Sunday, November 25, 2018

Effect of Divorce in Iowa Estate Planning: Do I Need to Change My Will to Keep My Ex Away?

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.

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:

  • Iowa Code section 598.20A provides that if you list your ex-spouse (or relatives of your ex-spouse) as your beneficiary of life insurance, that designation is ignored.
  • Iowa Code section 598.20B 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.  
  • Iowa Code section 633.271 provides that any provisions in your will, whether as a beneficiary or appointment to a fiduciary position (executor or trustee for example) are negated.  
  • Iowa Code section 633B.10 provides that if you name your spouse as your agent under your financial power of attorney, their power terminates when the petition for dissolution is filed.  
  • Iowa Code section 144B.12 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).
"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.  

(1) There may be a series of steps and documentation to prove that those provisions shouldn't apply and it may cause some delays in handling those matters.  (e.g., What if your family members have trouble tracking down the divorce decree?) 
(2) Just because your ex and family is out, you should re-examine who you want to handle your affairs or receive assets.  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.
(3) You may want your ex-spouse 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.
(4) Your federal laws are not so friendly for those procrastinating individuals.  Your 401k-type plan funds, which are not subject to the Iowa laws, do not have your ex-spouse revoked as a beneficiary.   I suspect that will be enough of a reason to start the process to update your beneficiary ASAP.

Sunday, April 08, 2018

Avoiding Probate Just Got a Little Easier...For Certain Estates

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 affidavit.  The governor recently signed a bill that increased that figure up to $50,000 (for deaths after July 1, 2018), along with a few extra new additions to the affidavit.

So...what does that mean lawyer boy?  This:

  • If the dead person owned real estate, the affidavit doesn't work.
  • If the dead person owned other types of property that all together total more than $50,000, the affidavit doesn't work.
  • You still have to pay inheritance taxes, if any are due.
  • You still have to pay the creditors, if any.
  • You still have to pay the state back for any Medicaid debts due.
  • Otherwise, you use the affidavit to transfer those small estates.

Here's a common scenario where the affidavit could be used:
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 Journey albums and CD's issued.  As his 3 children are carefully dividing dad's Journey 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.

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.  

Before you try to do this on your own (which you can...but you can do a lot of stuff on your own, like surgery, but that doesn't mean you should) visit with a Trusts and Estates Iowa attorney to walk you through the steps and save yourself some time and frustration.