months from the date of the second publication of this
notice or one month from the date of mailing of this notice to all
heirs of the decedent and devisees under the will whose identities
are reasonably ascertainable, or thereafter be forever barred.
Notice is further given that all persons indebted to the estate
are requested to make immediate payment to the undersigned, and
creditors having claims against the estate shall file them with the
clerk of the above named district court, as provided by law, duly
authenticated, for allowance, and unless so filed by the later to
occur of four months from the second publication of this notice or
one month from the date of mailing of this notice (unless otherwise
allowed or paid) a claim is thereafter forever barred.
Dated this .. day of ...... (month), .. (year)
...........
Executor of estate
...........
Address
..........
Attorney for executor
..........
Address
Date of second publication
.. day of ...... (month), .. (year)
(Date to be inserted by publisher)
Section History: Early Form
[C51, § 1357, 1358; R60, § 2389, 2390; C73, § 2366; C97, § 3304;
C24, 27, 31, 35, 39, § 11890; C46, 50, 54, 58, 62, § 633.46; C66,
71, 73, 75, 77, 79, 81, § 633.304] Section History: Recent Form
84 Acts, ch 1080, § 6; 89 Acts, ch 35, §3; 93 Acts, ch 111, §3;
2000 Acts, ch 1058, §67; 2000 Acts, ch 1150, §4; 2002 Acts, ch 1119,
§98
Referred to in § 590.1, 633.230, 633.305, 633A.3109, 635.13
633.304A NOTICE OF PROBATE OF WILL -- MEDICAL
ASSISTANCE CLAIMS.
1. On admission of a will to probate, the executor shall, in
accordance with section 633.410, provide by ordinary mail to the
entity designated by the department of human services, a notice of
admission of the will to probate and of the appointment of the
executor, which shall include a notice to file claims with the clerk
within the later to occur of four months from the second publication
of the notice to creditors or six months from the date of mailing of
this notice, or thereafter be forever barred.
2. The notice shall be in substantially the following form:
NOTICE OF PROBATE OF WILL, OF APPOINTMENT OF EXECUTOR, AND NOTICE TO
CREDITORS
In the District Court of Iowa
In and for .... County.
In the Estate of ......, Deceased
Probate No. ....
To the Department of Human Services, Who May Be Interested in the
Estate of ......, Deceased, who died on or about .... (date):
You are hereby notified that on the .. day of .... (month), ..
(year), the last will and testament of ........, deceased, bearing
date of the .. day of .... (month), .. (year), was admitted to
probate in the above-named court and that ........ was appointed
executor of the estate.
You are further notified that the birthdate of the deceased is
..... and the deceased's social security number is ...-..-.... The
name of the spouse is ..... The birthdate of the spouse is .... and
the spouse's social security number is ...-..-...., and that the
spouse of the deceased is alive as of the date of this notice, or
deceased as of ..... (date).
You are further notified that the deceased was/was not a disabled
or a blind child of the medical assistance recipient by the name of
....., who had a birthdate of .... and a social security number of
...-..-...., and the medical assistance debt of that medical
assistance recipient was waived pursuant to section 249A.5,
subsection 2, paragraph "a", subparagraph (1), and is now
collectible from this estate pursuant to section 249A.5, subsection
2, paragraph "b".
Notice is hereby given that if the department of human services
has a claim against the estate for the deceased person or persons
named in this notice, the claim shall be filed with the clerk of the
above-named district court, as provided by law, duly authenticated,
for allowance, and unless so filed by the later to occur of four
months from the second publication of the notice to creditors or six
months from the date of mailing of this notice, unless otherwise
allowed or paid, the claim is thereafter forever barred.
Dated this .. day of ...... (month), .. (year)
...........
Executor of estate
...........
Address
..........
Attorney for executor
..........
Address
Date of second publication
.. day of ...... (month), .. (year)
Section History: Recent Form
2001 Acts, ch 109, §2; 2002 Acts, ch 1119, §99; 2007 Acts, ch 134,
§13
Referred to in § 633.410, 635.13
633.305 NOTICE IF NO ADMINISTRATION.
1. On admission of a will to probate without administration of
the estate, the proponent shall cause to be published, in the manner
prescribed in section 633.304, a notice of the admission of the will
to probate. As soon as practicable following the admission of the
will to probate, the proponent shall give notice of the admission of
the will to probate by ordinary mail addressed to the surviving
spouse, each heir of the decedent, and each devisee under the will
admitted to probate whose identities are reasonably ascertainable, at
such persons' last known addresses. The notice of the admission of
the will to probate shall include a notice that any action to set
aside the will must be brought within the later to occur of four
months from the date of the second publication of the notice or one
month from the date of mailing of this notice, or thereafter be
barred.
2. As used in this section, "heir" means only such person as
would, in an intestate estate, be entitled to a share under section
633.219.
3. The notice shall be substantially in the following form:
Notice of Proof of Will Without Administration
In the District Court of Iowa
in and for .... County. Probate No.
....
In the Estate of ......, Deceased
To All Persons Interested in the Estate of ......, Deceased, who died
on or about ...... (date):
You are hereby notified that on the .. day of .... (month), ..
(year), the last will and testament of ........, deceased, bearing
date of the .. day of .... (month), .. (year), was admitted to
probate in the above named court and there will be no present
administration of the estate. Any action to set aside the will must
be brought in the district court of the county within the later to
occur of four months from the date of the second publication of this
notice or one month from the date of mailing of this notice to all
heirs of the decedent and devisees under the will whose identities
are reasonably ascertainable, or thereafter be forever barred.
Dated this .. day of ...... (month), .. (year)
...........
Proponent
..........
Attorney for estate
..........
Address
Date of second publication
.. day of ...... (month), .. (year)
(Date to be inserted by publisher)
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.305] Section History: Recent Form
84 Acts, ch 1080, § 7; 89 Acts, ch 35, §4; 93 Acts, ch 111, §4;
2000 Acts, ch 1058, §68; 2000 Acts, ch 1150, §5; 2002 Acts, ch 1119,
§100; 2006 Acts, ch 1129, §11; 2008 Acts, ch 1032, §85
Referred to in § 590.1, 633.230
633.306 RECORD IN FOREIGN COUNTY.
Whenever it shall appear that the testator died seized of real
estate located in a county of this state other than that in which
probate is granted, a complete transcript, properly authenticated, of
the record entry of the order of court admitting the will to probate,
and, if a copy of such will is not contained therein, a certified
copy of such will shall be attached thereto, and the same shall be
filed by the clerk in the office of the clerk of the district court
in such other county, who shall cause the same to be entered in the
probate docket, and said transcript shall be recorded in full in the
book kept for the recording of wills in such county. When so
recorded, such record may be read in evidence in all courts without
further proof. Section History: Early Form
[S13, § 3287; C24, 27, 31, 35, 39, § 11869; C46, 50, 54, 58,
62, § 633.25; C66, 71, 73, 75, 77, 79, 81, § 633.306]
See also § 633.401
633.307 COSTS OF TRANSCRIPT.
The cost of such transcript and of the recording thereof shall be
taxed against the estate of the decedent unless administration
thereof is closed, in which event it shall be paid by the owner of
the real estate involved. Section History: Early Form
[S13, § 3287; C24, 27, 31, 35, 39, § 11870; C46, 50, 54, 58,
62, § 633.26; C66, 71, 73, 75, 77, 79, 81, § 633.307]
633.308 SETTING ASIDE PROBATE OF WILL.
Any interested person may petition to set aside the probate of a
will by filing a written petition in the probate proceedings. The
petition for such purpose shall state the grounds therefor. Section History: Early Form
[C51, § 1297; R60, § 2329; C73, § 2353; C97, § 3296; C24, 27, 31,
35, 39, § 11882; C46, 50, 54, 58, 62, § 633.38; C66, 71, 73, 75,
77, 79, 81, § 633.308]
633.309 TIME WITHIN WHICH ACTION MUST BE COMMENCED.
An action to contest or set aside the probate of a will must be
commenced in the court in which the will was admitted to probate
within the later to occur of four months from the date of second
publication of notice of admission of the will to probate or one
month following the mailing of the notice to all heirs of the
decedent and devisees under the will whose identities are reasonably
ascertainable, at such persons' last known addresses. Section History: Early Form
[C51, § 1659; R60, § 1075, 1865, 2740; C73, § 486, 2529; C97, §
3447; S13, § 2963-g, 3447; C24, 27, 31, 35, 39, § 11007; C46, 50,
54, 58, 62, § 614.1(3); C66, 71, 73, 75, 77, 79, 81, § 633.309] Section History: Recent Form
84 Acts, ch 1080, § 8; 89 Acts, ch 35, §5
633.310 OBJECTIONS PRIOR TO ADMISSION OF WILL TO
PROBATE.
Nothing herein contained shall prevent any interested person from
filing objections to probate of a proposed will prior to probate
thereof. If such objections are filed prior to the admission of the
will to probate, the will shall not be admitted to probate pending
trial and determination as to whether or not said instrument is the
last will of the decedent. Section History: Early Form
[C24, 27, 31, 35, 39, § 11833; C46, 50, 54, 58, 62, § 632.2;
C66, 71, 73, 75, 77, 79, 81, § 633.310]
633.311 CONTEST OR OBJECTION SHALL BE TRIED AS A LAW
ACTION.
An action objecting to the probate of a proffered will, or to set
aside a will, is triable in the probate court as an action at law,
and the rules of civil procedure governing law actions, including
demand for jury trial, shall be applicable thereto. Section History: Early Form
[C97, § 3283; C24, 27, 31, 35, 39, § 11864; C46, 50, 54, 58,
62, § 633.19; C66, 71, 73, 75, 77, 79, 81, § 633.311]
633.312 JOINDER OF PARTIES.
In all actions to contest or set aside a will, all known
interested parties who have not joined with the contestants as
plaintiffs in the action, shall be joined with proponents as
defendants. When additional interested parties become known, the
court shall order them brought in as party defendants. All such
defendants shall be brought in by serving them with notice pursuant
to the rules of civil procedure. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.312]
633.313 ELECTION OF DEFENDANTS TO JOIN WITH
CONTESTANTS.
Any person named as a defendant in an action to contest or set
aside a will may, at time of appearance, or by leave of court at any
time thereafter, elect to join with the contestants. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.313]
633.314 TAXATION OF COSTS.
The court shall tax the costs in an action to contest or set aside
a will. No costs shall be taxed against a losing party who has been
joined in the action but who does not appear. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.314]
633.315 ALLOWANCE FOR DEFENDING WILL.
When any person is designated as executor in a will, or has been
appointed as executor, and defends or prosecutes any proceedings in
good faith and with just cause, whether successful or not, that
person shall be allowed out of the estate necessary expenses and
disbursements, including reasonable attorney fees in such
proceedings. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.315]
633.316 NOTICE TO DEVISEES IN OTHER WILLS.
If the ground of objection is that another will of the decedent
has been discovered, each devisee named in such other will shall be
joined in the action. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.316]
633.317 WHERE WILL IS FILED AFTER LETTERS OF
ADMINISTRATION HAVE BEEN GRANTED.
If, after letters of administration have been granted, a will of
the decedent is admitted to probate, such letters of administration
are thereby revoked, and the person to whom such letters were issued
shall promptly file a final report and make an accounting to the
court. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.317]
633.318 WHERE WILL IS FILED AFTER LETTERS
TESTAMENTARY HAVE BEEN GRANTED.
If, after a will has been admitted to probate, another instrument
purporting to be the will of the decedent, which has not been
previously presented for probate, is filed, the court shall determine
whether or not the former grant of letters should be revoked pending
determination of which instrument constitutes the will of the
decedent. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.318]
633.319 PROOF OF EXECUTION.
If the lack of the due execution of a will constitutes a ground
for objection, proof of such execution shall not be made by affidavit
as provided in section 633.295. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.319]
633.320 DECLARATORY JUDGMENT TO DETERMINE LAST
WILL.
The executor or any person named as a beneficiary in a will may
bring an action for a declaratory judgment to have such will declared
to be the last will of the decedent. In such action, all known
interested persons, including heirs of the decedent and persons named
as beneficiaries in said instrument and other known instruments
purporting to be wills of the decedent, shall be joined as parties.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.320]
633.321 THROUGH 633.329 Reserved.
633.330 CHARACTER OF PROCEEDINGS.
The administration of the estate of a decedent from the filing of
the petition for probate and admission or for administration until
the order approving the final report and discharge of the last
personal representative shall be considered as one proceeding for
purposes of jurisdiction. Such entire proceeding is a proceeding in
rem. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.330]
Referred to in § 633.515, 635.7
633.331 LIMITATION OF ADMINISTRATION.
Probate of a will, original administration of an intestate estate,
or ancillary administration of an estate, shall not be granted after
five years from the death of the decedent, whether the decedent died
within or without this state, unless a petition for probate or
administration is filed prior to the expiration of the five-year
period. However, this section does not apply to the probate of a
will of a decedent who died prior to January 1, 1964. Section History: Early Form
[C51, § 1325; R60, § 2357; C73, § 2367; C97, § 3305; S13, § 3305;
C24, 27, 31, 35, 39, § 11891; C46, 50, 54, 58, 62, § 633.47; C66,
71, 73, 75, 77, 79, 81, § 633.331; 81 Acts, ch 196, § 1; 82 Acts, ch
1076, § 1]
633.332 EXEMPT PERSONAL PROPERTY.
When the decedent left a surviving spouse, all personal property
which in the hands of the decedent as head of a family would be
exempt from execution, which is bequeathed or set aside to the
surviving spouse in accordance with the provisions of this chapter,
shall be exempt in the hands of such surviving spouse as in the hands
of the decedent. Section History: Early Form
[C51, § 1329; R60, § 2361; C73, § 2371; C97, § 3312; C24, 27, 31,
35, 39, § 11918; C46, 50, 54, 58, 62, § 635.7; C66, 71, 73, 75,
77, 79, 81, § 633.332]
633.333 PROCEEDS OF INSURANCE.
The avails of any life or accident insurance, or other sum of
money made payable to the decedent's estate by any mutual aid or
benevolent society upon the death or disability of a member thereof,
are not subject to the debts of the decedent, except by contract or
by express provision in the will, and shall be disposed of like other
property left by the decedent. Section History: Early Form
[C51, § 1330; R60, § 2362; C73, § 1182, 2372; C97, § 3313; C24,
27, 31, 35, 39, § 11919; C46, 50, 54, 58, 62, § 635.8; C66, 71,
73, 75, 77, 79, 81, § 633.333]
633.334 SURVIVING SPOUSE INCLUDED AS "HEIR".
The words "heirs" and "legal heirs", and other equivalent
words used to designate the beneficiaries in any life insurance
policy or certificate of membership in any mutual aid or benevolent
association, where no contrary intention is expressed in such
instrument, shall be construed to include the surviving husband or
wife of the insured. Section History: Early Form
[C97, § 3313; C24, 27, 31, 35, 39, § 11921; C46, 50, 54, 58,
62, § 635.10; C66, 71, 73, 75, 77, 79, 81, § 633.334]
633.335 SHARE OF SURVIVOR.
The share of such survivor in the proceeds of such policy or
certificate made payable as aforesaid shall be the same as that
provided by law for the distribution of the personal property of
intestates. Section History: Early Form
[C97, § 3313; C24, 27, 31, 35, 39, § 11922; C46, 50, 54, 58,
62, § 635.11; C66, 71, 73, 75, 77, 79, 81, § 633.335]
633.336 DAMAGES FOR WRONGFUL DEATH.
When a wrongful act produces death, damages recovered as a result
of the wrongful act shall be disposed of as personal property
belonging to the estate of the deceased; however, if the damages
include damages for loss of services and support of a deceased
spouse, parent, or child, the damages shall be apportioned by the
court among the surviving spouse, children, and parents of the
decedent in a manner as the court may deem equitable consistent with
the loss of services and support sustained by the surviving spouse,
children, and parents respectively. Any recovery by a parent for the
death of a child shall be subordinate to the recovery, if any, of the
spouse or a child of the decedent. If the decedent leaves a spouse,
child, or parent, damages for wrongful death shall not be subject to
debts and charges of the decedent's estate, except for amounts to be
paid to the department of human services for payments made for
medical assistance pursuant to chapter 249A, paid on behalf of the
decedent from the time of the injury which gives rise to the
decedent's death up until the date of the decedent's death. Section History: Early Form
[R60, § 4111; C73, § 2526; C97, § 3313; C24, 27, 31, 35, 39, §
11920; C46, 50, 54, 58, 62, § 635.9; C66, 71, 73, 75, 77, 79, 81,
§ 633.336] Section History: Recent Form
89 Acts, ch 111, §2; 2007 Acts, ch 132, §2, 3 Footnotes
2007 amendments to this section apply to all actions filed on or
after July 1, 2007; 2007 Acts, ch 132, §3
633.337 THROUGH 633.341 Reserved.
633.342 APPOINTMENT OF TEMPORARY ADMINISTRATOR
PENDING ADMINISTRATION.
1. When, from any cause, probate of a will or administration
cannot be immediately granted, a temporary administrator may be
appointed to collect, manage, preserve and dispose of the property of
the deceased, as the court may prescribe, and no appeal from such
appointment shall prevent the administrator's proceeding in the
discharge of the administrator's duties.
2. Such temporary administrator shall make and file an inventory
of the property of the deceased in the same manner as is required of
personal representative, and shall preserve such property from
injury, and may do all needful acts under the direction of the court,
including the sale of property and the payment of claims as directed
by the court. Upon the granting of administration, the powers of the
temporary administrator shall cease, and the administration of the
estate shall be transferred to the personal representative to whom
letters are granted. Section History: Early Form
[C51, § 1320--1324; R60, § 2352--2356; C73, § 2357--2361; C97, §
3299, 3300; C24, 27, 31, 35, 39, § 11885, 11886; C46, 50, 54, 58,
62, § 633.41, 633.42; C66, § 633.342, 633.343; C71, 73, 75, 77, 79,
81, § 633.342]
633.343 APPOINTMENT OF TEMPORARY ADMINISTRATOR DURING
ADMINISTRATION.
At any time during the administration of an estate, the court, for
good cause shown, may appoint a temporary administrator to carry out
such orders of the court as may be necessary for the proper
administration of such estate. No appeal from such appointment shall
prevent the temporary administrator from proceeding in the discharge
of the administrator's duties. Section History: Early Form
[C71, 73, 75, 77, 79, 81, § 633.343]
633.344 THROUGH 633.347 Reserved.
633.348 RIGHT TO RETAIN EXISTING PROPERTY.
Notwithstanding the provisions of chapter 633A, subchapter IV,
part 3, of this chapter, any personal representative may continue to
hold any investment or property originally received by the personal
representative and also any increase thereof. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.348] Section History: Recent Form
99 Acts, ch 125, §106, 109; 2005 Acts, ch 38, §55
633.349 SECURITY TO SUSTAIN DEVISE OR BEQUEST.
When a person by will makes such a disposition of the person's
property as to prejudice the rights of creditors, the will may be
sustained, by giving security to the satisfaction of the court for
the payment of the debts and charges to the extent of the value of
the property devised. Section History: Early Form
[C51, § 1339; R60, § 2371; C73, § 2384; C97, § 3320; C24, 27, 31,
35, 39, § 11930; C46, 50, 54, 58, 62, § 635.19; C66, 71, 73, 75,
77, 79, 81, § 633.349]
633.350 TITLE TO DECEDENT'S ESTATE -- WHEN PROPERTY
PASSES -- POSSESSION AND CONTROL THEREOF -- LIABILITY FOR
ADMINISTRATION EXPENSES, DEBTS, AND FAMILY ALLOWANCE.
Except as otherwise provided in this probate code, when a person
dies, the title to the person's property, real and personal, passes
to the person to whom it is devised by the person's last will, or, in
the absence of such disposition, to the persons who succeed to the
estate as provided in this probate code, but all of the property
shall be subject to the possession of the personal representative as
provided in section 633.351 and to the control of the court for the
purposes of administration, sale, or other disposition under the
provisions of law, and such property, except homestead and other
exempt property, shall be chargeable with the payment of debts and
charges against the estate. There shall be no priority as between
real and personal property, except as provided in this probate code
or by the will of the decedent. If real property is titled at any
time in a decedent's estate, such property shall be treated as titled
in the name of the personal representative of the estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.350] Section History: Recent Form
2005 Acts, ch 38, §51; 2009 Acts, ch 52, §6, 14 Footnotes
2009 amendment to this section applies retroactively to
conveyances occurring on or after July 1, 1999; 2009 Acts, ch 52, §14
633.351 POSSESSION OF REAL AND PERSONAL PROPERTY.
If there is no distributee of the real estate present and
competent to take possession, or if there is a lease of such real
estate outstanding, or if the distributees present and competent
consent thereto, the personal representative shall take possession of
such real estate, except the homestead and other property exempt to
the surviving spouse. Every personal representative shall take
possession of all the personal property of the decedent, except the
property exempt to the surviving spouse. The personal representative
may maintain an action for the possession of such real and personal
property or to determine the title to any property of the decedent.
Section History: Early Form
[C51, § 1327; R60, § 2359; C73, § 2402--2404, 2407; C97, § 3333,
3334, 3337; C24, 27, 31, 35, 39, § 11952, 11953, 11956; C46, 50,
54, 58, 62, § 635.48, 635.49, 635.52; C66, 71, 73, 75, 77, 79, 81, §
633.351]
Referred to in § 633.350
633.352 COLLECTION OF RENTS AND PAYMENT OF TAXES AND
CHARGES.
Unless otherwise provided by the will, the personal representative
shall allocate and distribute income of an estate in accordance with
chapter 637. Section History: Early Form
[C73, § 2403--2405; C97, § 3334, 3335; C24, 27, 31, 35, 39, §
11953, 11954; C46, 50, 54, 58, 62, § 635.49, 635.50; C66, 71, 73,
75, 77, 79, 81, § 633.352] Section History: Recent Form
99 Acts, ch 124, §31
633.353 SURRENDER OF POSSESSION UPON APPLICATION BY
PERSONAL REPRESENTATIVE.
Upon application by the personal representative, and after such
notice, if any, as the court may prescribe, for good cause shown, the
court may enter an order authorizing said personal representative to
surrender any of such property to the person or persons who, under
the will or under the rules of intestate succession, will ultimately
be entitled to such property. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.353]
633.354 SURRENDER OF POSSESSION UPON APPLICATION BY
ANY INTERESTED PERSON.
Upon application of any interested person and after such notice to
the personal representative and to such other persons, if any, as the
court may prescribe, and for good cause shown, the court may enter an
order authorizing said personal representative to surrender any of
such property to the person or persons who, under the will or under
the rules of intestate succession, will ultimately be entitled to
such property. The court may require a bond or other security
conditioned as it may determine in connection with the delivery of
such property. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.354]
633.355 DELIVERY OF SPECIFIC DEVISE AFTER NINE
MONTHS.
Unless the court, for cause shown, determines that the possession
of the personal representative shall continue for a longer period,
the personal representative shall deliver all specifically devised
property to the devisees entitled thereto after the expiration of
nine months from the date of appointment of the personal
representative. This section shall not preclude the court from
directing that such delivery be made before such period has expired,
nor shall the personal representative be prevented from sooner
settling the estate and delivering such property. Section History: Early Form
[C51, § 1381--1383; R60, § 2413--2415; C73, § 2429--2431; C97, §
3355--3357; C24, 27, 31, 35, 39, § 11978--11980; C46, 50, 54, 58,
62, § 635.73--635.75; C66, 71, 73, 75, 77, 79, 81, § 633.355]
633.356 DISTRIBUTION OF PROPERTY BY AFFIDAVIT.
1. When the gross value of the decedent's personal property does
not exceed twenty-five thousand dollars and there is no real property
or the real property passes to persons exempt from inheritance tax
pursuant to section 450.9 as joint tenants with right of
survivorship, and if forty days have elapsed since the death of the
decedent, the successor of the decedent as defined in subsection 2
may, by filing an affidavit prepared pursuant to subsection 3 or 8,
and without procuring letters of appointment, do any of the following
with respect to one or more particular items of personal property:
a. Receive any particular item of property that is tangible
personal property of the decedent.
b. Have any particular item of property that is evidence of a
debt, obligation, interest, right, security, or chose in action
belonging to the decedent transferred.
c. Collect the proceeds from any life insurance policy or any
other item of property for which a beneficiary has not been
designated.
2. "Successor of the decedent" means:
a. If the decedent died testate, the beneficiary or
beneficiaries who succeeded to the particular item of property of the
decedent under the decedent's will. For the purposes of this
subsection the trustee of a trust created during the decedent's
lifetime is a beneficiary under the decedent's will if the trust
succeeds to the particular item of property under the decedent's
will.
b. If the decedent died intestate, the person or persons who
succeeded to the particular item of property of the decedent under
the laws of intestate succession of this state.
