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Did anyone sit in the very back row of their high school calculus class, slumped over, the brim of their baseball cap lowered, hoping to become invisible? I’m asking for a friend, of course. The chalk marks on the board—a series of numbers—may as well have been Mandarin Chinese to me. The teacher was no help, he spit numbers faster than a rapper and made less sense than the chalk marks. My “friend” understood nothing but somehow passed by the skin of his teeth. Law school was suddenly a sure destination (or, really, any school without math).

Back to school

Even Worse: College Math!

However, you needed an undergraduate degree before law school. (Ok…we’re talking about me, not my friend.) Thanks to the aforementioned miracle of passing calculus, my major at Iowa only required one math for graduation, at least at the time. That class was 22M-One, which was literally known on campus as 22M-Dumb. Still, I had to take the class twice. During the first try, halfway through the final exam, my friend got up, left his paper, and simply walked out. He knew he would flunk, so why torture himself or waste anyone else’s time? He barely passed the second time, and only did so after extensive tutoring.

Just curious, anyone have “math phobia” as bad as young me? This school daze story has a happy ending though. Eventually, I got past my major fear of math and was able to master the rules of math, especially as they relate to estate planning.

This Math Makes Sense

I know someone in your life (probably an engineer or actuary) has undoubtedly told you that math is fun and easy. But, when it comes to the IRA Charitable Rollover (AKA qualified charitable distribution (QCD)), this small bit of math really is!

You only need to remember six numbers:

  • 70.5 (years)
  • $100,000
  • 1 (as in one plan)
  • Zero (as in taxes owed if you do this right)
  • Zero again (as in, zero gifts in return);
  • 100% (every time I write about the IRA Charitable Rollover, I always get a certain response).

70.5 years of age

There are two threshold requirements to take advantage of a special provision known as the IRA Charitable Rollover. The first is that to be eligible you must be 70.5 years of age or older. An important nuance to note is the required annual distribution is based on the year the participant reaches age 70.5, not the day they reach that age.

The second threshold requirement is the IRA Charitable Rollover applies to IRAs only. Under the law, charitable gifts can only be made from traditional IRAs or Roth IRAs. The IRA Charitable Rollover does not apply to 403(b) plans, 401(k) plans, pension plans, and other retirement benefit plans. (I’ll discuss another great option, however, for these other retirement benefit plans, so be sure to read to the end of this blog post).

equation on a chalkboard

$100,000

Sure, living to 70.5 is great in itself, but it’s also the age where IRA Charitable Rollover allows individuals to donate up to $100,000 from their IRAs directly to a charity, without having to count the distributions as taxable income.

One Plan

A donor’s total combined charitable IRA rollover contributions cannot exceed $100,000 in any one year. The limit is per IRA owner, not per individual IRA account. Also, this amount is not portable (i.e., sharable) between spouses.

Zero (as in Zero Taxes)

The IRA Charitable Rollover permits taxpayers to make donations directly to charitable organizations from their IRAs without counting this money as part of their adjusted gross income (AGI). Consequently, this means not paying any taxes on them. You read that correctly: folks who are 70.5 years or older are able to transfer donations from their IRA directly to charity, up to $100,000, with ZERO taxes on that money!

What charities/nonprofits are eligible to receive the donation(s)?

Charitable contributions from an IRA must go directly to a qualified public charity. Contributions to donor-advised funds and private foundations, except in certain (narrow) circumstances, do not qualify for tax-free IRA rollover contributions.

Allow me to emphasize the gift must go directly to the charity. A donor cannot withdraw the money, and then give it to charity. Rather, the IRA administrator must send the donation straight to the charity.

Zero (as in gifts/services back from charity)

Donors cannot receive any goods or services in return for IRA Charitable Rollover amounts in order to qualify for tax-free treatment. As one philanthropist explained, “Why would you want to (potentially) mess up a $100,000 tax-free donation by getting a $25 tote bag?” No matter how good the bag looks, it’s not worth that!

