tag:blogger.com,1999:blog-296836602024-03-16T11:18:01.737-05:00Iowa Estate PlanInformation on estate planning and probate from an Iowa attorney.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.comBlogger125125tag:blogger.com,1999:blog-29683660.post-78860735486368048422024-03-16T11:05:00.001-05:002024-03-16T11:17:00.470-05:00Your Voice, Your Choices: Thinking about Living Wills and Advance Directives<p><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEintlqevCnOOZIUfCjOEHd-ZK5jxExLHIq9yCQGqv3QTgxVKfCPG9sNV-MgVYLa0Kul2_bEgc89-zefKXWuSiKh0GgtmVwNyzZfzD4BZnIBrkLxPt5ZLnmq6-JM3ALjlPTmK_xwe2idJ4od_z-5S1gF18ZruNUQYGIqhvqvcWvl-jecEXpbKBkM6g/s1080/Untitled%20design.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1080" data-original-width="1080" height="205" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEintlqevCnOOZIUfCjOEHd-ZK5jxExLHIq9yCQGqv3QTgxVKfCPG9sNV-MgVYLa0Kul2_bEgc89-zefKXWuSiKh0GgtmVwNyzZfzD4BZnIBrkLxPt5ZLnmq6-JM3ALjlPTmK_xwe2idJ4od_z-5S1gF18ZruNUQYGIqhvqvcWvl-jecEXpbKBkM6g/w205-h205/Untitled%20design.png" width="205" /></a></span></div><span style="font-family: inherit;"><br /> I'll be the first to admit it: sometimes we breeze over the discussion of Advanced Directives and Living Wills discussion during estate plan consultations. And I'm pretty sure that a lot of clients don't really grasp the depths of these critical documents. Here's a pretty good <a href="https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303" target="_blank">guide and discussion</a> of the issues and documents that relate to this topic. </span><p></p><p><span style="font-family: inherit;">A recent saga from a case in Oklahoma helps illustrate how complex this "simple" question can really be even when the client actually has a Living Will in place. The individual had a valid Living Will in place, but as her situation deteriorated, her family found themselves grappling with emotional turmoil, legal uncertainties and conflicting opinions. This <a href="https://elder-law.com/oklahoma-living-will-case-shows-difficulty/" target="_blank">post </a>provides a good outline of the case, history and the issues that the courts and family had to deal with. </span></p><p><span style="font-family: inherit;">Moral of the story? Here a few key points to keep in mind when dealing with a Living Will question:</span></p><p></p><ul style="text-align: left;"><li><span style="font-family: inherit;"><b>Execute a document. (</b><a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC557072/" target="_blank"><i>Don't pull a Terri Schiavo</i></a><b>.)</b></span></li><li><b><span style="font-family: inherit;">Get a Medical Power of Attorney executed in addition.</span></b></li><li><b><span style="font-family: inherit;">DISCUSS with your family your wishes as to different scenarios.</span></b></li></ul><p></p><p><span style="background-color: #eeeeee;"><span style="font-family: inherit;">Living Wills are not mere checkboxes; they hold immense significance. As your estate planning attorney, it’s our duty to emphasize their importance and guide clients through the complexities. As the client, it is your duty to decide and discuss with your family. </span></span></p>matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-53342909923731240432023-01-19T16:09:00.000-06:002023-01-19T16:09:04.953-06:00Who Should Handle Your Assets After Death? Professional or an Amateur?<div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; text-indent: -0.5pt;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi2sl135uepHn5ILIaxfgU6MLRT08HZoEOc5c6hUq3HZ8earZFP8j0eesSxIKi8oBNNGFzVrTDWg-D6dyN9fEM-MpJBQJ76S-QLr0aim0AcG5SyPjdbeNXjOwjsPUkGeChmiEXviXexD_Yg2lCW6nNTN1GtMT5jOWLmuCr1z7Xg4PpMYY4mroo/s6000/pexels-francis-desjardins-3314113.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="6000" data-original-width="4000" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi2sl135uepHn5ILIaxfgU6MLRT08HZoEOc5c6hUq3HZ8earZFP8j0eesSxIKi8oBNNGFzVrTDWg-D6dyN9fEM-MpJBQJ76S-QLr0aim0AcG5SyPjdbeNXjOwjsPUkGeChmiEXviXexD_Yg2lCW6nNTN1GtMT5jOWLmuCr1z7Xg4PpMYY4mroo/s320/pexels-francis-desjardins-3314113.jpg" width="213" /></a></div><br /><b><span style="font-size: large;">M</span></b>ost people
like to start with considering friends and family members as trustees. They are
going to be most familiar with you and your family, and they will understand
your family’s dynamics.</span><span style="color: #333333; text-indent: -0.5pt;"> </span><span style="mso-ignore: vglayout; position: relative; z-index: -1895821312;"><span style="height: 695px; left: -8px; left: 0px; position: absolute; top: -109px; width: 646px;"><br /></span></span><span style="color: #333333; line-height: 100%;">In
addition, family members often do not charge a trustee fee (although they are
usually entitled to take a fee). Cost conscious clients see this as a plus, but
it may not be the best decision in the long run. </span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; line-height: 100%;">Most individuals don't have experience on what is involved with being a trustee. Thus, they have to learn on the job and perhaps by trial and error. Unfortunately, that learning process is done at the expense of your assets and your beneficiaries.</span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; line-height: 100%;">Having a family member or friend serve could lead
to resentment if the family member does or does not take a fee. Being a trustee
can be a lot of work and time intensive. For example, your brother may resent not getting paid for his services while overseeing
trust assets for your children. Your kids may not appreciate the work that is performed and may be perceived as being ungrateful. On the
flip side, your children may resent their uncle getting paid from "their" money
if he does take a fee. </span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; line-height: 100%;">Another
disadvantage is that your family member may be "too close" to the family and may
get caught up in the drama. Or, they may have a power trip and enjoy being in
control of your beneficiary’s finances. You may want someone with a little more separation who will see your beneficiaries with a fresh set of eyes and treat
them equally.</span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; line-height: 100%;"><span style="text-indent: -0.666667px;">Instead, your family may be better served with a qualified bank that has expertise with trust administration. </span>Professional
trustees, like a bank, bring structure and oversight to the trust administration, including an experienced trust department that oversees the trust administration. You will pay for
this service, but in many instances, it will be money well spent. They will
make the tough decisions and tell beneficiaries “no” when appropriate. It is
often advantageous to use a bank (i) when the beneficiaries do not get along, (ii) when
there is a problem beneficiary, (iii) your beneficiaries are busy with life; or (iv) when you are dealing with larger estates or difficult to manage assets.</span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; line-height: 100%;">In short, family and finances can be a volatile mixture.</span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; font-family: Calibri, sans-serif; text-indent: -0.5pt;">A
drawback to a bank is that they may be perceived as too restrictive or inflexible.