3. To collect money, receive tangible personal property, or have
evidences of intangible personal property transferred under this
chapter, the successor of the decedent shall furnish to the holder of
the decedent's property an affidavit under penalty of perjury stating
all of the following:
a. The decedent's name, social security number, and the date
and place of the decedent's death.
b. That at least forty days have elapsed since the death of
the decedent, as shown by an attached certified copy of the death
certificate of the decedent.
c. That the gross value of the decedent's personal property
does not exceed twenty-five thousand dollars and there is no real
property or the real property passes to persons exempt from
inheritance tax pursuant to section 450.9 as joint tenants with right
of survivorship.
d. A description of the property of the decedent that is to
be paid, transferred, or delivered to the successor.
e. The name, address, and social security number of the
successor of the decedent to the described property, and whether the
successor is under a legal disability.
f. If applicable, that attached copy of the decedent's will
is the last will of the decedent and has been admitted to probate or
otherwise filed in the office of a clerk of the district court.
g. That no persons other than those listed in the affidavit
have a right to the interest of the decedent in the described
property.
h. That the affiant requests that the described property be
paid, delivered, or transferred to the successors of the decedent to
the described property.
i. That the affiant affirms under penalty of perjury that the
affidavit is true and correct.
More than one person may execute an affidavit under this
subsection.
4. If the decedent had evidence of ownership of the property
described in the affidavit and the holder of the property would have
the right to require presentation of the evidence of ownership before
the duty of the holder to pay, deliver, or transfer the property to
the decedent would have arisen, the evidence of the ownership, if
available, shall be presented with the affidavit to the holder of the
decedent's property.
If the evidence of ownership is not presented to the holder of the
property, the holder may require, as a condition for the payment,
delivery, or transfer of the property, that the successor provide the
holder with a bond in a reasonable amount determined by the holder to
be sufficient to indemnify the holder against all liability, claims,
demands, loss, damages, costs, and expenses that the holder may incur
or suffer by reason of the payment, delivery, or transfer of the
property. This subsection does not preclude the holder and the
successor from dispensing with the requirement that a bond be
provided, and instead entering into an agreement satisfactory to the
holder concerning the duty of the successor to indemnify the holder.
Judgments rendered by any court in this state and mortgages
belonging to a decedent whose personal property is being distributed
pursuant to this section may, without prior order of court, be
released, discharged, or assigned, in whole or in part, as to any
particular property, and deeds may be executed in performance of real
estate contracts entered into by the decedent, where an affidavit
made pursuant to subsection 3 or 8 is filed in the office of the
county recorder of the county wherein any judgment, mortgage, or real
estate contract appears of record.
5. Reasonable proof of the identity of each successor of the
decedent seeking distribution by virtue of the affidavit shall be
provided to the satisfaction of the holder of the decedent's
property.
6. If the requirements of this section are satisfied:
a. The property described in the affidavit shall be paid,
delivered, or transferred to the successor of the decedent's interest
in the property.
b. A transfer agent of a security described in the affidavit
shall change registered ownership on the books of the corporation
from the decedent to the person listed on the affidavit as the
successor of the decedent's interest.
If the holder of the decedent's property refuses to pay, deliver,
or transfer any property or evidence thereof to the successor of the
decedent within a reasonable time, the successor may recover the
property or compel its payment, delivery, or transfer in an action
brought for that purpose against the holder of the property. If an
action is brought against the holder under this subsection, the court
shall award attorney's fees to the person bringing the action if the
court finds that the holder of the decedent's property acted
unreasonably in refusing to pay, deliver, or transfer the property to
the person as required by this subsection.
7. If the requirements of this section are satisfied, receipt by
the holder of the decedent's property of the affidavit under
subsection 3 or 8 constitutes sufficient acquittance for the payment
of money, delivery of property, or transferring the registered
ownership of property pursuant to this chapter and discharges the
holder from any further liability with respect to the money or
property. The holder may rely in good faith on the statements in the
affidavit and has no duty to inquire into the truth of any statement
in the affidavit.
If the requirements of this section are satisfied, the holder is
not liable for any debt owed by the decedent by reason of paying
money, delivering property, or transferring registered ownership of
property pursuant to this chapter.
8. a. When a deceased distributee is entitled to money or
property claimed in an affidavit presented under this section with
respect to a deceased person whose estate is being administered in
this state, the personal representative of the person whose estate is
being administered shall present the affidavit to the court in which
the estate is being administered. The court shall direct the
personal representative to pay the money or deliver the property to
the person identified by the affidavit as the successor of the
deceased distributee to the extent that the court determines that the
deceased distributee was entitled to the money or property under the
will or the laws of intestate succession.
b. When the department of human services is entitled to money
or property of a decedent pursuant to section 249A.5, subsection 2,
and no affidavit has been presented by a successor of the decedent as
defined in subsection 2, within ninety days of the date of the
decedent's death, the funds in the account or other property, up to
the amount of the claim of the department, shall be paid to the
department upon presentation by the department or an entity
designated by the department of an affidavit to the holder of the
decedent's property. Such affidavit shall include the information
specified in subsection 3, except that the department may submit
proof of payment of funeral expenses as verification of the
decedent's death instead of a certified copy of the decedent's death
certificate. The amount of the department's claim shall also be
included in the affidavit, which shall entitle the department to
receive the funds as a successor of the decedent. The department
shall issue a refund within sixty days to any claimant with a
superior priority pursuant to section 633.425, if notice of such
claim is given to the department, or to the entity designated by the
department to receive notice, within one year of the department's
receipt of funds. This paragraph shall apply to funds or property of
the decedent transferred to the custody of the treasurer of state as
unclaimed property pursuant to chapter 556.
9. The procedure provided by this section may be used only if no
administration of the decedent's estate is pending. Section History: Recent Form
91 Acts, ch 36, §6; 2001 Acts, ch 140, §3--5; 2004 Acts, ch 1015,
§2--6; 2006 Acts, ch 1104, §3
633.357 CUSTODIAL INDEPENDENT RETIREMENT ACCOUNTS.
1. As used in this section, unless the context otherwise
requires:
a. "Custodial independent retirement account" means an
individual retirement account in accordance with section 408(a) of
the Internal Revenue Code or a Roth individual retirement account in
accordance with section 408A of the Internal Revenue Code, the assets
of which are not held in trust.
b. "Designator" means a person entitled to designate the
beneficiary or beneficiaries of a custodial independent retirement
account.
2. The assets of a custodial independent retirement account shall
pass on or after the death of the designator of the custodial
independent retirement account to the beneficiary or beneficiaries
specified in the custodial independent retirement account agreement
signed by the designator or designated by the designator in writing
pursuant to the custodial independent retirement account agreement.
Assets that pass to a beneficiary pursuant to this section shall not
be considered part of the designator's probate estate except to the
extent that the designator's estate is a beneficiary. The
designation of a beneficiary shall not be considered testamentary and
does not have to be witnessed.
3. This section applies to a custodial independent retirement
account established and a beneficiary designation made prior to, on,
or after July 1, 1999. This section shall be considered to be
declarative of the law as the law existed immediately prior to July
1, 1999.
4. This section shall not be construed to imply that assets or
benefits that are payable upon the death of a person to a beneficiary
or beneficiaries designated in or pursuant to a written arrangement
not described in this section, other than a will, are part of the
person's probate estate or that the arrangement is testamentary. Section History: Recent Form
99 Acts, ch 56, §4
633.358 THROUGH 633.360 Reserved.
633.361 REPORT AND INVENTORY.
Within ninety days after qualification by the personal
representative, unless a longer time is granted by the court, the
personal representative shall file with the clerk a report and
inventory of the property of the decedent, so far as the same has
come to the knowledge of the personal representative. The report and
inventory shall be verified or affirmed under penalty of perjury. It
shall include the following information:
1. Name, age and residence of decedent.
2. Date of death.
3. Whether decedent died testate or intestate.
4. Name and post office address of the personal representative.
5. Name and post office address of the surviving spouse, if any.
6. Name, relationship and post office address of each beneficiary
under the will (if the decedent died testate) or of each heir (if the
decedent died intestate). If any persons take by representation, the
personal representative shall list the deceased person through whom
those persons take and shall also list the persons taking under that
deceased person.
7. If the decedent died testate, the name and address of each
child, if any, born to or adopted by decedent after execution of the
will.
8. Legal descriptions and estimated values of all the real estate
of the decedent in the state of Iowa.
9. Legal descriptions and estimated values of all real estate of
the decedent outside of the state of Iowa.
10. Personal property regarded as exempt from execution, with
estimated values.
11. All other personal property of the decedent, with estimated
values.
12. A listing of all other items, with estimated values, which
are subject to Iowa inheritance tax or federal estate tax.
13. A report concerning any reductions in the amount of unified
credit available for federal estate tax purposes. Section History: Early Form
[C51, § 1328; R60, § 2360; C73, § 2370; C97, § 3310; S13, §
1481-a26; C24, § 7319, 11913; C27, 31, 35, 39, § 11913; C46, 50,
54, 58, 62, § 635.1; C66, 71, 73, 75, 77, 79, 81, § 633.361] Section History: Recent Form
83 Acts, ch 177, § 36, 38; 84 Acts, ch 1092, § 1
Referred to in § 450.22, 635.7
633.362 FILING MANDATORY.
Such inventory must be filed in all cases, notwithstanding the
provisions of any will or the action of any heirs or devisees waiving
the filing thereof, and no administration shall be closed until the
same has been filed. Section History: Early Form
[C97, § 3310; C24, 27, 31, 35, 39, § 11915; C46, 50, 54, 58,
62, § 635.4; C66, 71, 73, 75, 77, 79, 81, § 633.362]
633.363 REPORTING FAILURE TO COURT.
The failure of the personal representative promptly to make said
inventory and report shall be forthwith reported by the clerk to the
court for such order as may be necessary to enforce the making and
filing of the same. Section History: Early Form
[C27, 31, 35, § 11913-b1; C39, § 11913.1; C46, 50, 54, 58, 62,
§ 635.2; C66, 71, 73, 75, 77, 79, 81, § 633.363]
633.364 SUPPLEMENTARY INVENTORY.
Whenever any additional information or property not mentioned in
the inventory comes to the knowledge of a personal representative,
the personal representative shall make a supplementary inventory
thereof, such supplementary inventory to be filed within thirty days
after such discovery. Section History: Early Form
[C51, § 1333; R60, § 2365; C73, § 2376; C97, § 3310; C24, 27, 31,
35, 39, § 11914; C46, 50, 54, 58, 62, § 635.3; C66, 71, 73, 75,
77, 79, 81, § 633.364]
633.365 APPRAISEMENT.
Property belonging to the estate need not be appraised unless
required for inheritance tax purposes, under the provisions of this
probate code, or by order of court. Section History: Early Form
[C51, § 1331, 1332; R60, § 2363, 2364; C73, § 2373, 2374, 2378;
C97, § 3311; S13, § 3311; C24, 27, 31, 35, 39, § 11916, 11917;
C46, 50, 54, 58, 62, § 635.5, 635.6; C66, 71, 73, 75, 77, 79, 81, §
633.365] Section History: Recent Form
2005 Acts, ch 38, §51
633.366 DEBTS OF EXECUTOR.
The naming of any person as executor in a will shall not operate
as a discharge or bequest of any right of action owned by the
testator against such persons, if it is a right that otherwise
survives against such person. Every such right of action shall be
included among the assets of the decedent in the inventory. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.366]
633.367 INVENTORY AND APPRAISEMENT AS EVIDENCE.
Inventories and appraisements may be given in evidence in all
proceedings, but shall not be conclusive, and other evidence may be
introduced to vary the effect thereof. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.367]
633.368 PROPERTY FOR PAYMENT OF CREDITOR'S CLAIMS.
The property liable for the payment of debts and charges against a
decedent's estate shall include all property transferred by the
decedent with intent to defraud the decedent's creditors or any of
them, or transferred by any other means which is in law void or
voidable as against the creditors or any of them; and the right to
recover such property, so far as necessary for the payment of the
debts and charges against the estate of the decedent, shall be
exclusively in the personal representative, who shall take such steps
as may be necessary to recover the same. Such property shall
constitute general assets for the payment of all creditors. Section History: Early Form
[C73, § 2381; C97, § 3317; C24, 27, 31, 35, 39, § 11927; C46,
50, 54, 58, 62, § 635.16; C66, 71, 73, 75, 77, 79, 81, § 633.368]
633.369 THROUGH 633.373 Reserved.
633.374 ALLOWANCE TO SURVIVING SPOUSE.
1. If the personal representative of the estate is not the
decedent's spouse, the personal representative of the estate shall
cause written notice concerning support to be mailed to the surviving
spouse pursuant to section 633.40, subsection 5. The notice shall
inform the surviving spouse of the surviving spouse's right to apply,
within four months of service of the notice, for support for a period
of twelve months following the death of the decedent, and for support
of the decedent's dependents who reside with the spouse for the same
period of time.
2. The court shall, upon application, set off and order paid to
the surviving spouse, as part of the costs of administration,
sufficient of the decedent's property as it deems reasonable for the
proper support of the surviving spouse for the period of twelve
months following the death of the decedent. If the application is
not made by the personal representative, notice of hearing upon the
application shall be given to the personal representative. The court
shall take into consideration the station in life of the surviving
spouse and the assets and condition of the estate. The allowance
shall also include such additional amount as the court deems
reasonable for the proper support, during such period, of dependents
of the decedent who reside with the surviving spouse. Such allowance
to the surviving spouse shall not abate upon the death or remarriage
of such spouse. If an application for support has not been filed
within four months following service of the notice by or on behalf of
the surviving spouse and the dependents of the decedent who reside
with the surviving spouse, the surviving spouse and the dependents of
the decedent shall be deemed to have waived the right to apply for
support during the administration of the estate. Section History: Early Form
[C51, § 1338; R60, § 2370; C73, § 2375, 2377; C97, § 3314; C24,
27, 31, 35, 39, § 11923, 11924; C46, 50, 54, 58, 62, § 635.12,
635.13; C66, 71, 73, 75, 77, 79, 81, § 633.374] Section History: Recent Form
2008 Acts, ch 1119, §18, 39 Footnotes
2008 amendments to this section apply to estates of decedents
dying on or after July 1, 2008; 2008 Acts, ch 1119, § 39
633.375 REVIEW OF ALLOWANCE TO SURVIVING SPOUSE.
The court may, upon the petition of the spouse, or other person
interested, and after hearing pursuant to notice to all interested
parties, review such allowance and increase or decrease the same. Section History: Early Form
[C51, § 1338; R60, § 2370; C73, § 2375, 2377; C97, § 3314; C24,
27, 31, 35, 39, § 11923; C46, 50, 54, 58, 62, § 635.12; C66, 71,
73, 75, 77, 79, 81, § 633.375]
633.376 ALLOWANCE TO CHILDREN WHO DO NOT RESIDE WITH
SURVIVING SPOUSE.
1. The court may also make an allowance to a child of the
decedent who is less than eighteen years of age or who is between the
ages of eighteen and twenty-two years who is regularly attending an
accredited school in pursuance of a course of study leading to a high
school diploma or its equivalent, or regularly attending a course of
vocational-technical training either as a part of a regular school
program or under special arrangements adapted to the individual
person's needs; or is, in good faith, a full-time student in a
college, university, or community college; or has been accepted for
admission to a college, university, or community college and the next
regular term has not yet begun; or a child of any age who is
dependent because of physical or mental disability; who does not
reside with the surviving spouse, of an amount it deems reasonable in
the light of the assets and condition of the estate, to provide for
the child's proper support during the period of twelve months.
2. The estate's personal representative shall cause written
notice to be mailed pursuant to section 633.40, subsection 5, to the
legal guardian of each child qualified under subsection 1 and to each
child who has no legal guardian. The notice shall inform the child
and the child's guardian, if applicable, of the right to apply,
within four months after service of the notice, for support for a
period of twelve months following the decedent's death. If an
application for support has not been filed within four months after
service of the notice by or on behalf of the child qualifying for
support under subsection 1, the child shall be deemed to have waived
the right to support under this section. A child who qualifies for
support under this section may waive the child's right to such
support by filing an affidavit acknowledging receipt of notice and
irrevocably waiving the child's right to support under this section.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.376] Section History: Recent Form
83 Acts, ch 101, § 127; 86 Acts, ch 1245, § 1497; 90 Acts, ch
1253, § 120; 2009 Acts, ch 52, §7, 14 Footnotes
2009 amendment to this section applies to estates of decedents
dying on or after July 1, 2009; 2009 Acts, ch 52, §14
633.377 REVIEW OF ALLOWANCE TO MINOR CHILDREN.
The court may, upon the petition of any interested person, review
the allowance made to the minor children who do not reside with the
surviving spouse and may increase or decrease the same and make such
other orders as it may deem proper. Section History: Early Form
[C51, § 1338; R60, § 2370; C73, § 2375, 2377; C97, § 3314; C24,
27, 31, 35, 39, § 11923; C46, 50, 54, 58, 62, § 635.12; C66, 71,
73, 75, 77, 79, 81, § 633.377]
633.378 THROUGH 633.382 Reserved.
633.383 WHEN POWER GIVEN IN WILL.
When power to sell, mortgage, lease, pledge or exchange property
of the estate has been given to any personal representative under the
terms of any will, the statutory requirements with reference to
procedure for such purposes shall not apply. Section History: Early Form
[C51, § 1297; R60, § 2329; C73, § 2353; C97, § 3295, 3296; C24,
27, 31, 35, 39, § 11879--11882; C46, 50, 54, 58, 62, §
633.35--633.38; C66, 71, 73, 75, 77, 79, 81, § 633.383]
633.384 EQUITABLE CONVERSION AND POWER OF SALE.
A testamentary direction to sell real property, and the exercise
of a testamentary power of sale of real property, shall constitute an
equitable conversion of real estate into personal property, but shall
not affect distribution of the estate under the provisions of the
will. Section History: Early Form
[C51, § 1297; R60, § 2329; C73, § 2353; C97, § 3295, 3296; C24,
27, 31, 35, 39, § 11879--11882; C46, 50, 54, 58, 62, §
633.35--633.38; C66, 71, 73, 75, 77, 79, 81, § 633.384]
633.385 CONVERSION.
1. When realty treated as personalty. Real property acquired
by the personal representative by the completion of foreclosure
proceedings, or by the forfeiture of real estate contracts, after the
death of the decedent shall be deemed to be personal property for the
purpose of administration and distribution of the estate.
2. When personalty treated as realty. In all cases of sale
of real property by a personal representative under order of court,
the surplus of the proceeds of such sale remaining after the payment
of debts and charges shall be deemed to be real property and disposed
of in the same proportions as the real property would have been if it
had not been sold. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.385]
633.386 SALE, MORTGAGE, PLEDGE, LEASE OR EXCHANGE OF
PROPERTY -- PURPOSES.
1. Any real or personal property belonging to the decedent,
except exempt personal property and the homestead, may be sold,
mortgaged, pledged, leased or exchanged by the personal
representative for any of the following purposes:
a. The payment of debts and charges against the estate;
b. The distribution of the estate or any part thereof;
c. Any other purpose in the best interests of the estate.
2. Exempt personal property under such provisions as the court
may direct, if not set off to the surviving spouse, may be sold,
mortgaged, pledged, leased, or exchanged, provided that the surviving
spouse consents thereto.
3. The homestead, under such provisions as the court may direct,
if not set off to the surviving spouse and if the surviving spouse
has not elected to occupy the homestead, may be sold, mortgaged,
pledged, leased or exchanged.
4. The proceeds from the sale of any exempt personal property or
from the sale of the homestead shall be held by the personal
representative subject to the rights of the surviving spouse or
issue, unless such surviving spouse or issue has expressly waived the
rights to such proceeds. Section History: Early Form
[C51, § 1341--1343; R60, § 2373--2375; C73, § 2386--2388; C97, §
3322, 3323; C24, 27, 31, § 11932, 11933; C35, § 11932, 11933,
11951-g2; C39, § 11932, 11933, 11951.2; C46, 50, 54, 58, 62, §
635.21--635.23, 635.42; C66, 71, 73, 75, 77, 79, 81, § 633.386]
Referred to in § 633.22
633.387 SALE OF PERSONAL PROPERTY WITHOUT ORDER OF
COURT.
Personal property of a perishable nature and personal property for
which there is a regularly established market may be sold by the
personal representative without order of court. Section History: Early Form
[C51, § 1341; R60, § 2373; C73, § 2386; C97, § 3322; C24, 27, 31,
35, 39, § 11932; C46, 50, 54, 58, 62, § 635.21; C66, 71, 73, 75,
77, 79, 81, § 633.387]
Referred to in § 450.7, 633.22
633.388 PETITION TO SELL, MORTGAGE, EXCHANGE, PLEDGE
OR LEASE PROPERTY.
A petition to sell, mortgage, exchange, pledge or lease any real
or personal property shall set forth the reasons for the application
and describe the property involved. It may apply for different
authority as to separate parts of the property; or it may apply in
the alternative for authority to sell, mortgage, exchange, pledge or
lease. Whenever it is for the best interests of the estate, real and
personal property of the estate may be sold, mortgaged, exchanged,
pledged or leased as a unit. Section History: Early Form
[C51, § 1342, 1343; R60, § 2374, 2375; C73, § 2387, 2388; C97, §
3323; C24, 27, § 11933; C35, § 11933, 11951-g4; C39, § 11933,
11951.4; C46, 50, 54, 58, 62, § 635.23, 635.44; C66, 71, 73, 75,
77, 79, 81, § 633.388]
Referred to in § 633.22, 633.391, 633.400
633.389 NOTICE ON SALE, MORTGAGE, EXCHANGE, PLEDGE OR
LEASE OF PROPERTY.
Upon the filing of the petition unless notice is waived in
writing, notice in accordance with section 633.40, shall be served on
all persons interested in the property, provided that as to personal
property and as to the lease of real property not specifically
devised, for a period not to exceed one year, the court may hear the
petition without notice. When notice is required, the notice shall
state briefly the nature of the application. Upon satisfactory
proof, the court may order the sale, mortgage, exchange, pledge or
lease of the property described, or any part of the property, at a
price and upon terms and conditions as the court may authorize. For
the purposes of this section, the term "all persons interested"
includes only distributees in the estate and persons who have
requested notice as provided by this probate code. Section History: Early Form
[C51, § 1342--1344; R60, § 2374--2376; C73, § 2387--2389; C97, §
3323, 3324; C24, § 11933, 11934, 11935; C27, 31, § 11933, 11935; C35,
§ 11933, 11935, 11951-g5; C39, § 11933, 11935, 11951.5; C46, 50,
54, 58, 62, § 635.23--635.25, 635.45; C66, 71, 73, 75, 77, 79, 81, §
633.389; 81 Acts, ch 193, § 2] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.22
633.390 SALE SUBJECT TO MORTGAGE.
When a claim is secured by a mortgage on property, the court may,
with the consent of the mortgagee, order the sale of the property
subject to the mortgage, and such consent shall release the estate
should a deficiency later appear. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.390]
Referred to in § 633.22
633.391 QUIETING ADVERSE CLAIMS.
A petition to determine questions of conflicting and controverted
title, or to remove clouds from any title or interest of property
involved, may be combined with the petition provided in section
633.388. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.391]
Referred to in § 633.22
633.392 TERMS OF SALE.
In all sales of property, the court may authorize credit to be
given by the personal representative on such terms as the court may
prescribe. Credit for more than twelve months shall be extended only
after hearing pursuant to notice to interested parties. Section History: Early Form
[C51, § 1347, 1348, 1350; R60, § 2379, 2380, 2382; C73, § 2392,
2393, 2395; C97, § 3326; C24, 27, 31, 35, 39, § 11938; C46, 50,
54, 58, 62, § 635.27; C66, 71, 73, 75, 77, 79, 81, § 633.392]
Referred to in § 633.22
633.393 PURCHASE BY HOLDER OF LIEN.
At any sale of real or personal property upon which there is a
mortgage, pledge or other lien, the holder of such lien may become
the purchaser, and may apply the amount of the lien on the purchase
price in the following manner. If no claim thereon has been filed or
allowed, the court, at the hearing on the report of sale and for
confirmation of the sale, may examine into the validity and
enforceability of the lien or charge and the amount due thereunder
and secured thereby, and may authorize the personal representative to
accept the receipt of such purchaser for the amount due thereunder
and secured thereby as payment pro tanto. If such mortgage, pledge
or other lien is a valid claim against the estate and has been
allowed, the receipt of the purchaser for the amount due the
purchaser from the proceeds of the sale is a payment pro tanto. If
the amount for which the property is purchased, whether or not a
claim for it has been filed or allowed, is insufficient to defray the
expenses and discharge the mortgage, pledge or other lien, the
purchaser must pay an amount sufficient to pay the balance of such
expenses. Nothing permitted under the terms of this section shall be
deemed to be an allowance of a claim based upon such mortgage, pledge
or other lien. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.393]
Referred to in § 633.22
633.394 ORDER TO SELL, MORTGAGE, PLEDGE, EXCHANGE OR
LEASE TO BE REFUSED IF BOND GIVEN.
1. Bond to prevent sale. Any person interested in the estate
may prevent a sale, mortgage, pledge, exchange or lease of the whole
or any part of the real estate or personal property for any purpose,
by giving bond to the satisfaction of the court, conditioned that the
person will pay such demands against the estate as the court shall
require, not to exceed the value of the property thus kept from sale,
mortgage, pledge, exchange, or lease, as soon as called upon by the
court for that purpose.
