operating reserves

Just like it’s a smart idea to have a personal “rainy day” fund just in case of an emergency home repair, surgery, or other unexpected large costs, the same goes for a nonprofit organization. Even nonprofits with solid income streams can be hit with unanticipated events, income, and unbudgeted expenses. In these situations, it’s vital to have that financial cushion in the form of operating reserves so the organization doesn’t suffer long-term, negative consequences from temporary dilemmas. Concurrently, it’s essential to have the board adopt and adhere to a policy outlining the details of the reserve.

A common scenario where operating reserves may be prompted can be when a source of a reliable income is withdrawn or reduced without expectation.

Important Elements of an Operating Reserve Policy

Every organization’s policy is going to look different, but there are a few general areas that should be addressed.

  • Purpose– Why is it important for the organization to build and maintain reserves?
  • Definitions- How are the types of reserves, calculation of targeted amounts, and intended use defined?
  • How the reserve is funded– An operating reserve is only as valuable as its reliability. The policy should set out a practical plan for replenishment to the targeted amounts. Often, a worthy reserve goal is about three to six months of expenses. At the very least, on the low end, reserves should cover one full round of payroll.
  • When the reserve can be used– The plan should layout when the reserves can be tapped when unexpected shortfalls hit. The reserves should not be used to address foundational finance issues. In a “last straw” scenario, operating reserves can be used to close down the organization.
  • Classify the operating reserve as unrestricted– Unlike restricted funds that are marked for specific programs and projects, the operating reserve should be set as unrestricted so that the board and management can employ as they choose when the crisis calls for it.

That’s Not All

Because each nonprofit is unique, each nonprofit is going to need policies and procedures tailored to their specific operations. That said, generally, there are at least 10 policies most nonprofits need to be prepared to address on the annual information filing, Form 990. Check out my free guide to nonprofit policies and procedures.

Additionally, keep in mind that an operating reserves policy should be written to correspond with any other financial-specific policies, like an investment policy.

Want to discuss your nonprofit’s policy needs? Don’t hesitate to contact me at 515-371-6077 or gordon@gordonfischerlawfirm.com. I’m based in Cedar Rapids, Iowa but will travel to meet with nonprofit pros all across the state.

final resting place black balloons

There are six main documents that should be part of almost everyone’s estate plan. One of these is called “Disposition of Final Remains.” This document is where you tell your loved ones exactly how you want your body to be treated after you pass away.

It’s best to approach the subject of final disposition of remains with thoughtfulness, consideration, and, yes, indeed, even a little levity. Discussing your passing can feel morbid or even downright creepy. However, taking the time to think through your final services (whatever it is you want) is a wonderful gift to your family. It ensures that clear instructions are passed on, and alleviates, perhaps even eliminates, the avalanche of headaches that inevitably accompanies such planning.

Your estate plan’s disposition of remains directs your family and friends as to how you want your remains handled after you have passed away. This includes your funeral, service, and maybe a place of internment. If you want a party complete with a piñata you can detail that in the disposition of remains. Choices for what to do with your physical remains can include earth burial, above-earth burial, or cremation . . . or you could always go with something unique to you, like being made into a diamond. Some of my clients have insisted that there be only the shortest and simplest of memorial services. Others have wanted a marching band and fireworks shooting their ashes into the sky. (Yes, that is a thing). It’s completely up to you.

fireworks final disposition

What is incredibly important is that you leave clear instructions of your desires, whatever they may be. That way, your loved ones won’t have to guess as to what you would have wanted, during a time that is already stressful, turbulent, and full of grief. Again, leaving behind a fully thought out “disposition of final remains” is a wonderful gift to your loves ones.

Have questions? Need more information?

A great place to start is the free Estate Plan Questionnaire. Feel free to reach out at any time; you can contact me by email at Gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.

scary jack-o-lantern

It’s the season for everything pumpkin, Hocus Pocus reruns, and “accidentally” eating all the trick-or-treat candy before the actual trick-or-treaters arrive. It’s the time when I’m reminded that the scariest notion of all is not Dracula, ghosts, or even the overpriced costumes, but rather the downright terrifying reality that nearly every six out of 10 Americans do not have estate planning documents in place. Yikes. Despite the numerous benefits, advantages, and financial savings that comes with a proper estate plan, it’s all too common to push the process off. It’s like the equivalent of the dusty, cobwebby attic of your to-do list. Here are five scary excuses I’ve heard as to why people procrastinate creating an estate plan:

I’ll be dead, so I won’t be around to care.