They also may be “tightfisted” in making distributions if it will reduce the
assets under management that they are investing. These concerns can be
addressed by giving a neutral third party, such as a trusted family member or
advisor, the ability to remove and replace the trustee if necessary.</span></div><div style="line-height: 100%; margin: 0in 0in 13.85pt -0.25pt; text-align: left; text-indent: -0.5pt;"><span style="color: #333333; font-family: Calibri, sans-serif;">In summary, while individuals can perform the job, you should at least consider using a professional to do the job correctly and efficiently to help keep family harmony.</span></div><p class="MsoNormal" style="line-height: 100%; margin-bottom: 13.85pt; margin-left: -.25pt; margin-right: 0in; margin-top: 0in; text-indent: -.5pt;"><o:p></o:p></p>
<p class="MsoNormal" style="line-height: 100%; margin-bottom: 13.85pt; margin-left: -.25pt; margin-right: 0in; margin-top: 0in; text-indent: -.5pt;"><o:p></o:p></p>
<p class="MsoNormal" style="line-height: 100%; margin-bottom: 13.85pt; margin-left: -.25pt; margin-right: 0in; margin-top: 0in; text-indent: -.5pt;"><o:p></o:p></p>
<p class="MsoNormal" style="line-height: 100%; margin-bottom: 13.85pt; margin-left: -.25pt; margin-right: 0in; margin-top: 0in; text-indent: -.5pt;"><o:p></o:p></p>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-86623494530779510452021-05-23T12:05:00.001-05:002021-05-23T12:05:23.064-05:00Iowa Inheritance Tax - A Thing of the Past in the Future?<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0CF06XT_XC4DUq9UyWra8SnBHReTKRGxEZcgwIkW3N0r9jga3FpQ_HHY3zBqEul6p71QLLBM79GZDXuqjnudjrpvWtUi1AUH34O2okMaQ14IWyQSpM_PXCGgSCgE6dfb0AeOxrw/s1350/Untitled+design-2.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img alt="Iowa Inheritance Tax" border="0" data-original-height="650" data-original-width="1350" height="193" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0CF06XT_XC4DUq9UyWra8SnBHReTKRGxEZcgwIkW3N0r9jga3FpQ_HHY3zBqEul6p71QLLBM79GZDXuqjnudjrpvWtUi1AUH34O2okMaQ14IWyQSpM_PXCGgSCgE6dfb0AeOxrw/w572-h193/Untitled+design-2.png" width="572" /></a></div>It isn't uncommon to be discussing an estate plan with a client on beneficiaries of their estate plan and they will mention that they want to leave a gift to a sibling, or a nephew/niece, or a friend, or son-in-law, or their favorite estate planning attorney. (Okay, I made that last one up, but holding out hope...subject to ethical concerns.) And while we can certainly make a bequest to those individuals, I always give the disclaimer that <a href="https://www.iowaestateplan.com/2008/12/iowa-inheritance-taxes.html" target="_blank">there is an Iowa Inheritance tax </a>that would need to be paid. Sometimes that prompts a few comments about taxes that aren't favorable to the Iowa tax system and fairness. Mainly because gifts to children are exempt already, so those individuals that were either unable to have their own children or chose to not have children feel slighted by the tax rules.<p></p><p>But that looks to be coming to an end. The Iowa legislature recently passed a bill to repeal the Iowa Inheritance Tax. It is phased in with reductions for the first few years, but on January 1, 2025 the Iowa Inheritance Tax will be fully repealed, assuming Governor Reynolds signs the <a href="https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=SF619" target="_blank">bill</a> (SF619). Those individuals that die on or after January 1, 2021 also receive some reductions in the taxes, but those dying after January 1, 2025 get the full 100% reduction. (Well, the dying people don't get the benefit, but their beneficiaries get the benefit.)</p><p><br /></p>matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-86376281391984001572021-03-07T20:45:00.004-06:002021-03-07T20:45:50.044-06:00Will Contests in Iowa Before Death? Nope.<p> Check out my <a href="https://probate-iowa.com/will-contest-before-death-not-in-iowa/">post</a> on the pre-mortem will contest on the Probate-Iowa blog. Too tired to click and just want the short answer? Can't do it in Iowa. Have to wait until the person dies before you challenge the will.</p>matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-38439487233696017772020-06-14T22:18:00.005-05:002020-06-14T22:19:25.704-05:00Cheated Out of an Inheritance? Better Stay on Your Toes If You Want to File a Lawauit.As I discuss in more detail on the <a href="https://probate-iowa.com/big-changes-to-iowas-intentional-interference-with-inheritance-claims/" target="_blank">post</a> on my <a href="https://probate-iowa.com/" target="_blank">Iowa probate blog</a>, a recent ruling from the Iowa Supreme Court significantly changes the time period in which to bring a lawsuit for interference with inheritance. In short: <b>don't wait very long</b>.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-16533785694094618992020-04-12T20:01:00.000-05:002020-04-12T20:01:37.047-05:00Protection for Elders in Iowa From Financial Exploitation<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiM94KYP-8KUo6bTVHxRIxt5Jim5t080xKT5WenplVnfyGW_eOfe2gCON5g6TVCsCywZXcTnz2w2x9YBAg36w8Zw3ocaLI-kfdFyViOMrUimP5GhFu09NJy0gd4VWrTybH6qYwzHg/s1600/555.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="335" data-original-width="600" height="178" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiM94KYP-8KUo6bTVHxRIxt5Jim5t080xKT5WenplVnfyGW_eOfe2gCON5g6TVCsCywZXcTnz2w2x9YBAg36w8Zw3ocaLI-kfdFyViOMrUimP5GhFu09NJy0gd4VWrTybH6qYwzHg/s320/555.jpg" width="320" /></a></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<b style="font-size: 11pt;"><u><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">What is "elder abuse"?</span></u></b></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">As provided in <a href="https://www.legis.iowa.gov/docs/code/2019/235F.pdf" target="_blank">Iowa Code 235F</a>, elder abuse means any of the following:<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpFirst" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 0.0001pt 0.5in; text-indent: -0.25in;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">1.<span style="font-family: "Times New Roman"; font-size: 7pt; font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Physical injury to, unreasonable confinement, punishment or assault of a vulnerable elder<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 0.0001pt 0.5in; text-indent: -0.25in;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">2.<span style="font-family: "Times New Roman"; font-size: 7pt; font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Sexual offense with or against a vulnerable elder<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 0.0001pt 0.5in; text-indent: -0.25in;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">3.<span style="font-family: "Times New Roman"; font-size: 7pt; font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Neglect by a caretaker of a vulnerable elder<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpMiddle" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 0.0001pt 1in; text-indent: -0.25in;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">a.<span style="font-family: "Times New Roman"; font-size: 7pt; font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Includes the deprivation of the minimum food, shelter, clothing, supervision, or physical or mental health care necessary to maintain life or health<o:p></o:p></span></div>
<div class="MsoListParagraphCxSpLast" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt 0.5in; text-indent: -0.25in;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">4.<span style="font-family: "Times New Roman"; font-size: 7pt; font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal;"> </span></span><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Financial exploitation of a vulnerable elder.<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<br /></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<b><u><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Who is considered a vulnerable elder?<o:p></o:p></span></u></b></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">A vulnerable elder means a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of age or a mental or physical condition or because of a personal circumstance which results in an increased risk of harm to the person.<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<br /></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<b><u><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Did you know that the elderly poor are at greater risk of financial exploitation than the wealthy?<o:p></o:p></span></u></b></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Many low-income older Iowans are financially exploited by caretakers, family and "friends". Approximately 8,195 reports of alleged dependent adult abuse or neglect were made to the Iowa Department of Human Services between July 1, 2017 and June 30, 2018. After filing a claim, an abused or neglected dependent adult has less than a five percent chance of formal litigation taking place.<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Prior to 2014, the only options for victims of elder abuse were through the Iowa Department of Human Services, or taking the expense of hiring a private attorney to file a lawsuit against an alleged abuser which might cost more than what you can recover...if you win.<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Now, Iowa Code 235F comes to the rescue. This new law broadened the definition of abusers to include persons beyond just the caretaker. Iowa attorneys can now utilize a relatively new action called a 235F petition for relief from elder abuse. Unlike a traditional civil action that can take more than a year before it’s tried, a petition for relief from elder abuse hearing shall be set between five and 15 days after commencing a proceeding and notice to the other party. Also, there is extremely little formal discovery in these cases based upon the Iowa Supreme Court 2019 ruling in <a href="https://www.iowacourts.gov/courtcases/6284/embed/SupremeCourtOpinion" target="_blank">Struve v. Struve</a>. (Good case to read for explaining the law.)<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<b style="font-size: 11pt;"><u><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;"><br /></span></u></b></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<b style="font-size: 11pt;"><u><span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Moral of the Story:</span></u></b></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman", serif; font-size: 12pt; line-height: 17.12px;">Don’t try and pull a fast one on your grandma. Iowa is closing loopholes in elder abuse situations. No longer is it only the “caretaker” that can commit elder abuse. The “abuser” can be a family member, spouse, child, neighbor, friend, etc.<o:p></o:p></span></div>
