After Prince’s unfortunate death in 2016 the news featured a multitude of articles commemorating his life and artistic influence. After those headlines faded, a new piece of news emerged: the artist died without a will. His estate, estimated to be between $150-$300 million, went to probate in the state of Minnesota and the state court appointed a special administrator to parcel out what Prince actually owned, the value of the property, and whom will actually receive the assets.

It’s a bad idea for anyone to die without an estate plan in place, as it leaves a great deal up to the law of intestate succession. Most people would prefer to choose their beneficiaries and a trusted executor to carry out their wishes. Under intestacy laws, you cannot choose these important people. You also cannot use your estate plan to achieve goals to reduce or eliminate income, estate, or inheritance taxes. Basically, without a will, you have no control over who gets what of your hard-earned assets at death.

Unfortunately, far too many people (six out of 10 Americans) don’t have estate planning documents like a will or living trust. Plus, since celebrities often have complex and highly valuable assets, dying intestate is often an extremely complicated, litigious affair. (For the sake of your friends, family, and lasting legacy avoiding litigation is a good goal to have with an estate plan.) For instance, a big question in the Prince case is who will be the beneficiary of perhaps one of the most persistently valuable assets—the right of publicity, which includes elements like Prince’s name and likeness.

While the average Iowan won’t have to consider publicity rights a part of their estate, there are at least six key documents celebs and the non-famous alike should have that cover important elements like finances, healthcare, and personal disposition of property.

Learn from Prince and these other five celebrities (among many more) who passed away without the proper estate planning in place:

  1. Howard Hughes, entrepreneur/producer/aviator

Hughes died on a flight in 1976 with no surviving spouse, child, parent, or sibling. Without a will, his $500 million-valued estate was eventually decided by a small Texas county probate court jury five years after his passing. The probate had brought about a “circus-like” atmosphere as more than 600 people showed up in person claiming to be “wives, sons, daughters, first, second, third, fourth and fifth cousins” of the late Hughes (and that didn’t count all the people who petitioned via letter). A couple of wills were also produced but were eventually thrown out as fakes.

  1. Amy Winehouse, singer/songwriter

The British artist died in 2011 when she was just 27. Without a will, her estate worth millions went to her parents. Say, even if Winehouse did want her brother to inherit part of the estate, he couldn’t because of (U.K.) laws covering who inherits what.

hollywood sign

  1. Tupac Shakur, rapper/actor

Shakur was tragically shot and killed in 1996 at the young age of 25; after his death, “his mother had to file court papers establishing herself as the administrator of his estate and the sole living heir.” Shakur also left a complex web of financial dealings, spendings, and debts to figure out. Shakur’s estate was made more complicated over the years through several albums of his music (intellectual property) released posthumously. Additionally, Tupac’s biological father lost a lawsuit claiming he was entitled to half of the estate.

  1. Pablo Picasso, artist

It took more than six years of “bitter negotiations” for Picasso’s estate to be settled (for a pricey $30 million) after he died in 1973. Picasso passed at the ripe old age of 91 but did so without a will, so his assets were divided amongst seven familiar heirs. Picasso left a massive amount of valuable assets including 45,000 works of art, five homes, $4.5 million cash, $1.3 in gold, stocks, and bonds. “In 1980 the Picasso estate was appraised at $250 million, but experts have said the true value was actually in the billions.”

  1. Sonny Bono, singer/U.S. Representative

Bono passed away in 1998 following a fatal skiing accident with no will to his name. Issues flared when Cher (of their former pop duo Sonny & Cher) alleged he owned her past due alimony and a man named Sean Machu said he was Bono’s illegitimate child. His fourth spouse became the estate’s administrator.

microphone

  1.  Billie Holiday, jazz musician/singer

The famed singer’s estate at the time of her death stands as a paradox to her modern posthumous fame. When Holiday died in 1959 she had “$0.70 in the bank and $750 strapped to her leg.” Since she died intestate under New York state law all of her royalties went to her estranged husband Louis McKay. Her total estate only continued to grow after her death including four Grammy awards, a movie about her life starring Diana Ross, and induction into the Grammy Hall of Fame.