70.5 years of age and IRAs only

Once again, to be eligible you must be 70.5 years or older. Also, qualifying gifts can only be made from traditional IRAs or Roth IRAs. Charitable donations from 403(b) plans, 401(k) plans, pension plans, and other retirement plans are not covered by the IRA Charitable Rollover law.

100%

Every time I write about the IRA Charitable Rollover, I receive communication from someone saying that life sucks because they don’t qualify for the Rollover. They aren’t 70.5 years old, or they have a different retirement benefit plan than an IRA, or both.

But, here’s the thing, anyone can still use their retirement benefit plan(s) to help their favorite charities.

Magic of Beneficiary Designations

No matter what your age, or what your type of retirement benefit plan (IRA, 401(k), 403(b), etc.), there is a super-easy way for you to help your favorite charity. Simply contact the account holder and name your favorite nonprofit as a beneficiary! This is so simple. No lawyer or drafting of legal documents is required—the owner of the retirement benefit plan simply has to direct the account holder to change the beneficiary. There are also no taxes with this charitable giving approach because, frankly, when the donation passes to the charity it’s because you’re dead. No taxes for the nonprofit either; as a qualified nonprofit, they don’t pay taxes on donations.

Note that if the account owner is married, the spouse should be informed and may need to consent to the designation. And, please follow up with the account holder to make sure the account holder received your request and made the beneficiary changes properly in full.

Want to work through how the IRA Charitable Rollover math fits in with your planned giving goals and current/future tax strategy? Reach out to me anytime. I offer a free, no-obligation one-hour consultation. You can contact me by email (gordon@gordonfischerlawfirm.com) or on my cell (515-371-6077).

September calendar

Recently my social media feeds were alight with friends and family member’s grinning kiddos holding signs announcing their first day of a new grade. It made me nostalgic! While I wouldn’t want to repeat law school all over again, I do think it’s never too late to head back to the classroom—proverbial or real. So, the GFLF is heading back to school with lessons in English (like legal words/phrases of the day), reading (GoFisch book club) history, finance and the like. Today’s lesson on planned giving crosses over between business and economics, and it’s super important for donors of all gift amounts and nonprofit pros alike.

Back to school

What is planned giving?

Planned giving is the process of charitably donating planned gifts. A planned gift is a charitable donation that is arranged in the present and allocated at a future date. A planned gift is often, but not always, donated through a will or trust. (I would say this is true 80-90% of the time; put another way, planned gifts are bequests 80-90% of the time). As such, planned gifts are very often granted after the donor’s death.

Besides charitable gifts made through wills and trusts after death, other planned gifts include charitable gift annuities; charitable remainder trusts (along with the entire alphabet soup of CRATS; CRUTS; NIMCRUTS; FLIPCRUTS; etc.); charitable lead trusts, and remainder interest/life estates in real property. All these gifting tools/techniques/vehicles I’ve discussed previously, sometimes numerous times.

What is a Nonprofit?

  • You give $20 to a person you meet on the street who lost his bus ticket home.
  • At your local gas station, there is a collection jar for a local child with leukemia. You donate your change.
  • You leave money in your will for your niece Jane, hoping she uses it to continue her collegiate studies in engineering.
  • You have a neighbor who suffers from dementia. You and your friends decide to have an informal walk to raise awareness about the disease and raise money for your neighbor’s health care needs.

While noble, these are not examples of “charitable giving,” as we use the term here. In this context, we are talking about charitable giving to an organization formed under 501c3 of the Internal Revenue Service Tax Code. A 501c3 agency can be known by several terms in general usage, including “nonprofit organization” and “public charity.” For simplicity’s sake, we’ll use the term nonprofit throughout.

Nonprofits cover an extremely broad swath of types of organizations, including schools, churches, hospitals, museums, social services organizations, animal welfare groups, and community foundations.

