Monday, June 22, 2009

When is an Heir an Heir?

An Iowan is struggling with the definition of heir under the Iowa Probate Code. In order to qualify as an "heir" under Iowa law, you must have been conceived prior to the death of the biological parent. This has been the definition of an "heir" for 150 years. However, with advances in medical science, it is now possible that a child can be conceived after death through fertilization from frozen sperm. Still a child right? Wrong, under Iowa intestate law and for social security benefits.

Despite the same result, social security administration has ruled that being conceived after death is not the same as being conceived before death of the biological parent. As a result, the child, who has her father's DNA and is in fact the biological daughter of her father, will not be able to reap the benefits of her father's social security benefits, as other children would, that he contributed to during his life.

Due to a split in the circuit courts, expect to see either this case or a similar case before the US Supreme Court in the future. Until then, the legislature should examine the definitions in light of changes in medical science.

Friday, June 19, 2009

Planning Your Estate in Iowa for Future Changes

A power of appointment is special planning tool that not many people are aware of. What if you didn't know exactly how you wanted your assets distributed in the future at your death, but you did trust someone else, such as your spouse or child, to make those decisions for you? A power of appointment is a special authority that you can pass to someone to make distribution decisions for your assets in the future. For example, Husband's Will keeps his assets in trust for the life of Wife, and then it gives Wife the authority, at her death, to distribute the assets out as she chooses. Thus, if Son is in a bad financial situation or marital situation and it is not wise to give the money to Son now, the surviving spouse (Wife) could say that Son's share will stay in trust and not be given out to him. Or conversely, rather than keeping it in trust, it could be paid immediately to Son if his affairs are in order. If flexibility for future decisions is sought, this can be an answer.

This decision deferral, called a "Power of Appointment", is an effective estate planning tool. You can also limit how much discretion the appointee (person with the power) has so that they can't distribute it to someone that you have no intention of providing funds.

Matt Gardner - Published Author

I've always wanted to say that. Now I can. I recently had a chapter published by Aspatore Books in the book titled "Estate Planning Client Strategies: Leading Lawyers on Understanding the Client's Goals Using Trusts Effectively, and Planning in a Changing Economic Climate (Inside the Minds)." (Say that in one breath.) If you are interested in purchasing, go here (none of the proceeds go to me).