You, yes you, can be a star too, but you need to have an estate plan in place to protect your legacy. The best way to get started is with my free (no obligation) estate plan questionnaire. Or, contact me to discuss your individual situation. Shoot me an email at gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.

number four on wood

We dove into the definition of the term “trust,” but that’s just the tip of the iceberg when it comes to learning about the important agreement that’s often used for purposes including estate tax liability reduction, estate property protection, and probate avoidance. There are four standard ways of classifying trusts.

Trust Classifications

handshake over table

Trusts may be classified by their purpose, duration, creation method, or by the nature of the trust property. One common way to describe trusts is by their relationship to the life of their creator. Those created while the grantor is alive are referred to as inter vivos trusts or living trusts. Trusts created after the grantor has died are called testamentary trusts. Another helpful classification of trusts is comparing those which are revocable to trusts which are irrevocable.

Inter Vivos Trust

An inter vivos trust, also known as a living trust, may be either revocable or irrevocable. In a revocable trust, the grantor can retain control of the property, if the grantor so wishes, and the terms of the trust may be changed or even canceled. An irrevocable living trust, on the other hand, may not be changed or terminated after it is executed.

Testamentary Trust

A testamentary trust is most often a component of a will. The testamentary trust is created when the trustor passes away. The designated trustee then steps in and distributes or manages the assets of the trust according to the deceased’s wishes.

Revocable Trust

A revocable trust allows assets to pass outside of probate, yet allows you to retain control of the assets during your (the grantor’s) lifetime. It is flexible in that it can be dissolved at any time, should your circumstances or intentions change.

A revocable trust typically becomes irrevocable upon the death of the grantor. You can name yourself trustee, or co-trustee, and retain ownership and control over the trust, its terms, and assets during your lifetime. You may also make provisions for a successor trustee to manage them in the event of your death or incapacity.

Although a revocable trust allows you to avoid probate, it’s subject to estate taxes. It also means that during your lifetime, it is treated like any other asset you own.

Irrevocable Trust

An irrevocable trust typically transfers your assets out of your (the grantor’s) estate and potentially out of the reach of estate taxes and probate, but cannot be altered by the grantor after it has been executed. Therefore, once you establish the trust, you will lose control over the assets and you cannot change any terms or decide to dissolve the trust. An irrevocable trust is preferred over a revocable trust if your primary goal is to reduce the amount subject to estate taxes by effectively removing the trust assets from your estate. Also, since the assets have been transferred to the trust, you are relieved of tax liability on the income generated by the trust assets (although distributions to others may have income tax consequences). Trust assets in an irrevocable trust may also be protected in the event of a legal judgment against you

Let’s Get Started

You probably still have some questions on trusts…which is why I’m here! Don’t hesitate to contact me. I offer a free one-hour consultation at which point we can discuss your personal situation, see if a trust is right for you, and set up the steps to take for success.

george washington figurine

Happy Presidents Day! Even if you don’t have today off of work on this federal holiday, it’s a good day to think about the first and pretty incredible leader of the United States, George Washington. First recognized by Congress in 1885, the holiday was first celebrated on Washington’s birthday, February 22. Eventually, the day shifted to the third Monday in February after the Uniform Monday Holiday Act. Instead of celebrating by chopping down a cherry tree (just kidding, that’s a myth), consider the ways Washington’s own estate planning can inspire you to get your affairs in order.

“Human happiness and moral duty are inseparably connected.”

Washington Wrote His Own Will

This is probably a terrible point to start on, as I cannot encourage you to write your own estate plan. There are so many ways that this can go wrong from lacking requisite formalities, mistaking property laws, and risking the document being found entirely invalid. All of these errors can result in a situation that causes your loved ones heartache, confusion and can maybe even lead to litigation. But, history is what it is. Washington wrote his own will and dated it July 9, 1799, not long before his death on December 14 that same year. However, considering Washington was one of the wealthiest presidents of all time, if he were living today, he would definitely want to enlist a team of professional advisors to make sure all of his assets were accounted for and passed on in a tax-strategic way.