<div class="MsoNormal" style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 15.6933px; margin: 0in 0in 8pt;">
<br /></div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-16238632775537718842020-04-12T19:20:00.001-05:002023-02-15T07:55:24.393-06:00Probate Issues in Iowa Now a Separate BlogWay back in 2009, or whenever I started this blog, I posted about probate topics as well as estate planning. (I'm not sure I expected to be blogging still in 2020. My dream of retiring at age 44 and retiring to a caribbean island just didn't materialize.) Then one day I looked at the site address-Iowa Estate Plan--and decided maybe it made more sense to keep probate topics on one site and keep this as estate planning. Plus, I purchased the Probate Iowa site and decided I should probably put something on it.<br />
<br />
There will always be some overlap between the topics, but with the convenience of a computer mouse and a click, you can easily maneuver back and forth to your heart's content.<br />
<br />
Check out <a href="https://probate-iowa.com/" target="_blank">Iowa Probate</a> for posts about probate matters in Iowa.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-56218592936356658142020-03-22T19:37:00.002-05:002020-03-22T19:37:32.710-05:00COVID-19 and Suspension of Physical Presence for the Execution of Legal DocumentsEach day gets crazier and crazier on COVID-19's impact on our society, including in the estate planning world. Under Iowa long-standing law (<a href="https://www.legis.iowa.gov/docs/code/633.279.pdf" target="_blank">Iowa Code sec. 633.279</a>), when an individual signs their will, it is required that they sign in the <b>presence</b> of two individuals. This has been pretty strictly adhered to by Iowa courts in requiring the physical presence of the witnesses.<br />
<br />
Today, Iowa Governor Kim Reynolds issued a <a href="https://governor.iowa.gov/sites/default/files/documents/Public%20Health%20Proclamation%20-%202020.03.22.pdf" target="_blank">proclamation</a> suspending the requirement of physical presence of individuals witnessing the signing of wills and medical power of attorney documents provided that the signing takes place where the witnesses and individual can see and hear one another through electronic means, such as video conferencing.<br />
<br />
The other portion of the proclamation deals with the remote notarization of documents. Technically, Iowa's remote notary law wasn't scheduled to take effect until July 1, 2020 so the Governor's proclamation essentially "fast tracked" the implementation date. This one is a little trickier as we don't have rules from the Iowa Secretary of State's office yet. However, we are looking to get some additional guidance this week from their office.<br />
<br />
Special thanks to Governor Reynolds and the <a href="https://iowatec.org/" target="_blank">Iowa Academy of Trust and Estate Counsel</a> in getting this done expeditiously.<br />
<br />
For all of those individuals that were "dying" to sign their Last Will and Testament, but didn't want to be in my physical presence, act now. We can "Zoom" to you and get those signed.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-91966148652117637322020-02-09T20:17:00.004-06:002020-02-09T20:17:55.171-06:00Retirement Accounts and Conduit Trusts and SECURE Act. What Do I Need to Do???The recent passage of the “<a href="https://www.congress.gov/116/bills/hr1994/BILLS-116hr1994rds.pdf">Setting Every Community Up for Retirement Enhancement” Act </a><a href="https://www.congress.gov/116/bills/hr1994/BILLS-116hr1994rds.pdf">(SECURE Act)</a> in December 2019 created some significant changes to retirement accounts. One big change of SECURE resulted in changes to allowing what is commonly referred to as “stretch” IRA’s. Previously, beneficiaries such as children and grandchildren, were able to have funds withdrawn from an inherited retirement account over the rest of their expected life. That allowed younger beneficiaries to extend (or stretch) the IRA distributions over several years, or potentially decades for very young beneficiaries. The result was that the taxable income was spread over a long period of time that allowed the account to continue to grow (hopefully). With a few exceptions, the stretch IRA is no longer an option and funds from a traditional IRA/401k must be withdrawn within ten (10) years of your passing.<div>
<br /></div>
<div>
Many clients incorporated provisions in your estate plan that used the “conduit” trust as a way for your trustee to control those IRA/401k distributions for certain beneficiaries. For example, if you had a young beneficiary or a beneficiary that had some concerns over financial management or financial maturity, you may have listed your trust (whether a revocable living trust or trust established under your Will) as the beneficiary of your IRA/401k with the intention of stretching those distributions out over many years. To accomplish that goal, trust provisions provided the required “conduit trust” language.</div>
<div>
<br /></div>
<div>
Now, with the SECURE Act provisions (starting January 1, 2020), those same conduit trust provisions may result in some undesired results where instead of stretching distributions out, the most we can do is a ten year window. </div>
<div>
<br /></div>
<div>
So what does this mean for you? My favorite answer: “it depends”. More specifically, it depends on your beneficiary designation on that retirement account and it depends on the personal situation with your beneficiaries.</div>
<div>
<br /></div>
<div>
<b>If you have a trust named as a beneficiary of your IRA/401k, you should review your trust to determine if the “conduit trust” language is present in your trust and whether that is appropriate. </b>If you would like to set up a meeting to review your situation and your trust language, please feel free to contact our office to arrange a meeting.</div>
<div>
<br /></div>
<div>
<b>Conversely, if your IRA/401k does NOT list a trust as a beneficiary, then it is not necessary to modify your trust. </b> (Although it might be a good idea to review your estate plan regardless.) </div>
<div>
<br /></div>
<div>
If you have minor beneficiaries, the conduit trust provisions can remain and we can still stretch those distributions out until they reach age eighteen, and then the new ten year withdrawal period starts once they reach age 18.<br /><br /><u>The first step is to check your beneficiary designation.</u> You should have that information with your files, otherwise your financial planner or HR representative should be able to help you out. Then, <u>if a trust is the beneficiary</u>, the second step is to examine your estate plan documents (will or trust) to confirm the conduit trust language is present. If it is, the next step is to examine your beneficiary’s situation to determine if you are comfortable with that beneficiary getting access to all of those funds in that ten year window after your death. </div>
<div>
<br /></div>
<div>
If you want to limit your beneficiary’s access for a longer period of time (e.g., beneficiary with creditor problems, marital concerns, addiction issues, etc.) we can still utilize a different structure to control those funds beyond a ten year window. However, <u>changes to your plan will be necessary</u>.<br /><br />If you aren’t sure what if anything you need to do, or just want an excuse to come see me, we would be glad to visit with you about your current estate plan and any necessary changes for this issue or any other changes.</div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-11365134832891986952019-12-15T21:38:00.000-06:002019-12-15T21:38:49.544-06:00Iowa Guardians and Conservators: Substantial Changes in Store for 2020<div class="separator" style="clear: both; text-align: center;">
</div>
<div style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em; text-align: left;">
<img alt="" class="irc_mi" height="190" src="https://dlyhjlf6lts50.cloudfront.net/app/uploads/2019/01/GuardianshipDocument1-1.png" title="" width="320" /></div>
<div style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;">
<br /></div>
<br />