Downright hair-raising!

A friend’s mother said this when my friend brought up estate planning. The mother has a point…I guess. Yes, after she dies she won’t be able to “care” about where her assets go. However, most of us would like to have a set plan of where our hard-earned money and personal property will go and to whom. Why? Because we care while we’re living and like to think we’re taking care of the ones we love even after we’re gone. So, why wouldn’t she (even as an act of love) take a simple measure to save her loved ones money (and time) instead of dealing with the sluggish probate process that would occur if she were to die intestate (without a will)?

graveyard with gravestones

I don’t own enough assets to need an estate plan.

I hear this one all the time and it’s terrifying to think someone would sacrifice their right to pass along their estate (as small or as big as it may be) as they choose. The fact is that having a (small) bank account, minor children, owning a home (of any size), or even having a pet is enough to necessitate estate planning…if even just to be prepared. Of course, the larger and more complex the estate, the more tools and documents may be needed, but that’s why you need to have an experienced estate planner to help determine the tools you need.

I don’t have time right now to do estate planning.

Unnerving and chilling. Sure, estate planning doesn’t sound like the most fun thing to deal with on top of everything else you have going on in your life. But, the time it takes to create an estate plan will be significantly less than the time it will cost your family if your estate goes through probate. Additionally, most (good) estate planning attorneys will work around YOUR schedule. They are willing to make house calls and conduct conversations essential to crafting your individualized estate plan over the phone or email—whatever works best for you.

It’s too expensive to make an estate plan. 

Eerily wrong. It will almost certainly be more expensive for your family and loved ones if you die intestate (without a will). It will not only cost them monetarily, but also emotionally as the process can be shockingly slow, tedious, and can create unnecessary conflict. Part of living is loving, so show your family, children, friends, and favorite charities the love by taking the time to craft a quality estate plan.

I don’t even know where to start, so I’m not going to.

Getting started on your estate plan is actually incredibly easy, so continuing to make this excuse is alarmingly unnerving! Use my free (without obligation) Estate Plan Questionnaire. It’s an excellent tool for organizing all the essential information you (and your spouse, if applicable) and your estate planner need to have on hand in order to reach your estate planning goals.


Do any of these sound like you? Fear is for werewolves and zombies, not estate planning! Break the procrastination cycle and contact me via email or phone to discuss your situation.

halloween confetti

In the spirit of Halloween this month, let’s take a break from scary estate planning excuses, probate fees, and haunting nonprofit actions and have some fun. Whether you’re an attorney, work with the law in other ways, or are just a fan of legal puns, these last-minute Halloween costumes are for you!

Exhibit A

This costume goes in the “oh shoot I just got invited to a Halloween party tonight” category. Be an evidence exhibit by simply donning a white shirt, and pinning a piece of red paper with “Exhibit A” in large black letters on it! It’s old-school (pre-Internet filing days) and excessively easy.

https://www.gordonfischerlawfirm.com/nonprofit-scariest-things/ Law-suit  

Similar to the exhibit A costume, you can totally fashion this more formal look out of a suit you already have. Wear a suit, write the word “law” on a piece of paper and hang it around your neck. Get it? Law-suit! Word of caution: you may get eye rolls, smiles, and chuckles at your look.

A salt & battery 

In need of a couples costume? Take on a couple of classic tort claims of assault and battery that are often paired together. Throw together a salt shaker look by wearing a white shirt with a black “s” on the front and a tin foil hat. Pair it with your crafty partner who can create something that looks like a battery and voila!

halloween on chalkboard

Voir deer

Animals tend to be a safe pick for adult Halloween costumes, but this one puts a legal spin on a deer costume. Assemble an assortment of brown clothing and get some cute ears that make you look like a woodland deer. Have a friend write the word “voir” on your forehead. Boom. You’re voir dire! You’ll have a great time explaining jury selection to everyone who is confused by your choice of apparel.