2. Breach of bond -- procedure. If the conditions of such
bond are broken, the property will be liable for the debts, unless it
has passed into the hands of innocent purchasers, and the executor or
administrator may take possession thereof and sell it under the
direction of the court, or may prosecute the bond, or pursue both
remedies at the same time, if the court so directs.
3. Effect of bond. If the conditions of the bond are
complied with, the property shall pass by devise, bequest,
distribution, or descent in the same manner as though there had been
no debts against the estate. Section History: Early Form
[C51, § 1351--1353; R60, § 2383--2385; C73, § 2396--2398; C97, §
3328, 3329; C24, 27, 31, 35, 39, § 11941--11943; C46, 50, 54, 58,
62, § 635.30--635.32; C66, 71, 73, 75, 77, 79, 81, § 633.394]
Referred to in § 633.22
633.395 VALIDITY OF PROCEEDINGS.
No proceedings for sale, mortgage, pledge, lease, exchange or
conveyance by a personal representative of property belonging to the
estate shall be subject to collateral attack on account of any
irregularity in the proceedings which is not such as to deprive the
court of jurisdiction. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.395]
Referred to in § 633.22
633.396 ORDER FOR SALE, MORTGAGE, PLEDGE, EXCHANGE OR
LEASE OF REAL PROPERTY.
The order shall describe the property to be sold, mortgaged,
pledged, exchanged or leased, and may designate the sequence in which
the several parcels shall be sold, mortgaged, pledged, exchanged or
leased. An order for sale may direct whether the property shall be
sold at private sale or public auction, and, if the latter, the place
or places of sale. The order of sale may prescribe the terms,
conditions and manner of sale. The court may, in its discretion,
provide for appraisal for its guidance as to value of the property,
and determine whether or not additional bond shall be deposited by
the personal representative. If real property is to be mortgaged, it
may fix the maximum amount of principal, the earliest and latest
dates of maturity, and the purposes for which the proceeds shall be
used. An order for sale, mortgage, pledge, exchange or lease shall
remain in force until terminated by the court. Section History: Early Form
[C51, § 1345--1350; R60, § 2377--2382; C73, § 2390--2395; C97, §
3325--3327; C24, 27, 31, 35, 39, § 11937--11940; C46, 50, 54, 58,
62, § 635.26--635.29; C66, 71, 73, 75, 77, 79, 81, § 633.396]
Referred to in § 633.22
633.397 SALE AT PUBLIC AUCTION.
In all sales of property at public auction, the personal
representative shall give such notice, in such form and manner, and
to such persons or parties, as the court may prescribe. If no
provision for notice is made by the court, the notice shall be
published once each week for two consecutive weeks in some newspaper
of general circulation in the county where sale is to be held, the
last publication to be not less than one day nor more than seven days
before the day of sale. If the property to be sold is located in
more than one county, the sale may be held and notice given in any
one or more of said counties. Unless otherwise provided by order of
the court, the notice shall state the time and place of the sale and
describe the property to be sold. Proof of service of the notice
required shall be filed before confirmation of the sale. Section History: Early Form
[C51, § 1347, 1348, 1350; R60, § 2379, 2380, 2382; C73, § 2392,
2393, 2395; C97, § 3326; C24, 27, 31, 35, 39, § 11938; C46, 50,
54, 58, 62, § 635.27; C66, 71, 73, 75, 77, 79, 81, § 633.397]
Referred to in § 633.22
633.398 ADJOURNMENT OF SALE AT PUBLIC AUCTION.
The personal representative may adjourn any sale from time to time
when, in the personal representative's discretion, it is deemed for
the best interests of the estate to do so, but no adjournment shall
be to a time more than three months from the date first fixed for the
sale. Every adjournment shall be announced publicly at the time and
place at which adjournment is made. Section History: Early Form
[C51, § 1347, 1348, 1350; R60, § 2379, 2380, 2382; C73, § 2392,
2393, 2395; C97, § 3326; C24, 27, 31, 35, 39, § 11938; C46, 50,
54, 58, 62, § 635.27; C66, 71, 73, 75, 77, 79, 81, § 633.398]
Referred to in § 633.22
633.399 REPORT FOR APPROVAL.
After making any such sale, mortgage, exchange or lease of real
property, the personal representative shall make a verified report
thereof to the court. The court shall examine said report, and if
satisfied that the sale, mortgage, exchange, or lease has been at a
price and upon terms advantageous to the estate, and, in all
respects, made in conformity with law, and that it ought to be
confirmed, shall confirm the same and order the personal
representative to deliver a deed, mortgage, lease or other proper
instruments to the persons entitled thereto; provided, however, that
in the event said real property has been sold at private sale without
an appraisal for inheritance tax purposes or for purpose of such
sale, or, if it has been so appraised and has been sold at private
sale for less than the appraised value thereof, then, upon the filing
of such report, the court may enter an order fixing a time and place
for hearing thereon and prescribe a notice of such hearing to be
served upon all interested persons, any one of whom, prior to the
time fixed for such hearing, may file written objections to the entry
of an order approving said sale. If not satisfied that the sale,
mortgage, exchange, or lease has been made in conformity with law and
that it is to the best interests of the estate, the court may reject
the sale, mortgage, exchange, or lease, and enter such orders as the
court may deem advisable. Section History: Early Form
[C51, § 1354, 1355; R60, § 2386, 2387; C73, § 2399, 2400; C97, §
3330, 3331; C24, 27, 31, § 11944--11947; C35, § 11944--11947,
11951-g6, -g7; C39, § 11944--11947, 11951.6, 11951.7; C46, 50,
54, 58, 62, § 635.33--635.36, 635.46, 635.47; C66, 71, 73, 75, 77,
79, 81, § 633.399]
Referred to in § 633.22, 633.400
633.400 JOINING REPORT WITH PETITION.
The report of any private sale, mortgage, exchange, or lease of
real property, as provided in section 633.399, may be joined with the
petition provided in section 633.388. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.400]
Referred to in § 633.22
633.401 RECORD IN FOREIGN COUNTY.
When real property so conveyed or encumbered is located in a
county other than that in which such proceedings are had, a complete
transcript of the record of all proceedings relating thereto shall be
filed by the personal representative in the office of the clerk in
such county. Section History: Early Form
[C97, § 3331; C24, 27, 31, 35, 39, § 11949; C46, 50, 54, 58,
62, § 635.38; C66, 71, 73, 75, 77, 79, 81, § 633.401]
633.402 SALE DEFINED.
For purposes of part 6 of this division, sale of property includes
but is not limited to the granting of an easement, the granting of an
option, the granting of a right of refusal and the granting or
conveyance of any other interest, title or right regarding property.
Section History: Early Form
[81 Acts, ch 193, § 3]
633.403 THROUGH 633.409 Reserved.
633.410 LIMITATION ON FILING CLAIMS AGAINST
DECEDENT'S ESTATE.
1. All claims against a decedent's estate, other than charges,
whether due or to become due, absolute or contingent, liquidated or
unliquidated, founded on contract or otherwise, are forever barred
against the estate, the personal representative, and the distributees
of the estate, unless filed with the clerk within the later to occur
of four months after the date of the second publication of the notice
to creditors or, as to each claimant whose identity is reasonably
ascertainable, one month after service of notice by ordinary mail to
the claimant's last known address.
2. Notwithstanding subsection 1, claims for debts created under
section 249A.5, subsection 2, relating to the recovery of medical
assistance payments shall be barred under this section unless filed
with the clerk within the later to occur of four months after the
date of the second publication of the notice to creditors, or six
months after service of notice by ordinary mail, on the form
prescribed in section 633.231 for intestate estates or on the form
prescribed in section 633.304A for testate estates, to the entity
designated by the department of human services to receive notice.
3. Notice is not required to be given by mail to any creditor
whose claim will be paid or otherwise satisfied during administration
and the personal representative may waive the limitation on filing
provided under this section. This section does not bar claims for
which there is insurance coverage, to the extent of the coverage, or
claimants entitled to equitable relief due to peculiar circumstances.
Section History: Early Form
[C51, § 1373; R60, § 2405; C73, § 2421; C97, § 3349; C24, 27, 31,
35, 39, § 11972; C46, 50, 54, 58, 62, § 635.68; C66, 71, 73, 75,
77, 79, 81, § 633.410] Section History: Recent Form
84 Acts, ch 1080, § 9; 85 Acts, ch 92, §1; 89 Acts, ch 35, §6; 95
Acts, ch 68, §7; 2001 Acts, ch 109, §3; 2007 Acts, ch 134, §14
Referred to in § 633.231, 633.304A, 633.413, 633.414, 633.415,
633.444
633.411 PLEADING STATUTE OF LIMITATIONS.
It shall be within the discretion of the personal representative
to determine whether or not the applicable statute of limitations
shall be pleaded to bar a claim which the personal representative
believes to be just, provided, however, that this section shall not
apply where the personal representative was appointed upon the
application of a creditor. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.411]
633.412 WHEN CLAIM NOT AFFECTED BY STATUTE OF
LIMITATIONS.
A claim shall not be barred by the statute of limitations if the
claim was not barred at the time of the decedent's death and is filed
against the decedent's estate within four months from the date of the
decedent's death. Section History: Early Form
[C51, § 1373; R60, § 2405; C73, § 2421; C97, § 3349; C24, 27, 31,
35, 39, § 11972; C46, 50, 54, 58, 62, § 635.68; C66, 71, 73, 75,
77, 79, 81, § 633.412] Section History: Recent Form
84 Acts, ch 1080, § 10
Referred to in § 633.414
633.413 CLAIMS BARRED WHEN NO ADMINISTRATION
COMMENCED.
All claims barrable under the provisions of section 633.410 shall,
in any event, be barred if administration of the estate, whether
testate or intestate, original or ancillary is not commenced within
five years after the death of the decedent. Section History: Early Form
[C51, § 1325, 1356; R60, § 2357, 2388; C73, § 2367, 2401; C97, §
3305, 3332; S13, § 3305; C24, 27, 31, 35, 39, § 11891, 11951;
C46, 50, 54, 58, 62, § 633.47, 635.40; C66, 71, 73, 75, 77, 79, 81, §
633.413]
Referred to in § 633.414
633.414 LIENS NOT AFFECTED BY FAILURE TO FILE
CLAIM.
Nothing in sections 633.410, 633.412 and 633.413 shall affect or
prevent any action or proceeding to enforce any mortgage, pledge or
other lien upon property of the estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.414]
633.415 COMMENCEMENT OR CONTINUANCE OF SEPARATE
ACTION.
Any action pending against the decedent at the time of the
decedent's death that survives, shall also be considered a claim
filed against the estate if notice of substitution is served upon the
personal representative as defendant within the time provided for
filing claims in section 633.410; however, this provision shall not
bar parties entitled to equitable relief due to peculiar
circumstances. A copy of the proof of service of notice of such
proceedings shall be filed in the probate proceedings but shall not
be jurisdictional.
A separate action based on a debt or other liability of the
decedent may be commenced against a personal representative of the
decedent in lieu of filing a claim in the estate. Such an action
shall be commenced by serving an original notice on the personal
representative within the time provided for filing claims in section
633.410 and such action shall also be considered a claim filed
against the estate. Such action may be commenced only in a county
wherein the venue would have been proper had the decedent survived
and the action been commenced against the decedent. A copy of the
proof of service of notice shall be filed in the probate proceedings
but shall not be jurisdictional.
A judgment or decree in favor of the plaintiff in any such action
shall constitute an adjudication against the estate.
In all cases where by the death of the party to be charged, the
bringing of the action against the estate shall have been delayed
beyond the period provided by the statute of limitations, the action
may be brought if the original notice is served on the personal
representative as defendant, and proof of service of notice of such
proceeding is filed in the probate proceedings within the time
provided for filing claims in section 633.410. Section History: Early Form
[C51, § 1373; R60, § 2405; C73, § 2421; C97, § 3349; C24, 27, 31,
35, 39, § 11972; C46, 50, 54, 58, 62, § 635.68; C66, 71, 73, 75,
77, 79, 81, § 633.415]
Referred to in § 633.416, 633.417
633.416 COMPULSORY COUNTERCLAIMS -- RULES OF CIVIL
PROCEDURE.
In an action commenced by or against the fiduciary under the
provisions of section 633.415, or in any action pending by or against
the decedent that survives under the provisions of section 633.415,
the rules of civil procedure as to compulsory counterclaims shall
apply in such action. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.416]
See R.C.P. 1.241 et seq.
633.417 SEPARATE ACTION IN LIEU OF PROCEEDING ON
CLAIMS.
The provisions of sections 633.438 to 633.448 are not applicable
to actions continued or commenced under section 633.415. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.417]
633.418 FORM AND VERIFICATION OF CLAIMS -- GENERAL
REQUIREMENTS.
No claim shall be allowed against an estate on application of the
claimant unless it shall be in writing, filed in duplicate with the
clerk, stating the claimant's name and address, describing the nature
and the amount thereof, if ascertainable, and accompanied by the
affidavit of the claimant, or someone for the claimant, that the
amount is justly due, or if not yet due, when it will or may become
due, that no payments have been made thereon which are not credited,
and that there are no offsets to the same, to the knowledge of the
affiant, except as therein stated. If the claim is contingent, the
nature of the contingency shall also be stated. The duplicate of
said claim shall be mailed by the clerk to the personal
representative or the personal representative's attorney of record.
Section History: Early Form
[C51, § 1359; R60, § 2391; C73, § 2408; C97, § 3338; C24, 27, 31,
35, 39, § 11957, 11958; C46, 50, 54, 58, 62, § 635.53, 635.54;
C66, 71, 73, 75, 77, 79, 81, § 633.418]
633.419 REQUIREMENTS WHEN CLAIM FOUNDED ON WRITTEN
INSTRUMENT.
If a claim is founded on a written instrument, the original or a
copy thereof with all endorsements must be attached to the claim.
The original instrument must be exhibited to the personal
representative or court, upon demand, unless it is lost or destroyed,
in which case its loss or destruction must be stated in the claim.
Section History: Early Form
[C51, § 1359; R60, § 2391; C73, § 2408; C97, § 3338; C24, 27, 31,
35, 39, § 11957; C46, 50, 54, 58, 62, § 635.53; C66, 71, 73, 75,
77, 79, 81, § 633.419]
633.420 HOW CLAIM ENTITLED.
All claims filed against the estate shall be entitled in the name
of the claimant against the personal representative as such, naming
the estate, and in all further proceedings thereon that title shall
be preserved. Section History: Early Form
[C73, § 2409; C97, § 3339; C24, 27, 31, 35, 39, § 11960; C46,
50, 54, 58, 62, § 635.56; C66, 71, 73, 75, 77, 79, 81, § 633.420]
633.421 UNSECURED CLAIMS NOT YET DUE.
Upon proof of an unsecured claim which will become due at some
future time, the same may be paid if the claimant will consent to
such discount as the court thinks reasonable; otherwise, the court
shall direct the investment of an amount which will provide for the
payment of the claim when it becomes due. Section History: Early Form
[C51, § 1364, 1377; R60, § 2396, 2409; C73, § 2413, 2425; C97, §
3342, 3352; C24, 27, 31, 35, 39, § 11964, 11975; C46, 50, 54, 58,
62, § 635.60, 635.70; C66, 71, 73, 75, 77, 79, 81, § 633.421]
633.422 SECURED CLAIMS NOT YET DUE.
When a creditor holds any security for a claim not yet due, the
creditor may file the claim as a claim not yet due with the right of
withdrawing the claim if the compromise offer is not satisfactory,
and, after such withdrawal, rely entirely on the creditor's security,
or the creditor may elect to rely entirely on the creditor's security
without the necessity of filing a claim. Section History: Early Form
[C51, § 1364, 1377; R60, § 2396, 2409; C73, § 2413, 2425; C97, §
3342, 3352; C24, 27, 31, 35, 39, § 11964, 11975; C46, 50, 54, 58,
62, § 635.60, 635.70; C66, 71, 73, 75, 77, 79, 81, § 633.422]
633.423 PROCEDURE FOR SECURED CLAIMS.
When a creditor holds any security for the creditor's claim, the
security shall be described in the claim. If the claim is secured by
a mortgage, pledge or other lien which has been recorded, it shall be
sufficient to describe the lien by date, and refer to the volume,
page and place of recording. The claim shall be allowed in the
amount remaining unpaid at the time of its allowance, and the
judgment allowing it shall describe the security. Payment of the
claim shall be upon the basis of the full amount thereof if the
creditor shall surrender the creditor's security; otherwise payment
shall be upon the basis of one of the following:
1. If the creditor shall exhaust the security before receiving
payment, then upon the full amount of the claim allowed, less the
amount realized upon exhausting the security; or
2. If the creditor shall not have exhausted, or shall not have
the right to exhaust, the security, then upon the full amount of the
claim allowed, less the value of the security determined by
agreement, or as the court may direct. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.423]
633.424 CONTINGENT CLAIMS.
Contingent claims which cannot be allowed as absolute debts shall,
nevertheless, be filed in the court and proved. If allowed as a
contingent claim, the order of allowance shall state the nature of
the contingency. If such claim shall become absolute before
distribution of the estate, it shall be paid in the same manner as
absolute claims of the same class. In all other cases, the court may
provide for the payment of contingent claims in any one of the
following methods:
1. The creditor and personal representative may determine, by
agreement, arbitration or compromise, the value thereof, according to
its probable present worth, and upon approval thereof by the court,
it may be allowed and paid in the same manner as an absolute claim,
or
2. The court may order the personal representative to make
distribution of the estate but to retain sufficient funds to pay the
claim if and when the same becomes absolute; but, for this purpose,
the estate shall not be kept open longer than two years after
distribution of the remainder of the estate; and if such claim has
not become absolute within that time, distribution shall be made to
the distributees of the funds so retained, after paying any costs and
expenses accruing during such period, and such distributees shall be
liable to the creditor to the extent of the estate received by them,
if such contingent claim thereafter becomes absolute. When
distribution is so made to distributees, the court may require such
distributees to give bond for the satisfaction of their liability to
the contingent creditor, or
3. The court may order distribution of the estate as though such
contingent claim did not exist, but the distributees shall be liable
to the creditor to the extent of the estate received by them, if the
contingent claim thereafter becomes absolute; and the court may
require such distributees to give bond for the performance of their
liability to the contingent creditor, or
4. Such other method as the court may order. Section History: Early Form
[C51, § 1365; R60, § 2397; C73, § 2414; C97, § 3343; C24, 27, 31,
35, 39, § 11965; C46, 50, 54, 58, 62, § 635.61; C66, 71, 73, 75,
77, 79, 81, § 633.424]
633.425 CLASSIFICATION OF DEBTS AND CHARGES.
In any estate in which the assets are, or appear to be,
insufficient to pay in full all debts and charges of the estate, the
personal representative shall classify the debts and charges as
follows:
1. Court costs.
2. Other costs of administration.
3. Reasonable funeral and burial expenses.
4. All debts and taxes having preference under the laws of the
United States.
5. Reasonable and necessary medical and hospital expenses of the
last illness of the decedent, including compensation of persons
attending at the decedent's last illness.
6. All taxes having preferences under the laws of this state.
7. Any debt for medical assistance paid pursuant to section
249A.5, subsection 2.
8. All debts owing to employees for labor performed during the
ninety days next preceding the death of the decedent.
9. All unpaid support payments as defined in section 598.1,
subsection 9, and all additional unpaid awards and judgments against
the decedent in any dissolution, separate maintenance, uniform
support, or paternity action to the extent that the support, awards,
and judgments have accrued at the time of death of the decedent.
10. All other claims allowed. Section History: Early Form
[C51, § 1370--1372, 1374, 1376, 1378, 1379; R60, § 2402--2404,
2406, 2408, 2410, 2411; C73, § 2418--2420, 2422, 2424, 2426, 2427;
C97, § 3347, 3348, 3350, 3353; S13, § 3348; C24, 27, 31, 35, 39, §
11969--11971, 11973, 11976; C46, 50, 54, 58, 62, §
635.65--635.67, 635.69, 635.71; C66, 71, 73, 75, 77, 79, 81, §
633.425; 82 Acts, ch 1197, § 1] Section History: Recent Form
94 Acts, ch 1120, §11
Referred to in § 230.30, 249A.5, 252.13, 331.805, 633.356,
633.426, 633A.3104
Labor or wage claims preferred, § 626.69, 680.7, 681.13
633.426 ORDER OF PAYMENT OF DEBTS AND CHARGES.
Payment of debts and charges of the estate shall be made in the
order provided in section 633.425, without preference of any claim
over another of the same class. If the assets of the estate are
insufficient to pay in full all of the claims of a class, then such
claims shall be paid on a pro rata basis, without preference between
claims then due and those of the same class not due. Section History: Early Form
[C51, § 1378, 1379; R60, § 2410, 2411; C73, § 2426, 2427; C97, §
3353; C24, 27, 31, 35, 39, § 11976; C46, 50, 54, 58, 62, §
635.71; C66, 71, 73, 75, 77, 79, 81, § 633.426] Section History: Recent Form
2008 Acts, ch 1032, §86
Referred to in § 633A.3104
633.427 PAYMENT OF CONTINGENT CLAIMS BY DISTRIBUTEES
-- CONTRIBUTION.
If a contingent claim has been filed and allowed against an estate
and all the assets of the estate have been distributed, and the claim
becomes absolute, the creditor has the right to recover on the claim
against those distributees whose distributive shares have been
increased because the amount of the claim as finally determined was
not paid prior to final distribution, if an action for recovery is
commenced within four months after the claim becomes absolute. Such
distributees are jointly and severally liable, but a distributee is
not liable for an amount exceeding the amount of the estate or fund
so distributed to that distributee. If more than one distributee is
liable to the creditor, the creditor shall make parties to the action
all such distributees who can be reached by process. By its
judgment, the court shall determine the amount of the liability of
each of the distributees as between themselves, but if any
distributee is insolvent or unable to pay that distributee's
proportion, or is beyond the reach of process, the others, to the
extent of their respective liabilities, are nevertheless liable to
the creditor for the whole amount of the creditor's debt. If any
person liable for the debt fails to pay that person's just proportion
to the creditors, the person is liable to indemnify all who, by
reason of the failure, have paid more than their just proportion of
the debt, the indemnity to be recovered in the same action or in
separate actions. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.427] Section History: Recent Form
84 Acts, ch 1080, § 11
633.428 ALLOWANCE BY PERSONAL REPRESENTATIVE.
Where a claim has been filed and is admitted in writing by the
personal representative, it shall stand allowed in the absence of
fraud or collusion. Section History: Early Form
[C73, § 2410; C97, § 3340; S13, § 3340; C24, 27, 31, 35, 39, §
11961; C46, 50, 54, 58, 62, § 635.57; C66, 71, 73, 75, 77, 79,
81, § 633.428]
633.429 COMPELLING PAYMENT OF CLAIMS.
No claimant shall be entitled to compel payment unless the
claimant's claim has been duly filed and allowed. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.429]
633.430 EXECUTION AND LEVIES PROHIBITED.
No execution shall issue upon, nor shall any levy be made against,
any property of the estate under any judgment against a decedent or a
personal representative, but the provisions of this section shall not
be construed to prevent the enforcement of mortgages. Section History: Early Form
[C51, § 1368; R60, § 2400; C73, § 2416; C97, § 3345; C24, 27, 31,
35, 39, § 11967; C46, 50, 54, 58, 62, § 635.63; C66, 71, 73, 75,
77, 79, 81, § 633.430]
633.431 CLAIMS OF PERSONAL REPRESENTATIVE.
If the personal representative is a creditor of the decedent, the
personal representative shall file the claim as other creditors, and
the court shall appoint some competent person as temporary
administrator to represent the estate in the matter of allowing or
disallowing such claim. The same procedure shall be followed in the
case of corepresentatives where all such representatives are
creditors of the estate; but if one of the corepresentatives is not a
creditor of the estate, such disinterested representative shall
represent the estate in the matter of allowing or disallowing such
claim against the estate by a corepresentative. Section History: Early Form
[C51, § 1369; R60, § 2401; C73, § 2417; C97, § 3346; C24, 27, 31,
35, 39, § 11968; C46, 50, 54, 58, 62, § 635.64; C66, 71, 73, 75,
77, 79, 81, § 633.431]
633.432 ALLOWANCE OR DISALLOWANCE OF CLAIM OF
PERSONAL REPRESENTATIVE.
The temporary administrator shall, after investigation, file a
report with the court recommending the allowance or disallowance of
such claim. Unless the court allows the claim, it shall then be
disposed of as a contested claim in accordance with the provisions of
sections 633.439 to 633.448. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.432]
633.433 PAYMENT OF DEBTS AND CHARGES BEFORE
EXPIRATION OF FOUR MONTHS' PERIOD.
