Iowa Estate Plan

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. Okay, that was enough of a legal mouthful.  If you want a bigger mouthful, you can read the bill that was signed by Governor Branstad .  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. 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. ...

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. Notice Publication - 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. Inventory - 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...

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?' 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? Capable - 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. Discretionary - 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/niece...

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. To deal with this situation as they relate to medical issues, there are a couple of different options: Medical power of attorney/HIPAA Release - 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. Guardianship - 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-guardia...

When I was younger, I used to love Now and Later candy , despite the "workout" it gave my mouth/teeth.  You can enjoy the candy as a hard candy, and continue to enjoy it later when it is soft and chewy. It was like having having a different piece of candy, all in one piece. When I discuss a power of attorney document with a client, one of the questions that I go through is whether they want the authority to be a springing power or an immediate power.  For example, do you want the person you identify to have authority to act on your behalf only when your doctor says you don't have sufficient capacity? Or, alternatively, do you want that person to have authority immediately , regardless of your capacity level? For many clients (and for many attorneys) the initial thought/answer is 'why would you give someone power over your assets when you don't need any help?'  Here are my three responses: 1.  You may have sufficient capacity, but you aren't around....

I have previously posted previously pretty much on all of these items separately, but I thought I'd commit to the "checklist-mania" and add my own checklist.  For individuals that are helping out with an aging family member, this can be a quick guide to get you started.  (If you are taking advantage of an aging family member, then you need to get a conscience and turn yourself into the authorities.) While this list can be used for pretty much anybody, young or old, this can be a helpful guide for those assisting a parent/grandparent with planning. Power of Attorney (health) - This document enables health care decisions, such as medicine, doctor, facility, therapy, etc. to be made by a selected individual.  While more than one can be named, it is typically preferred to name one responsible individual. Power of Attorney (financial) - This document provides for someone to handle financial matters.  Iowa's recently updated statute provides significant changes to th...

For the most part, I think our appellate courts do a pretty good job of deciding cases and justifying their rationale.  I may not always agree with the result, but I can at least understand the reasoning. But in a  recent ruling from Iowa Court of Appeals  ( Mohr v. Langerman and Mohr, No. 13-1422, Oct. 15, 2014 ), I'm left scratching my head.  As always, the facts are "interesting".  Put all those pieces together and you have a case that makes you go hmmm. Facts: Jerry Mohr was married for 24 years.  But, while he was married, he (1) intentionally had intercourse with another woman for the purpose of having a child and (2) lived with yet another woman and helped raise her child.  While Jerry lived in Arizona, he died owning some property in Iowa.  And, of course, he apparently didn't feel the need to have a will.  Duh.  So when the end came for Jerry, he left behind quite the legal mess.  Following his death, the biological...

Effective January 1, 2015, a new law will go into effect that can be effective and useful in several situations. Deeds with married couple, joint tenants or survivor language  - As I've written before , there can be issues (and have been many issues) where the way ownership of real property is listed on the deed can have serious impact on estate plan.  Tenants-in-common, joint tenants with full rights of survivorship, etc.  It used to be if you had a deed that transferred ownership to two or more people (such as a couple) without the magic language of "joint tenants with full rights of survivorship and not as tenants-in-common" it was presumed to be tenants-in-common which can have a significant different intended result.  Soon, that will no longer be true.  NOW, straight from the Iowa legislature, that rule is changed. Iowa Code §557.15 will soon provide that IF a deed fits under any of the following descriptions: (a) identifies two grantees as married to eac...

Iowa remains one of the few (if not last) hold-out state that doesn't permit post-marital agreements .  (Agreements that allow a married couple to plan the division of their assets by their own agreement and separate from some default protective rules.)  However, the  Iowa Supreme Court has finally allowed enforcement of a post-marital agreement .  Sort of. Herbert and Velma were married in Florida.  While they lived in Florida, they signed post-marital agreement which included certain limitations on rights of each spouse at the death of the other.  Florida permitted post-marital agreements.  After 14 years, they moved from Florida to Iowa.  (Quick aside: Really? I love Iowa and all, but moving to Iowa from Florida in the retirement years seems a little backwards.) After moving to Iowa, Herbert passed away and Velma tried to do an "end around" the post-marital agreement and take a spouse's elective share.  I don't feel like going into an ...

Well, it was a long time coming, but following unanimous passage in the Iowa House and Iowa Senate, today Governor Branstad signed the Uniform Power of Attorney bill into law.  The Uniform POA is a substantial and long-overdue replacement to the current power of attorney statute (Iowa Code chapter 633B). The statute is applicable to ALL power of attorney documents, whether signed before or after the effective date of July 1, 2014. Some key points from the Uniform act: (1) provides for improved remedies in event of abuse/misuse of authority; (2) clear guidance for agents; (3) addresses powers involving co-agents; (4) specific and general authority of agents; and (5) statutory form to use for individuals without attorney access.