What law-related Halloween costumes have you imagined? Share them in the comments with GFLF on Facebook, Instagram, and Twitter.

Halloween pumpkin

What makes a will valid? To begin, you are asking the entirely wrong question! [Cue evil sounding mwahahahaha.]

You must ask a more specific question what makes a will valid in Iowa. After all, every state can and does have different laws for a will’s validity, as well as for probate, trusts, and so on.

Iowa law has several requirements (sometimes called formalities) which must be present for a will to be legal and binding. If you miss even one formality–yes, even one!–you run the risk of your will being declared “dead.” Forever dead and invalid…which sounds like a nightmare for your loved ones.

In Writing (Can Be Blood or Ink)

ink and paper

Iowa law requires a will to be in writing. That means any oral statement of the decedent doesn’t count. This is true even if the oral statement(s) relate(s) directly to naming people who should inherit specific property. (Note that there’s a slight, teeny tiny exception to this for gifts causa mortis. But, these are super specific, situational, limited, and rare.)

Even a statement about passing of property recorded by audio or video cannot constitute a valid will.

Testatrix or Treat?

The person making the will must sign it, or direct some other person to sign the will in his or her presence. Lawyers call the person who makes the will either a testator (male) or testatrix (female).

Two Witnesses to Tell the Tale

Two witnesses to the will’s signing are also required. The person making the will, in the presence of the two people acting as witnesses, must declare the document is his/her will and request the two people to sign the document as witnesses. Then the witnesses must sign in the presence of each other, and in the presence of the testator/testatrix.

two people signing

Bearing Witness

There are also standards for being a qualified witness. A witness must be at least 16 years old and be mentally competent. A person who receives property under terms of the will may be a witness, but that person will have to forfeit any amount in excess of what s/he would receive if there were no will.

Are You Competent?

A will is valid only if the person making the will has sufficient competency at the time the will is made. In this situation, “competency” has two prongs: the testator must be of full age AND sound mind.

Full age simply means legal majority, which is age 18 (or 17 and married).

Is your mind sound?

All I can imagine with the phrase “sound mind” is the mad scientist saying “brainssss, brainsss!” But, is “sound mind” a real thing? Yes!

glass brain

A testator must indeed be of sound mind. The testator/testatrix has sufficient mental capacity if s/he:

  1. understands the nature of the instrument s/he is executing;
  2. knows and understands the nature and extent of his or her property;
  3. remembers the natural objects of his or her bounty; and
  4. knows the distribution s/he wants to make.

If s/he is unable to meet any one of these tests she cannot make a valid will. The mental capacity must exist at the actual time of the making of the will.

Did you say “natural objects of bounty?”

The natural objects of his or her bounty is a fancy legal phrase. Essentially this refers to a spouse and children, if any, or other close family members; the maker of the will should generally know and recognize his or her natural heirs.

Low Standards

This test of mental capacity is not a particularly high standard to meet. The Iowa Supreme Court declared:

“Ability to transact business, generally, is not essential to testamentary capacity. Advanced age, failure of memory, senile dementia not shown to render the testatrix of insufficient mental capacity to understand the nature of the act, to recollect the extent of her property and the natural objects of her bounty and their claims upon her, and to comprehend the manner in which she wishes her property distributed, childishness, mental weakness, and old age are not, of themselves, sufficient to deprive her of testamentary capacity.” Walters v. Heaton, 271 N.W. 310, 313 (Iowa 1937). (Note that the court’s decision was related to a female, hence the she/her, but, this standard undoubtedly applies to all will-makers in Iowa!)


Are you frightened to death of making a mistake with your will? Never fear! A qualified attorney can help guide you around the sticky spiderwebs and swamps of estate law. Email me at gordon@gordonfischerlawfirm.com or call me on my cell at 515-371-6077. I’d be happy to offer you a one-hour free consultation!

person with sparkler spooky

Forget the scariest movies of all time, did you hear the unnerving tale about the will admitted to probate? Frightening stuff!