As soon as the personal representative is possessed of sufficient
means over and above the other costs of administration, the personal
representative shall pay any allowance made by the court for the
surviving spouse and children of the decedent, and may pay the
expenses of funeral, burial, and last illness. Prior to the
expiration of four months after the date of the second publication of
notice to creditors, the personal representative shall pay other
debts and charges against the estate as the court orders, and the
court may require bond or other security to be given by the creditor
to refund such part of the payment as may be necessary to make
payment in accordance with this probate code. All payments made by
the personal representative without order of court are at the
personal representative's own peril. Section History: Early Form
[C51, § 1370, 1371, 1374, 1376, 1378, 1379; R60, § 2402, 2403,
2406, 2408, 2410, 2411; C73, § 2418, 2419, 2422, 2424, 2426, 2427;
C97, § 3347, 3350, 3353; C24, 27, 31, 35, 39, § 11969, 11973,
11976; C46, 50, 54, 58, 62, § 635.65, 635.69, 635.71; C66, 71, 73,
75, 77, 79, 81, § 633.433] Section History: Recent Form
84 Acts, ch 1080, § 12; 2005 Acts, ch 38, §51
633.434 PAYMENT OF DEBTS AND CHARGES AFTER EXPIRATION
OF FOUR MONTHS' PERIOD.
The personal representative shall, as soon as practicable
following appointment, make reasonably diligent efforts to ascertain
the names and addresses of all persons believed to own or possess
claims against a decedent's estate.
Upon the expiration of the later to occur of four months after the
date of the second publication of notice to creditors or one month
after the service of the notice by ordinary mail upon all claimants
whose identities are reasonably ascertainable, at their last known
addresses and whose claims will not or may not be paid or otherwise
satisfied during administration, the personal representative shall
pay the debts and charges against the estate in accordance with this
probate code. If it appears at any time that the estate is or may be
insolvent, that there are insufficient funds on hand, or that there
is other good and sufficient cause, the personal representative may
report that fact to the court and apply for any order that the
personal representative deems necessary. Section History: Early Form
[C51, § 1370, 1371, 1374, 1376, 1378, 1379; R60, § 2402, 2403,
2406, 2408, 2410, 2411; C73, § 2418, 2419, 2422, 2424, 2426, 2427;
C97, § 3347, 3350, 3353; C24, 27, 31, 35, 39, § 11969, 11973,
11976; C46, 50, 54, 58, 62, § 635.65, 635.69, 635.71; C66, 71, 73,
75, 77, 79, 81, § 633.434] Section History: Recent Form
84 Acts, ch 1080, § 13; 89 Acts, ch 35, §7; 2005 Acts, ch 38, §27
633.435 DEBTS AND CHARGES NOT FILED.
The personal representative may pay any valid debts and charges
against the estate even though no claim for such debts and charges
has been filed, but all such payments made by the personal
representative shall be at the personal representative's own peril.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.435]
633.436 GENERAL ORDER FOR ABATEMENT.
1. Except as provided in sections 633.211 and 633.212, shares of
the distributees shall abate, for the payment of debts and charges,
federal estate taxes, legacies, the shares of children born or
adopted after the making of a will, or the share of the surviving
spouse who elects to take against the will, without any preference or
priority as between real and personal property, in the following
order:
a. Property not disposed of by the will;
b. Property devised to the residuary devisee, except property
devised to a surviving spouse who takes under the will;
c. Property disposed of by the will, but not specifically
devised and not devised to the residuary devisee, except property
devised to a surviving spouse who takes under the will;
d. Property specifically devised, except property devised to
a surviving spouse who takes under the will;
e. Property devised to a surviving spouse who takes under the
will.
2. A general devise charged on any specific property or fund
shall, for purposes of abatement, be deemed property specifically
devised to the extent of the value of the property on which it is
charged. Upon the failure or insufficiency of the property on which
it is charged, it shall be deemed property not specifically devised
to the extent of such failure or insufficiency. Section History: Early Form
[C51, § 1284, 1285; R60, § 2316, 2317; C73, § 2334, 2335; C97, §
3279; S13, § 3279, 3279-a; C24, 27, 31, 35, 39, § 11858, 11859;
C46, 50, 54, 58, 62, § 633.13, 633.14; C66, 71, 73, 75, 77, 79, 81, §
633.436] Section History: Recent Form
85 Acts, ch 19, §3; 2008 Acts, ch 1119, §19
Referred to in § 633.278, 633.437
633.437 CONTRARY PROVISION AS TO ABATEMENT.
1. When provisions of the will, trust or other testamentary
instrument of the decedent provide explicitly for an order of
abatement contrary to the provisions of section 633.436, the
provisions of the will or other testamentary instrument shall
determine the order of abatement.
2. Except as provided in subsection 1 of this section, if the
provisions of the will, the testamentary plan, or the express or the
implied purpose of the devise would be defeated by the order of
abatement as provided in section 633.436, then upon application to
the court by a fiduciary or a distributee, and after notice to all
interested parties, the court shall determine the order for abatement
of the shares of distributees in such other manner as may be found
necessary to give effect to the intention of the testator. In order
to change the order of abatement as provided in section 633.436, it
will be necessary for the court to find it clear and convincing that
the provisions of the will, the testamentary plan, or the express or
implied purpose of the devise would be defeated by the order of
abatement stated in section 633.436. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.437]
633.438 GENERAL DENIAL OF CLAIMS.
Where a claim has been filed, but not admitted in writing by the
personal representative before a request for hearing has been given
as hereinafter provided, the claim shall be considered as denied
without any pleading on behalf of the personal representative. Section History: Early Form
[C73, § 2410; C97, § 3340; S13, § 3340; C24, 27, 31, 35, 39, §
11961; C46, 50, 54, 58, 62, § 635.57; C66, 71, 73, 75, 77, 79,
81, § 633.438]
Referred to in § 633.417, 633.666
633.439 DISALLOWANCE BY PERSONAL REPRESENTATIVE.
At any time after the filing of a claim against an estate, the
personal representative may give the claimant and the claimant's
attorney of record, if any, written notice of disallowance of claim.
The notice shall be given by certified mail addressed to the claimant
at the address stated in the claim and to the claimant's attorney of
record, if any. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.439; 81 Acts, ch 193, § 4]
Referred to in § 633.417, 633.432, 633.666
633.440 CONTENTS OF NOTICE OF DISALLOWANCE.
Such a notice of disallowance shall advise the claimant that the
claim has been disallowed and will be forever barred unless the
claimant shall within twenty days after the date of mailing the
notice, file a request for hearing on the claim with the clerk, and
mail a copy of such request for hearing to the personal
representative and the attorney of record, if any, by certified mail.
Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.440] Section History: Recent Form
99 Acts, ch 56, §5
Referred to in § 633.417, 633.432, 633.666
633.441 PROOF OF SERVICE.
Proof of service of the notice of disallowance shall be made by
affidavit, shall show the date and place of mailing, and shall be
filed with the clerk. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.441]
Referred to in § 633.417, 633.432, 633.666
633.442 CLAIMS BARRED AFTER TWENTY DAYS.
Unless the claimant shall within twenty days after the date of
mailing the notice of disallowance, file a request for hearing with
the clerk and mail a copy of the request for hearing to the personal
representative and to the attorney of record, if any, the claim shall
be deemed disallowed, and shall be forever barred. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.442]
Referred to in § 633.417, 633.432, 633.443, 633.666
633.443 REQUEST FOR HEARING BY CLAIMANT.
At the time of the filing of a claim against an estate, or at any
time thereafter prior to the time that the claim may be barred by the
provisions of section 633.442, or the approval of the final report of
the personal representative after notice to the claimant, the
claimant may file a request for hearing with the clerk, and mail a
copy of the request for hearing to the personal representative and
attorney of record, if any. Section History: Early Form
[C51, § 1359, 1361; R60, § 2391, 2393; C73, § 2408; C97, § 3338;
C24, 27, 31, 35, 39, § 11959; C46, 50, 54, 58, 62, § 635.55; C66,
71, 73, 75, 77, 79, 81, § 633.443]
Referred to in § 633.417, 633.432, 633.666
633.444 APPLICABILITY OF RULES OF CIVIL PROCEDURE.
Within twenty days from the filing of the request for hearing on a
claim, the personal representative shall move or plead to said claim
in the same manner as though the claim were a petition filed in an
ordinary action, and thereafter, all provisions of law and rules of
civil procedure applicable to motions, pleadings and the trial of
ordinary actions shall apply; provided, however, that a restatement
of such claim shall not be barred by the provisions of section
633.410. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.444]
Referred to in § 633.417, 633.432, 633.666
633.445 OFFSETS AND COUNTERCLAIMS.
At the time of the filing of an answer to a claim, the personal
representative shall plead all offsets against the claim, and shall
plead all counterclaims against the claimant of which the personal
representative has knowledge. An offset or counterclaim may or may
not diminish or defeat the recovery sought by the opposing party. It
may claim relief exceeding the amount, or different in kind, from
that sought in the claim. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.445]
Referred to in § 633.417, 633.432, 633.666
633.446 BURDEN OF PROOF.
The burden of proving that a claim is unpaid shall not be placed
upon the party filing a claim against the estate; but the personal
representative may on the trial of the cause, subject the claimant to
an examination on the question of payment or consideration, and the
estate shall not be concluded or bound thereby. Section History: Early Form
[C97, § 3340; S13, § 3340; C24, 27, 31, 35, 39, § 11962; C46,
50, 54, 58, 62, § 635.58; C66, 71, 73, 75, 77, 79, 81, § 633.446]
Referred to in § 633.417, 633.432, 633.666
633.447 TRIAL AND HEARING.
The trial of a claim and the offsets or counterclaims, if any,
shall be to the court without a jury; provided, however, that the
court may, in its discretion, either on its own motion or upon the
motion of any party, submit the same to a jury; and provided further,
that in the event that the amount of the claim or a counterclaim
exceeds the sum of three hundred dollars, either party shall be
entitled to a jury trial, if written demand therefor is made as
provided in the rules of civil procedure in relation to the trial of
ordinary actions. Section History: Early Form
[C51, § 1360, 1362, 1366; R60, § 2392, 2394, 2398; C73, § 2411,
2415; C97, § 3341, 3344; C24, 27, 31, 35, 39, § 11963, 11966;
C46, 50, 54, 58, 62, § 635.59, 635.62; C66, 71, 73, 75, 77, 79, 81, §
633.447]
Referred to in § 633.417, 633.432, 633.666
See R.C.P. 1.902
633.448 ALLOWANCE AND JUDGMENT.
Upon the trial of a claim, offsets and counterclaims, the amount
owing by or to the estate, if any, shall be determined. A claim
against the estate shall be allowed for the net amount. Judgment
shall be rendered for any amount found to be due the estate. If a
judgment is rendered against a claimant for any net amount, execution
may issue in the same manner as on judgments in civil cases. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.448]
Referred to in § 633.417, 633.432, 633.666
633.449 PAYMENT OF FEDERAL ESTATE TAXES.
All federal estate taxes, distinguished from state inheritance
taxes, owing by the estate of a decedent shall be paid from the
property of the estate, unless the will of the decedent, or other
trust instrument, provides expressly to the contrary. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.449] Section History: Recent Form
2008 Acts, ch 1119, §20
633.450 THROUGH 633.468 Reserved.
633.469 INTERLOCUTORY REPORT.
The personal representative may at any time file an interlocutory
accounting to the court showing the condition of the estate, its
debts and property, the amount of money received, and the disposition
made of any of the assets of the estate.
The court may on application of any interested party, or on its
own motion, order such an accounting at any time. Such an accounting
shall embrace all matters directed by the court. The court may order
such further accountings from time to time as it may determine to be
to the best interests of the estate. Section History: Early Form
[C51, § 1422, 1423; R60, § 2447, 2448; C73, § 2469; C97, § 3394,
3420; C24, 27, 31, 35, 39, § 12042, 12043, 12070; C46, 50, 54,
58, 62, § 638.2, 638.3, 638.33; C66, 71, 73, 75, 77, 79, 81, §
633.469]
633.470 WAIVER OF ACCOUNTING.
The distributee, if under no legal disability, may waive the
accounting. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.470]
633.471 RIGHT OF RETAINER.
When a distributee of an estate is indebted to the estate, or if a
distributee takes as an heir of a deceased devisee indebted to the
estate, the amount of such indebtedness, if due, or the present worth
of the indebtedness, if not due, shall be treated as a setoff and
retained by the personal representative out of any testate or
intestate property, real or personal, of the estate to which such
distributee is entitled. In intestate estates, the personal
representative shall have the same right of setoff and retainer
against an heir whose ancestor was indebted to the estate. The right
of setoff and retainer shall be prior and superior to the rights of
judgment creditors, heirs or assigns of such distributee and shall
not be barred by the statute of limitations, nor by a discharge in
bankruptcy. Section History: Early Form
[C51, § 1383--1386; R60, § 2415--2418; C73, § 2431--2434; C97, §
3357--3360; C24, 27, 31, 35, 39, § 11980--11983; C46, 50, 54, 58,
62, § 635.75--635.78; C66, 71, 73, 75, 77, 79, 81, § 633.471]
633.472 PROPERTY DISTRIBUTED IN KIND.
Property not otherwise disposed of by the personal representative
may be distributed in kind. Section History: Early Form
[C51, § 1384, 1385, 1392; R60, § 2416, 2417, 2424; C73, § 2432,
2433, 2438; C97, § 3358, 3359, 3364; C24, 27, 31, 35, 39, § 11981,
11982, 11988; C46, 50, 54, 58, 62, § 635.76, 635.77, 636.3; C66,
71, 73, 75, 77, 79, 81, § 633.472]
633.473 FINAL SETTLEMENT -- TIME LIMIT.
Final settlement shall be made within three years, after the
second publication of the notice to creditors, unless otherwise
ordered by the court after notice to all interested parties. Section History: Early Form
[C51, § 1393; R60, § 2425; C73, § 2439, 2469; C97, § 3365, 3394;
C24, 27, 31, 35, 39, § 11989, 12044; C46, 50, 54, 58, 62, §
636.4, 638.4; C66, 71, 73, 75, 77, 79, 81, § 633.473]
Referred to in § 635.8
633.474 Repealed by 83 Acts, ch 44, § 2.
633.475 COMPROMISE OF PERSONAL TAXES.
For the purpose of facilitating the speedy settlement and
distribution of estates, the county treasurer of such county, by and
with the consent of the board of supervisors may compromise and agree
upon the amount of personal taxes at any time due or to become due
the county from an estate, and payment in accordance with such
compromise or agreement shall be for the satisfaction of all taxes in
such estate matter. No compensation shall be allowed any person
because of such compromise or agreement. Section History: Early Form
[C39, § 12781.1, 12781.2; C46, 50, 54, 58, 62, § 682.35,
682.36; C66, 71, 73, 75, 77, 79, 81, § 633.475]
633.476 ACTION AGAINST DISTRIBUTEES -- COSTS --
TENDER.
In an action against the distributees, where the judgment is to be
against them in proportion to the respective amounts received by them
from the estate, costs awarded against them shall be in like
proportion, and anyone may tender the amount due from that
distributee to the plaintiff, which shall have the same effect, as
far as the distributee is concerned, as though that distributee were
the sole defendant. Section History: Early Form
[C51, § 1440, 1441; R60, § 2465, 2466; C73, § 2485, 2486; C97, §
3408; C24, 27, 31, 35, 39, § 12060; C46, 50, 54, 58, 62, §
638.20; C66, 71, 73, 75, 77, 79, 81, § 633.476]
633.477 FINAL REPORT.
Each personal representative shall, in the personal
representative's final report, set forth:
1. An accurate description of all the real estate of which the
decedent died seized, stating the nature and extent of the decedent's
interest therein, which has not been sold and conveyed by the
personal representative.
2. Whether the deceased died testate or intestate.
3. The name and place of residence of the surviving spouse, or
that none survived the deceased.
4. In intestate estates, the name and place of residence of each
of the heirs and their relationship to the deceased.
5. In testate estates, the name and place of residence of each of
the devisees and their relationship to the deceased, and the name and
residence of after-born children, if any, as defined in section
633.267.
6. Whether any legacy or devise remains a charge on the real
estate, and, if so, the nature and amount thereof.
7. Whether any distributee is under any legal disability.
8. The name of the conservator or trustee for any distributee,
and the court from which the letters were issued.
9. An accounting of all property coming into the hands of the
personal representative and a detailed accounting of all cash
receipts and disbursements. The accounting may be omitted if waived
by all interested parties.
10. A statement as to whether or not all statutory requirements
pertaining to taxes have been complied with including whether the
federal estate tax due has been paid, whether a lien continues to
exist for any federal estate tax, and whether inheritance tax was
paid or a return was filed in this state.
11. Upon the request of the personal representative, an
itemization of services performed, time spent for such services, and
responsibilities assumed by the personal representative's attorney
for all estates of decedents dying after January 1, 1981. If the
itemization is not included, there shall be set forth a statement
that the personal representative was informed of the provisions of
this subsection and did not request the itemization.
12. A statement as to whether all statutory requirements
pertaining to claims have been complied with and a statement as to
whether all claims, including charges, have been paid and whether a
lien continues to exist on any property as security for any claim.
Section History: Early Form
[C73, § 2491; C97, § 3412; C24, 27, 31, 35, 39, § 12071; C46,
50, 54, 58, 62, § 638.34; C66, 71, 73, 75, 77, 79, 81, § 633.477] Section History: Recent Form
87 Acts, ch 54, §1; 89 Acts, ch 35, §8; 2005 Acts, ch 38, §28
Referred to in § 633.479
633.478 NOTICE OF APPLICATION FOR DISCHARGE.
A personal representative shall not be discharged from further
duty or responsibility upon final settlement until notice of the
final report or of an application for discharge has been served upon
all persons interested, in accordance with section 633.40, unless
notice is waived. An order prescribing notice may be made before or
after the filing of the final report. Section History: Early Form
[C97, § 3422; C24, 27, 31, 35, 39, § 12073; C46, 50, 54, 58,
62, § 638.36; C66, 71, 73, 75, 77, 79, 81, § 633.478; 81 Acts, ch
193, § 5]
Referred to in § 633.479
633.479 DISCHARGE.
Upon final settlement of an estate, an order shall be entered
discharging the personal representative from further duties and
responsibilities. The order approving the final report shall
constitute a waiver of the omission from the final report of any of
the recitals required in section 633.477.
An order approving the final report and discharging the personal
representative shall not be required if all distributees otherwise
entitled to notice are adults, under no legal disability, have signed
waivers of notice as provided in section 633.478, have signed
statements of consent agreeing that the prayer of the final report
shall constitute an order approving the final report and discharging
the personal representative, and if the statements of consent are
dated not more than thirty days prior to the date of the final
report, and if compliance with sections 422.27 and 450.58 have been
fulfilled and receipts, sworn statements, and certificates, as any of
these that are required, are on file. In those instances final order
shall not be required and the prayer of the final report shall be
considered as granted and shall have the same force and effect as an
order of discharge of the personal representative and an order
approving the final report. Section History: Early Form
[C51, § 1434; R60, § 2459; C73, § 2476; C97, § 3400; C24, 27, 31,
35, 39, § 12052; C46, 50, 54, 58, 62, § 638.12; C66, 71, 73, 75,
77, 79, 81, § 633.479] Section History: Recent Form
83 Acts, ch 44, § 1; 2003 Acts, ch 151, §54; 2004 Acts, ch 1073,
§50
Referred to in § 633.480
633.480 CERTIFICATE TO COUNTY RECORDER FOR TAX
PURPOSES WITH ADMINISTRATION.
After discharge as provided in section 633.479, the personal
representative shall deliver to the county recorder of the county in
which the real estate is situated a certificate pertaining to each
parcel of real estate described in the final report of the personal
representative which has not been sold by the personal
representative. The certificate shall include the name and complete
mailing address, as shown on the final report, of the individual or
entity in whose name each parcel of real estate is to be taxed. The
county recorder shall deliver the certificate to the county auditor
as provided in section 558.58. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.480; 82 Acts, ch 1054, § 2, ch
1118, § 1] Section History: Recent Form
84 Acts, ch 1221, § 7; 91 Acts, ch 116, §19; 2001 Acts, ch 45,
§10; 2003 Acts, ch 151, §55
Referred to in § 633.481, 635.7
633.481 CERTIFICATE TO COUNTY RECORDER FOR TAX
PURPOSES WITHOUT ADMINISTRATION.
When an inventory or report is filed under section 450.22, without
administration of the estate of the decedent, the heir or heir's
attorney shall prepare and deliver to the county recorder of the
county in which the real estate is situated a certificate pertaining
to each parcel of real estate described in the inventory or report.
Any fees for certificates or recording fees required by this section
or section 633.480 shall be assessed as costs of administration. The
fees for recording and indexing the instrument shall be as provided
in section 331.604. The county recorder shall deliver the
certificates to the county auditor as provided in section 558.58. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.481; 82 Acts, ch 1054, § 3] Section History: Recent Form
84 Acts, ch 1221, § 8; 86 Acts, ch 1079, § 6; 90 Acts, ch 1081, §
4; 2003 Acts, ch 151, §56; 2009 Acts, ch 27, §37
Referred to in § 635.7
633.482 THROUGH 633.486 Reserved.
633.487 LIMITATION ON RIGHTS.
No person, having been served with notice of the hearing upon the
final report and accounting of a personal representative or having
waived such notice, shall, after the entry of the final order
approving the same and discharging the said personal representative,
have any right to contest, in any proceeding, other than by appeal,
the correctness or the legality of the inventory, the accounting,
distribution, or other acts of the personal representative, or the
list of heirs set forth in the final report of the personal
representative, provided, however, that nothing contained in this
section shall prohibit any action against the personal representative
and the personal representative's surety under the provisions of
section 633.186 on account of any fraud committed by the personal
representative. Section History: Early Form
[C97, § 3422; C24, 27, 31, 35, 39, § 12073; C46, 50, 54, 58,
62, § 638.36; C66, 71, 73, 75, 77, 79, 81, § 633.487]
633.488 REOPENING SETTLEMENT.
Whenever a final report has been approved and a final accounting
has been settled in the absence of any person adversely affected and
without notice to the person, the hearing on such report and
accounting may be reopened at any time within five years from the
entry of the order approving the same, upon the application of such
person, and, upon a hearing, after such notice as the court may
prescribe to be served upon the personal representative and the
distributees, the court may require a new accounting, or a
redistribution from the distributees. In no event, however, shall
any distributee be liable to account for more than the property
distributed to that distributee. If any property of the estate shall
have passed into the hands of good faith purchasers for value, the
rights of such purchasers shall not, in any way, be affected. Section History: Early Form
[C51, § 1431; R60, § 2456; C73, § 2475; C97, § 3399; C24, 27, 31,
35, 39, § 12051; C46, 50, 54, 58, 62, § 638.11; C66, 71, 73, 75,
77, 79, 81, § 633.488]
633.489 REOPENING ADMINISTRATION.
Upon the petition of any interested person, the court may, with
such notice as it may prescribe, order an estate reopened if other
property be discovered, if any necessary act remains unperformed, or
for any other proper cause appearing to the court. It may reappoint
the personal representative, or appoint another personal
representative, to administer any additional property or to perform
other such acts as may be deemed necessary. The provisions of law as
to original administration shall apply, insofar as applicable, to
accomplish the purpose for which the estate is reopened, but a claim
which is already barred can, in no event, be asserted in the reopened
administration. Section History: Early Form
[S13, § 3305; C24, 27, 31, 35, 39, § 11892; C46, 50, 54, 58,
62, § 633.48; C66, 71, 73, 75, 77, 79, 81, § 633.489]
633.490 THROUGH 633.494 Reserved.
633.495 ADMISSION OF WILLS OF NONRESIDENTS.
A will of a nonresident of this state, not probated in any other
state or county, may be admitted to probate in any county of this
state where either real or personal property of the deceased
nonresident is located. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.495]
633.496 FOREIGN PROBATED WILLS.
A will probated in any other state or country shall be admitted to
probate in this state upon the production of a copy thereof and of
the original record of probate, authenticated by the certificate of
the clerk of the court in which such probation was made, or, if there
be no clerk, then by the certificate of the judge of such court, and
by the seal of office of such officer if the officer or office has a
seal. Section History: Early Form
[C51, § 1296; R60, § 2328; C73, § 2351; C97, § 3294; C24, 27, 31,
35, 39, § 11877; C46, 50, 54, 58, 62, § 633.33; C66, 71, 73, 75,
77, 79, 81, § 633.496]
633.497 FOREIGN WILLS AS A MUNIMENT OF TITLE.
After the expiration of the five-year period from the date of the
death of the decedent, an exemplified copy of a will which has not
been denied probate in Iowa, and of the order admitting it to probate
in a foreign state or country, may be recorded in the office of the
county recorder of any county where real estate owned by the testator
is located. The record of such a will and of the order admitting the
will to probate shall operate to dispose of said property as though
said will had been admitted to probate in this state. Nothing
contained in this section shall operate to defeat the rights,
acquired prior to such record, of purchasers for value whose rights
are shown of record. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.497]
633.498 FOREIGN WILLS -- PROCEDURE.
All provisions of law relating to the carrying of domestic wills
into effect after their probate shall apply, so far as applicable, to
foreign wills admitted to probate in this state. Section History: Early Form
[C73, § 2352; C97, § 3295; C24, 27, 31, 35, 39, § 11878; C46,
50, 54, 58, 62, § 633.34; C66, 71, 73, 75, 77, 79, 81, § 633.498]
633.499 Reserved.
633.500 APPOINTMENT OF FOREIGN ADMINISTRATOR.
Notwithstanding any other provision of this probate code, if
administration of the estate of a deceased intestate nonresident has
been granted in accordance with the law of the state where the
nonresident resided, the duly qualified administrator of the estate
of the nonresident may upon application be appointed administrator in
this state, unless another has already been appointed and provided
that a resident administrator be appointed to serve with the
nonresident administrator; provided further, however, that for good
cause shown, the court may appoint the nonresident administrator to
act alone without the appointment of a resident administrator. Section History: Early Form
[C51, § 1309; R60, § 2341; C73, § 2368; C97, § 3306; C24, 27, 31,
35, 39, § 11894; C46, 50, 54, 58, 62, § 633.50; C66, 71, 73, 75,
77, 79, 81, § 633.500] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.501
633.501 APPLICATION FOR APPOINTMENT OF FOREIGN
ADMINISTRATOR.