<br />
<br />
<span style="text-align: center;">If you are (a) currently acting as the guardian and/or conservator for an Iowa resident or (b) plan to be appointed as guardian and/or conservator for an Iowa resident, </span><b style="text-align: center;">bigly changes are in place for 2020 for annual reports or initial reports starting January 1, 2020</b><span style="text-align: center;">.</span><br />
<br />
I'll leave the procedural details out for now. (Nobody except for attorneys really read those anyway). Maybe another post for another day. But for the annual reports for guardians and/or conservators, the forms are going from the very basic two pages (or so), to 16 and 19 pages long, respectively. Granted, some of the information that goes on the forms is fairly simple to fill out, but it is a substantial change to what was previously required under the old statute and rules and will take more time and effort. But hey, all of the guardians and conservators that I work with have <i>plenty</i> of time to learn the new forms, fill them out and either file or have an attorney file them, right?<br />
<br />
Another question is "why"? Well, we've known for some time that the system needed to be improved. However, you have to be careful when you start tinkering and before long you end up with a full blown change, much like we have here. (Kind of like when I start with the intent of just trimming one little branch off a tree, and before long 3/4 of the tree has been "trimmed" and is laying on the ground all around me and there is just one straight stick standing out of the ground.) I won't get into the back story and other issues that came about, but I will say that a substantial majority of the Iowa probate attorneys (and judges) are not pleased with the end result.<br />
<br />
Unfortunately, the first set of forms that the Iowa Judicial branch has prepared were not approved by the legislative committee, but a new set of forms were recently proposed, so we are awaiting those to be approved. If you want to get a taste of the new guardianship annual report form, here is a <a href="https://www.iowacourts.gov/collections/453/files/957/embedDocument/" target="_blank">link</a> to the new proposed form. Some legislators think that these forms will only take 30 minutes or so to fill out. Ha. Remember, these are the same legislators that . . . never mind, I better not go down that road.<br />
<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-2305685380076655602019-05-12T23:18:00.000-05:002019-05-12T23:18:07.412-05:00Some Gifts Are Not Forever: Iowa's Rule on Confidential Relationship and Refunding of Lifetime GiftsA <a href="https://law.justia.com/cases/iowa/court-of-appeals/2019/17-2010.html" target="_blank">recent ruling from the Iowa Court of Appeals </a>addressed gifts from a parent (now deceased) to a trusted child. Applying the standard involving "confidential relationships" and gifts during life, the Iowa Court of Appeals affirmed that the recipient of the gifts was required to return the gifts received during mom's life back to her estate.<br />
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4Y11rg_KkpnEsu_AKQLHltEIixJLvRCoYjTEIC_FUQk02-WrKK0zJ_HAlvb6RmENFt8IDcy4YCwgHINdk5tH3z3teTrmUPubjOqNNFNx0quqKaoU59cDdxJzJx6zP2CklJmb53Q/s1600/rene-bohmer-462864-unsplash.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4Y11rg_KkpnEsu_AKQLHltEIixJLvRCoYjTEIC_FUQk02-WrKK0zJ_HAlvb6RmENFt8IDcy4YCwgHINdk5tH3z3teTrmUPubjOqNNFNx0quqKaoU59cDdxJzJx6zP2CklJmb53Q/s200/rene-bohmer-462864-unsplash.jpg" width="133" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"><span style="font-size: xx-small;">Photo by <a href="https://unsplash.com/photos/1oDK5-RMatA?utm_source=unsplash&utm_medium=referral&utm_content=creditCopyText" style="background-color: whitesmoke; box-sizing: border-box; color: #999999; font-family: -apple-system, BlinkMacSystemFont, "San Francisco", "Helvetica Neue", Helvetica, Ubuntu, Roboto, Noto, "Segoe UI", Arial, sans-serif; text-align: start; text-decoration-skip-ink: auto; transition: color 0.2s ease-in-out 0s, opacity 0.2s ease-in-out 0s; white-space: nowrap;">Rene Böhmer</a><span style="background-color: whitesmoke; color: #111111; font-family: -apple-system, BlinkMacSystemFont, "San Francisco", "Helvetica Neue", Helvetica, Ubuntu, Roboto, Noto, "Segoe UI", Arial, sans-serif; text-align: start; white-space: nowrap;"> on </span><a href="https://unsplash.com/search/photos/blind?utm_source=unsplash&utm_medium=referral&utm_content=creditCopyText" style="background-color: whitesmoke; box-sizing: border-box; color: #999999; font-family: -apple-system, BlinkMacSystemFont, "San Francisco", "Helvetica Neue", Helvetica, Ubuntu, Roboto, Noto, "Segoe UI", Arial, sans-serif; text-align: start; text-decoration-skip-ink: auto; transition: color 0.2s ease-in-out 0s, opacity 0.2s ease-in-out 0s; white-space: nowrap;">Unsplash</a></span></td></tr>
</tbody></table>
<br />
<b>Quick facts: </b> Mom and dad had four kids. Dad passed away a few years ago and one of the sons started assisting mom with her financial affairs. This son was also a Florida-licensed attorney (cue the evil character background music). Unfortunately, sibling love was not bountiful even when mom was alive, which continued after mom passed away. Following mom's death, it was eventually revealed that numerous accounts and funds had been transferred ("gifted") to the son that was helping mom out, but that the gifts were "at his mother's direction" and his siblings were just jealous that he received more than they did. ("Mom loved me the most" defense) Following a trial, the court ruled that the son was helping out a little too much and determined that he had a "confidential relationship" with his mother during her life and he was unable to show the gifts to him were done with mom's free, intelligent and voluntary assent but instead were the result of the undue influence from the son.<br />
<br />
<b>The key lesson today</b>, kids, deals with the term "<i>confidential relationship</i>". Essentially, a relationship that a person by kind and considerate treatment establishes a dominant influence over the other. Or, put another way, where one has gained the confidence of another and that person comes to rely on and trust them in their important affairs. A confidential relationship can exist regardless of a person's mental capacity. But when a person places their trust and ability in someone to act on their behalf, a confidential relationship can be established. Here, mom trusted her son, who was an attorney, to assist her in financial matters and relied upon his advice.<br />
<br />
Once that confidential relationship is established, then the issue of the gifts to the son take on a new meaning. At that time, son (as the recipient of the gifts) has to show that he was acting in mom's best interest and her knowing assent when the gifts were made out to him. His testimony alone was not sufficient and a refund of the gifts was required as a result of his undue influence arising from his confidential relationship.<br />
<br />
<b>Moral of the story</b>: if you are going to help someone out with handling their financial affairs, that is great. The world needs more selfless people with good intentions. <i>However</i>, if there are some gifts back to you from the person you are helping out, you need to be careful about how those are handled to make sure those are handled properly.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-35846126904787669862018-11-25T19:48:00.000-06:002018-11-25T19:48:10.214-06:00Effect of Divorce in Iowa Estate Planning: Do I Need to Change My Will to Keep My Ex Away?<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjQsp8ttA-E1jGGqItFqC3NTTIiomIiNh7M_z1Uyub0B4P1Lq7WyHCCiSHBWO9Hb9SDLK0Q59-Fq4RFKDRaRaWLOHqLODGjVG-YWveXMNHGwqiwSzRvhc5PQ0UnnWdZfJ20hEqC0w/s1600/alimony-annulment-break-up-39483.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1067" data-original-width="1600" height="213" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjQsp8ttA-E1jGGqItFqC3NTTIiomIiNh7M_z1Uyub0B4P1Lq7WyHCCiSHBWO9Hb9SDLK0Q59-Fq4RFKDRaRaWLOHqLODGjVG-YWveXMNHGwqiwSzRvhc5PQ0UnnWdZfJ20hEqC0w/s320/alimony-annulment-break-up-39483.jpg" width="320" /></a><span id="goog_1480073726"></span><span id="goog_1480073727"></span>First and foremost, I don't handle divorces and won't go further with any divorce questions because my knowledge ends with that. In 20+ years of practice, handling a divorce 20 years ago was good enough to put away those materials.<br />
<br />
But for those that have gone through a divorce, there is typically the question about how a divorce impacts your estate plan documents. The Iowa legislators realize that many people don't go through the process to update their estate plans after a divorce, so they have implemented a series of code sections throughout the Iowa Code that essentially provide that if you get a divorce, any provisions that provide for your beloved "ex" are ignored. Those various code sections are consolidated here to help you sleep a little easier at night:<br />
<br />
<ul>
<li><b>Iowa Code section 598.20A</b> provides that if you list your ex-spouse (or relatives of your ex-spouse) as your beneficiary of life insurance, that designation is ignored.</li>
<li><b>Iowa Code section 598.20B</b> provides that if you list any of the same individuals as beneficiaries of your IRA, annuity, stock option plan, POD (Payable on Death) account, or TOD (Transfer on Death) registration, your beneficiary will be ignored. </li>