Some folks are surprised, even shocked, to learn that a will doesn’t avoid probate, but it doesn’t. Whether you die intestate (no will), or even with a will, your estate must pass through Iowa probate court. If you have an estate plan (including a will) this process is much more smooth and simple for your loved ones, because you’ve clearly told them, and the court, how you want your property dispersed. But, even with a basic estate plan, this is still a judicial process. (Plus your will becomes public record when it goes through probate.) The only practical way to avoid probate is through a revocable living trust. The “living”part of this means a trust that is established and funded by you during your lifetime.

Trust in the Trust

A trust can sound somewhat elusive. And you may think it’s reserved just for the very wealthy, like that strange couple that live in the huge, dark mansion on the hill. However, a trust can be an incredibly important tool in many situations and provide multiple advantages.

spooky haunted mansion

Save Time & Money

Time

One of the major benefits of a trust is that it enables your loved ones and your favorite charities—your beneficiaries—to avoid the time and financial costs of probating a will. This is because, upon death, the property and assets are already distributed to the trust. Otherwise, the probate process can take anywhere from several months to more than a year to complete.

Fees

Probate can also be expensive considering fees. Fees and costs can reduce your estate by 4%, or even more. Executor’s fees, and attorney’s fees are both authorized by Iowa statute to be as high as 2% each, for a total of 4%, and that doesn’t include court costs. While that may not sound like a lot, it can actually equate to a good chunk of money that you would most certainly rather pass along to your heirs or to your favorite charity. Far more often than not, the cost of creating a trust is considerably less expensive than the cost of probate would be.

The Case of Frank E. Stein

bats in the sky

A simple example. Let’s suppose Frank E. Stein’s estate is worth $2 million. This may sound like a lot, and it is, but consider things like a large, expensive house, or a second home, or a vacation home, or a farm, or a family business, can rather easily push an estate into the multi-millions territory. Again, with Frank’s estate worth $2 million, a “shave” of 4% reduces the estate by $80,000. That’s $80,000 that could have gone to Frank’s favorite charity, The Home for Wayward Bats. A revocable living trust, completed by a qualified estate planner, would cost around $2,400.

Privacy

Revocable living trusts offer an additional benefit: privacy. When a will is filed with the Iowa probate court upon death, the will becomes a public record. Trusts, on the other hand, remain private documents. You may not want your friends, neighbors, monsters, and others to know the contents of your will. Like all good mysteries, some things are better left a mystery.

Start a Conversation

scary forest path

Considering all the aspects of a trust doesn’t have to feel like a twisty path through a scary forest straight out of Grimm’s Fairy Tales. I’m more than happy and willing to be your guide. Don’t hesitate to reach out; email me at gordon@gordonfischerlawfirm.com or call at (515) 371-6077.

Girl holding scary pumpkin

Horrifying. Blood curdling. Hair raising.

These are just a few of the adjectives that can be used to describe six of the scariest things your nonprofit can do (or fail to do). As a lawyer who regularly works with nonprofit organizations to help them succeed in pursuing their missions, these six items literally haunt my nightmares.

  1. Failing to have an employee handbook with necessary policies.

Spine chilling!

Seriously? How can you NOT have an employee handbook? An employee handbook (even if you have but a single employee) makes clear the rights and responsibilities of both the employer and employee. So many disputes can be avoided by a clear, easy-to-read, and direct employee handbook. One of your best bets to fight off this spooky scenario is to get my free guide to developing a quality employee handbook!

  1. Merely copying a handbook off the Internet or “borrowing” it from another nonprofit.

Very eerie!

This is about as bad as not having a handbook at all! Just grabbing a random handbook and adopting it as your own makes as much sense as picking up a random hitchhiker on a foggy night. Others’ employee handbooks may have provisions you don’t need, or worse, ones you don’t want.

I once reviewed a handbook for small-but-sincere nonprofit that worked with the homeless. Several times in the handbook, quite specific medical terms came up—there was a HIPPA provision, there was talk about medical certifications, medical training, and proper handling of medical records. I realized, with a shock, this nonprofit had “borrowed” a handbook from a hospital.

How much faith or confidence will employees have in an employee handbook that’s filled with irrelevant stuff that clearly doesn’t apply to them at all? This is scary stuff, folks, very scary stuff.