Washington Made Two Wills

Washington was a smart man, clearly. He had, not just one, but two last will and testament documents! Of course, you don’t need and shouldn’t have two estate plans, but you should update your estate plan regularly when changes may affect your estate plan’s effectiveness or determine who you include as a beneficiary, executor, or guardian.

Washington was apparently on his deathbed when he asked his wife, Martha, to bring him both editions of his will. He had her burn one so the “real” one was competing against the other version. Again, it’s the principle that sometimes you need to make important changes to your plan that’s important here!

Washington Included His Charitable Goals

Washington left the entirety of his estate to his wife. However, he also wanted to benefit the causes he cared most about. Washington was concerned about American youth being sent to Europe for formal educations and wanted to benefit higher education institutions in the growing United States. He left 100 shares he held in a company called James River Co. to help, what ultimately became, Washington and Lee University. He also left 50 shares in a different company to endow a D.C. university (which never came to fruition).

Like Washington, you too can give to the charitable organizations and causes you care about by naming them in your estate plan as beneficiaries of certain amounts of money or of a certain percentage of your estate.

Washington Chose His Executors Wisely

Most folks I work with only choose one or two main executors of their estate plan, and then also name an alternate or two if the first choice doesn’t work out. Washington named a full seven executors to oversee that his wishes and dispersion of property was carried out. His executors included his grandson, five nephews, and his wife.

In Washington We Trust

Probate can take a long time, especially if you pass away intestate (without an estate plan). But Washington’s estate, unfortunately, took an excruciatingly long time to be completely settled. For reasons unknown, appraisal of the estate wasn’t filed with the court until 1810! And then, the estate was not fully closed until 1847. Yikes. If you would the majority or all of your estate to avoid probate, you may want to consider a trust of some sort.

Power to the People…To Make Thier Wishes Known

As Washington said, “It is better to offer no excuse than a bad one.” Drop the estate planning excuses! You don’t need presidential power to make a quality estate plan that meets your goals. One of the easiest ways to get started with my free, no-obligation Estate Plan Questionnaire.

books on a table

Hopefully, by now you have had a chance to read last month’s GoFisch Book Club pick, “Made to Stick: Why Some Ideas Survive and Others Die.” While I could complain about how the weather right now in Iowa is in a perpetual state of snow-ice-snow-wind-freezing rain, it’s actually a great excuse to curl up with cocoa and a great book. The title for this month is not a new book, but it is an enticing, mystery involving, what else, estate planning!sycamore row

Published in 2013, John Grisham’s Sycamore Row leads readers on a trip to the south in 1980’s Mississippi where a wealthy white man, Seth Hubbard, commits suicide and leaves his entire estate to his black housekeeper, Lettie Lang, instead of his two adult children, Herschel and Ramona. (I bring up the race of the characters because racism and prejudice are important themes in the novel’s setting and plot conflicts.) Sycamore Row is a sequel for fan-favorite character and fictional attorney, Jake Brigance, who was introduced to the world in Grisham’s most famous book, A Time to Kill.

Brigance is instructed by the decedent to defend his will against the inevitable controversy and litigation he anticipates will ensue. Over the course of the thriller, another will is unearthed which disposes the estate to Hubbard’s children. There are also serious questions about Hubbard’s purported testamentary capacity, as well as undue influence on the legal documents in question.

Grisham’s career as an attorney has clearly influenced his writing, and this novel offers suspense and intrigue around the topic of estate planning, while also reinforcing the importance of making a valid estate plan, keeping it updated, and discussing your decisions with your family.

What are your thoughts on Sycamore Row? I would love to hear them! Also, if the book inspires you to make certain you have a valid estate plan in place so that you can disperse your estate in accordance with your wishes, don’t hesitate to contact me! You can also get started on your estate plan with my free, no-obligation Estate Plan Questionnaire.

movie camera

I was scrolling through Netflix the other night and finally landed on The Aviator, which I haven’t seen in a while. The 2004 Scorsese film starring Leonardo DiCaprio tells the story of the eccentric aviation magnate and movie producer, Howard Hughes, who tragically battled OCD, paranoia, and chronic pain (from a near-death plane crash) and spent his later life as a hermit. That led me down a rabbit hole of internet research into the real Howard Hughes. As an estate planner, I naturally wondered what happened to his estate when he passed away in 1976. (Perhaps fittingly the aviator passed away in an airplane.)