The application for any such appointment under section 633.500
shall contain the name and address of the foreign administrator and
of the resident administrator, if any, to be appointed, and shall be
accompanied by a certificate of the clerk of the court of original
jurisdiction certifying that such estate is under administration, and
a certification of the original letters or other authority
authorizing the nonresident administrator to act in that estate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.501]
633.502 APPOINTMENT OF FOREIGN FIDUCIARY.
Notwithstanding any other provision of this probate code, the duly
qualified fiduciary under a will admitted to probate in another
state, may upon application be appointed fiduciary in this state,
after said will has been admitted to probate in this state, provided
that a resident fiduciary be appointed to serve with the nonresident
fiduciary; provided further, however, that, for good cause shown, the
court may appoint, the nonresident fiduciary to act alone without the
appointment of a resident fiduciary. Section History: Early Form
[C51, § 1310; R60, § 2342; C73, § 2369; C97, § 3306; C24, 27, 31,
35, 39, § 11895; C46, 50, 54, 58, 62, § 633.51; C66, 71, 73, 75,
77, 79, 81, § 633.502] Section History: Recent Form
2005 Acts, ch 38, §51
633.503 APPLICATION FOR APPOINTMENT OF FOREIGN
EXECUTOR OR TRUSTEE.
The application for appointment of a nonresident executor or
trustee shall include the name and address of the nonresident
executor or trustee, and the name and address of the resident
executor or trustee, if any, to be appointed. It shall be
accompanied by a certificate of the clerk of the foreign court
granting the original letters or other authority conferring the power
upon the nonresident executor or trustee to act as such. The
application shall also state the cause for the appointment of the
nonresident executor or trustee to act as the sole executor or
trustee, if such appointment is desired. When the will has not been
admitted to probate in any other state, the application shall include
the name and address of the executor or trustee, if any, named in the
will of the nonresident, and of the resident executor or trustee to
be appointed. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.503]
633.504 REMOVAL OF PROPERTY -- PAYMENT OF CLAIMS.
In all estates of nonresidents, being administered in this state,
the court may require payment of all claims filed and allowed
belonging to residents of this state, and all legacies or
distributive shares payable to residents of this state, before
allowing any of the property in the estate to be removed from the
state. Section History: Early Form
[C97, § 3306; C24, 27, 31, 35, 39, § 11896; C46, 50, 54, 58,
62, § 633.52; C66, 71, 73, 75, 77, 79, 81, § 633.504]
633.505 THROUGH 633.509 Reserved.
633.510 ADMINISTRATION AUTHORIZED -- PETITION.
Administration may be had upon the estate of an absentee. A
petition therefor must be filed in the office of the clerk and must
allege:
1. Whether the absentee was a resident or a nonresident of this
state, and the absentee's address at the absentee's last known
domicile; that the absentee has, without known cause, left the
absentee's usual place of residence, and concealed the absentee's
whereabouts from the absentee's family, for a period of five years.
2. That the said absentee has property in this state (describing
it with reasonable certainty), all or part of which is situated in
the county in which the petition is filed.
3. The names of the persons, so far as known to the petitioner,
who would be entitled to share in the estate of the absentee if the
absentee were dead.
4. In the case of a nonresident, whether administration upon the
estate has been granted in the state of last known domicile.
5. Facts showing that the petitioner is a party who would be
entitled to administer the estate of the said absentee in case the
absentee were known to be dead. Section History: Early Form
[C97, § 3307; S13, § 3307; C24, 27, 31, 35, 39, § 11901; C46,
50, 54, 58, 62, § 634.1; C66, 71, 73, 75, 77, 79, 81, § 633.510]
633.511 NOTICE.
Upon filing of such petition, the court shall, by a proper order,
prescribe the notice and the return day therein, which shall be
addressed to and served upon such absentee and the alleged
distributees of the absentee's estate. Section History: Early Form
[C97, § 3307; S13, § 3307; C24, 27, 31, 35, 39, § 11902; C46,
50, 54, 58, 62, § 634.2; C66, 71, 73, 75, 77, 79, 81, § 633.511]
633.512 SERVICE.
Said notice shall in all cases be served:
1. By publication in the county in which the petition is filed,
once each week for three consecutive weeks, in a newspaper designated
by the court; and
2. Upon all the alleged distributees of the estate of said
absentee by ordinary mail addressed to them at their last known
address. Section History: Early Form
[C97, § 3307; S13, § 3307; C24, 27, 31, 35, 39, § 11903; C46,
50, 54, 58, 62, § 634.3; C66, 71, 73, 75, 77, 79, 81, § 633.512]
633.513 PROOF OF SERVICE -- FILING.
Proof of the publication and service of such notice shall be filed
with the clerk aforesaid on or before the day set for hearing. Section History: Early Form
[C97, § 3307; S13, § 3307; C24, 27, 31, 35, 39, § 11904; C46,
50, 54, 58, 62, § 634.4; C66, 71, 73, 75, 77, 79, 81, § 633.513]
633.514 HEARING -- CONTINUANCE -- ORDERS.
If, on the day set for hearing, the absentee fails to appear, the
court shall appoint some disinterested person as guardian ad litem to
appear for the absentee and all distributees not appearing, and said
cause shall thereupon stand continued for twenty days. The guardian
ad litem shall be a practicing attorney. The court shall have
authority to make further continuance upon proper showing. The
guardian ad litem shall investigate the matter and things alleged in
the petition. Upon the further hearing, the court shall hear the
proofs, and, if satisfied of the truth of the allegations of the
petition, shall enter an order establishing the death of the absentee
as a matter of law. Section History: Early Form
[C97, § 3307; S13, § 3307; C24, 27, 31, 35, 39, § 11905; C46,
50, 54, 58, 62, § 634.5; C66, 71, 73, 75, 77, 79, 81, § 633.514] Section History: Recent Form
90 Acts, ch 1271, §1514
Referred to in § 633.515
633.515 ADMINISTRATION.
Upon the entry of such further order under section 633.514,
administration of the estate of such absentee, whether testate or
intestate, shall proceed as provided herein for the administration of
the estates of other decedents, notwithstanding the provisions of
section 633.330. Section History: Early Form
[S13, § 3307, 3307-a; C24, 27, 31, 35, 39, § 11906--11910;
C46, 50, 54, 58, 62, § 634.6--634.10; C66, 71, 73, 75, 77, 79, 81, §
633.515]
633.516 RIGHTS OF ABSENTEE BARRED -- SALE BY
SPOUSE.
An order establishing the death of an absentee forever bars the
rights of homestead and distributive share of the absentee, and the
absentee's interest in and to any real estate owned or held by the
spouse of the absentee, and in which the spouse may have a legal or
equitable interest. Conveyance of any such real estate by the
spouse, after four months from date of publication of second notice
of the appointment of a personal representative, is free and clear of
any claim or right of homestead or distributive share on the part of
the absentee. Section History: Early Form
[S13, § 3307-b; C24, 27, 31, 35, 39, § 11911; C46, 50, 54, 58,
62, § 634.11; C66, 71, 73, 75, 77, 79, 81, § 633.516] Section History: Recent Form
84 Acts, ch 1080, § 14
633.517 MISSING SOLDIERS OR SAILORS -- PRESUMPTION OF
DEATH.
1. A written finding of presumed death, made by the secretary of
defense, or other officer or employee of the United States authorized
to make such finding, pursuant to the federal Missing Persons Act [56
Stat. 143, 1092, and P.L. 408, Ch. 371, 2d Session 78th Congress; 50
U.S.C. App. Supp. 1001-17], as now or hereafter amended, or a duly
certified copy of such a finding, shall be received in any court,
office or other place in this state, as evidence of the death of the
person therein found to be dead, and of the date, circumstances, and
place of the disappearance.
2. An official written report or record, or a duly certified copy
thereof, that a person is missing, missing in action, interned in a
neutral country, or beleaguered, besieged, or captured by an enemy,
or is dead, or is alive, made by any officer or employee of the
United States authorized by the Act referred to in subsection 1 of
this section, or by any other law of the United States, to make such
a report or record, shall be received in any court, office or other
place in this state as evidence that such person is missing, missing
in action, interned in a neutral country, or beleaguered, besieged,
or captured by an enemy, or is dead, or is alive, as the case may be.
3. For the purposes of subsections 1 and 2 of this section, any
finding, report, or record, or duly certified copy thereof,
purporting to have been signed by such an officer or employee of the
United States as is described in said subsections, shall prima facie
be deemed to have been signed and issued by such an officer or
employee pursuant to law, and the person signing the same shall prima
facie be deemed to have acted within the scope of the person's
authority. If a copy purports to have been certified by a person
authorized by law to certify the same, such certified copy shall be
prima facie evidence of the person's authority so to certify. Section History: Early Form
[C46, 50, 54, 58, 62, § 634.12; C66, 71, 73, 75, 77, 79, 81, §
633.517]
633.518 PRESUMPTION OF DEATH -- PETITION AND
INQUIRY.
If a petition is presented by an interested person to a district
judge or magistrate alleging that a designated person has disappeared
and after a diligent search cannot be found, and if it appears to the
satisfaction of the judge or magistrate that the circumstances
surrounding the disappearance afford reasonable grounds for the
belief that the person has suffered death from accidental or other
violent means, the judge or magistrate shall summon and impanel a
jury of six qualified persons to inquire into the facts surrounding
and the presumption to be raised from the disappearance. If no one
submits a petition within forty days of the reported disappearance, a
judge or magistrate may submit the petition from personal knowledge
of the case. Section History: Recent Form
2002 Acts, ch 1108, §28
633.519 PRESUMPTION OF DEATH -- VERDICT AND ENTRY OF
ORDER.
If a jury in an inquiry regarding the disappearance of an
individual renders a unanimous verdict in writing that sufficient
evidence has been presented to them from which it fairly may be
presumed that the missing person has met death, and if the judge or
magistrate concurs in the verdict, then, after a period of six months
has elapsed, the person shall be presumed to be dead and the judge or
magistrate shall enter an order to that effect. However, in cases
where there is clear and convincing evidence of the presumed death,
the judge or magistrate may enter the order prior to the elapsing of
the six-month period. Section History: Recent Form
2002 Acts, ch 1108, §29
633.520 PRESUMPTION OF DEATH -- NATURAL OR MAN-MADE
DISASTER.
A written finding of presumed death of a person resulting from a
natural or man-made disaster, made by a local, state, or federal
officer or employee authorized to make such a finding, or a duly
certified copy of such a finding, shall be received by a judge or
magistrate as evidence of the death of the person therein found to be
dead, and of the date, circumstances, and place of the disappearance.
Upon receipt of such evidence the judge or magistrate may enter an
order of presumption of death of the person. Upon presentation of a
certified court order, a certificate of death shall be filed pursuant
to section 144.26. Section History: Recent Form
2002 Acts, ch 1108, §30
633.521 AND 633.522 Reserved.
633.523 NO SUFFICIENT EVIDENCE OF SURVIVORSHIP.
Where the title to property or the devolution thereof depends upon
priority of death, and there is no sufficient evidence that the
persons have died otherwise than simultaneously, the property of each
person shall be disposed of as if the person had survived, except as
provided otherwise in sections 633.524 to 633.527. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.1; C66, 71, 73, 75, 77, 79, 81, §
633.523]
Referred to in § 633.527, 633.528, 633A.4704
633.524 BENEFICIARIES OF ANOTHER PERSON'S DISPOSITION
OF PROPERTY.
Where two or more beneficiaries are designated to take
successively, by reason of survivorship, under another person's
disposition of property, and there is no sufficient evidence that
these beneficiaries have died otherwise than simultaneously, the
property thus disposed of shall be divided into as many equal
portions as there are successive beneficiaries, and these portions
shall be distributed respectively to those who would have taken in
the event that each designated beneficiary had survived. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.2; C66, 71, 73, 75, 77, 79, 81, §
633.524]
Referred to in § 633.523, 633.527, 633.528, 633A.4704
633.525 JOINT TENANTS.
Where there is no sufficient evidence that two joint tenants have
died otherwise than simultaneously, the property so held shall be
distributed one-half as if one had survived and one-half as if the
other had survived. If there are more than two joint tenants and all
of them have so died, the property thus distributed shall be in the
proportion that one bears to the whole number of joint tenants. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.3; C66, 71, 73, 75, 77, 79, 81, §
633.525]
Referred to in § 633.523, 633.528, 633A.4704
633.526 INSURANCE POLICIES.
Where the insured and the beneficiary in a policy of life or
accident insurance have died, and there is no sufficient evidence
that they have died otherwise than simultaneously, the proceeds of
the policy shall be distributed as if the insured had survived the
beneficiary. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.4; C66, 71, 73, 75, 77, 79, 81, §
633.526]
Referred to in § 633.523, 633.527, 633.528, 633A.4704
633.527 LIMITATION OF APPLICATION.
Sections 633.523, 633.524 and 633.526 shall not apply in the case
of wills, living trusts, deeds, contracts of insurance, or other
contracts wherein provision has been made for distribution of
property different from the provisions of those sections. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.6; C66, 71, 73, 75, 77, 79, 81, §
633.527] Section History: Recent Form
2003 Acts, ch 95, §5
Referred to in § 633.523, 633.528, 633A.4704
633.528 UNIFORMITY OF INTERPRETATION.
Sections 633.523 to 633.527 shall be so construed and interpreted
as to effectuate their general purpose to make uniform the law
relating to simultaneous death. Section History: Early Form
[C46, 50, 54, 58, 62, § 637.7; C66, 71, 73, 75, 77, 79, 81, §
633.528]
Referred to in § 633A.4704
633.529 THROUGH 633.534 Reserved.
633.535 PERSON CAUSING DEATH.
1. A person who intentionally and unjustifiably causes or
procures the death of another shall not receive any property,
benefit, or other interest by reason of the death as an heir,
distributee, beneficiary, appointee, or in any other capacity whether
the property, benefit, or other interest passed under any form of
title registration, testamentary or nontestamentary instrument,
intestacy, renunciation, or any other circumstance. The property,
benefit, or other interest shall pass as if the person causing death
died before the decedent.
2. A joint tenant who intentionally and unjustifiably causes or
procures the death of another joint tenant which affects their
interests so that the share of the decedent passes as the decedent's
property has no rights by survivorship. This provision applies to
joint tenancies and tenancies by the entireties in real and personal
property, joint and multiple-party accounts in banks, savings and
loan associations, credit unions, and other institutions, and any
other form of co-ownership with survivorship rights.
3. A named beneficiary of a bond, life insurance policy, or any
other contractual arrangement who intentionally and unjustifiably
causes or procures the death of the principal obligee or person upon
whose life the policy is issued or whose death generates the benefits
under any other contractual arrangement is not entitled to any
benefit under the bond, policy, or other contractual arrangement, and
the benefits become payable as though the person causing death had
predeceased the decedent. Section History: Early Form
[C97, § 3386; S13, § 3386; C24, 27, 31, 35, 39, § 12032; C46,
50, 54, 58, 62, § 636.47; C66, 71, 73, 75, 77, 79, 81, § 633.535] Section History: Recent Form
87 Acts, ch 9, §1; 88 Acts, ch 1134, § 111
Referred to in § 633.536, 633.537
633.536 PROCEDURE TO DENY BENEFITS TO A PERSON
CAUSING DEATH.
A determination under section 633.535 may be made by any court of
competent jurisdiction by a preponderance of the evidence separate
and apart from any criminal proceeding arising from the death.
However, such a civil proceeding shall not proceed to trial, and the
person causing death is not required to submit to discovery in such a
civil proceeding until the criminal proceeding has been finally
determined by the trial court, or in the event no criminal charge has
been brought, until six months after the date of death. A person
convicted of murder or voluntary manslaughter of the decedent is
conclusively presumed to have intentionally and unjustifiably caused
the death for purposes of this section and section 633.535. Section History: Early Form
[C97, § 3386; S13, § 3386; C24, 27, 31, 35, 39, § 12033; C46,
50, 54, 58, 62, § 636.48; C66, 71, 73, 75, 77, 79, 81, § 633.536] Section History: Recent Form
87 Acts, ch 9, §2
633.537 THIRD PARTY NONLIABILITY.
Any insurance company, bank, or other obligor making payment
according to the terms of its policy or obligation is not liable by
reason of section 633.535 unless prior to payment it has received at
its home office or principal address written notice of the claimed
applicability of section 633.535. Section History: Early Form
[C97, § 3386; S13, § 3386; C24, 27, 31, 35, 39, § 12034; C46,
50, 54, 58, 62, § 636.49; C66, 71, 73, 75, 77, 79, 81, § 633.537] Section History: Recent Form
87 Acts, ch 9, §3
633.538 THROUGH 633.542 Reserved.
633.543 PROCEEDINGS FOR ESCHEAT.
When the court has reason to believe that any property of the
estate of a decedent within the county should by law escheat, the
court must forthwith inform the attorney general of the state of Iowa
thereof, and appoint some suitable person as personal representative
to take charge of such property, unless a personal representative has
already been appointed. Section History: Early Form
[C51, § 1443; R60, § 2468; C73, § 2461; C97, § 3388; C24, 27, 31,
35, 39, § 12036; C46, 50, 54, 58, 62, § 636.51; C66, 71, 73, 75,
77, 79, 81, § 633.543]
633.544 NOTICE TO PERSONS INTERESTED.
The personal representative must give such notice of the death of
the deceased, and of the amount and kind of property left by the
decedent within the state, as, in the opinion of the court appointing
the personal representative shall be best calculated to notify those
interested, or supposed to be interested, in the property. Section History: Early Form
[C51, § 1444; R60, § 2469; C73, § 2462; C97, § 3389; C24, 27, 31,
35, 39, § 12037; C46, 50, 54, 58, 62, § 636.52; C66, 71, 73, 75,
77, 79, 81, § 633.544]
633.545 SALE -- PROCEEDS.
If within six months from the giving of notice, a claimant does
not appear, the property may be sold and the proceeds paid over by
the personal representative to the department of administrative
services for the benefit of the permanent school fund. Section History: Early Form
[C51, § 1445; R60, § 2470; C73, § 2463; C97, § 3390; C24, 27, 31,
35, 39, § 12038; C46, 50, 54, 58, 62, § 636.53; C66, 71, 73, 75,
77, 79, 81, § 633.545] Section History: Recent Form
83 Acts, ch 185, § 56, 62; 88 Acts, ch 1134, §112; 2003 Acts, ch
145, §286
633.546 PAYMENT TO PERSON ENTITLED.
The money or any portion of it shall be paid at any time within
ten years after the sale of the property or the appropriation of the
money, but not afterwards, to anyone showing entitlement thereto. Section History: Early Form
[C51, § 1446; R60, § 2471; C73, § 2464; C97, § 3391; C24, 27, 31,
35, 39, § 12039; C46, 50, 54, 58, 62, § 636.54; C66, 71, 73, 75,
77, 79, 81, § 633.546]
633.547 THROUGH 633.550 Reserved.
633.551 GUARDIANSHIPS AND CONSERVATORSHIPS -- GENERAL
PROVISIONS.
1. The determination of incompetency of the proposed ward or ward
and the determination of the need for the appointment of a guardian
or conservator or of the modification or termination of a
guardianship or conservatorship shall be supported by clear and
convincing evidence.
2. The burden of persuasion is on the petitioner in an initial
proceeding to appoint a guardian or conservator. In a proceeding to
modify or terminate a guardianship or conservatorship, if the
guardian or conservator is the petitioner, the burden of persuasion
remains with the guardian or conservator. In a proceeding to
terminate a guardianship or conservatorship, if the ward is the
petitioner, the ward shall make a prima facie showing of some
decision-making capacity. Once a prima facie showing is made, the
burden of persuasion is on the guardian or conservator to show by
clear and convincing evidence that the ward is incompetent.
3. In determining whether a guardianship or conservatorship is to
be established, modified, or terminated, the district court shall
consider if a limited guardianship or conservatorship pursuant to
section 633.635 or 633.637 is appropriate. In making the
determination, the court shall make findings of fact to support the
powers conferred on the guardian or conservator.
4. In proceedings to establish, modify, or terminate a
guardianship or conservatorship, in determining if the proposed ward
or ward is incompetent as defined in section 633.3, the court shall
consider credible evidence from any source to the effect of
third-party assistance in meeting the needs of the proposed ward or
ward. However, neither party to the action shall have the burden to
produce such evidence relating to third-party assistance.
5. Except as otherwise provided in sections 633.672 and 633.673,
in proceedings to establish a guardianship or conservatorship, the
costs, including attorney fees and expert witness fees, shall be
assessed against the ward or the ward's estate unless the proceeding
is dismissed either voluntarily or involuntarily, in which case fees
and costs may be assessed against the petitioner for good cause
shown. Section History: Recent Form
97 Acts, ch 178, §4; 2007 Acts, ch 134, §15, 28
Referred to in § 633.556, 633.570, 633.635 Footnotes
2007 amendment adding new subsection 5 applies to petitions filed
on or after July 1, 2007; 2007 Acts, ch 134, §28
633.552 PETITION FOR APPOINTMENT OF GUARDIAN.
Any person may file with the clerk a verified petition for the
appointment of a guardian. The petition shall state the following
information so far as known to the petitioner.
1. The name, age and post office address of the proposed ward.
2. That the proposed ward is in either of the following
categories:
a. Is a person whose decision-making capacity is so impaired
that the person is unable to care for the person's personal safety or
to attend to or provide for necessities for the person such as food,
shelter, clothing, or medical care, without which physical injury or
illness might occur.
b. Is a minor.
3. The name and post office address of the proposed guardian, and
that such person is qualified to serve in that capacity.
4. That the proposed ward is a resident of the state of Iowa or
is present in the state, and that the ward's best interests require
the appointment of a guardian in this state.
5. The name and address of the person or institution, if any,
having the care, custody or control of the proposed ward. Section History: Early Form
[R60, § 1449; C73, § 2272; C97, § 3219; C24, 27, § 12614, 12616;
C31, 35, § 12614, 12616, 12644-c3; C39, § 12614, 12616, 12644.03;
C46, 50, 54, 58, 62, § 670.2, 670.4, 672.3; C66, 71, 73, 75, 77, 79,
81, § 633.552] Section History: Recent Form
84 Acts, ch 1299, § 10; 85 Acts, ch 29, §1; 97 Acts, ch 178, §5
Referred to in § 229.27, 235B.18, 235B.19, 633.635, 633.675
633.553 Repealed by 84 Acts, ch 1299, § 19.
633.554 NOTICE TO PROPOSED WARD.
1. a. If the proposed ward is an adult, notice of the filing
of the petition shall be served upon the proposed ward in the manner
of an original notice and the content of the notice is governed by
the rules of civil procedure governing original notice.
b. Except where the proposed ward is the petitioner, notice
shall also be served upon the ward's spouse. If the proposed ward
has no spouse, notice shall be served upon the proposed ward's adult
children, if any.
2. a. If the proposed ward is a minor or if the proposed ward
is an adult under a standby petition and the court determines,
pursuant to section 633.561, subsection 1, paragraph "b", that
the proposed ward is entitled to representation, notice in the manner
of original notice, or another form of notice ordered by the court,
given to the attorney appointed to represent the ward is notice to
the proposed ward.
b. Notice shall also be served upon:
(1) The parents of the proposed ward, if the proposed ward is a
minor.
(2) The spouse of the proposed ward, if the proposed ward is an
adult. If the proposed ward has no spouse, notice shall be served
upon the proposed ward's adult children, if any.
3. Service of notice under this section upon persons other than
the proposed ward shall be made upon such persons whose identities
are reasonably ascertainable pursuant to section 633.40, subsection
5. Proof of service shall be made by affidavit, to which copies of
all documents served shall be attached. Section History: Early Form
[C31, 35, § 12644-c4; C39, § 12644.04; C46, 50, 54, 58, 62, §
672.4; C66, 71, 73, 75, 77, 79, 81, § 633.554] Section History: Recent Form
84 Acts, ch 1299, § 11; 85 Acts, ch 29, §2; 85 Acts, ch 148, §6;
2000 Acts, ch 1036, §1
Referred to in § 229.27, 235B.18, 633.562
633.555 PLEADINGS AND TRIAL -- RULES OF CIVIL
PROCEDURE.