Scary skeleton skull

  1. Failing to have an appropriate disclaimer in your nonprofit’s employee handbook

Truly frightening!

An employee handbook is just an employee handbook . . . or so you may think. But, what happens when it doesn’t have an appropriate “disclaimer?”

An employee handbook may constitute an employment contract! If you think about it, an employee handbook has all the elements of a contract—it’s written, it’s specific, it “promises” certain things will (or won’t) happen. It’s even “signed” by the nonprofit/company.

So, an employee handbook could actually be considered a unilateral employment contract unless the employer includes an appropriate disclaimer. Make sure you do so.

  1. Not having adequate job descriptions

Terrifying!

Job descriptions are so important – for the same or similar reasons that employee handbooks themselves are needed. Job descriptions lay out in writing what is required of employees.

Job descriptions are also helpful in relation to what is now-called the American with Disabilities Act Amendments Act (ADAAA). Job descriptions demonstrate the “essential functions” (as opposed to non-essential) job functions of each position.

Also, strongly consider job descriptions for board members.

  1. Failing to have an acknowledgement page in your nonprofit’s employee handbook

Dreadful!

It is critically important your employee handbook include an acknowledgment page that the employee signs and returns. The acknowledgement page should state that the employee understands it is his or her responsibility to both read and follow the policies. The acknowledgement page should be able to be separated from the handbook, so that it can be signed by the employee and saved in the employee’s personnel file.

harvest moon

  1. Not making absolutely clear that your new employee handbook supersedes other, older policies

Ghastly!

Your nonprofit’s new employee handbook must make clear it trumps other, older policies and provisions. The employee handbook needs a “superseding” provision. This provision must state unambiguously this employee handbook is indeed the most up-to-date guidance on your nonprofit’s policies.

ghost in coffee mug

Wow, that was super scary!

After writing this post, I probably won’t sleep well tonight. But, if you follow these six pieces of advice you’ll rest easy knowing that you’re more likely avoid the nonprofit graveyard. If you’re facing these spooky scenarios don’t hesitate to reach out by phone (515-371-6077) or email to schedule a free consultation. You can also

cloudy moon

DON’T DARE READ THIS ALONE!

Count Dracula needed a new estate plan. After all, the Count hadn’t updated his last will in 1,400 years. After he got over a few eerie common estate planning excuses, he went to his Iowa estate planner. 

The Iowa estate planner dutifully gathered information about all of Count Dracula’s many assets. While discussing real estate holdings, however, the Iowa estate planner inexplicably failed to inquire as to whether Dracula owned real estate with his wife, in any other states.

[Blood-curdling screams]

Yes, that’s right: the Iowa estate planner simply forgot to ask about other States, including community property states. This could, unfortunately, impact the effectiveness of the Drac’s will and the dispersion of Drac’s property.

[Angry mob shouts in disbelief]

spooky castle

Iowa is NOT a Community Property State

The majority of states, including Iowa, are not community property states. There are about a dozen states which are community property states. As explained below, whether a state does or does not follow community property laws can have a huge impact on estate planning.

What are Community Property Laws?

Given our limited space I will only provide the most basic of oversimplifications. Simply put, states with community property follow a rule that all assets acquired during marriage are considered “community property.” While each community property state has its own unique and precise set of characterization rules, they all share the general rule that an asset acquired or given during marriage is presumed to be community property, until it is proven to be separate.

Bride and groom holding hands

Marital property in community property states is owned by both spouses equally (50/50). Marital property includes earnings, all property bought with those earnings, and all debts accrued during the marriage. Community property begins as soon as the couple is married and ends when the couple physically separates with the intention of not continuing the marriage.

Spouses may not transfer, alter, or eliminate any whole piece of community property without the other spouse’s permission. A spouse can manage his or her own half the way he or she wishes, but the whole piece includes the other spouse’s one-half interest. In other words, a spouse cannot be alienated from his or her one half.