Even if You’re Not a Billionaire, You Need an Estate Plan

Unfortunately, the tale of the Hughes estate is a cautionary one of what NOT to do.

Hughes—who was reputed to be one of the wealthiest men in the world—died intestate, meaning he died without a valid will. That can cause chaos, confusion, and cost ample time and money for regular folks. But, when your estate is worth billions like Hughes’ was, it causes a mass tangle of court proceedings. In the case of the Hughes estate, debate and disputes lasted a total of 34 years.

In the aftermath of his death, several documents were brought forth alleging to be the magnate’s will. All were deemed to be forgeries. A Nevada court determined Hughes died intestate, meaning the law determines how assets are distributed to heirs-at-law. However, Hughes died divorced (allegedly) and without any close relatives; he left no clear heir(s). This debacle of no will meant that many people came out of the woodwork claiming to be relatives.

A Messy Web of Forgeries, Fraud, & Litigation

So, after years of attorneys, courts, and dubious claims, what actually transpired?

Eventually, $2.5 billion was split between 22 of Hughes legal cousins in 1983. (Undoubtedly he didn’t know some or even the majority of these people. It’s also been said he didn’t want his money to go to his distant relatives, but without an estate plan, his wishes were steamrolled by probate law.) In an interesting twist, a woman named Terry Moore came forth claiming she married Hughes on a boat in international in 1949 and that they were never divorced. She didn’t produce any proof of the marriage (like a marriage certificate), but the estate paid her a $400,000.

The Supreme Court even had to step in. They ruled in the messy dispersion of assets that the Howard Hughes Medical Institute owned Hughes Aircraft, which it then sold off in 1985 to General Motors for more than $5 billion. The Court also rejected lawsuits brought by Texas and California, claiming they were owed inheritance taxes, but the suits were eventually put to rest with settlements of $50 million and $150 million respectively in property and/or cash.

In 2010, more than three decades after Hughes passed, the last slice of Hughes pie (Summerlin residential development community near Las Vegas) was liquidated.

Leave a Valuable Legacy

Undoubtedly, Hughes left his mark on 20th century American history. However, his legacy could have been cemented in the way he wanted (probably giving the bulk of his estate to the Howard Hughes Medical Institute and nothing to long lost cousins) if he would have had a proper estate plan created completed with valuable strategic tools like different trusts and charitable giving vehicles. While most of us will never have an estate valued even close to the likes of Hughes, we can be smart with what we do have and make certain what we choose is dispersed to whom we choose, when we choose. There’s no need for your assets to be tied up in red tape or be dispersed in a way that’s not fitting with your wishes.

Contact me with your estate planning questions, or get started with my free, no-obligation Estate Plan Questionnaire, which will help you organize important information needed for the plan in one place.

single pink carnation

Here on the GoFisch blog we’re covering how estate planning and love are two things that go together like hugs and kisses, red wine and chocolate covered strawberries, cute cards, and candles…just in time for Valentine’s Day!

If the sight of Valentine’s Day cards, heart-shaped candy, and overpriced stuffed animals give cause for an eye roll, you’re not alone. But, there’s no doubt that underneath all the conversation hearts that a holiday about love is worth celebrating…especially if it’s self-love. At the end of the day, there’s no greater love than the one you can cultivate for yourself.

Couples get a lot of attention on Valentine’s Day—from the overpriced card aisle to the heart-shaped chocolate boxes that are clearly the only way to tell someone “I love you.” But, the pink, red, and white modern iteration of the pagan fertility festival Lupercalia can take many forms including making it a day of “treat yo’self.” If you’re single, or simply are in need of a day to celebrate and connect with how awesome you are, Valentine’s Day need not be a day to exalt romance, but a holiday to celebrate love for yourself.