All other pleadings and the trial of the cause shall be governed
by the rules of civil procedure. The cause shall be tried as a law
action, and either party shall be entitled to a jury trial if demand
is made therefor as provided by the rules of civil procedure. Section History: Early Form
[C73, § 2273; C97, § 3220; C24, 27, § 12621; C31, 35, § 12621,
12644-c6; C39, § 12621, 12644.06; C46, 50, 54, 58, 62, § 670.9,
672.6; C66, 71, 73, 75, 77, 79, 81, § 633.555]
Referred to in § 229.27, 235B.18
See R.C.P. 1.902
633.556 APPOINTMENT OF GUARDIAN.
1. If the allegations of the petition as to the status of the
proposed ward and the necessity for the appointment of a guardian are
proved by clear and convincing evidence, the court may appoint a
guardian. If the court appoints a guardian based upon mental
incapacity of the proposed ward because the proposed ward is a person
described in section 222.2, subsection 5, the court shall make a
separate determination as to the ward's competency to vote. The
court shall find a ward incompetent to vote only upon determining
that the person lacks sufficient mental capacity to comprehend and
exercise the right to vote.
2. In all proceedings to appoint a guardian, the court shall
consider the functional limitations of the proposed ward and whether
a limited guardianship, as authorized in section 633.635, is
appropriate.
3. Section 633.551 applies to the appointment of a guardian. Section History: Early Form
[R60, § 1449; C73, § 2272; C97, § 3219; C24, 27, 31, 35, 39, §
12614; C46, 50, 54, 58, 62, § 670.2; C66, 71, 73, 75, 77, 79, 81,
§ 633.556] Section History: Recent Form
97 Acts, ch 178, §6; 98 Acts, ch 1100, § 79; 98 Acts, ch 1185, §
10; 2002 Acts, ch 1134, §113, 115
Referred to in § 48A.2, 229.27, 235B.18
633.557 APPOINTMENT OF GUARDIAN ON VOLUNTARY
PETITION.
1. A guardian may also be appointed by the court upon the
verified petition of the proposed ward, without further notice, if
the proposed ward is other than a minor under the age of fourteen
years, provided the court determines that such an appointment will
inure to the best interest of the applicant. However, if an
involuntary petition is pending, the court shall be governed by
section 633.634. The petition shall provide the proposed ward notice
of a guardian's powers as provided in section 633.562.
2. In all proceedings to appoint a guardian, the court shall
consider whether a limited guardianship, as authorized in section
633.635, is appropriate. Section History: Early Form
[C51, § 1495; R60, § 2547; C73, § 2244; C97, § 3195; C24, 27, 31,
35, 39, § 12576, 12617; C46, 50, 54, 58, 62, § 668.4, 670.5; C66,
71, 73, 75, 77, 79, 81, § 633.557] Section History: Recent Form
89 Acts, ch 178, §9; 97 Acts, ch 178, §7
Referred to in § 237.13, 633.634
See also § 633.572
633.558 APPOINTMENT OF TEMPORARY GUARDIAN.
A temporary guardian may be appointed, but only after a hearing on
such notice, and subject to such conditions, as the court shall
prescribe. Section History: Early Form
[C73, § 2273; C97, § 3220; C24, 27, 31, § 12620; C35, § 12620,
12644-c5; C39, § 12620, 12644.05; C46, 50, 54, 58, 62, § 670.8,
672.5; C66, 71, 73, 75, 77, 79, 81, § 633.558]
633.559 PREFERENCE AS TO APPOINTMENT OF GUARDIAN.
The parents of a minor, or either of them, if qualified and
suitable, shall be preferred over all others for appointment as
guardian. Preference shall then be given to any person, if qualified
and suitable, nominated as guardian for a minor child by a will
executed by the parent having custody of a minor child, and any
qualified and suitable person requested by a minor fourteen years of
age or older, or by standby petition executed by a person having
physical and legal custody of a minor. Subject to these preferences,
the court shall appoint as guardian a qualified and suitable person
who is willing to serve in that capacity. Section History: Early Form
[C51, § 1491, 1492, 1495, 1498; R60, § 2543, 2544, 2547, 2550;
C73, § 2241, 2242, 2244, 2249; C97, § 3192, 3193, 3195; C24, 27, 31,
35, 39, § 12573, 12574, 12576; C46, 50, 54, 58, 62, § 668.1,
668.2, 668.4; C66, 71, 73, 75, 77, 79, 81, § 633.559] Section History: Recent Form
94 Acts, ch 1153, §9
633.560 APPOINTMENT OF GUARDIAN ON A STANDBY BASIS.
A petition for the appointment of a guardian on a standby basis
may be filed by any person under the same procedure and requirements
as provided in sections 633.591 to 633.597, for appointment of
standby conservator, insofar as applicable. In all proceedings to
appoint a guardian, the court shall consider whether a limited
guardianship, as authorized in section 633.635, is appropriate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.560] Section History: Recent Form
97 Acts, ch 178, §8
633.561 REPRESENTATION.
1. In a proceeding for the appointment of a guardian:
a. If the proposed ward is an adult and is not the
petitioner, the proposed ward is entitled to representation. Upon
the filing of the petition, the court shall appoint an attorney to
represent the proposed ward, set a hearing on the petition, and
provide for notice of the appointment of counsel and the date for
hearing.
b. If the proposed ward is either a minor or an adult under a
standby petition, the court shall determine whether, under the
circumstances of the case, the proposed ward is entitled to
representation. The determination regarding representation may be
made with or without notice to the proposed ward, as the court deems
necessary. If the court determines that the proposed ward is
entitled to representation, the court shall appoint an attorney to
represent the proposed ward. After making the determination
regarding representation, the court shall set a hearing on the
petition, and provide for notice on the determination regarding
representation and the date for hearing.
c. The court may take action under paragraph "a" or
"b" prior to the service of the original notice upon the proposed
ward.
d. The court may reconsider the determination regarding
representation upon application by any interested person.
e. The court may discharge the attorney appointed by the
court if it appears upon the application of the proposed ward or any
other interested person that the ward has privately retained an
attorney who has filed an appearance on behalf of the proposed ward.
2. The court shall ensure that all proposed wards entitled to
representation have been provided with notice of the right to
representation and right to be personally present at all proceedings
and shall make findings of fact in any order of disposition setting
out the manner in which notification was provided.
3. If the proposed ward is entitled to representation and is
indigent or incapable of requesting counsel, the court shall appoint
an attorney to represent the proposed ward. The cost of court
appointed counsel for indigents shall be assessed against the county
in which the proceedings are pending. For the purposes of this
subsection, the court shall find a person is indigent if the person's
income and resources do not exceed one hundred fifty percent of the
federal poverty level or the person would be unable to pay such costs
without prejudicing the person's financial ability to provide
economic necessities for the person or the person's dependents.
4. An attorney appointed pursuant to this section shall:
a. Ensure that the proposed ward has been properly advised of
the nature and purpose of the proceeding.
b. Ensure that the proposed ward has been properly advised of
the ward's rights in a guardianship proceeding.
c. Personally interview the proposed ward.
d. File a written report stating whether there is a return on
file showing that proper service on the proposed ward has been made
and also stating that specific compliance with paragraphs "a"
through "c" has been made or stating the inability to comply by
reason of the proposed ward's condition.
e. Represent the proposed ward.
f. Ensure that the guardianship procedures conform to the
statutory and due process requirements of Iowa law.
5. In the event that an order of appointment is entered, the
attorney appointed pursuant to this section, to the extent possible,
shall:
a. Inform the proposed ward of the effects of the order
entered for appointment of guardian.
b. Advise the ward of the ward's rights to petition for
modification or termination of the guardianship.
c. Advise the ward of the rights retained by the ward.
6. If the court determines that it would be in the ward's best
interest to have legal representation with respect to any proceedings
in a guardianship, the court may appoint an attorney to represent the
ward at the expense of the ward or the ward's estate, or if the ward
is indigent the cost of the court appointed attorney shall be
assessed against the county in which the proceedings are pending. Section History: Recent Form
84 Acts, ch 1299, § 12; 85 Acts, ch 29, §3; 85 Acts, ch 148, §7;
89 Acts, ch 178, §10; 2000 Acts, ch 1036, §2
Referred to in § 633.554
633.562 NOTIFICATION OF GUARDIANSHIP POWERS.
In a proceeding for the appointment of a guardian, the proposed
ward shall be given written notice which advises the proposed ward
that if a guardian is appointed, the guardian may, without court
approval, provide for the care of the ward, manage the ward's
personal property and effects, assist the ward in developing
self-reliance and receiving professional care, counseling, treatment
or services as needed, and ensure that the ward receives necessary
emergency medical services. The notice shall also advise the
proposed ward that, upon the court's approval, the guardian may
change the ward's permanent residence to a more restrictive
residence, and arrange for major elective surgery or any other
nonemergency major medical procedure. The notice shall clearly
advise the proposed ward in boldface type of a minimum size of ten
points, of the right to counsel and the potential deprivation of the
proposed ward's civil rights. The notice shall also state that the
proposed ward may use the ward's own attorney instead of an attorney
appointed by the court. In an involuntary guardianship proceeding,
the notice shall be served upon the proposed ward with the notice of
the filing of the petition as provided in section 633.554. Section History: Recent Form
89 Acts, ch 178, §11; 2000 Acts, ch 1036, §3
Referred to in § 633.557
633.563 THROUGH 633.565 Reserved.
633.566 PETITION FOR APPOINTMENT OF CONSERVATOR.
Any person may file with the clerk a verified petition for the
appointment of a conservator. The petition shall state the following
information, so far as known to the petitioner:
1. The name, age, and post office address of the proposed ward.
2. That the proposed ward is in either of the following
categories:
a. Is a person whose decision-making capacity is so impaired
that the person is unable to make, communicate, or carry out
important decisions concerning the person's financial affairs.
b. Is a minor.
3. The name and post office address of the proposed conservator,
and that such person is qualified to serve in that capacity.
4. The estimated present value of the real estate, the estimated
value of the personal property, and the estimated gross annual income
of the estate. If any money is payable, or to become payable, to the
proposed ward by the United States through the United States
department of veterans affairs, the petition shall so state.
5. The name and address of the person or institution, if any,
having the care, custody, or control of the proposed ward.
6. That the proposed ward resides in the state of Iowa, is a
nonresident, or that the proposed ward's residence is unknown, and
that the proposed ward's best interests require the appointment of a
conservator in the state of Iowa. Section History: Early Form
[C51, § 1493, 1494; R60, § 1449, 2545, 2546; C73, § 2243, 2253,
2272, 2273; C97, § 3194, 3202, 3219, 3220; C24, 27, § 12575, 12605,
12614, 12619; C31, 35, § 12575, 12605, 12614, 12619, 12644-c3; C39, §
12575, 12605, 12614, 12619, 12644.03; C46, 50, 54, 58, 62, §
668.3, 668.32, 670.2, 670.7, 672.3; C66, 71, 73, 75, 77, 79, 81, §
633.566] Section History: Recent Form
84 Acts, ch 1299, § 13; 85 Acts, ch 29, §4; 97 Acts, ch 178, §9;
2009 Acts, ch 26, §18
Referred to in § 633.675
633.567 Repealed by 84 Acts, ch 1299, § 19.
633.568 NOTICE TO PROPOSED WARD.
1. a. If the proposed ward is an adult, notice of the filing
of the petition shall be served upon the proposed ward in the manner
of an original notice and the content of the notice is governed by
the rules of civil procedure governing original notice.
b. Except where the ward is the petitioner, notice shall also
be served upon the ward's spouse. If the ward has no spouse, notice
shall be served upon the ward's adult children, if any.
2. a. If the proposed ward is a minor or if the proposed ward
is an adult under a standby petition and the court determines,
pursuant to section 633.575, subsection 1, paragraph "b", that
the proposed ward is entitled to representation, notice in the manner
of original notice, or another form of notice ordered by the court,
given to the attorney appointed to represent the ward is notice to
the proposed ward.
b. Notice shall also be served upon:
(1) The parents of the proposed ward, if the ward is a minor.
(2) The spouse of the proposed ward, if the proposed ward is an
adult. If the ward has no spouse, notice shall be served upon the
proposed ward's adult children, if any.
3. Service of notice under this section upon persons other than
the proposed ward shall be made upon such persons whose identities
are reasonably ascertainable pursuant to section 633.40, subsection
5. Proof of service shall be made by affidavit, to which copies of
all documents served shall be attached. Section History: Early Form
[C31, 35, § 12644-c4; C39, § 12644.04; C46, 50, 54, 58, 62, §
672.4; C66, 71, 73, 75, 77, 79, 81, § 633.568] Section History: Recent Form
84 Acts, ch 1299, § 14; 85 Acts, ch 29, §5; 85 Acts, ch 148, §8;
2000 Acts, ch 1036, §4; 2002 Acts, ch 1119, §190
Referred to in § 633.576
633.569 PLEADINGS AND TRIAL -- RULES OF CIVIL
PROCEDURE.
All other pleadings and the trial of the cause shall be governed
by the rules of civil procedure. The cause shall be tried as a law
action, and either party shall be entitled to a jury trial if demand
is made therefor as provided by the rules of civil procedure. Section History: Early Form
[C73, § 2273; C97, § 3220; C24, 27, § 12621; C31, 35, § 12621,
12644-c6; C39, § 12621, 12644.06; C46, 50, 54, 58, 62, § 670.9,
672.6; C66, 71, 73, 75, 77, 79, 81, § 633.569]
See R.C.P. 1.902
633.570 APPOINTMENT OF CONSERVATOR.
1. If the allegations of the petition as to the status of the
proposed ward and the necessity for the appointment of a conservator
are proved by clear and convincing evidence, the court may appoint a
conservator.
2. In all proceedings to appoint a conservator, the court shall
consider the functional limitations of the person and whether a
limited conservatorship, as authorized in section 633.637, is
appropriate.
3. Section 633.551 applies to the appointment of a conservator.
Section History: Early Form
[R60, § 1449; C73, § 2272; C97, § 3219; C24, 27, § 12614, 12616;
C31, 35, § 12614, 12616, 12644-c8; C39, § 12614, 12616, 12644.08;
C46, 50, 54, 58, 62, § 670.2, 670.4, 672.8; C66, 71, 73, 75, 77, 79,
81, § 633.570] Section History: Recent Form
97 Acts, ch 178, §10
633.571 PREFERENCE AS TO APPOINTMENT OF
CONSERVATOR.
The parents of a minor, or either of them, if qualified and
suitable, shall be preferred over all others for appointment as
conservator. Preference shall then be given to any person, if
qualified and suitable, nominated as conservator for a minor child by
a will executed by the parent having custody of a minor child, and
any qualified and suitable person requested by a minor fourteen years
of age or older, or by standby petition executed by a person having
physical and legal custody of a minor. Subject to these preferences,
the court shall appoint as conservator a qualified and suitable
person who is willing to serve in that capacity. Section History: Early Form
[C51, § 1491, 1492, 1495, 1498; R60, § 2543, 2544, 2547, 2550;
C73, § 2241, 2242, 2244, 2249; C97, § 3192, 3193, 3195; C24, 27, 31,
35, 39, § 12573, 12574, 12576; C46, 50, 54, 58, 62, § 668.1,
668.2, 668.4; C66, 71, 73, 75, 77, 79, 81, § 633.571] Section History: Recent Form
94 Acts, ch 1153, §10
633.572 APPOINTMENT OF CONSERVATOR ON VOLUNTARY
PETITION.
1. A conservator may also be appointed by the court upon the
verified petition of the proposed ward, without further notice, if
the proposed ward is other than a minor under the age of fourteen
years, provided the court determines that such an appointment will
inure to the best interest of the applicant. However, if an
involuntary petition is pending, the court shall be governed by
section 633.634. The petition shall provide the proposed ward notice
of a conservator's powers as provided in section 633.576.
2. In all proceedings to appoint a conservator, the court shall
consider whether a limited conservatorship, as authorized in section
633.637, is appropriate. Section History: Early Form
[C51, § 1495; R60, § 2547; C73, § 2244; C97, § 3195; C24, 27, 31,
35, 39, § 12576, 12617, 12618; C46, 50, 54, 58, 62, § 668.4,
670.5, 670.6; C66, 71, 73, 75, 77, 79, 81, § 633.572] Section History: Recent Form
89 Acts, ch 178, §12; 97 Acts, ch 178, §11
Referred to in § 237.13, 633.634
See also § 633.557
633.573 APPOINTMENT OF TEMPORARY CONSERVATOR.
Except as provided in section 235B.19, a temporary conservator may
be appointed but only after a hearing on such notice, and subject to
such conditions, as the court shall prescribe. Section History: Early Form
[C73, § 2273; C97, § 3220; C24, 27, § 12620; C31, 35, § 12620,
12644-c5; C39, § 12620, 12644.05; C46, 50, 54, 58, 62, § 670.8,
672.5; C66, 71, 73, 75, 77, 79, 81, § 633.573] Section History: Recent Form
2006 Acts, ch 1080, §2
Referred to in § 235B.19
633.574 PROCEDURE IN LIEU OF CONSERVATORSHIP.
If a conservator has not been appointed, money due a minor or
other property to which a minor is entitled, not exceeding in the
aggregate twenty-five thousand dollars in value, shall be paid or
delivered to a custodian under any uniform transfers to minors Act.
The written receipt of the custodian constitutes an acquittance of
the person making the payment of money or delivery of property. Section History: Early Form
[C51, § 1493, 1494; R60, § 2545, 2546; C73, § 2243; C97, § 3194;
C24, 27, 31, 35, 39, § 12575; C46, 50, 54, 58, 62, § 668.3; C66,
71, 73, 75, 77, 79, 81, § 633.574; 82 Acts, ch 1052, § 2] Section History: Recent Form
84 Acts, ch 1067, § 48; 95 Acts, ch 63, §6; 2005 Acts, ch 38, §29
See also chapter 565B, § 633.108, 633.681, R.C.P. 1.1228
633.575 REPRESENTATION.
1. In a proceeding for the appointment of a conservator:
a. If the proposed ward is an adult and is not the
petitioner, the proposed ward is entitled to representation. Upon
the filing of the petition, the court shall appoint an attorney to
represent the proposed ward, set a hearing on the petition, and
provide for notice of the appointment of counsel and the date for
hearing.
b. If the proposed ward is either a minor or an adult under a
standby petition, the court shall determine whether, under the
circumstances of the case, the proposed ward is entitled to
representation. The determination regarding representation may be
made with or without notice to the proposed ward, as the court deems
necessary. If the court determines that the proposed ward is
entitled to representation, the court shall appoint an attorney to
represent the proposed ward. After making the determination
regarding representation, the court shall set a hearing on the
petition, and provide for notice on the determination regarding
representation and the date for hearing.
c. The court may take action under paragraph "a" or
"b" prior to the service of the original notice upon the proposed
ward.
d. The court may reconsider the determination regarding
representation upon application by any interested person.
e. The court may discharge the attorney appointed by the
court if it appears upon the application of the proposed ward or any
other interested person that the ward has privately retained an
attorney who has filed an appearance on behalf of the proposed ward.
2. The court shall ensure that all proposed wards entitled to
representation have been provided with notice of the right to
representation and right to be personally present at all proceedings
and shall make findings of fact in any order of disposition setting
out the manner in which notification was provided.
3. If the proposed ward is entitled to representation and is
indigent or incapable of requesting counsel, the court shall appoint
an attorney to represent the proposed ward. The cost of court
appointed counsel for indigents shall be assessed against the county
in which the proceedings are pending. For the purposes of this
subsection, the court may find a person is indigent if the person's
income and resources do not exceed one hundred fifty percent of the
federal poverty level or the person would be unable to pay such costs
without prejudicing the person's financial ability to provide
economic necessities for the person or the person's dependents.
4. An attorney appointed pursuant to this section, to the extent
possible, shall:
a. Ensure that the proposed ward has been properly advised of
the nature of the proceeding and its purpose.
b. Ensure that the proposed ward has been properly advised of
the ward's rights in a conservatorship proceeding.
c. Personally interview the proposed ward.
d. File a written report stating whether there is a return on
file showing that proper service on the proposed ward has been made
and also stating that specific compliance with paragraphs "a"
through "c" has been made or stating the inability to comply by
reason of the proposed ward's condition.
e. Represent the proposed ward.
f. Ensure that the conservatorship procedures conform to the
statutory and due process requirements of Iowa law.
5. In the event that an order of appointment is entered, the
attorney appointed pursuant to this section, to the extent possible,
shall:
a. Inform the proposed ward of the effects of the order
entered for appointment of conservator.
b. Advise the ward of the ward's rights to petition for
modification or termination of conservatorship.
c. Advise the ward of the rights retained by the ward.
6. If the court determines that it would be in the ward's best
interest to have legal representation with respect to any proceedings
in a conservatorship, the court may appoint an attorney to represent
the ward at the expense of the ward or the ward's estate, or if the
ward is indigent the cost of the court appointed attorney shall be
assessed against the county in which the proceedings are pending. Section History: Recent Form
84 Acts, ch 1299, § 15; 85 Acts, ch 29, §6; 85 Acts, ch 148, §9;
89 Acts, ch 178, §13; 2000 Acts, ch 1036, §5
Referred to in § 633.568
633.576 NOTIFICATION OF CONSERVATORSHIP POWERS.
In a proceeding for the appointment of a conservator, the proposed
ward shall be given written notice which advises the proposed ward
that if a conservator is appointed, the conservator may, without
court approval, manage the proposed ward's principal, income, and
investments, sue and defend any claim by or against the ward, sell
and transfer personal property, and vote at corporate meetings. The
notice shall also advise the proposed ward that, upon the court's
approval, the conservator may invest the ward's funds, execute
leases, make payments to or for the benefit of the ward, support the
ward's legal dependents, compromise or settle any claim, and do any
other thing that the court determines is in the ward's best
interests. The notice shall clearly advise the proposed ward, in
boldface type of a minimum size of ten points, of the right to
counsel and the potential deprivation of the proposed ward's civil
rights. The notice shall also state that the proposed ward may use
the ward's own attorney instead of an attorney appointed by the
court. In an involuntary conservatorship proceeding, the notice
shall be served upon the proposed ward with the notice of the filing
of the petition as provided in section 633.568. Section History: Recent Form
89 Acts, ch 178, §14; 2000 Acts, ch 1036, §6
Referred to in § 633.572, 633.591
633.577 THROUGH 633.579 Reserved.
633.580 PETITION FOR APPOINTMENT OF CONSERVATOR FOR
ABSENTEE.
When a person owns property located in the state of Iowa, the
person's whereabouts are unknown, and no provision for the care,
control, and supervision of such property has been made, with the
result that such property is likely to be lost or damaged, or that
the dependents of such owner are likely to be deprived of means of
support because of such absence, it shall be proper for any person to
file with the clerk a petition for the appointment of a conservator
of such property of the absentee. The petition shall state the
following information, so far as known to the petitioner:
1. The name, age, and last known post office address of the
proposed ward.
2. The facts concerning the disappearance of the absentee.
3. The name and post office address of the proposed conservator,
and that the proposed conservator is qualified to serve in that
capacity.
4. A general description of the property of the proposed ward
within this state and of the proposed ward's right to receive
property; also, the estimated present value of the real estate, the
estimated value of the personal property, and the estimated gross
annual income of the estate. If any money is payable, or to become
payable, to the proposed ward by the United States through the United
States department of veterans affairs, the petition shall so state.
5. That the property of the absentee is likely to be lost or
damaged, or that the absentee's dependents are likely to be deprived
of means of support, because of the absence, and that no proper
provision has been made for the care, control, and supervision over
such property. Section History: Early Form
[S13, § 3228-a; C24, 27, 31, 35, 39, § 12632; C46, 50, 54, 58,
62, § 671.1; C66, 71, 73, 75, 77, 79, 81, § 633.580] Section History: Recent Form
2009 Acts, ch 26, §19
633.581 ORIGINAL NOTICE GOVERNED BY RULES OF CIVIL
PROCEDURE.
Notice of the filing of such a petition and of the hearing thereon
shall be served upon the absentee by publication in the manner of an
original notice and the rules of civil procedure governing original
notices by publication shall also govern such a notice as to content.
Section History: Early Form
[S13, § 3228-a; C24, 27, 31, 35, 39, § 12633; C46, 50, 54, 58,
62, § 671.2; C66, 71, 73, 75, 77, 79, 81, § 633.581]
633.582 NOTICE ON COUNTY ATTORNEY.
Such notice shall also be served on the county attorney of the
county in which the petition is filed and on the spouse and children
of the absentee as provided by the rules of civil procedure. If
there is no spouse or children, such notice shall be served on such
persons and in such manner as the court may prescribe. Section History: Early Form
[S13, § 3228-a; C24, 27, 31, 35, 39, § 12634; C46, 50, 54, 58,
62, § 671.3; C66, 71, 73, 75, 77, 79, 81, § 633.582]
633.583 PLEADINGS AND TRIAL -- RULES OF CIVIL
PROCEDURE.