Death or Divorce in Community Property States

When one spouse passes away, half of the community property passes to the surviving spouse. Their separate property can be devised to whomever they wish according to their will, or via intestacy statutes without a will. Many community property states offer an interest called “community property with the right of survivorship.” Under this doctrine, if a couple holds title or deed to a piece of property (usually a home), then upon a spouse’s death the title passes automatically to the surviving spouse and avoids probate court proceedings.

If the couple divorces or obtains a legal separation, all of the community property is divided evenly (50/50). The separate property of each spouse is distributed to the spouse who owns it and is not divided according to the 50/50 rule (but, again, there is a presumption that all property is community property, not separate property).

cert of divorce

Sometimes, economic circumstances warrant awarding certain assets wholly to one spouse, but each spouse still ends up with 50 percent of all community property in terms of total economic value. This is most common regarding marital homes. Since it is not a practical idea to try to divide a house in half, often the court will award one spouse the house, while the other spouse receives other assets with a value equal to half the value of the home.

There are exceptions to the equal division rule. The most common and well-known, thanks to popular culture, is a prenuptial agreement. Before the marriage, the couple may enter into such an agreement that lays out how the marital property shall be divided upon divorce.

Which States Have Community Property Laws?

Eight states are considered to be the “traditional community property” states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Wisconsin is the functional equivalent of a community property state when it adopted the Uniform Marital Property Act in the 1980s. Alaska and Tennessee are elective community property states, meaning spouses may create community property by entering into a community property trust or agreement. 

What About all the Other States?

The other states, the clear majority of states, are called “common law property” states. “ In this case, “common law” is simply a term used to determine the ownership of property acquired during the marriage. The common law system provides that property acquired by one member of a married couple is owned completely and solely by that person. Of course, if the title or deed to a piece of property is put in the names of both spouses, then that property would belong to both spouses. If both spouses’ names are on the title, each owns a one-half interest.

Death or Divorce in Common Law Property States

When one spouse passes away, his or her separate property is distributed according to his or her will, or according to intestacy laws without a will. The distribution of marital property depends on how the spouse’s share ownership—the type of ownership.

If spouses own property in “joint tenancy with the right of survivorship” or “tenancy by the entirety,” the property goes to the surviving spouse. This right is actually independent of what the deceased spouse’s will says. However, if the property was owned as “tenancy in common,” then the property can go to someone other than the surviving spouse, per the deceased spouse’s will. Of course, not all property has a title or deed. In such cases, generally, whoever paid for the property or received it as a gift owns it.

Man in street looking at house

If the couple divorces or obtains a legal separation, the court will decide how the marital property will be divided. Of course, just as in community property states, the prenuptial agreement is an option. The couple can enter into agreement before marriage, providing how to divide marital property upon divorce.

Why did the Iowa Estate Planner Forget to Inquire About Real Estate Located in Other States?

Some say evil men were born that way, while others say monsters learn evil. We can only guess. All we can know for sure is that the Iowa estate planner didn’t ask about real estate in other states. And that was terrible.

You Said Iowa Wasn’t a Community Property State. So, Why Does it Even Matter?

For at least three reasons a lawyer in a common-law state like Iowa needs to have a basic understanding of community property principles.

  1. A client may move to a community property state. Or perhaps there’s a divorce, one party stays in Iowa, the other moves to Washington).
  2. A client may buy property in a community property state. Perhaps the client buys a vacation home in Texas.
  3. The client’s beneficiaries (adult children, for example) may move to a community property state. For example, your daughter marries an Arizonian and they both move to Phoenix.

In all three cases, the distinction between community property and common law states needs to be carefully explained to the client. The estate plan may well need revisions, or even just an extra document or two.

Standing over yellow line in road- community property

Mob With Pitchforks Goes After Iowa Estate Planner

Ugly! Don’t let this happen to you. Seek an experienced estate planner, who knows the right questions to ask, and be sure to offer them as much information as you possibly can.

 Questions or Concerns About Community Property?

Do you have a vacation home in California? Did your son recently elope and the happy couple moved to New Mexico? It may be time to talk about community property and how it impacts YOUR estate plan. Always feel free to email me anytime at gordon@gordonfischerlawfirm.com. Or call my cell at 515-371-6077. I’d be happy to offer you a free one-hour consultation.