In terms of celebrating yourself, executing an estate plan is a natural fit. Why? Because estate planning allows you the chance to determine the direction of your legacy even after your physical life has passed. This principle can easily be remembered with one simple phrase: Give whatever I have to whomever I want, the way I want when I want.

That’s a celebration of your life if I’ve ever heard it—decisions that guide your hard-earned property and assets into the hands of beneficiaries whom you care for. Estate planning also saves your loved ones’ time, money, and the arduous intestate probate process. Don’t forget that estate planning can (and should) be personalized to entirely fit you! Have a best furry friend? You may want to consider an animal care trust. Have you invested in a fledgling art collection? You’ll want to review your three main options for art disposition. Own your own business? You’ll want to look into a trust and a business succession plan.

So, treat yourself to a nice bottle of wine, a delicious dinner, maybe even a day at the spa, but also download my Estate Plan Questionnaire. You deserve to celebrate yourself, your life, and your work. Questions? Want to talk about the individualized aspects of your estate plan? Don’t hesitate to contact me.

wine and glasses

A fancy dinner out on the town is nice. Going to see a show is great. A trip to the spa for a couple’s massage is romantic. All are excellent date ideas and I fully recommend you pursue them! But, in addition, there’s one unconventional date idea you and your significant other should consider this Valentine’s Day: reviewing your estate plan.

forever scrabble tiles

Don’t worry, even though I’m an attorney I totally understand that reviewing multiple pages of a legal document isn’t outright romantic (much to the relief of my wife). However, because I am an estate planning attorney I know realistically how important it is to keep your estate plan updated and current. Taking time with your significant other to consider your current and future assets, as well as your estate planning goals is a practical “date” with major benefits for the future like saving time, money, and eliminating hardship on your family and friends.

Major life events like the birth of a child or grandchild, marriage or divorce, moving to a new state, a major change in financial situation, and/or the loss of a designated representative or beneficiary could necessitate changes to your estate plan to keep it valid.

An outdated estate plan could more easily be challenged in probate court or create unnecessary tensions between your loved ones. (This is yet another reason estate planning relates to the concept of love so well—the act of proper, quality estate planning can reduce the likelihood of future tensions and conflicts. Knowing that with a bit of planning and annual updates you can give your family and friends clear instructions that allow them to sidestep drama is certainly an act of love in its own right.)

Let’s use some hypothetical examples to explore why it’s necessary to update your will and the other important estate planning documents. If you have minor children you should have nominated a guardian in your will in case something was to happen to you. Let’s say the primary guardian you nominated has since moved far away—this may mean you need to consider nominating a new guardian.

In another example, it came to light since you made your estate plan that your financial power of attorney designated representative has fallen on hard times due to a gambling addiction…you’ll seriously need to consider amending the document and designating a different representative.

Speaking of change, remember too that state and federal laws are perpetually changing and when certain rules change, so too must your estate plan. Case in point? The “Tax Cuts and Jobs Act of 2017,” AKA the new GOP tax bill. For instance, the changes to the federal transfer tax exemptions could impact decisions as to if a certain type of trust is applicable. Again, this is where an experienced professional estate planner, whose job it is to stay up on these policy changes so you don’t have to, is beneficial.

two shells make a heart

A Legal & Loving Tradition

Again, it’s a good idea to review your estate plan at least once a year even though estate plans never expire. What better date reminder for a long-lasting document indicating a standing commitment to care and support than Valentine’s Day? Make it a tradition! (You can even drink wine and eat a box of chocolates while you review.) Along with reviewing the estate planning documents, it’s smart to check in with your professional advisors like your estate planner, financial advisor, insurance agent, and the like.

Of course, if you don’t have an estate plan yet that’s the first step. Even more “romantic” than reviewing your estate plan? Filling out my Estate Plan Questionnaire! Don’t hesitate to contact me with any questions and share the results of your estate plan review with me via the hashtag #PlanningForLove on Facebook, Twitter, and Instagram.