<li><b>Iowa Code section 633.271</b> provides that any provisions in your will, whether as a beneficiary or appointment to a fiduciary position (executor or trustee for example) are negated. </li>
<li><b>Iowa Code section 633B.10</b> provides that if you name your spouse as your agent under your financial power of attorney, their power terminates <i>when the petition for dissolution is filed</i>. </li>
<li><b>Iowa Code section 144B.12</b> provides that after a divorce, if your medical power of attorney lists your spouse, that authority is revoked. (No mention of relatives of ex-spouse).</li>
</ul>
<div>
"SO...with all of these helpful statutes, that means that I don't have to visit my friendly estate planning attorney, right?" Not so fast my friend. Updating your plan is still important for several reasons. </div>
<div>
<br /></div>
<div>
(1) There may be a series of steps and documentation to prove that those provisions shouldn't apply and it may cause some <u>delays in handling those matters</u>. (e.g., What if your family members have trouble tracking down the divorce decree?) </div>
<div>
(2) Just because your ex and family is out, you should <u>re-examine who you want to handle your affairs or receive assets</u>. I've seen numerous documents that did not list an alternate/contingent individual. That leaves all plans up to the court's determination which may not be the result you would like and can cause some legal fees to get that determination.</div>
<div>
(3) You <u>may want your ex-spouse</u> to be involved. **GASP** Sometimes former spouses maintain a good relationship and still trust them to handle certain aspects. Maybe not the norm, but it happens.<br />
(4) Your federal laws are not so friendly for those procrastinating individuals. Your <u>401k-type plan funds, which are not subject to the Iowa laws, do not have your ex-spouse revoked as a beneficiary</u>. I suspect that will be enough of a reason to start the process to update your beneficiary ASAP.<br />
<br /></div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-40314917812958332152018-04-08T13:51:00.002-05:002018-04-08T13:51:41.586-05:00Avoiding Probate Just Got a Little Easier...For Certain Estates<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHir6XCcT3crNaNCFNnbKU7Ew7TdguxgDfHpO9G_vXL2p5W9EpnqqZgTUhdDT8SRzCRrT_V1nR4FEG4nMGEs_reKfTM-URf6aEdhmGQxwBlxYPxPQ2TLurXNAaN8Q-OkS41Wqfzw/s1600/IMG_5573.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="800" data-original-width="1600" height="160" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHir6XCcT3crNaNCFNnbKU7Ew7TdguxgDfHpO9G_vXL2p5W9EpnqqZgTUhdDT8SRzCRrT_V1nR4FEG4nMGEs_reKfTM-URf6aEdhmGQxwBlxYPxPQ2TLurXNAaN8Q-OkS41Wqfzw/s320/IMG_5573.jpg" width="320" /></a></div>
Currently in Iowa, if a decedent owns personal property that totals $25,000 or less, and that property would normally pass under a Will or the intestate statute, you can skip probate with just an <a href="http://www.iowaestateplan.com/2015/11/estates-in-iowa-do-i-really-need-to-go.html" target="_blank">affidavit</a>. The governor recently signed <a href="https://www.legis.iowa.gov/docs/publications/LGE/87/HF2125.pdf" target="_blank">a bill</a> that increased that figure up to $50,000 (for deaths after July 1, 2018), along with a few extra new additions to the affidavit.<br />
<br />
So...what does that mean lawyer boy? This:<br />
<br />
<ul>
<li>If the dead person owned real estate, the affidavit doesn't work.</li>
<li>If the dead person owned other types of property that all together <u>total</u> more than $50,000, the affidavit doesn't work.</li>
<li>You still have to pay <a href="http://www.iowaestateplan.com/2008/12/iowa-inheritance-taxes.html" target="_blank">inheritance taxes</a>, if any are due.</li>
<li>You still have to pay the creditors, if any.</li>
<li>You still have to pay the state back for any Medicaid debts due.</li>
<li>Otherwise, you use the affidavit to transfer those small estates.</li>
</ul>
<br />
Here's a common scenario where the affidavit could be used:<br />
<div style="text-align: justify;">
<span style="background-color: #fff2cc;">John Smith passes away. When he died, he owned his truck, lived in an apartment, had a checking account with $5,000 in it, a savings account balance of $32,670, and the complete collection of all the <i>Journey</i> albums and CD's issued. As his 3 children are carefully dividing dad's <i>Journey</i> album collection, the question comes around to who is going to handle the job of getting the bank account money and the truck. Contrary to the belief of some, the bank won't just hand over money to the family "just because they are family". However, if dad had a will that left his assets to his kids -or- dad did not have a will, but he did not have a spouse and his kids are all surviving, one of the kids could provide the affidavit with the super-secret language to the bank and the bank will issue a check for the bank account balances. That child can then pay any bills dad left behind (rent, utilities, etc.) and then divide the rest out to their siblings. No probate. No public notice. Lower attorney fees.</span></div>
<span style="background-color: #fff2cc;"><br /></span>
<span style="background-color: white;">There are different examples where this affidavit could be used (some even include scenarios where the decedent has a multi-million dollar estate) to transfer assets that: (1) don't have a beneficiary listed or (2) don't have a joint owner, but (3) total less than the $50,000. When you are talking about minimum probate fees in the $2,000 range and timeframe of 7 months to a year or more, this could be an opportunity to simplify the process, shorten the time, and save funds. </span><br />
<span style="background-color: white;"><br /></span>
<span style="background-color: white;">Before you try to do this on your own (which you <i>can</i>...but you can do a lot of stuff on your own, like <a href="http://theconversation.com/is-it-ever-a-good-idea-to-perform-self-surgery-62569" target="_blank">surgery</a>, but that doesn't mean you <i>should</i>) visit with a Trusts and Estates Iowa attorney to walk you through the steps and save yourself some time and frustration.</span>matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-76033934545248645012017-06-11T20:44:00.000-05:002017-06-11T20:44:09.423-05:00Intentional Interference With Inheritance - Estate of Boman (2017)<div class="separator" style="clear: both; text-align: center;">
<a href="https://www.jbs.cam.ac.uk/fileadmin/user_upload/alumni/carousels/cjbs-network-email-883x432.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="391" data-original-width="800" height="156" src="https://www.jbs.cam.ac.uk/fileadmin/user_upload/alumni/carousels/cjbs-network-email-883x432.jpg" width="320" /></a></div>
You gotta love email. In seconds, I can transmit a message around the globe to one person or to hundreds of people, or I can share a photo of my dog, Georgia. Or you can email your parents' attorney and tell the attorney what changes to make to your parents' estate plan to exclude one of your siblings. Whoops.<br />
<br />
In <a href="http://www.iowacourts.gov/About_the_Courts/Court_of_Appeals/Court_of_Appeals_Opinions/Recent_Opinions/20170208/16-0110.pdf" target="_blank">Estate of Boman</a>, decided earlier this year, the on-going feud between two sisters and their brother, plus a little "spice" mixed in with the stepmother, resulted in jury trial supporting the claim of undue influence for a will and also intentional interference of inheritance by the sisters. The court's ruling specifically identified the numerous email communications from the sisters to their dad's attorney as significant evidence supporting the brother's claim. While the brother (will contestant) was not able to successfully support his claim of lack of capacity as his evidence failed to find lack of capacity for "the day the will was signed", his jury verdict was still upheld on appeal by the Iowa Court of Appeals. In addition to lack of communication, serious allegations of behavior, the sister's callousness of not even telling their brother about their father's death and funeral further supported their actual malice and thus the nearly $200,000 in punitive damages against the sisters was also affirmed.<br />
<br />
Ah, the joy of email.<br />
<br />
<br />
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjD07ve9IH0zM3g_FaNojyDnQFdM3fBsDf32rI-7QaaI7ALfcVDelFsFEa0YDFJ-dz41Mx2FuXutowhiP1-hjlFlOsuPuBTSFHziQe1fGWgv9zBKck_WDJnRgs0JZiVv9_pqAtrng/s1600/IMG_3091.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1200" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjD07ve9IH0zM3g_FaNojyDnQFdM3fBsDf32rI-7QaaI7ALfcVDelFsFEa0YDFJ-dz41Mx2FuXutowhiP1-hjlFlOsuPuBTSFHziQe1fGWgv9zBKck_WDJnRgs0JZiVv9_pqAtrng/s200/IMG_3091.JPG" width="150" /></a>matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-35371133651851354752017-01-15T21:28:00.000-06:002017-01-15T21:28:01.357-06:00Take That Step<div dir="auto" style="background-color: white; font-family: sans-serif; font-size: 11pt; margin-bottom: 25px; margin-top: 25px;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiOgZaEPzK6H05ItQbifHtheeKYffSSNKmiEeopTDQjAGNkWn8sQLgINYKGSqOXB39HJOFu-uIvEtZML1Em2ET8QFTkWqq_qoWs98aGNIt9_ULb-MEYTuxJtZscNrO1xQsjfW1bEw/s1600/IMG_4084.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="213" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiOgZaEPzK6H05ItQbifHtheeKYffSSNKmiEeopTDQjAGNkWn8sQLgINYKGSqOXB39HJOFu-uIvEtZML1Em2ET8QFTkWqq_qoWs98aGNIt9_ULb-MEYTuxJtZscNrO1xQsjfW1bEw/s320/IMG_4084.JPG" width="320" /></a>This past year, I had the opportunity to go skydiving. What a blast! I had wanted to skydive for a while so I was anxious to jump out. However, when you are on the edge of the plane door, looking out at the ground several thousand feet below you, a slight pause is a natural feeling. Thinking about your possible demise can be unnerving. Similarly, sometimes doing your estate planning can have the same feeling. Unfortunately death is a certainty for all of us and it doesn't necessarily get any easier later on.</div>