Nonprofits Must Embrace Planned Gifts

Sometimes nonprofits are overwhelmed at the thought of expansive planned giving because of the number and complexity of some of the planned giving vehicles. How does this match up when you want to donate a less obvious gift than cash, such as stocks and bonds or grain? Nonprofits need to expand their ability to accept gifts of many varieties for at least three reasons:

Craft Beer Factor

The first reason I call the “craft beer factor.” (Bear with me here for a moment). I’m old enough to remember when there were just two kinds of beer. Don’t believe me? You should, as it was immortalized in one of the most famous advertising campaigns of all time–“tastes great, less filling!” This ad campaign strongly implied there were really just two types of beers.

craft beer on table

Then came the craft beer movement. I’m not sure whether craft beers were a response to consumers, or whether craft beers created a demand; presumably both. In any case, now a place like Toppling Goliath Brewing Company in Decorah, Iowa, has about thirty varieties of beers (this is based on an informal count from their website).

Now any retail establishment which sells beer must offer lots and lots of different kinds of beer. Any retail establishment which isn’t able to offer its customers wide variety risks irrelevance, or worse.

This is true not just of beer, but of everything. Another quick example– McDonald’s has around 145 menu items, that’s up from about 85 items in 2007. Also, McDonald’s now offers breakfast items not just in the morning, but all day-long.

Consumers want what they want, when they want, how they want.

Donors expect and often demand the opportunity to use many different options to assist their favorite charities. No longer can nonprofits simply ask folks to pony up cash, or just accept credit cards. Donors want to be able to converse with their fave charity and discuss using their whole portfolio. Nonprofits need to be able to accept, and intelligently discuss, gifting of many different types of non-cash assets.

A nonprofit which doesn’t offer its supporters a wide variety of giving options risks irrelevance, or even worse fates! So, as a donor, if you’re interested in donating an asset that your favorite nonprofit doesn’t typically facilitate, connect them with an experienced nonprofit attorney to make the gift a reality.

Planned Gifts Consist Overwhelmingly of Bequests

Second, planned giving is still mostly about wills and trusts. As already stated, I estimate 80-90% of planned gifts are bequests. Simple! Nonprofits should put substantial efforts to encouraging increased, larger testamentary bequests. Donors who already have an estate plan, but didn’t realize they could designate their favorite organizations as beneficiaries should contact an estate planning attorney.

Everyone can Understand Planned Giving!

Be it strategies for a monthly giving program or facilitating complex planned giving vehicles like NIMCRUTs, the opportunities for continuous learning about different planned giving technique are seemingly endless! And, there are so many different options, that all donors should feel great about supporting their fave causes with tax-wise gifts that work best for them. I strive to offer free information that breaks down different aspects of planned giving in human terms, as well as promoting community opportunities/events for nonprofit professionals.

heart on blue wood

Still need help understanding planned giving or any particular tool or technique? Want assistance coordinating a complex gift? Reach out to me anytime. I offer a free one-hour consultation to anyone and everyone. You can contact at my email (gordon@gordonfischerlawfirm.com) or on my cell (515-371-6077). I’d truly love to hear from you.

This month we’ve gone “back to school” with lessons related to GFLF’s core services. I’m glad the title didn’t scare you away, because, let’s be honest, economics class was always a little intimidating. But, fear not! The economics of charitable gifts of life insurance are easy to understand because it means mutual benefits for both you, as the donor, and your fave charity.

It may sound weird at first, but making a charitable donation of your life insurance policy can make for a valuable, tax-wise gift. Plus, there are multiple ways to successfully make a gift of life insurance fit in with your charitable giving goals.

A donor can:

  1. Make a lifetime gift of a life insurance policy;
  2. Name a charity as the beneficiary of a life insurance policy death benefit; and/or,
  3. Take donations that would have made to the favorite charity, use this money to pay premiums toward a life insurance policy, and ultimately leverage the cash into a much larger gift.