All other pleadings and the trial of the cause shall be governed
by the rules of civil procedure. Section History: Early Form
[S13, § 3228-a; C24, 27, 31, 35, 39, § 12635; C46, 50, 54, 58,
62, § 671.4; C66, 71, 73, 75, 77, 79, 81, § 633.583]
633.584 APPOINTMENT OF CONSERVATOR.
In the event that the absentee does not appear at said hearing,
the court shall hear the petition and the proof offered. All
evidence shall be made a part of a transcript to be filed in such
proceedings. If the allegations of the petition are proved, the
court may appoint a conservator. Section History: Early Form
[S13, § 3228-b, -c; C24, 27, 31, 35, 39, § 12636, 12637,
12639; C46, 50, 54, 58, 62, § 671.5, 671.6, 671.8; C66, 71, 73, 75,
77, 79, 81, § 633.584]
633.585 APPOINTMENT OF TEMPORARY CONSERVATOR.
A temporary conservator may be appointed, but only after a hearing
on such notice, and subject to such conditions as the court shall
prescribe. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.585]
633.586 THROUGH 633.590 Reserved.
633.591 VOLUNTARY PETITION FOR APPOINTMENT OF
CONSERVATOR -- STANDBY BASIS.
Any person of full age and sound mind may execute a verified
petition for the voluntary appointment of a conservator of the
person's property upon the express condition that such petition shall
be acted upon by the court only upon the occurrence of an event
specified or the existence of a described condition of the mental or
physical health of the petitioner, the occurrence of which event, or
the existence of which condition, shall be established in the manner
directed in the petition. The petition, if executed on or after
January 1, 1991, shall advise the proposed ward of a conservator's
powers as provided in section 633.576. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.591] Section History: Recent Form
89 Acts, ch 178, §15; 90 Acts, ch 1036, § 2; 91 Acts, ch 36, §7
Referred to in § 633.560, 633.634
633.591A VOLUNTARY PETITION FOR APPOINTMENT OF
CONSERVATOR FOR A MINOR -- STANDBY BASIS.
A person having physical and legal custody of a minor may execute
a verified petition for the appointment of a standby conservator of
the proposed ward's property, upon the express condition that the
petition shall be acted upon by the court only upon the occurrence of
an event specified or the existence of a described condition of the
mental or physical health of the petitioner, the occurrence of which
event, or the existence of which condition, shall be established in
the manner directed in the petition. Section History: Recent Form
94 Acts, ch 1153, §11
Referred to in § 633.560
633.592 PETITION MAY NOMINATE CONSERVATOR.
Such petition may nominate a person for appointment to serve as
such conservator, and may request that the appointment be made
without bond, or with bond of a certain stated sum. The court in
appointing the conservator shall give due regard to such nomination
and other requests and recommendations contained in the petition. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.592]
Referred to in § 633.560
633.593 DEPOSIT OF PETITION.
Such petition may be deposited with the clerk of the county in
which the party resides, or with any person, firm, bank or trust
company selected by the petitioner. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.593]
Referred to in § 633.560, 633.595
633.594 REVOCATION OF PETITION.
Such petition may be revoked by the petitioner at any time before
appointment of a conservator by the court, provided that the
petitioner is of sound mind. Revocation shall be accomplished by the
destruction of the petition by the petitioner, or by the execution of
an acknowledged instrument of revocation. If the petition has been
deposited with the clerk, the revocation may likewise be deposited
there. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.594]
Referred to in § 633.560
633.595 FILING PETITION UPON OCCURRENCE OF
CONDITION.
At any time after the deposit of the petition with the clerk, and
before its revocation, it may be brought on for hearing by the filing
of a verified statement to the effect that the occurrence of the
event or the condition provided for in the petition has come to pass.
If the petition has not been deposited with the clerk under the
provisions of section 633.593, then it may be brought on for hearing
at any time by the filing of it and such a verified statement with
the clerk of the county in which the person who executed the petition
then resides. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.595]
Referred to in § 633.560
633.596 CONSIDERATIONS -- APPOINTMENT OF
CONSERVATOR.
At the time a standby petition is filed under this part, the court
shall consider whether a limited conservatorship, as authorized in
section 633.637, is appropriate. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.596] Section History: Recent Form
97 Acts, ch 178, §12
Referred to in § 633.560
633.597 CONSERVATOR SHALL HAVE SAME POWERS AND
DUTIES.
The powers and duties of such a conservator shall be the same as
those of a conservator appointed in response to any of the other
petitions authorized in this probate code. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.597] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 633.560
633.598 THROUGH 633.602 Reserved.
633.603 APPOINTMENT OF FOREIGN CONSERVATORS.
When there is no conservatorship, nor any application therefor
pending, in this state, the duly qualified foreign conservator or
guardian of a nonresident ward may, upon application, be appointed
conservator of the property of such person in this state; provided
that a resident conservator is appointed to serve with the foreign
conservator; and provided further, that for good cause shown, the
court may appoint the foreign conservator to act alone without the
appointment of a resident conservator. Section History: Early Form
[C51, § 1512; R60, § 2564; C73, § 2266; C97, § 3213; C24, 27, 31,
35, 39, § 12606; C46, 50, 54, 58, 62, § 669.1; C66, 71, 73, 75,
77, 79, 81, § 633.603]
633.604 APPLICATION.
The application for appointment of a foreign conservator or
guardian as conservator in this state shall include the name and
address of the nonresident ward, and of the nonresident conservator
or guardian, and the name and address of the resident conservator to
be appointed. It shall be accompanied by a certified copy of the
original letters or other authority conferring the power upon the
foreign conservator or guardian to act as such. The application
shall also state the cause for the appointment of the foreign
conservator to act as sole conservator, if such be the case. Section History: Early Form
[C51, § 1513; R60, § 2565; C73, § 2267; C97, § 3214; C24, 27, 31,
35, 39, § 12607; C46, 50, 54, 58, 62, § 669.2; C66, 71, 73, 75,
77, 79, 81, § 633.604]
633.605 PERSONAL PROPERTY.
A foreign conservator or guardian of a nonresident may be
authorized by the court of the county wherein such ward has personal
property to receive the same upon compliance with the provisions of
sections 633.606, 633.607 and 633.608. Section History: Early Form
[C73, § 2269; C97, § 3216; C24, 27, 31, 35, 39, § 12609; C46,
50, 54, 58, 62, § 669.4; C66, 71, 73, 75, 77, 79, 81, § 633.605]
633.606 COPY OF BOND.
Such foreign conservator or guardian shall file in the office of
the clerk in the county where the property is situated, a certified
copy of the conservator's or guardian's official bond, duly
authenticated by the court granting the letters, and shall also
execute a receipt for the property received by the conservator or
guardian. Section History: Early Form
[C51, § 1514; R60, § 2566; C73, § 2268, 2270; C97, § 3215, 3217;
C24, 27, 31, 35, 39, § 12608, 12610; C46, 50, 54, 58, 62, §
669.3, 669.5; C66, 71, 73, 75, 77, 79, 81, § 633.606]
Referred to in § 633.605
633.607 ORDER FOR DELIVERY.
Upon the filing of the bond as above provided, and the court being
satisfied with the amount thereof, it shall order the personal
property of the ward delivered to such conservator or guardian. Section History: Early Form
[C73, § 2271; C97, § 3218; C24, 27, 31, 35, 39, § 12611; C46,
50, 54, 58, 62, § 669.6; C66, 71, 73, 75, 77, 79, 81, § 633.607]
Referred to in § 633.605
633.608 RECORDING OF BOND -- NOTICE TO COURT.
The clerk shall record the bonds and the receipt, and notify by
mail the court which granted the letters of conservatorship or
guardianship of the amount of property delivered to the fiduciary and
the date of delivery thereof. Section History: Early Form
[C73, § 2271; C97, § 3218; C24, 27, 31, 35, 39, § 12612; C46,
50, 54, 58, 62, § 669.7; C66, 71, 73, 75, 77, 79, 81, § 633.608]
Referred to in § 633.605
633.609 THROUGH 633.613 Reserved.
633.614 APPLICATION OF OTHER PROVISIONS TO VETERANS'
CONSERVATORSHIPS.
Whenever moneys are paid or are payable pursuant to any law of the
United States through the United States department of veterans
affairs to a conservator or a guardian, the provisions of sections
633.615, 633.617, and 633.622 shall apply to the administration of
said moneys. However, such provisions shall be construed to be
supplementary to the other provisions for conservators, and shall not
be exclusive of such provisions. Section History: Early Form
[C31, 35, § 12644-c2; C39, § 12644.02; C46, 50, 54, 58, 62, §
672.2; C66, 71, 73, 75, 77, 79, 81, § 633.614] Section History: Recent Form
2009 Acts, ch 26, §20
633.615 SECRETARY OF VETERANS AFFAIRS -- PARTY IN
INTEREST.
The secretary of veterans affairs of the United States, the
secretary's successor, or the designee of either, shall be a party in
interest in any proceeding for the appointment or removal of a
conservator, or for the termination of the conservatorship, and in
any suit or other proceeding, including reports and accountings,
affecting in any manner the administration of those assets that were
derived in whole or in part from benefits paid by the United States
department of veterans affairs. Not less than fifteen days prior to
the time set for a hearing in any such matters, notice, in writing,
of the time and place thereof shall be given by mail to the office of
the United States department of veterans affairs having jurisdiction
over the area in which such matter is pending. Section History: Early Form
[C31, 35, § 12644-c4, -c11; C39, § 12644.04, 12644.11; C46,
50, 54, 58, 62, § 672.4, 672.11; C66, 71, 73, 75, 77, 79, 81, §
633.615] Section History: Recent Form
2009 Acts, ch 26, §21
Referred to in § 633.614
633.616 Repealed by 75 Acts, ch 208, § 17.
633.617 WARD RATED INCOMPETENT BY UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS.
Upon the trial of an issue arising upon a prayer for the
appointment of either a temporary or a permanent conservator, a
certificate of the secretary of the United States department of
veterans affairs, or the secretary's representative, setting forth
the fact that the defendant veteran has been rated incompetent by the
United States department of veterans affairs upon examination in
accordance with the laws and regulations governing the United States
department of veterans affairs, shall be prima facie evidence of the
necessity for such appointment, and the court may appoint a
conservator for the property of such person. Section History: Early Form
[C31, 35, § 12644-c3, -c7; C39, § 12644.03, 12644.07; C46, 50,
54, 58, 62, § 672.3, 672.7; C66, 71, 73, 75, § 633.616; C77, 79, 81,
§ 633.617] Section History: Recent Form
2009 Acts, ch 26, §22
Referred to in § 633.614
633.618 THROUGH 633.621 Repealed by 75 Acts, ch
208, § 17.
633.622 BOND REQUIREMENTS.
In administering moneys paid by the United States department of
veterans affairs the conservator, unless it is a bank or trust
company qualified to act as a fiduciary in this state, shall execute
and file with the clerk a bond by a recognized surety company equal
to such moneys and the annual income therefrom, plus the expected
annual United States department of veterans affairs benefit payments.
Section History: Early Form
[C31, 35, § 12644-c14, -c15; C39, § 12644.14, 12644.15; C46,
50, 54, 58, 62, § 672.14, 672.15; C66, 71, 73, 75, 77, 79, 81, §
633.622] Section History: Recent Form
2009 Acts, ch 26, §23
Referred to in § 633.614
633.623 THROUGH 633.626 Reserved.
633.627 COMBINING PETITIONS.
The petitions for the appointment of a guardian and a conservator
may be combined and the cause tried in the same manner as a petition
for the appointment of a conservator. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.627]
Referred to in § 633.27A
633.628 SAME PERSON AS GUARDIAN AND CONSERVATOR.
The same person may be appointed to serve as both guardian and
conservator. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.628]
633.629 THROUGH 633.632 Reserved.
633.633 PROVISIONS APPLICABLE TO ALL FIDUCIARIES
SHALL GOVERN.
The provisions of this probate code applicable to all fiduciaries
shall govern the appointment, qualification, oath and bond of
guardians and conservators, except that a guardian shall not be
required to give bond unless the court, for good cause, finds that
the best interests of the ward require a bond. The court shall then
fix the terms and conditions of such bond. Section History: Early Form
[C51, § 1496; R60, § 2548; C73, § 2246; C97, § 3197; S13, §
3228-d; C24, 27, § 12577--12579, 12640; C31, 35, § 12577--12579,
12640, 12644-c9; C39, § 12577--12579, 12640, 12644.09; C46, 50,
54, 58, 62, § 668.5--668.7, 671.9, 672.9; C66, 71, 73, 75, 77, 79, §
633.634; C81, § 633.633] Section History: Recent Form
2005 Acts, ch 38, §51
Referred to in § 237.13
633.633A LIABILITY OF GUARDIANS AND CONSERVATORS.
Guardians and conservators shall not be held personally liable for
actions or omissions taken or made in the official discharge of the
guardian's or conservator's duties, except for any of the following:
1. A breach of fiduciary duty imposed by this probate code.
2. Willful or wanton misconduct in the official discharge of the
guardian's or conservator's duties. Section History: Recent Form
89 Acts, ch 178, §16; 2005 Acts, ch 38, §51
Referred to in § 237.13, 602.8102(105A)
633.633B TORT LIABILITY OF GUARDIANS AND
CONSERVATORS.
The fact that a person is a guardian or conservator shall not in
itself make the person personally liable for damages for the acts of
the ward. Section History: Recent Form
89 Acts, ch 178, §17
Referred to in § 237.13, 602.8102(105A)
633.634 COMBINATION OF VOLUNTARY AND STANDBY
PETITIONS WITH INVOLUNTARY PETITION FOR HEARING.
If prior to the time of hearing on a petition for the appointment
of a guardian or a conservator, a petition is filed under the
provisions of section 633.557, 633.572 or 633.591, the court shall
combine the hearing on such petitions and determine who shall be
appointed guardian or conservator, and such petition shall be triable
to the court. Section History: Early Form
[C66, 71, 73, 75, 77, 79, § 633.635; C81, § 633.634]
Referred to in § 237.13, 633.557, 633.572
633.635 RESPONSIBILITIES OF GUARDIAN.
1. Based upon the evidence produced at the hearing, the court may
grant a guardian the following powers and duties which may be
exercised without prior court approval:
a. Providing for the care, comfort and maintenance of the
ward, including the appropriate training and education to maximize
the ward's potential.
b. Taking reasonable care of the ward's clothing, furniture,
vehicle and other personal effects.
c. Assisting the ward in developing maximum self-reliance and
independence.
d. Ensuring the ward receives necessary emergency medical
services.
e. Ensuring the ward receives professional care, counseling,
treatment, or services as needed. If necessitated by the physical or
mental disability of the ward, the provision of professional care,
counseling, treatment, or services limited to the provision of
routine physical and dental examinations and procedures under
anesthesia is included, if the anesthesia is provided within the
scope of the health care practitioner's scope of practice.
f. Any other powers or duties the court may specify.
2. A guardian may be granted the following powers which may only
be exercised upon court approval:
a. Changing, at the guardian's request, the ward's permanent
residence if the proposed new residence is more restrictive of the
ward's liberties than the current residence.
b. Arranging the provision of major elective surgery or any
other nonemergency major medical procedure. For the purposes of this
paragraph, "major elective surgery" and "nonemergency major
medical procedure" do not include the provision to the ward of
professional care, counseling, treatment, or services limited to the
provision of routine physical and dental examinations and procedures
under anesthesia, if the use of anesthesia is necessitated by the
physical or mental disability of the ward, and if the anesthesia is
provided within the scope of the health care practitioner's scope of
practice.
c. Consent to the withholding or withdrawal of
life-sustaining procedures in accordance with chapter 144A.
3. For the purposes of this section:
a. "Routine dental examinations and procedures" includes
preventive services, diagnostic services, restorative services,
periodontal services, endodontic services, oral surgery, prosthetic
services, and orthodontic procedures.
b. "Routine physical examinations and procedures" includes
examinations and procedures performed for the purpose of general
treatment or diagnosis or for the purpose of treatment or diagnosis
related to a specific illness, symptom, complaint, or injury.
4. The court may take into account all available information
concerning the capabilities of the ward and any additional evaluation
deemed necessary, including the availability of third-party
assistance to meet the needs of the ward or proposed ward, and may
direct that the guardian have only a specially limited responsibility
for the ward. In that event, the court shall state those areas of
responsibility which shall be supervised by the guardian and all
others shall be retained by the ward. The court may make a finding
that the ward lacks the capacity to contract a valid marriage.
5. From time to time, upon a proper showing, the court may modify
the respective responsibilities of the guardian and the ward, after
notice to the ward and an opportunity to be heard. Any modification
that would be more restrictive or burdensome for the ward shall be
based on clear and convincing evidence that the ward continues to
fall within the categories of section 633.552, subsection 2,
paragraph "a" or "b", and that the facts justify a
modification of the guardianship. Section 633.551 applies to the
modification proceedings. Any modification that would be less
restrictive for the ward shall be based upon proof in accordance with
the requirements of section 633.675. Section History: Early Form
[C81, § 633.635] Section History: Recent Form
84 Acts, ch 1299, § 16; 85 Acts, ch 29, §7; 87 Acts, ch 100, §2;
91 Acts, ch 93, §4; 97 Acts, ch 178, § 13, 14; 2000 Acts, ch 1063,
§1--3
Referred to in § 144A.7, 237.13, 633.551, 633.556, 633.557,
633.560
633.636 EFFECT OF APPOINTMENT OF GUARDIAN OR
CONSERVATOR.
The appointment of a guardian or conservator shall not constitute
an adjudication that the ward is of unsound mind. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.636]
633.637 POWERS OF WARD.
A ward for whom a conservator has been appointed shall not have
the power to convey, encumber, or dispose of property in any manner,
other than by will if the ward possesses the requisite testamentary
capacity, unless the court determines that the ward has a limited
ability to handle the ward's own funds. If the court makes such a
finding, it shall specify to what extent the ward may possess and use
the ward's own funds.
Any modification of the powers of the ward that would be more
restrictive of the ward's control over the ward's financial affairs
shall be based upon clear and convincing evidence and the burden of
persuasion is on the conservator. Any modification that would be
less restrictive of the ward's control over the ward's financial
affairs shall be based upon proof in accordance with the requirements
of section 633.675. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.637] Section History: Recent Form
97 Acts, ch 178, §15
Referred to in § 633.551, 633.570, 633.572, 633.596, 633.638
633.638 PRESUMPTION OF FRAUD.
If a conservator be appointed, all contracts, transfers and gifts
made by the ward after the filing of the petition shall be presumed
to be a fraud against the rights and interest of the ward except as
otherwise directed by the court pursuant to section 633.637. Section History: Early Form
[C24, 27, 31, 35, 39, § 12622; C46, 50, 54, 58, 62, § 670.10;
C66, 71, 73, 75, 77, 79, 81, § 633.638]
See also § 633.650
633.639 TITLE TO WARD'S PROPERTY.
The title to all property of the ward is in the ward and not the
conservator subject, however, to the possession of the conservator
and to the control of the court for the purposes of administration,
sale or other disposition, under the provisions of the law. Any real
property titled at any time in the name of a conservatorship shall be
deemed to be titled in the ward's name subject to the conservator's
right of possession. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.639] Section History: Recent Form
2009 Acts, ch 52, §8, 14 Footnotes
2009 amendment to this section applies retroactively to
conveyances occurring on or after July 1, 1999; 2009 Acts, ch 52, §14
633.640 CONSERVATOR'S RIGHT TO POSSESSION.
Every conservator shall have a right to, and shall take,
possession of all of the real and personal property of the ward. The
conservator shall pay the taxes and collect the income therefrom
until the conservatorship is terminated. The conservator may
maintain an action for the possession of the property, and to
determine the title to the same. Section History: Early Form
[C73, § 2245; C97, § 3196; C24, 27, 31, 35, 39, § 12584,
12585; C46, 50, 54, 58, 62, § 668.11, 668.12; C66, 71, 73, 75, 77,
79, 81, § 633.640]
633.641 DUTIES OF CONSERVATOR.
It is the duty of the conservator of the estate to protect and
preserve it, to invest it prudently, to account for it as herein
provided, and to perform all other duties required of the conservator
by law, and at the termination of the conservatorship, to deliver the
assets of the ward to the person entitled thereto.
The conservator shall report to the department of human services
the assets and income of any ward receiving medical assistance under
chapter 249A. Reports shall be made upon establishment of a
conservatorship for an individual applying for or receiving medical
assistance, upon application for benefits on behalf of the ward, upon
annual or semiannual review of continued medical assistance
eligibility, when any significant change in principal or income
occurs in the conservatorship account, or as otherwise requested by
the department of human services. Written reports shall be provided
to the department of human services county office for the county in
which the ward resides or the county office in which the ward's
medical assistance is administered. Section History: Early Form
[C51, § 1499; R60, § 2551; C73, § 2250; C97, § 3200; S13, §
3228-d; C24, 27, 31, 35, 39, § 12581, 12640; C46, 50, 54, 58, 62,
§ 668.9, 671.9; C66, 71, 73, 75, 77, 79, 81, § 633.641] Section History: Recent Form
94 Acts, ch 1112, §2
Referred to in § 237.13
633.642 Repealed by 85 Acts, ch 29, § 11.
633.643 DISPOSAL OF WILL BY CONSERVATOR.
When an instrument purporting to be the will of the ward comes
into the hands of a conservator, the conservator shall immediately
deliver it to the court. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.643]
Referred to in § 237.13, 633.644, 633.645
633.644 COURT ORDER TO PRESERVE TESTAMENTARY INTENT
OF WARD.
Upon receiving an instrument purporting to be the will of a living
ward under the provisions of section 633.643, the court may open said
will and read it. The court with or without notice, as it may
determine, may enter such orders in the conservatorship as it deems
advisable for the proper administration of the conservatorship in
light of the expressed testamentary intent of the ward. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.644]
Referred to in § 237.13
633.645 COURT TO DELIVER WILL TO CLERK.
An instrument purporting to be the will of a ward coming into the
hands of the court under the provisions of section 633.643, shall
thereafter be resealed by the court and be deposited with the clerk
to be held by said clerk as provided in sections 633.286 through
633.289. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.645]
Referred to in § 237.13
633.646 POWERS OF THE CONSERVATOR WITHOUT ORDER OF
COURT.
The conservator shall have the full power, without prior order of
court, with relation to the estate of the ward:
1. To collect, receive, receipt for any principal or income, and
to enforce, defend against or prosecute any claim by or against the
ward or the conservator; to sue on and defend claims in favor of, or
against, the ward or the conservator.
2. To sell and transfer personal property of a perishable nature
and personal property for which there is a regularly established
market.
3. To vote at corporate meetings in person or by proxy.
4. To receive additional property from any source.
5. Notwithstanding the provisions of chapter 633A, subchapter IV,
part 3, to continue to hold any investment or other property
originally received by the conservator, and also any increase
thereof, pending the timely filing of the first annual report. Section History: Early Form
[S13, § 3228-d; C24, 27, 31, 35, 39, § 12640; C46, 50, 54, 58,
62, § 671.9; C66, 71, 73, 75, 77, 79, 81, § 633.646] Section History: Recent Form
99 Acts, ch 125, §107, 109; 2005 Acts, ch 38, §55
Referred to in § 237.13
633.647 POWERS OF CONSERVATOR SUBJECT TO THE APPROVAL
OF THE COURT.
Conservators shall have the following powers subject to the
approval of the court after hearing on such notice, if any, as the
court may prescribe:
1. To invest the funds belonging to the ward.
2. To execute leases.
3. To make payments to, or for the benefit of, the ward in any of
the following ways:
a. Directly to the ward;
b. Directly for the maintenance, welfare and education of the
ward;
c. To the legal guardian of the person of the ward; or
d. To anyone who at the time shall have the custody and care
of the person of the ward.
4. To apply any portion of the income or of the estate of the
ward for the support of any person for whose support the ward is
legally liable.
5. To compromise or settle any claim by or against the ward or
the conservator; to adjust, arbitrate or compromise claims in favor
of or against the ward or the conservator.
6. To make an election for the ward who is a surviving spouse as
provided in sections 633.236 and 633.240.
7. To exercise the right to disclaim on behalf of the ward as
provided in section 633E.5.
8. To do any other thing that the court determines to be to the
best interests of the ward and the ward's estate. Section History: Early Form
[C97, § 3225; S13, § 3225, 3228-d; C24, 27, 31, 35, 39, § 12629,
12640; C46, 50, 54, 58, 62, § 670.17, 671.9; C66, 71, 73, 75, 77,
79, 81, § 633.647] Section History: Recent Form
88 Acts, ch 1064, §7; 2002 Acts, ch 1086, §3, 21; 2004 Acts, ch
1015, §7; 2005 Acts, ch 38, §55
Referred to in § 237.13, 633.648
633.648 APPOINTMENT OF ATTORNEY IN COMPROMISE OF
PERSONAL INJURY SETTLEMENTS.
Notwithstanding the provisions of section 633.647 prior to
authorizing a compromise of a claim for damages on account of
personal injuries to the ward, the court may order an independent
investigation by an attorney other than by the attorney for the
conservator. The cost of such investigation, including a reasonable
attorney fee, shall be taxed as part of the cost of the
conservatorship. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.648]
Referred to in § 237.13
633.649 POWERS OF CONSERVATORS -- SAME AS ALL
FIDUCIARIES.