As Valentine’s Day approaches you’ll see all kinds of gift guides telling you if you get these gifts, your significant other will love you that much more. I’m here to present a different kind of gift guide: one with important gifts that you cannot buy from a store. These gifts are all a part of estate planning in one way or another. At this point, you’re thinking what does some legal/financial thing like estate planning have to do with a holiday that celebrates love? On the outset, not much. But, dive into the reasons behind proper estate planning and most often I find love is at the foundation for most folks.

Read on for a gift guide you definitely won’t find in a magazine!

For your Spouse: Review your Beneficiary Designations

Your estate plan is essential for the majority of your assets, but it doesn’t cover some important accounts that are passed along via beneficiary designations. Such accounts can include savings and checking accounts, life insurance, annuities, 401(k)s, pensions, and IRA accounts. Whoever is listed as the beneficiary on these accounts overrides what’s written in a will (if the two are different). That means keeping these beneficiary designations are super important. Let’s say you listed your first spouse as a beneficiary on your life insurance, ended up getting divorced, got remarried to a great person you have many happy years together and then you pass away. Unfortunately, you never changed the beneficiary designation and the ex-spouse inherits the money. More than likely you would have wanted the account assets to go to your current spouse. (More valuable than some heart-shaped Valentine’s jewelry, right?!)

man with bouquet of roses

It’s good practice to review all of your beneficiary designations if there have been any life events that would necessitate a change, addition, or update, such as a birth, death, or change of capacity in a beneficiary.

For the Entire Clan: Talk About your Estate Plan Decisions

It’s important to discuss your estate planning decisions with your family members both before and after the plan is executed. In drafting the estate plan you’ll need to indicate to your qualified estate planning attorney whom you’re entrusting the important roles of executor, attorney-in-fact, guardian, and other designated representatives to. Before naming someone in a legal document you should discuss the role with them first to be sure they are willing, able, and informed to the duties of the role.

strand of hearts

After the estate plan is executed you’ll want to discuss your estate planning decisions with loved ones, family members, and beneficiaries, especially when your choices may take them by surprise. How can a discussion be a gift, per se? Explaining your wishes is a way of expressing your love by heading off any confusion your family and friends may feel upon needing to execute your plan.

This is yet another reason to have an attorney draft your plan—your estate planner can help you communicate your wishes to your loved ones.

For your Kiddos: Nomination of Guardian

This is the kind of “gift” your child(ren) will hopefully never need to experience. One of the most critically important features of an estate plan is establishing guardianship for any minors (i.e., children under the age of 18) in your care. Why? In the tragic and terrible chance that something was to happen to you resulting in immense incapacitation or death, who do you want to care for your children? Nominating a guardian in your will allows you to select the people you know will love, care, and look out for the best interests of your child.

Unless guardianship has been established, an Iowa Court must choose guardians. Unfortunately, with no clear choice as to what the former caregivers would have preferred, the Court must basically make its own and best determination as to who the parents would have preferred and what would be in the best interest of the children. The Court may or may not, choose who the former caregivers would have named.

For your Favorite Charity: Charitable Bequest

Valentine’s Day doesn’t just have to be mean about personal relationships! It can also be a day for sharing the “love” for charities you care deeply for. In making or updating your estate plan think about what charities are near and dear to your heart? Which organizations and how much would you want to leave to them? You can include your church, alma mater, local cause, or international organization in your estate plan as beneficiaries. It doesn’t cost anything extra, other than assets from your estate. Want a clearer picture of how a charitable bequest could help your favorite charity? Talk to the nonprofit’s leaders or fundraising staffers. I’ll bet they’ll tell you the result of your charitable bequest, no matter how big or small, can make an important impact.

Love can take on many forms and express itself through many different types of gifts and actions that show you care. Choose this Valentine’s Day to express your affection (be it for a significant other, your children, or a charity) with a “gift” that shows a clear investment in the relationship. And, speaking of amore, I would love to discuss any aspect of this gift guide with you! Contact me at any time.

heart lock on bridge

You’ve been perpetually reminded by commercials, Facebook ads, and the candy aisle at the store that everyone’s favorite pink, red, and chocolate-dipped holiday is coming up quick. In this #PlanningForLove series through February 14, I’m featuring different aspects of how estate planning oddly but perfectly fits in with a day all about love. For this post, I’m going to focus on married couples because, despite the commercialization and overpriced flowers, Valentine’s Day seems as good as time as any to celebrate your spouse!