Lifetime Gift of Policy

A donor can transfer ownership of a life insurance policy to charity during lifetime. To accomplish the transfer, the donor must complete a change of ownership form that is typically available from the insurance company.

If the policy is not paid-up, the charity will need to maintain the policy until the insured individual’s death to receive the policy benefit. A charity may request that a donor make additional cash gift to cover the ongoing premium payments.

A donor will be making an immediate charitable contribution equal to the fair market value of the policy at the time of transfer. If the donor is taking a federal charitable income tax deduction of $5,000 or more, the donor must obtain a qualified appraisal by a qualified appraiser.

life is short do stuff that matters

Life Insurance Death Benefit

A beneficiary designation is used to specify who the beneficiary of the life insurance policy will be. A beneficiary designation is usually revocable during the donor’s lifetime and it becomes irrevocable at death. A gift specified in a beneficiary designation will not come into effect until the insured individual’s death.

Form of Gift

A donor can specify that a charity will receive a percentage of the total death benefit (e.g., 5% of the total death benefit) or a specific dollar amount.

Tax Consequences

A life insurance policy that is owned by the donor will usually be included in his or her estate for estate tax purposes.  The donor will receive an estate tax charitable deduction for amounts that are transferred to charity at death, saving federal estate taxes. (Admittedly, a tiny percentage of Americans are wealthy enough to even have to worry about estate taxes).

A Great Planning Opportunity!

A gift of life insurance may allow a donor to leverage available cash to provide a more significant gift to charity than might otherwise be available. For example, a donor might pay $5,000 a year in premiums to purchase a $300,000 life insurance policy that benefits charity. In this situation, the donor’s charitable gift may be far greater by purchasing an insurance policy than if he or she contributed the $5,000 cash to charity each year.

Classic Example

A gift of a life insurance policy can be a good fit for donors who have existing policies that are no longer needed. The classic scenario would be policies purchased while kids were little, as time goes by, now donor has sufficient other assets to provide for children, or children are now adults and no longer require financial help in the event of the death of a parent.

Let’s Talk About How to Make This Giving Option Work For You!

Everyone’s financial, tax, estate planning, and charitable giving situation is unique. It’s highly recommended you consult with an estate planner and/or charitable giving expert so you don’t hit any accidental pitfalls! I offer a free one-hour consult, so don’t hesitate to contact me to get your smart tax-wise gift happen.

legislative building

On the GFLF blog this month, we’re going “back to school” with some fun legal lessons like last-minute gifts of personal propertynonprofit operation, and what planned giving actually means. Happy learning! 

If you have an estate plan already, give yourself a high-five! You’re well on your way to establishing a worthy legacy; effectively and efficiently transferring your hard-earned property; and saving your loved ones time, money, and emotional turmoil. Plus, you’re ahead of the more than half of Americans who haven’t done any estate planning!

Even though estate plans never expire there are many reasons you might need to revise or at least double-check your documents. Some common life events that could impact your documents and/or estate planning goals include: the birth of a child/grandchild; death of a beneficiary; marriage; divorce; moving across state lines; receipt of an inheritance; and other major financial status changes.

I recommend my clients review their plans at least annually and if there’s any question if a life change would require an estate plan revision, it’s better to just ask! (Reminder, I offer a free one-hour consult! Even if I didn’t draft your current estate plan, I’m happy to discuss your situation to determine if an updated estate plan is in order.)

It can be easy to forget or overlook changes that occur outside the realm of your personal life that may impact your estate. For instance, changes in federal or state legislation could render your current estate plan provisions ineffective and irrelevant. A recent example that had a major impact was the Tax Cuts and Job Act of 2017.

Legislative Changes

The Tax Cuts and Job Act doubled the estate tax exemption, meaning the law massively increased the total amount of assets you can own before you are subject to estate taxes. For an individual to be subject to estate tax, your estate must exceed $11.2 million. For a married couple, the estate tax has no effect until total estate is worth more than $22.4 million. In short, the federal estate tax really only applies only to the richest of the rich.