<div dir="auto" style="background-color: white; font-family: sans-serif; font-size: 11pt; margin-bottom: 25px; margin-top: 25px;">
As I stood on the edge of the plane, I didn't pause long as my tandem guide jumper basically pushed me out (with him and the parachute thankfully). My job as your estate planning attorney is to do the same thing. Push you out of the plane! Or, better yet, to get your affairs in order (just in case that parachute doesn't open).<br />
<div class="separator" style="clear: both; text-align: center;">
</div>
</div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com2tag:blogger.com,1999:blog-29683660.post-62371664061984750042016-12-26T19:57:00.001-06:002016-12-26T19:58:40.378-06:00Avoid Inheritance Taxes in Iowa? Adopt that Nephew!<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidLAFho_buASgvLw4EvW3WpbIhLtgo6s5l9QlhJFqfk6bOSb5Qm-SK4Y3QXuyHh1FRTZoGYQ3CHa4SjMR1GBHi4T5hNv3eQ9fkm66CJDV0HLVVzqCRteCMFvRbC27HjKkiGVw30Q/s1600/IMG_3279.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidLAFho_buASgvLw4EvW3WpbIhLtgo6s5l9QlhJFqfk6bOSb5Qm-SK4Y3QXuyHh1FRTZoGYQ3CHa4SjMR1GBHi4T5hNv3eQ9fkm66CJDV0HLVVzqCRteCMFvRbC27HjKkiGVw30Q/s200/IMG_3279.JPG" width="150" /></a></div>
<span id="goog_1002140790"></span><span id="goog_1002140791"></span>Adoption can be a wonderful thing. My niece, in this picture, is adopted and she is a wonderful addition to our family. However, adoption can have some funky applications in the estate planning world. A <a href="http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20161223/15-1838.pdf" target="_blank">recent ruling from the Iowa Supreme Court</a> was interesting on a couple of issues involving an adoption:<br />
<ol>
<li>To avoid paying inheritance taxes for a bequest to a non-lineal descendant, a nephew was adopted by his aunt.</li>
<li>Even though he was adopted by his aunt, the son's biological mother was still able to include an inheritance for her son.</li>
</ol>
The first point is not all that unusual and I have advised clients of this very option. Basically, whether you are adopted or biological, as a child in Iowa, you do not pay any inheritance tax when you inherit from your parents. But, if you are a nephew, cousin, friend (basically a non-lineal descendant) there is an inheritance tax owed on an inheritance based on this <a href="https://tax.iowa.gov/sites/files/idr/forms1/60061_0.pdf" target="_blank">table</a>. So, if reducing a tax bill is worth changing your heritage, you can be adopted by someone (even though you are an adult) and escape that pesky Iowa inheritance tax. So, whether it is a friend, nephew/niece, cousin, attorney...stop by that friendly adoption attorney's office and do your tax planning as you enlarge your family. Many clients find this tax plan "amusing" and don't take that step. However, here is a clear example demonstrating its real-life application.<br />
<br />
The second point is for a little more on the advanced side. One of the trade-offs of getting adopted is that once you are adopted, you are normally cut-off from adopting from your biological side. So, if your rich aunt adopts you, and then the next month your mother wins the lottery and dies from a heart attack, you don't get to share in the lottery winnings as you are no longer your mother's child. (You are your aunt's child, essentially, and you can only have one set of parents. Mom becomes your aunt and your aunt becomes your mom.)<br />
<br />
However, the Iowa Supreme Court made the notation that the biological parent in this case <i>specifically named</i> the (adopted) child and thus that specific naming of the child was enough to counter the change in status from the adoption. For example, if the biological parent had said "<i>I leave my millions equally to my children</i>", then the adopted son would <i>not</i> have received the inheritance from biological mom. But, since biological parent said "<i>I leave my estate to my wonderful son Matthew</i>" the specific <i>naming</i> of that biological child was enough to "override" the disinheritance by the adoption. The court didn't mention anything about it, but I would assume that the inheritance from the biological parent was subject to inheritance tax as technically her biological son was now her nephew. You can't win 'em all, I guess.<br />
<br />
Moral of the story: You can have your cake and eat it, too.<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-32458568489123253182016-08-21T21:49:00.000-05:002016-08-21T21:49:22.658-05:00POA Planning for College-Bound Students<div class="separator" style="clear: both; text-align: left;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz_6rN0lsGhBDxXEoGPWn8h19YVBqu_huU2lv75f29sy0jVD1cvOS5_NHnyuVJO0OOFtGtRX8iD-w8dqs1x-W-8_yWfo8UlBDDBKoyDw6UqZr6JZ8L5TbUUcx3d3552Hh1qSpm5A/s1600/IMG_6934.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="213" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz_6rN0lsGhBDxXEoGPWn8h19YVBqu_huU2lv75f29sy0jVD1cvOS5_NHnyuVJO0OOFtGtRX8iD-w8dqs1x-W-8_yWfo8UlBDDBKoyDw6UqZr6JZ8L5TbUUcx3d3552Hh1qSpm5A/s320/IMG_6934.JPG" width="320" /></a>It is hard to believe that my oldest daughter is heading off to college this week at <a href="http://www.drake.edu/" target="_blank">Drake University</a>. I'm excited for her as she starts this next journey in her life. In addition to getting all of the necessary supplies, such as towels, laundry bags, books, pepper spray, etc., it is <a href="http://www.forbes.com/sites/deborahljacobs/2014/08/15/two-documents-every-18-year-old-should-sign/#24bc7f57fefd" target="_blank">also important that parents of college-bound kids have the kids sign power of attorney documents</a>. While we may still think of them as young kids, the fact is that under the law, they are legal adults and entitled to full and independent control of their financial information/assets as well as medical decisions and privacy protection. This is regardless of the fact that you as the parent may be paying their tuition and treating them as a dependent for tax deduction purposes. </div>
<div class="separator" style="clear: both; text-align: left;">
<br /></div>
<div class="separator" style="clear: both; text-align: left;">
However, it can be extremely beneficial to have your child sign a power of attorney document so that you are authorized to: obtain medical information and consent to medical procedures if necessary; access information about their accounts, or even access grades. This isn't just continuing to be a "<a href="https://en.wikipedia.org/wiki/Helicopter_parent" target="_blank">helicopter parent</a>", but there is a legitimate reason for all adults, regardless of the age, to have these planning documents. For now, it is just another item to add to that "back to school" list. </div>
<div class="separator" style="clear: both; text-align: left;">
<br /></div>
<div class="separator" style="clear: both; text-align: left;">
Good luck Holly!</div>
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-40109347962179686192016-05-30T21:27:00.000-05:002016-05-30T21:27:37.205-05:00Second Marriages and Estate Planning<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhuQxNgjCBPs-jnZOQoDeo1TBBL6yqOnem3leizQAX_rSVq5hEYK2dCBxAexFg9XlpZtFw4KOUxlyUpLLbtHwHIyxyEVK_KolxdC4NkdBvI1tZxKX8TJenOdqJtkzUrr1zBvsMf_A/s1600/rings.jpeg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="212" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhuQxNgjCBPs-jnZOQoDeo1TBBL6yqOnem3leizQAX_rSVq5hEYK2dCBxAexFg9XlpZtFw4KOUxlyUpLLbtHwHIyxyEVK_KolxdC4NkdBvI1tZxKX8TJenOdqJtkzUrr1zBvsMf_A/s320/rings.jpeg" width="320" /></a></div>
Not every marriage works out. Duh. Sometimes, after one ends, another marriage begins and several challenges begin. You have the challenges of "mixing" families together, learning about snoring patterns, and discovering a new person. You also frequently have the challenge of dealing with estate planning. I'll skip the issues with snoring and focus on some of the estate planning points.<br />
<br />
If you are smart...and brave...bring up the subject of a premarital agreement (or a "prenup" if you prefer). Just don't wait until you are on the way to the ceremony. Not exactly a romantic subject and many people will steer clear of it because of the delicateness of the topic. ("<i>You think we are going to get divorced!?!</i>") The premarital agreement can provide protection for each other, not only in the event of a divorce, but also upon the death of one of you. Remember: you <a href="https://www.calt.iastate.edu/article/surviving-spouse%E2%80%99s-spousal-share-includes-trust-assets" target="_blank">can't disinherit your spouse</a> as part of your will or trust estate plan after you are married.<br />
<br />
Frequently, second-marriage families don't do a premarital agreement. Maybe they didn't have much in assets when they got married or maybe they just didn't think about it when love is in the air. "<a href="http://www.iowaestateplan.com/2014/06/post-marital-agreements-in-iowa-inching.html" target="_blank">Post marital" agreements are not valid in Iowa</a> so you won't be able to visit this topic down the road once you are hitched. So now what?<br />