Let’s face it, it’s a miracle any of us find a soul mate, a best friend, a partner in crime…whatever you call them…that not only tolerates all your weirdness on the daily, but also still loves you “for richer or poorer” and “through sickness and in health.” I can think of no better way to honor that kind of long-term commitment than to take the appropriate estate planning steps with your sweetheart in mind. I realize it may not be the most romantic gesture, but it’s WAY more valuable than stale chocolates or a heart-holding teddy bear. And, like your love, there is no expiration date on an estate plan.

For richer or poorer makes a lot of sense when put in the context that someday you are going to pass away and you probably want to pass your assets to your spouse (and heirs at law) while also minimizing the burdens. If you die without a will it will cost your beloved a lot of time and money, on top of anxiety and even heartache.

In sickness and health also directly relates to one of the main estate planning documents. For instance, say you were in an accident and were severely incapacitated. You would want to have your health care power of attorney established and kept updated (many spouses choose one another as the designated representative), so that important medical decisions could be made by someone you trust to do what’s in your best interest.  The same goes for a financial power of attorney. There are many aspects of your separate finances you may want to designate to your spouse so they could settle or manage specific assets in the case that something happened to you.

Beyond the numerous benefits that come with the six main estate planning documents that all Iowans need (yes, all Iowans, young and old; rich and not wealthy!), what are the other considerations of spouses should have in regard to estate planning?

couple in love with writing on wall

What’s Mine is Yours: Common Law Property

The majority of states, including Iowa, are called “common law property” states. (As opposed to the alternative—community property states—which applies to eight states.)

In this case, “common law” is simply a term used to determine the ownership of property acquired during the marriage. As in, 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.

If your spouse were to pass away in a common law state, 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.

‘Til Death do us Part: Forced Share Law

If married, technically your spouse cannot disinherit you. An Iowa statute allows spouses to take a “forced share” against the will. In short, the surviving spouse has a choice; the spouse can inherit any property bequeathed to him/her under the will, OR the spouse can take a forced share. So, even if a will leaves nothing for the surviving spouse, the surviving spouse can take a forced share against the will.

Under Iowa law (specifically, Iowa Code § 633.238), a surviving spouse that elects against the will is entitled to:

  • One-third of the decedent’s real property;
  • All exempt personal property that the decedent held; and,
  • One-third other personal property of the decedent that is not necessary for payment of debts and other charges.

In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn’t provide for said surviving spouse, and take approximately one-third of your estate.

For example, if you left your entire estate to your children and not your spouse, your spouse can say, “You know, I don’t like this at all. I’ll take one-third of my dead spouse’s estate. Thank you!” And, pretty much just like that, boom, the surviving spouse can do so.

Preferred Portability: Unlimited Marital Deduction

The unlimited marital deduction is a money-saving must for married couples. The unlimited marital deduction is an essential estate preservation tool because it means an unrestricted amount of assets can be transferred (at any time, including at death) from one spouse to the other spouse, free from taxes (including the estate tax and gift tax). Note that the marital deduction is available only to surviving spouses who are U.S. citizens. If your spouse is not a U.S. citizen, look at other tools, such as a qualified domestic trust (QDOT), which may act to minimize or eliminate taxes.

Property Passage

If you acquired property (like a house or other significant asset) before getting married, take a look at re-titling property (such as a home) from sole ownership to joint tenancy. This means that if one spouse were to pass, the other would get the property without it passing through probate. (Depending on your situation, you could also consider “tenancy in common” as another option for holding property titles under multiple names.)

love me when I'm dead graffiti

Joint Representation is Optional

Married couples often seek joint representation in estate planning, meaning they both utilize the same estate planning lawyer. (And, yes, you most definitely want to hire a qualified, experienced estate planner.)  The benefits are obvious; joint representation can be cost-effective and can be more efficient since you can work together on a single Estate Plan Questionnaire in preparation to meet with the estate planning lawyer. Another advantage is that the joint representation somewhat forces open and honest communication between you as a couple as you make decisions on beneficiaries (such as children and grandchildren), executors, and disposition of property.