Blast From the Past

But in 2017, before passage of the TCJA, the estate tax exemption was half of what it is now. Even more relevant, in 2001, the estate tax exemption was much, much smaller, just $675,000. From 2002-09, the estate tax ranged from $1 million to $3.5 million. Back in those days, even middle-class and certainly upper middle-class Iowans had to have some concern about the estate tax. After all, if you add up all your assets–real estate, vehicles, retirement benefit plans, insurance, etc.–you can reach that threshold surprisingly quickly.

Complex Trusts

It used to be that estate planners would establish complicated trusts to make certain clients avoided the estate tax. One example (of many) of such a complex trust is the A-B marital trust.

The A-B trust was almost entirely designed to minimize estate taxes. It was one trust, but with two parts. Under the A-B trust, the “A” trust holds the portion of the estate designed to qualify for the martial deduction, while the “B” trust was designed to maximize any unused estate tax exemption for the surviving spouse.

Now, an A-B trust isn’t as necessary unless a single person’s estate is greater than the federal estate tax threshold. (It might be necessary in a state that had a state estate tax, but Iowa does NOT have a state estate tax; we need only worry about the federal estate tax).

Cut the Complications

The upshot of the recent legislative tax change is that some folks could do with a much more simple trust than what they currently have. Considering the new estate tax regime, a simple revocable living trust will much more neatly fill their needs, and also be more easily interpreted, explained, and more easily defended in case of challenge. Also, with a simple revocable living trust, less can go wrong. There need not be any legale “Rube Goldberg” contraptions designed to avoid a federal estate tax that won’t apply anyway.

We’re Not Just Talking Taxes

It’s important to know that estate planning is not just about protecting your estate from taxes. The benefits of estate planning are many when compared to dying intestate (without a will), including but definitely not limited to:

Plus, a good estate plan should be written to fit with your personal goals. It can be hard to think about a world where you won’t be alive, but it’s also a reality we must all face. How we prepare for our death (or incapacitation) can mean a world of difference for the loved ones and favored causes we leave to carry our torch on into the future.

Trusted Consultation

Was your trust drafted when the federal estate tax was lower? For the good of your loved ones, let’s optimize your planning strategy. If you’re not sure what kind of trust you have, or whether it really fits your situation, don’t stress one second. I offer a free one-hour consultation! Truly, I would love to hear from you; email me at gordon@gordonfischerlawfirm.com or call me at 515-371-6077.

hourglass in sand
Here on the GFLF blog we talk a lot about the transfer of property made at the time of death through estate planning tools like a will, disposition of personal property document, or a trust. Everyone needs an estate plan to most effectively and seamlessly transfer real property (think land and real estate) and personal property (think jewelry, art, all of your “stuff”) to the people and charities you care most about. These are all called testamentary gifts. (Think “last will and testament” if that makes it easy to remember.)
As you probably know all too well, you can also make gifts to other people during your lifetime. These are called inter vivos gifts if you want to be lawyerly with it. This one’s easier to think about because you’ve been giving gifts for holidays, birthdays, weddings, and anniversaries regularly. You can also make gifts while living of cash, real estate, land, stocks/bonds, and other non-cash assets to charitable organizations.
One specific type of inter vivos gift doubles down on the Latin–it’s called a gift causa mortis. This type of gift is made by the donor while they’re alive in the event of impending death. Causa mortis in Latin translates to “because of death.” Sometimes this type of gift is referred to as a deathbed gift. The most common kind of gifts causa mortis tend to be small, valuable and/or meaningful gifts like a wedding ring.
To make this more salient, consider the scenario where Abe was in a severe accident and is aware that he is going to pass soon. Abe turns to his son Bob, who rushed him to the ER, and tells him that he wants him to have his watch. He takes it and gives it to his son Bob and then gets rushed into surgery. This is a simple example of a gift causa mortis.
Now, with out amateur Latin lesson complete, let’s dive into the elements of the rules related to gifts causa mortis.
woman blowing on a dandelion

Elements of Gifts Causa Mortis

A valid inter vivos gift involves:

  1. intent by the donor facing imminent to donate;
  2. delivery of the gift; and
  3. acceptance by the donor.