<br />
We now have another option under the Iowa Code: The "Post Nuptial Trust". <br />
<br />
Let's say you (1) you have a second marriage situation; (2) you don't have a premarital agreement; and (3) you have some property that you want to make sure it goes to your children (e.g., you inherited the family farm). With proper...and careful...planning by a knowledgeable trusts and estates attorney, we can legally draft documents to allow you to transfer that property to your children without the concern of the spousal share election "re-routing" where that property ends up after your demise.<br />
<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-24144761314813040862016-03-20T23:14:00.000-05:002016-03-20T23:14:09.067-05:00Gaining--Not Losing Power--With Immediate Power of Attorney Authority in Iowa<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi9FMnokRDk8avJO3QPpG4ilgnxghcCyvhmQWTiFMerJ7rFb7HjIsJdtDjGtp7XLRxTW_sOkNTc-pL5AbWfUWFNgRvsSLt2l0MobdR8tyC_aES085lWn9-2VRfRhAz5a8dN4oKNlg/s1600/powerofattorney.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="112" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi9FMnokRDk8avJO3QPpG4ilgnxghcCyvhmQWTiFMerJ7rFb7HjIsJdtDjGtp7XLRxTW_sOkNTc-pL5AbWfUWFNgRvsSLt2l0MobdR8tyC_aES085lWn9-2VRfRhAz5a8dN4oKNlg/s320/powerofattorney.jpg" width="320" /></a>A financial advisor recently reached out to me regarding the impact of a Power of Attorney document concerning financial matters. In particular, the question was whether the person signing the document (the "principal") loses any power or authority once they sign the POA document. <br />
<br />
As a reminder, the default rule (<a href="http://www.iowaestateplan.com/2014/11/now-and-later-power-of-attorney.html" target="_blank">and recommended direction in my opinion</a>) is that the agent's power is immediate upon signing. In other words, it is not necessary to wait until the principal is incapacitated before there is authority for the agent to be able to act on behalf of the principal.<br />
<br />
So the question is: "Once the principal signs the POA for an immediate power, does that principal lose any power/authority?" Quick answer: No.<br />
<br />
The POA document in this scenario simply <u><b>adds </b></u>another individual as an authorized party to deal with accounts or other financial interests. Thus, the principal can continue to operate as normal. The principal also has the ability to remove the agent at any time and notify any third-parties that the agent's authority has been terminated. <br />
<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-46248016988173913352015-11-29T10:49:00.000-06:002015-11-29T10:49:01.810-06:00Estates in Iowa: Do I Really Need to Go Through Probate?A common issue that pops up with family members after someone dies is "do we need to go through probate?" To answer that question, there are series of follow-up questions to be answered first. To start the process, you should have a list of the assets in front of you and go through a "filter" process of the following questions.<br />
<br />
<b>Question 1: Is there a named beneficiary for the assets?</b> Do any/all of the assets have a named beneficiary? For example, life insurance and annuities typically have a beneficiary. Is there a POD (Payable on Death) or TOD (Transfer on Death) beneficiary? If the answer is "yes" to all the assets, then you are done. Go straight to the claims process and pass probate. If the answer is yes to some, but not all, we move to the next question. (If the beneficiary is the "estate", then that doesn't count but doesn't necessarily mean you have to go through probate.)<br />
<br />
<b>Question 2: Is there a surviving joint owner? </b>Next question is whether there is a surviving joint owner on the remaining account(s). <a href="http://www.iowaestateplan.com/search/label/joint%20ownership" target="_blank">While this can create some problems</a>, if the rest of the accounts have a joint owner, you can skip probate. If you still have assets that don't have a named beneficiary or a joint owner, then you move to the next question.<br />
<br />
<b>Question 3: Is there a funded revocable trust?</b> If the decedent established a living (revocable) trust and <a href="http://www.iowaestateplan.com/2008/04/making-revocable-trust-work-right.html" target="_blank">properly titled the remaining assets</a>, then you can avoid probate and just have the trust administration to deal with those assets. You can end the analysis here.<br />
<br />
<b>Question 4: Is the total value of remaining assets less than $25,000.00?</b> Other than the joint assets and those with named beneficiaries, and assuming no real estate (land), do those assets total less than $25,000.00? If so, you can use an affidavit to transfer all of those assets. For example, if there a checking account of $1,500 and a savings account of $10,001 you would be able to take a completed affidavit of distribution to the bank and they will cut a check out to you. You should contact a trust & estate (T&E) attorney (me) to help with preparation of the affidavit to provide to the financial institution.<br />
<br />
<b>Question 5: Is there real estate involved for the remaining assets?</b> If there is real estate involved, whether it is a small home or if it is a sprawling farmland, probate is your new best friend. Contact a T&E attorney and get the process going. However, if it has been more than 5 years since the decedent passed, you have another option that I don't feel like getting into right now.<br />
<br />
If you get to the end of the process and it appears that you need to go through the probate process, the <a href="https://en.wikipedia.org/wiki/End_of_the_world" target="_blank">world does not end</a>. There are some other issues (<a href="https://dhs.iowa.gov/sites/default/files/EstateRecovery_FAQ_FINAL_2015.pdf" target="_blank">Medicaid estate recovery</a> and small estate vs regular estate) that need to be determined. Also, just because you don't have to go through probate doesn't mean that you may not have some other issues to deal with for the estate. (taxes, such as income, inheritance or estate, plus Medicaid liens) A good probate attorney (ahem...you should know who fits that category by now) will be able to walk you through the process. Also, if you had a power of attorney, it is now worthless. Stop using it immediately.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com6tag:blogger.com,1999:blog-29683660.post-16616472007651984842015-10-21T23:28:00.003-05:002015-10-21T23:28:56.011-05:00Break Out the Balloons - It is National Estate Planning Awareness Week!<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjS5gfgz5RlrSZ5BWjJ6zMIhUWsD2x8ly0Juv5THGKQmp4_DCnOlTwZ0GgcdiyFuwYKZ6p5ssT6C6ldk4yOX_dl88w7P1YEqgNypeQ18us_TqVc6i7Wk29AB6Mv225OZl__iqCmvw/s1600/balloons.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjS5gfgz5RlrSZ5BWjJ6zMIhUWsD2x8ly0Juv5THGKQmp4_DCnOlTwZ0GgcdiyFuwYKZ6p5ssT6C6ldk4yOX_dl88w7P1YEqgNypeQ18us_TqVc6i7Wk29AB6Mv225OZl__iqCmvw/s200/balloons.jpg" width="150" /></a></div>
Every year I count the days down to this week. Well, not really. But it does serve as a regular reminder about the need to address the basics of estate planning. Despite my best intentions, there continues to be a large portion of Americans that don't have estate plans. Based on a <a href="http://www.forbes.com/sites/nextavenue/2014/04/09/americans-ostrich-approach-to-estate-planning/" target="_blank">2014 survey</a>, for those individuals age 51-64, 51% don't have wills. For all ages above 18, it is 64% without wills. Wow. <br />
<br />
<a href="http://www.iowaestateplan.com/2013/06/im-only-insert-age-years-old-so-i-dont.html" target="_blank">Many younger people feel invincible and don't believe it is necessary to have a will in place</a>. I suppose you can wait until the day before you die to sign your will and all is fine. But for most people, except for <a href="https://en.wikipedia.org/wiki/Marty_McFly" target="_blank">Marty McFly</a>, we don't know when our number gets called. It is one of the reasons we buy insurance - protection against the unknown.<br />
<br />
For the cynical people out there you are probably saying "whatever lawyer boy, you are just trying to get some business." Yep. Lawyers need to eat, too. But it is frustrating to see situations where lack of proper planning disrupts the family relationships and they fall apart. Some basic planning steps would allow an easier transition without additional cost, delay and problems. Plus, those attorney fees in those situations are normally higher anyway. Putting an estate plan together is not as hard or expensive as you might think.<br />
<br />
Estate Planning Awareness Week 2015 - schedule an appointment with a qualified attorney...or you can roll the dice.<br />
<br />
<br />
<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com1tag:blogger.com,1999:blog-29683660.post-50559164413589104192015-07-27T22:30:00.001-05:002015-07-27T22:30:29.631-05:00Changes to the 2015 Iowa Probate Code - Authority of Representative to Get Financial Details<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiO3FncBNPSbRecE9Ewx2M1v7ddkwinb12ypy6Tl7hkRRk75KSMf4Y_jrCd2RK9yahNP5P5DVmKkJgMQb_P2K77DraToHnKMW-9thbLVU0SJCUDqiu99wBtTtPzC3ZvcBl6VzbP/s1600/IMAG0265.ptrsq.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiO3FncBNPSbRecE9Ewx2M1v7ddkwinb12ypy6Tl7hkRRk75KSMf4Y_jrCd2RK9yahNP5P5DVmKkJgMQb_P2K77DraToHnKMW-9thbLVU0SJCUDqiu99wBtTtPzC3ZvcBl6VzbP/s320/IMAG0265.ptrsq.jpg" width="181" /></a></div>