Except as expressly modified herein, conservators shall have the
powers relating to all fiduciaries as set out in sections 633.63 to
633.162. Section History: Early Form
[S13, § 3228-d; C24, 27, 31, 35, 39, § 12640; C46, 50, 54, 58,
62, § 671.9; C66, 71, 73, 75, 77, 79, 81, § 633.649]
Referred to in § 237.13
633.650 BREACH OF CONTRACTS.
Under order of court, for good cause shown, after such notice as
the court may prescribe, a conservator shall have the power to breach
contracts of the ward entered into by the ward prior to the
appointment of the conservator, thereby incurring such liability of
the ward's estate for such breach as the ward would have incurred for
such breach if the ward had been competent. Section History: Early Form
[R60, § 1454; C73, § 2277; C97, § 3226; C24, 27, 31, 35, 39, §
12586; C46, 50, 54, 58, 62, § 668.13; C66, 71, 73, 75, 77, 79,
81, § 633.650]
Referred to in § 237.13
See also § 633.638
633.651 Repealed by 89 Acts, ch 178, § 21.
633.652 PROCEDURE APPLICABLE TO PERSONAL
REPRESENTATIVES SHALL GOVERN.
Conservators shall have the power to sell, mortgage, exchange,
pledge and lease real and personal property belonging to the ward,
including the homestead and exempt personal property, when it appears
to be to the best interests of the ward, in the same manner and by
the same procedure that is provided in this probate code for sale,
mortgage, exchange, pledge and lease by personal representatives in
administration of estates of decedents. Section History: Early Form
[C51, § 1500--1508; R60, § 1453, 2552--2560; C73, § 2257--2265,
2276; C97, § 3206--3212, 3225; S13, § 3225; C24, 27, 31, §
12587--12596, 12628; C35, § 12587--12596, 12628, 12644-g1, -g2, -g3,
-g4, -g5; C39, § 12587--12596, 12628, 12644.21--12644.25; C46,
50, 54, 58, 62, § 668.14--668.23, 670.16, 673.1--673.5; C66, 71, 73,
75, 77, 79, 81, § 633.652] Section History: Recent Form
2005 Acts, ch 38, §51
See § 597.6 to 597.9
633.653 CLAIMS AGAINST THE WARD, THE CONSERVATORSHIP
OR THE CONSERVATOR IN THAT CAPACITY.
Claims accruing before or after the appointment of the
conservator, and whether arising in contract or tort or otherwise,
after being allowed or established as provided in sections 633.654 to
633.656, shall be paid by the conservator from the assets of the
conservatorship. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.653]
633.653A CLAIMS FOR COST OF MEDICAL CARE OR
SERVICES.
The provision of medical care or services to a ward who is a
recipient of medical assistance under chapter 249A creates a claim
against the conservatorship for the amount owed to the provider under
the medical assistance program for the care or services. The amount
of the claim, after being allowed or established as provided in this
part, shall be paid by the conservator from the assets of the
conservatorship. Section History: Recent Form
93 Acts, ch 106, §9
633.654 FORM AND VERIFICATION OF CLAIMS -- GENERAL
REQUIREMENTS.
No claim shall be allowed against the estate of a ward upon
application of the claimant unless it shall be in writing, filed in
duplicate with the clerk, stating the claimant's name and address,
and describing the nature and the amount thereof, if ascertainable.
It shall be accompanied by the affidavit of the claimant, or of
someone for the claimant, that the amount is justly due, or if not
due, when it will or may become due, that no payments have been made
thereon which are not credited, and that there are no offsets to the
same, to the knowledge of the affiant, except as therein stated. The
duplicate of said claim shall be mailed by the clerk to the
conservator or the conservator's attorney of record; however, valid
contract claims arising in the ordinary course of the conduct of the
business or affairs of the ward by the conservator may be paid by the
conservator without requiring affidavit or filing. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.654]
Referred to in § 633.653, 633.664
633.655 REQUIREMENTS WHEN CLAIM FOUNDED ON WRITTEN
INSTRUMENT.
If a claim is founded upon a written instrument, the original of
such instrument, or a copy thereof, with all endorsements, must be
attached to the claim. The original instrument must be exhibited to
the conservator or to the court, upon demand, unless it has been lost
or destroyed, in which case, its loss or destruction must be stated
in the claim. Section History: Early Form
[C51, § 1359; R60, § 2391; C73, § 2408; C97, § 3338; C24, 27, 31,
35, 39, § 11957, 11958; C46, 50, 54, 58, 62, § 635.53, 635.54;
C66, 71, 73, 75, 77, 79, 81, § 633.655]
Referred to in § 633.653
633.656 HOW CLAIM ENTITLED.
All claims filed against the estate of the ward shall be entitled
in the name of the claimant against the conservator as such, naming
the conservator, and in all further proceedings thereon, this title
shall be preserved. Section History: Early Form
[C73, § 2409; C97, § 3339; C24, 27, 31, 35, 39, § 11960; C46,
50, 54, 58, 62, § 635.56; C66, 71, 73, 75, 77, 79, 81, § 633.656]
Referred to in § 633.653
633.657 FILING OF CLAIM REQUIRED.
The filing of a claim in the conservatorship tolls the statute of
limitations applicable to such claim. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.657]
633.658 COMPELLING PAYMENT OF CLAIMS.
No claimant shall be entitled to compel payment until the
claimant's claim has been duly filed and allowed. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.658]
Referred to in § 633.664
633.659 ALLOWANCE BY CONSERVATOR.
When a claim has been filed and has been admitted in writing by
the conservator, it shall stand allowed, in the absence of fraud or
collusion. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.659]
633.660 EXECUTION AND LEVY PROHIBITED.
No execution shall issue upon, nor shall any levy be made against,
any property of the estate of a ward under any judgment against the
ward or a conservator, but the provisions of this section shall not
be so construed as to prevent the enforcement of a mortgage, pledge
or other lien upon property in an appropriate proceeding. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.660]
633.661 CLAIMS OF CONSERVATORS.
If the conservator is a creditor of the ward, the conservator
shall file the claim as other creditors, and the court shall appoint
some competent person as temporary conservator to represent the ward
at the hearing on the conservator's claim. The same procedure shall
be followed in the case of coconservators where all such conservators
are creditors of the ward; but if one of the coconservators is not a
creditor of the ward, such disinterested conservator shall represent
the ward at the hearing on any claim against the ward by a
coconservator. Section History: Early Form
[C51, § 1369; R60, § 2401; C73, § 2417; C97, § 3346; C24, 27, 31,
35, 39, § 11968; C46, 50, 54, 58, 62, § 635.64; C66, 71, 73, 75,
77, 79, 81, § 633.661]
633.662 CLAIMS NOT FILED.
The conservator may pay any valid claim against the estate of the
ward even though such claim has not been filed, but all such payments
made by the conservator shall be at the conservator's own peril. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.662]
633.663 WAIVER OF STATUTE OF LIMITATIONS BY
CONSERVATOR.
It shall be within the discretion of the conservator to determine
whether or not the applicable statute of limitation shall be invoked
to bar a claim which the conservator believes to be just, and the
conservator's decision as to the invoking of such statute shall be
final. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.663]
633.664 LIENS NOT AFFECTED BY FAILURE TO FILE
CLAIM.
Nothing in sections 633.654 and 633.658 shall affect or prevent an
action or proceeding to enforce any mortgage, pledge or other lien
upon the property of the ward. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.664]
633.665 SEPARATE ACTIONS AND CLAIMS.
Any action pending against the ward at the time the conservator is
appointed shall also be considered a claim filed in the
conservatorship if notice of substitution is served on the
conservator as defendant, and a duplicate of the proof of service of
notice of such proceeding is filed in the conservatorship proceeding.
A separate action based on a debt or other liability of the ward
may be commenced against the conservator as such in lieu of filing a
claim in the conservatorship. Such an action shall be commenced by
serving an original notice on the conservator and filing a duplicate
of the proof of service of notice of such proceeding in the
conservatorship proceeding. Such an action shall also be considered
a claim filed in the conservatorship. Such an action may be
commenced only in a county where the venue would have been proper if
there were no conservatorship and the action had been commenced
against the ward. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.665]
Referred to in § 633.666
633.666 DENIAL AND CONTEST OF CLAIMS.
The provisions of sections 633.438 to 633.448 shall be applicable
to the denial and contest of claims against conservatorships, but
shall not be applicable to actions continued or commenced under
section 633.665. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.666]
633.667 PAYMENT OF CLAIMS IN INSOLVENT
CONSERVATORSHIPS.
When it appears that the assets in a conservatorship are
insufficient to pay in full all the claims against such
conservatorship, the conservator shall report such matter to the
court, and the court shall, upon hearing, with notice to all persons
who have filed claims in the conservatorship, make an order for the
pro rata payment of claims giving claimants the same priority, if
any, as they would have if the ward were not under conservatorship.
Section History: Early Form
[R60, § 1455; C73, § 2278; C97, § 3227; C24, 27, 31, 35, 39, §
12630; C46, 50, 54, 58, 62, § 670.18; C66, 71, 73, 75, 77, 79,
81, § 633.667]
633.668 CONSERVATOR MAY MAKE GIFTS.
For good cause shown and under order of court, a conservator may
make gifts on behalf of the ward out of the assets under a
conservatorship to persons or religious, educational, scientific,
charitable, or other nonprofit organizations to whom or to which such
gifts were regularly made prior to the commencement of the
conservatorship, or on a showing to the court that such gifts would
benefit the ward or the ward's estate from the standpoint of income,
gift, estate or inheritance taxes. The making of gifts out of the
assets must not foreseeably impair the ability to provide adequately
for the best interests of the ward. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.668] Section History: Recent Form
85 Acts, ch 29, §8
633.669 REPORTING REQUIREMENTS -- ASSISTANCE BY
CLERK.
1. A guardian appointed under this chapter shall file with the
court the following written verified reports:
a. An initial report within sixty days of the guardian's
appointment.
b. An annual report, within ninety days of the close of the
reporting period, unless the court otherwise orders on good cause
shown.
c. A final report within thirty days of the termination of
the guardianship under section 633.675 unless that time is extended
by the court.
2. Reports required by this section must include:
a. The current mental and physical condition of the ward.
b. The present living arrangement of the ward, including a
description of each residence where the ward has resided during the
reporting period.
c. A summary of the medical, educational, vocational and
other professional services provided for the ward.
d. A description of the guardian's visits with and activities
on behalf of the ward.
e. A recommendation as to the need for continued
guardianship.
f. Other information requested by the court or useful in the
opinion of the guardian.
3. The court shall develop a simplified uniform reporting form
for use in filing the required reports.
4. The clerk of the court shall notify the guardian in writing of
the reporting requirements and shall provide information and
assistance to the guardian in filing the reports.
5. Reports of guardians shall be reviewed and approved by a
district court judge or referee.
6. Reports required by this section shall, if requested, be
served on the attorney appointed to represent the ward in the
guardianship proceeding and all other parties appearing in the
proceeding. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.669] Section History: Recent Form
84 Acts, ch 1299, § 17; 85 Acts, ch 29, §9; 2007 Acts, ch 134,
§16, 28 Footnotes
2007 amendment to subsection 1, paragraph b, applies to annual
reports of guardians due on or after September 30, 2007; 2007 Acts,
ch 134, §28
633.670 INVENTORY -- REPORTING REQUIREMENTS.
1. A conservator appointed under this chapter shall file with the
court:
a. An inventory within sixty days of the conservator's
appointment. This inventory shall include all property of the ward
that has come into the conservator's possession or of which the
conservator has knowledge. When additional property comes into the
possession of the conservator or to the knowledge of the conservator,
a supplemental inventory shall be filed within thirty days.
b. Written verified reports and accountings as follows:
(1) Annually, within ninety days of the close of the reporting
period, unless the court otherwise orders on good cause shown.
(2) Within thirty days following the date of removal.
(3) Upon filing resignation and before the resignation is
accepted by the court.
(4) Within sixty days following the date of termination.
(5) At other times as the court may order.
2. The clerk of court shall notify the conservator in writing of
the reporting requirements.
3. Reports of conservators shall be reviewed and approved by a
district court judge or referee. Section History: Early Form
[R60, § 2568, 2569; C73, § 2254, 2255; C97, § 3203, 3204, 3222;
C24, 27, § 12597, 12598, 12627; C31, 35, § 12597, 12598, 12627,
12644-c11; C39, § 12597, 12598, 12627, 12644.11; C46, 50, 54, 58,
62, § 668.24, 668.25, 670.15, 672.11; C66, 71, 73, 75, 77, 79, 81, §
633.670] Section History: Recent Form
84 Acts, ch 1299, § 18; 85 Acts, ch 29, §10; 2007 Acts, ch 134,
§17, 28
Referred to in § 633.671 Footnotes
2007 amendment to subsection 1, paragraph b, subparagraph (1),
applies to annual reports of conservators due on or after September
30, 2007; 2007 Acts, ch 134, §28
633.671 REQUIREMENTS OF REPORT AND ACCOUNTING.
The report and accounting required by section 633.670 shall
account for all of the period since the close of the accounting
contained in the next previous report, and shall include the
following information as far as applicable:
1. The balance of funds on hand at the close of the last previous
accounting, and all amounts received from whatever source during the
period covered by the accounting.
2. All disbursements made during the period covered by the
accounting.
3. Any changes in investments since the last previous report,
including a list of all assets, and recommendations of the
conservator for the retention or disposition of any property held by
the conservator.
4. The amount of the bond and the name of the surety on it.
5. The residence or physical location of the ward.
6. The general physical and mental condition of the ward.
7. Such other information as shall be necessary to show the
condition of the affairs of the conservatorship. Section History: Early Form
[R60, § 2568, 2569; C73, § 2254, 2255; C97, § 3203, 3204; C24, 27,
§ 12597, 12598; C31, 35, § 12597, 12598, 12644-c11; C39, § 12597,
12598, 12644.11; C46, 50, 54, 58, 62, § 668.24, 668.25, 672.11;
C66, 71, 73, 75, 77, 79, 81, § 633.671]
633.672 PAYMENT OF COURT COSTS IN CONSERVATORSHIPS.
No order shall be entered approving an annual report of a
conservator until the court costs which have been docketed have been
paid or provided for. The court may, upon application, enter an
order waiving payment of the court costs in indigent cases. However,
if the conservatorship subsequently becomes financially capable of
paying any waived costs, the conservator shall immediately pay the
costs. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.672] Section History: Recent Form
89 Acts, ch 178, §18
Referred to in § 633.551
633.673 COURT COSTS IN GUARDIANSHIPS.
The ward or the ward's estate shall be charged with the court
costs of a ward's guardianship, including the guardian's fees and the
fees of the attorney for the guardian. The court may, upon
application, enter an order waiving payment of the court costs in
indigent cases. However, if the ward or ward's estate becomes
financially capable of paying any waived costs, the costs shall be
paid immediately. Section History: Early Form
[C97, § 3222; S13, § 3228-f; C24, 27, 31, 35, 39, § 12626,
12642; C46, 50, 54, 58, 62, § 670.14, 671.11; C66, 71, 73, 75, 77,
79, 81, § 633.673] Section History: Recent Form
89 Acts, ch 178, §19
Referred to in § 633.551
633.674 SETTLEMENT OF ACCOUNTS.
The court shall settle each account filed by a conservator by
allowing or disallowing it, either in whole or in part, or by
surcharging the account against the conservator. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.674]
633.675 CAUSE FOR TERMINATION.
A guardianship shall cease, and a conservatorship shall terminate,
upon the occurrence of any of the following circumstances:
1. If the ward is a minor, when the ward reaches full age.
2. The death of the ward.
3. A determination by the court that the ward is no longer a
person whose decision-making capacity is so impaired as to bring the
ward within the categories of section 633.552, subsection 2,
paragraph "a", or section 633.566, subsection 2, paragraph
"a". In a proceeding to terminate a guardianship or a
conservatorship, the ward shall make a prima facie showing that the
ward has some decision-making capacity. Once the ward has made that
showing, the guardian or conservator has the burden to prove by clear
and convincing evidence that the ward's decision-making capacity is
so impaired, as provided in section 633.552, subsection 2, paragraph
"a", or section 633.566, subsection 2, paragraph "a", that
the guardianship or conservatorship should not be terminated.
4. Upon determination by the court that the conservatorship or
guardianship is no longer necessary for any other reason. Section History: Early Form
[S13, § 3228-e; C24, 27, 31, 35, 39, § 12641; C46, 50, 54, 58,
62, § 671.10, 672.21; C66, 71, 73, 75, 77, 79, 81, § 633.675] Section History: Recent Form
97 Acts, ch 178, §16
Referred to in § 633.635, 633.637, 633.669
633.676 ASSETS EXHAUSTED.
At any time that the assets of the ward's estate do not exceed the
amount of the charges and claims against it, the court may direct the
conservator to proceed to terminate the conservatorship. Section History: Early Form
[C46, 50, 54, 58, 62, § 668.33; C66, 71, 73, 75, 77, 79, 81, §
633.676]
633.677 ACCOUNTING TO WARD -- NOTICE.
Upon the termination of a conservatorship, the conservator shall
pay the costs of administration and shall render a full and complete
accounting to the ward or the ward's personal representative and to
the court. Notice of the final report of a conservator shall be
served on the ward or the ward's personal representative, in
accordance with section 633.40, unless notice is waived. An order
prescribing notice may be made before or after the filing of the
final report. Section History: Early Form
[C46, 50, 54, 58, 62, § 672.21; C66, 71, 73, 75, 77, 79, 81, §
633.677; 81 Acts, ch 193, § 6]
633.678 DELIVERY OF ASSETS.
Upon the termination of a conservatorship, all assets of the
conservatorship shall be delivered, under direction of the court, to
the person or persons entitled to them. Section History: Early Form
[C46, 50, 54, 58, 62, § 668.33; C66, 71, 73, 75, 77, 79, 81, §
633.678]
633.679 PETITION TO TERMINATE -- REQUEST FOR VOTING
RIGHTS REINSTATEMENT.
At any time after the appointment of a guardian or conservator,
the person under guardianship or conservatorship may apply to the
court by petition, alleging that the person is no longer a proper
subject thereof, and asking that the guardianship or conservatorship
be terminated. A person under an order appointing a guardian which
order found the person incompetent to vote may include a request for
reinstatement of the person's voting rights in a petition to
terminate the guardianship or by filing a separate petition for
modification of this determination. Section History: Early Form
[C97, § 3222; C24, 27, 31, 35, 39, § 12623; C46, 50, 54, 58,
62, § 670.11; C66, 71, 73, 75, 77, 79, 81, § 633.679] Section History: Recent Form
89 Acts, ch 178, §20; 98 Acts, ch 1185, § 11
633.680 LIMIT ON APPLICATION TO TERMINATE.
If any petition for terminating such guardianship or
conservatorship shall be denied, no other petition shall be filed
therefor until at least six months shall have elapsed since the
denial of the former one. Section History: Early Form
[C97, § 3222; C24, 27, 31, 35, 39, § 12627; C46, 50, 54, 58,
62, § 670.15; C66, 71, 73, 75, 77, 79, 81, § 633.680]
633.681 ASSETS OF MINOR WARD EXHAUSTED.
When the assets of a minor ward's conservatorship are exhausted or
consist of personal property only of an aggregate value not in excess
of twenty-five thousand dollars, the court, upon application or upon
its own motion, may terminate the conservatorship. The order for
termination shall direct the conservator to deliver any property
remaining after the payment of allowed claims and expenses of
administration to a custodian under any uniform transfers to minors
Act. Such delivery shall have the same force and effect as if
delivery had been made to the ward after attaining majority. Section History: Early Form
[C46, 50, 54, 58, 62, § 668.33; C66, 71, 73, 75, 77, 79, 81, §
633.681; 82 Acts, ch 1052, § 3] Section History: Recent Form
98 Acts, ch 1118, § 2; 2005 Acts, ch 38, §30
633.682 DISCHARGE OF CONSERVATOR AND RELEASE OF
BOND.
Upon settlement of the final accounting of a conservator, and upon
determining that the property of the ward has been delivered to the
person or persons lawfully entitled thereto, the court shall
discharge the conservator and exonerate the surety on the
conservator's bond. Section History: Early Form
[S13, § 3228-h; C24, 27, 31, 35, 39, § 12644; C46, 50, 54, 58,
62, § 671.13, 672.21; C66, 71, 73, 75, 77, 79, 81, § 633.682]
633.683 THROUGH 633.698 Reserved.
633.699 POWERS OF TRUSTEES.
Unless it is otherwise provided by the will creating a
testamentary trust, the instrument creating an express trust, or by
an order or decree duly entered by a court of competent jurisdiction,
a trustee shall have all the powers granted a trustee under sections
633A.4401 and 633A.4402. Documents incorporating by reference powers
granted a trustee under the probate code or under this section shall
be interpreted accordingly, even if the execution or adoption of the
instrument creating the trust occurred prior to July 1, 2005. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.699] Section History: Recent Form
97 Acts, ch 158, §45; 2005 Acts, ch 38, §31, 55
633.699A MODIFICATION OR TERMINATION OF UNECONOMICAL
TESTAMENTARY TRUST. Repealed by 2005 Acts, ch 38, § 50. See §
633.699B, 633A.2205, 633A.5103.
633.699B APPLICABILITY OF LAW.
The terms of this division, and all other terms of this probate
code relating to trusts and trustees, shall apply only to trusts that
remain under continuous court supervision pursuant to section 633.10
and to trusts that have not been released from such continuous
supervision pursuant to section 633.10. Regarding all such trusts,
the terms of this chapter shall supersede any inconsistent terms in
the trust code, chapter 633A, and such trusts shall be governed by
terms of the trust code, chapter 633A, that are not inconsistent with
this probate code. Section History: Recent Form
2005 Acts, ch 38, §32; 2006 Acts, ch 1010, §156
633.700 INTERMEDIATE REPORT OF TRUSTEES.
Unless specifically relieved from so doing by the instrument
creating the trust or by order of the court, the trustee shall make a
written report under oath to the court once each year within ninety
days of the close of the reporting period, and more often if required
by the court. Such report shall state:
1. The period covered by the report.
2. All changes in beneficiaries since the last previous report.
3. Any changes in investments since the last previous report,
including a list of all assets, and recommendations of the trustee
for the retention or disposition of any property held by the trustee.
4. A detailed accounting for all cash receipts and disbursements,
and for all property of the trust, unless such accounting shall be
waived in writing by all beneficiaries. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.700] Section History: Recent Form
2005 Acts, ch 3, §105; 2007 Acts, ch 134, §18, 28; 2008 Acts, ch
1032, §87
Referred to in § 633.701 Footnotes
2007 amendment to unnumbered paragraph 1 applies to annual reports
for court-supervised trusts due on or after September 30, 2007; 2007
Acts, ch 134, §28
633.701 FINAL REPORT OF TRUSTEE.
Upon the partial or total termination of a trust, or upon the
transfer of the trusteeship due to resignation, removal, dissolution,
or other disqualification of the trustee of any trust pending in
court, the trustee shall make a final report to the court, showing
for the period since the filing of the last report the facts required
for an intermediate report; provided, however, that unless
specifically required by the court to do so, the trustee shall not in
any event, be required to report such facts for any period of time as
to which the trustee has, under any of the provisions of section
633.700, been expressly relieved from reporting. In any event, the
final report of the trustee shall include the following:
1. The name and last known address of each beneficiary.
2. A statement as to those beneficiaries who are known to be
minors or under any other legal disability.
3. Distributions made or to be made to each beneficiary at the
time of such termination. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.701]
Referred to in § 633.703
633.702 NOTICE OF APPLICATION FOR DISCHARGE.
No final report of a trustee of a trust pending in court shall be
approved, and no such trustee shall be discharged from further duty
or responsibility upon final settlement, until notice of the
trustee's application for discharge shall have been served upon all
persons interested, in accordance with section 633.40, unless notice
is waived. An order prescribing notice may be made before or after
the filing of the final report. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.702]
633.703 DISCHARGE.
Upon final settlement of a trust, an order shall be entered
discharging the trustee from further duties and responsibilities.
The order approving the final report shall constitute a waiver of the
omission from the final report of any of the recitals required in
section 633.701. Section History: Early Form
[C66, 71, 73, 75, 77, 79, 81, § 633.703]
633.703A CREATION AND ESTABLISHMENT OF SEPARATE
TRUSTS. Repealed by 2005 Acts, ch 38, § 50. See § 633.699B and
633A.2208.
633.703B AVAILABILITY OF AMENDMENT PROCEDURES.
Repealed by 2005 Acts, ch 38, § 50.
633.704 DISCLAIMER. Repealed by 2004 Acts, ch
1015, § 31. See chapter 633E.
633.705 AND 633.706 Transferred to chapter 633B;
2005 Acts, ch 38, § 53.
633.707 THROUGH 633.711 Transferred to chapter
633C; 2005 Acts, ch 38, § 53.
633.800 THROUGH 633.811 Transferred to chapter
633D; 2005 Acts, ch 38, § 53.
633.901 THROUGH 633.917 Transferred to chapter
633E; 2005 Acts, ch 38, § 53.
633.1101 THROUGH 633.6308 Transferred to chapter
633A; 2005 Acts, ch 38, § 54.
633.7101 Repealed by 2005 Acts, ch 38, § 50. See §
633A.1107.