Delivery of the Gift

The gift must be delivered to the recipient. That’s easy if it’s something handheld like jewelry that you’re wearing, but what about anything that the donor doesn’t have on them personally? So long as the “delivery” is sufficiently symbolic, that will suffice if physical delivery at the time of the gifts is impractical.

woman giving white rose

Another Hypothetical

Let’s say a donor wanted to make a gift causa mortis of an antique piece of furniture to their niece. At the time the donor was residing in a hospice facility and very clearly toward the very end of her terminal illness. It would be impractical for the law to expect the dying donor to physical deliver the furniture to her niece. As long as the donor gave the niece a symbolic representation of the gift, such as writing out the details of the furniture’s location and details in the presence of a witness, it would likely be found valid upon the donor’s passing.

Another example that applies arose out of a case where a donor’s delivery was found to be valid where she signed the back of her car’s certificate of title to gift the automobile to her brother.

Can I Get a Witness?

To avoid post-mortem litigation by other heirs-at-law or the decedent’s estate’s executor, it’s preferable if the delivery of the gift is witnessed by a third party who can attest to the validity of the gift. Additionally, if there is an option for a piece of writing to be made out detailing the gifts and signed in the presence of a third party, that’s even better.

Revocable  & Conditional

Gifts causa mortis are revocable, which means that the donor (the gift giver) can revoke the gift at any time (while still alive). This revocation can be completed unilaterally, with only the donor. This is different than an inter-vivos gift, which when completed, is completely irrevocable.
person giving wedding bands
Gifts causa mortis are also conditional on the donor’s death, meaning the gift giver actually has to perish before the donee’s ownership is valid.
Taking it back to our story with Abe and his son Bob: if Abe gave his watch to Bob before surgery with the imminent expectation of dying soon, but ended up living through the surgery, the gift is no longer valid and automatically revoked. Of course, Abe could choose to make an inter-vivos gift to Bob if he decided to do so.
Additionally, if the recipient dies before the donor, then the gift is revoked and the beneficiary’s estate has no claim to the property.

Imminent Death

tombstone close-up
For a valid gift causa mortis, the donor has to die imminently…what constitutes “imminent death?” This has been debated in different cases. What’s clear is the gift giver doesn’t have to die immediately, like seconds after the gift is given. But, the donor must pass away from the danger or condition that was present at the giving of the gift. Plus, it doesn’t “count” if the donor has a fear that they might die at some vague point in the future.
Intervening Recovery
Additionally, there must be no intervening recovery between the gift and death.
Back to our hypothetical: let’s say Abe goes into surgery and survives from the injuries relating to his accident. At this point the gift of the watch is invalid. Abe may unfortunately go on and pass away from a different condition a few months later, but the previous gift causa mortis of the watch is not suddenly valid just because Abe eventually died.

What’s the Difference Between Gifts Causa Mortis and Testamentary Gifts?

Typically gifts causa mortis are informally made in the moment, are not planned to the same extent or formally written out like testamentary gifts. In the majority of states, gifts causa mortis are immediately transferred to the recipient’s ownership after death, whereas gifts made through a will or testamentary trust transfer ownership after the probate process is complete. Additionally, gifts causa mortis can only be made of personal property, not real property like your house or farmland.

How do Gifts Causa Mortis Fit into Taxes?

