----- Message from "Rosy Avalos Eichelberger" <rosy@jrelaw.com> on Thu, 11 Jan 2007 13:37:01 -0600 -----

To:	"Real Estate Listserve" <realestate@iabar.org>, "Probate Listserve" <probate@iabar.org>
Subject:	Filing a Will Pursuant to 633.286

Does anyone out there have experience with filing the Will of a person under Iowa Code Section 633.286 for which you were not going to open a probate proceeding?  I had a client back in 2003 who died and after reviewing all of her assets/debts, the family determined that they could not afford to open her estate  I advised them that it was possible that one of her creditors would do it.  Therefore, since they had possession of her original will, we filed it with the Clerk of Court pursuant to 633.286.  I was under the presumption that this would give notice of her death to anyone who thought that they should open her estate (i.e. creditors).
 
By complete coincidence, the abstract for her previous real estate has come across my desk for examination.  No where in the abstract does it show that she is dead.  I called the Clerk's office to ask whether they put the filing of the Affidavit/Will into the computer system and they said yes.  I asked why an abstractor would not have found the Affidavit/Will if they searched the records.  I was told by the Clerk's office that these types of Affidavits/Wills are given a "level 5 security, which is unavailable to the public."  Then why do we file them?
 
We have many clients who settle the estates of their family members without formal probate for whom we always file the Will if we have it.  What should I be doing differently?
 
Rosy Avalos Eichelberger, JD
John R. Eichelberger, P.C.
208 West 2nd Street, Suite 201
Muscatine, IA 52761
Telephone: 563-263-6900
Fax: 563-263-6902
Email: rosy@jrelaw.com
 
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