One of the convenient & powerful changes to the Iowa Probate Code from the 2015 legislative session involved the authority of a court-appointed representative to get information or access to financial information or assets. Iowa Code section 633.78 was revised to give both the representative and the financial institution the necessary authority and protection in dealing with assets.<br />
<br />
Okay, that was enough of a legal mouthful. If you want a bigger mouthful, you can <a href="http://coolice.legis.iowa.gov/Legislation/86thGA/enrolled/HF661.html" target="_blank">read the bill that was signed by Governor Branstad</a>. This was a bill that was drafted and sponsored by the Probate Section of the Iowa State Bar Association. Another great job by the Section. <br />
<br />
To give you an example of how this is useful, let's assume that you are the executor of an estate, or you represent the executor. And assume that you believe that decedent owned an account at a financial institution, or that you know for a fact that they owned an account at the institution. The executor has certain duties to (1) identify and account for assets and (2) distribute the property to the proper parties. But what if the financial institution isn't exactly cooperative with providing information or access about the decedent's accounts? After all, we are in the age of scams and paranoia over identity theft. Well, section 633.78 comes to the rescue in that you now have very clear authority in dealing with that account. Should the financial institution continue to be resistant, they can be held responsible for damages and attorney fees. Additionally, the financial institution is also protected in providing that information or account to you. Everybody wins!<br />
<br />
You might wonder just how after something like this is useful. Well, in the past 26 days that the law has been in effect, I've used it one time and I'm getting ready to use it in another matter if we continue to have difficulties in getting cooperation. I would say that is a pretty quick and useful history already.<br />
<br />matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com1tag:blogger.com,1999:blog-29683660.post-4944010007891125752015-04-05T22:04:00.002-05:002015-04-05T22:04:55.900-05:00Probate Patience: How Long Should it Take to Complete Probate?A common question that comes up in client meetings is 'how long does it take to get through probate?' There a lot of variables that go into that determination. However, it is fair to recommend some patience for the process to get completed.<br />
<br />
<b>Notice Publication</b> - This is one of the primary delays. One requirement is that the executor/attorney needs to publish notice in a local newspaper to run for 2 consecutive weeks. Then, after the 2nd publication, there is a 4 month period in which anybody can file a claim in the estate or contest the will. There is also a requirement that notice be given to all interested parties. The claims process/will challenge ends than later of (1) four months after the second notice publication notice or (2) 30 days after mailing notice.<br />
<br />
<b>Inventory </b>- An inventory needs to be completed and filed with the court. That includes getting date of death values and listing of all assets. Depending on the organization of the records and information, that may take some time to get assembled. This inventory should be filed with the court within 90 days after the appointment of the executor.<br />
<br />
<b>Tax Filings</b> - In addition to filing the decedent's final individual income tax return, there are also fiduciary returns to be filed. In Iowa, the Iowa Department of Revenue has to approve and issue a proper clearance before you can close the estate. That review process can take up to 90 days after filing. Other tax filings potentially include the Iowa Inheritance Tax return and the federal estate tax return (for larger estates). Both of those returns also have to be approved and a proper clearance issued. <br />
<br />
<b>Creditors & Challengers</b> - You also have the potential issue of claims filed in the estate and resolution of those claims. Then, if you have a will challenge, you are really getting the probate case extended out for several months or possibly years.<br />
<br />
On average, I estimate a year to complete the probate process. Sometimes they can close sooner, but sometimes later. Every case is different with different facts and different persons.matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com10tag:blogger.com,1999:blog-29683660.post-6911984657055166392015-03-01T21:05:00.001-06:002015-03-01T21:06:12.069-06:00The Trusted Trustee: Who Gets to Have All the Fun?<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIxaTQqzPTXwGWbyL3ETxU5IWLhGsm8NBjD4OG9gKMf9e3gubnAR0YzOZ8QTuNwV7QzBvWvk_mAuZ-FqsGIMxQFL7UOzl2ahixVqE73NFI2hSt-30i0WbjOYMWtcjz_4p1aXSCyQ/s1600/money+circle.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIxaTQqzPTXwGWbyL3ETxU5IWLhGsm8NBjD4OG9gKMf9e3gubnAR0YzOZ8QTuNwV7QzBvWvk_mAuZ-FqsGIMxQFL7UOzl2ahixVqE73NFI2hSt-30i0WbjOYMWtcjz_4p1aXSCyQ/s1600/money+circle.jpg" height="132" width="200" /></a></div>
When you are putting together your estate plan (and shame on you if you haven't done so yet) one of the decisions you may face is 'who should be the trustee?'<br />
<br />
This question assumes that you are using a trust. Whether it is due to young beneficiaries, special needs, or other circumstances that call for managed control of assets, a trustee is the title assigned to person/entity. So what are the requirements?<br />
<br />
<br />
<ol>
<li><b>Capable </b>- A trustee needs to handle investments, accounting, and tax returns. Some people's brains turn to mush with visions of talking cats when faced with dealing with financial issues. Your Uncle Bob might be a great guy, but if he is putting a name to the talking cat and not looking at investment returns and allocations, he might not be the best choice for trustee.</li>
<li><b>Discretionary </b>- Sometimes trustees have to make tough decisions. These may not be popular decisions with the beneficiaries and Uncle Bob may not want to disappoint his nephew/nieces. Does the 18 year old nephew entitled to get that <a href="http://www.chevrolet.com/corvette-z06-supercar.html" target="_blank">Corvette Supercar</a>? Unless his name is Matt Gardner, probably not. But Uncle Bob may have to tell him "no".</li>
<li><b>Available </b>- Life is busy. Raising two kids with activities, community activities, family events, work commitments, blogging...life is busy and asking someone to handle another activity in life can be overwhelming.</li>
<li><b>Trustworthy </b>-There are frequent stories of people get tempted by easy access to money that isn't theirs. Whether they just needed a "short-term loan" or they've fallen on hard times, sometimes the candy becomes too tempting.</li>
</ol>
<div>
Rather than putting a friend or family member in a difficult position and responsibility, a professional trustee maybe better suited to handle the job. Banks and trust companies (that are qualified) meet all of these qualifications. Of course, they do charge a fee for their services. (Not everything, like this blog, in life is free.) But having peace of mind that the future of your beneficiaries is being safely and properly managed is worth something.</div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0tag:blogger.com,1999:blog-29683660.post-17215759702392151922015-01-04T19:57:00.003-06:002015-01-04T19:57:32.198-06:00What Happens When your Special Needs Child Turns 18 in Iowa?A common scenario for children with special needs can arise when the child turns age 18 (age of majority in Iowa). Once they are an adult, they are entitled to make their own decisions and healthcare information to others may be restricted.<br />
<br />
To deal with this situation as they relate to medical issues, there are a couple of different options:<br />
<br />
<br />
<ul>
<li><b>Medical power of attorney/HIPAA Release</b> - If your child has sufficient capacity to execute documents, a medical power of attorney (MPOA) and a HIPAA release form would aid a parent in getting access to that information and being involved in health care decisions. The key question is whether the child is able to legally execute these documents.</li>
<li><b>Guardianship </b>- If the child doesn't is unable to understand and knowingly consent and authorize a MPOA document, the next step would be to establish a guardianship for the child. A guardianship is a court proceeding where you would request court approval to be appointed guardian (co-guardians) for your child to be involved and make certain decisions. Once appointed, you will continue to have regular court filings and be limited to certain decisions. You should consult with an Iowa probate attorney to get the guardianship properly set up and operating.</li>
</ul>
<div>
Raising a special needs child may be a lifelong commitment. In addition to dealing with these decisions once they are an adult as discussed above, you should examine your plans for taking care of their finances <u>and </u>health care decisions when you are no longer able to serve in that position.</div>
matthewgardnerhttp://www.blogger.com/profile/03654388170870329353noreply@blogger.com0