However, individual representation is, of course, an option and can help couples avoid conflicts of interest.) There are times when it is best for each spouse to seek separate legal counsel. One such time is when there are different interests that are at odds with each other. For example, if one or both people have children from a previous marriage/relationship that will be named as beneficiaries. There can be conflicting interests between stepparents and stepchildren when it comes to the estate. Additionally, if you both have your own individual estate planning lawyer, you may have more freedom to voice individual concerns, without having to audit your opinions in accordance with your partner’s desires.

All You Need is Love…and an Estate Plan

You’ve worked hard for the life you’ve built together with your spouse. This Valentine’s Day, give a gift that ensures your commitment will carry on even after one of you passes on. The best way to get started is with my free, no-obligation Estate Plan Questionnaire. You can also email or call (515-371-6077) me at any time. I’d love to explain more how an estate plan says, “I love you,” way better than a card ever could!

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One major way we can show our loved ones how much we care about them is by making our wishes known for when we’re no longer there to tell them. Estate planning is one of the best ways to do that, especially concerning wishes regarding what’s to be done with the physical body after death. One of the six main documents a part of any estate plan is called the “disposition of final remains.” In this document, you can detail how you want your body to be treated after you pass away, along with any ceremonial aspects. You may be as specific or as general as you wish.

If you’ve ever had someone close to you die and have been tasked with making arrangements for the wake, funeral, and burial or cremation (or otherwise), you know it can be difficult. Not only are you dealing with heartache and grief of losing that loved one, but now you’re also dealing with the organizational aspects of death. If you die without an estate plan, and without clear instructions in a disposition of final remains document, you’ll be leaving your loved ones with a headache on top of the inevitable heartache. The ambiguity surrounding final remains can lead to fighting between family members if they disagree over what would be best. That’s why taking the time to think through your final services is a wonderful gift and a great way to show your loved ones how much you care.

Let’s go through some of the basics related to this important, valuable document.

What Does “Final Disposition” Mean Anyway?

Final disposition sounds, well, conclusive. Indeed, this is about what you ultimately want to be done with your physical body following death and can include burial (sometimes referred to internment), cremation, removal from the state (if you want to be buried in a different state), and other types of disposition. You may also detail if you wish, a funeral or other type of ceremony (maybe even a party) to be held. If you’ve purchased a burial plot or want to be laid to rest in the family mausoleum, you would include those details here.

Choose a Designee

In the disposition of final remains document, you can designate one or multiple adults to assume responsibility for carrying out your wishes, similar to how you designate an executor to carry out the wishes as written in your will. Your designee (or designees) can be whomever you choose, just be sure to speak with them to make certain they are comfortable and accepting of the role.

Of course, the designee must be a competent adult. The Act also allows for alternate designees to be named in the event the primary designee is unable to act. The Declaration is not allowed to include directives for final disposition of remains and arrangements for ceremonies planned after death.

If something were to happen to you without a disposition of final remains document in place, the surviving spouse (if there is one) assumes the role as designee. If there is no surviving spouse, then the designee role passes to any surviving children. If there are no surviving children then the role would pass to the parents of the decedent, then grandchildren, surviving siblings, and finally surviving grandparents.

Can I Change My Mind?

Your wishes may change over time and that’s OK because the disposition of final remains is revocable. That means you can change your designee if one becomes unable or unwilling. (Regardless of whether or not you want to amend your disposition of final remains document, you should review your estate plan annually to see if any major life events require updates.)

How do I Start?

Because the disposition of final remains document is a key part of your estate plan, it’s best to get started with my free Estate Plan Questionnaire. Questions or want to discuss your personal situation? Contact me at any time via email or phone (515-371-6077).