Similar to testamentary gifts, gifts causa mortis are taxed under federal estate tax law. The policy behind this is because the gifts aren’t complete until the donor’s passing. (Note well that the federal estate tax also applies to general inter vivos gifts made within three years of death. This means the value of such gifts is included in the estate in order to calculate the estate taxes.) It’s also worth noting that the federal estate tax applies to so few people now after the passage of the Tax Cuts and Jobs Act, so you don’t really to be concerned about this!
dying bouquet of flowers

Final Words on Gifts  Causa Mortis

Gifts Causa Mortis or not, there is no substitute for an airtight, updated estate plan. If you have such a plan in place, there’s no need to try and meet all the elements and intricacies of gifts causa mortis.

None of us know when our time will come, and we may not have the opportunity to give away our prized possessions via causa mortis right before death. But, we can know that estate plans never expire and can give you peace of mind that your property will be pass to the people you intend without legal contest (which can arise from gifts of causa mortis).

No questions are dumb questions when it comes to the complex world of property and estates. Don’t hesitate to contact GFLF or schedule a free consult to get your estate planning needs and goals in order.

We the people close up

We’re headed “back to school” on the blog this month, and I couldn’t pass up today’s fantastic excuse for a short American history lesson!

Fourth of July gets all the attention for red, white, and blue pride, but Constitution Day is a lesser-known, but still important reason to celebrate America’s values of freedom, democracy, and liberty. Constitution Day commemorates the formation and signing of the U.S. Constitution on September 17, 1787. The Constitution was signed in Pennsylvania at the Constitutional Convention by 39 men including Alexander Hamilton, Benjamin Franklin, James Madison, and George Washington.

Mount Rushmore

There’s a wealth of American history I encourage you to explore to understand in full the lead-up of events that led to the execution of the Constitution. TIME wrote a great piece and the National Archives offers up some great information.

Constitution Day also stands to recognize everyone who has become an American citizen. According to USCIS, more than 260 naturalization ceremonies were held across the nation as part of this year’s Constitution Week. In fact, before 2004, the day was called Citizenship Day.

Statute of Liberty

For me, the Constitution represents one of the most important legal foundations, on which the world’s oldest constitutional republic is build. That said, we must never forget the privilege it grants us and the duty we all have as citizens to protect it through civic engagement and knowledge. What does Constitution Day mean to you? Tell me in the comments below!

“The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure.”
― Albert Einstein

While it’s not the Constitution, your estate plan is similar in the way that it’s a guiding document that guides people in the future as to your goals and intentions for your property, body, charitable giving, and what you want to happen with the people and pets you care for. So, you can think of yourself as a “founding father” of the legacy you want to leave. Ready to put your “John Hancock” on an estate plan? Get started with my free Estate Plan Questionnaire or contact me.

man reading newspaper

If spelling tests weren’t always your strong suit in school, fear not! Today’s legal word of the day is an easy one that’s having a momentary editorial heyday.

Ripped From the Headlines

As you probably heard, The New York Times took the highly unusual step of publishing an unsigned, anonymous op-ed entitled, “I am Part of the Resistance Inside the Trump Administration.” The person was identified only as follows:

“…. a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers.”

man with newspaper near train

Whodunnit?

The article led to a nationwide guessing game. Who is the senior official in the Trump administration who penned this “explosive” piece? Suspicion fell onto, of all people, Vice President Mike Pence. This is because the op-ed writer uses the word “lodestar,” and Pence has used this obscure word multiple times. (Pence vehemently denied he was the author, by the way.)

I don’t know who wrote the op-ed, and we may never know, but the real winner out of this news cycle is the word you never knew you needed in your vocabulary—lodestar!

So, What DOES Lodestar Mean?

Lodestar means “a star that leads or guides,” and is especially used in relation to the North Star.

timelapse of stars

Now, Let’s Talk About a Similar Kind of “Star”

At this point you’re like, “Gordon, this is a cool word I can def use in playing Scrabble, but what does it have to do with the law?”

Well, “lodestar” is a synonym and practically interchangeable with the word “polestar,” which is defined as a “directing principle; a guide.”

A court will use the term polestar like so: In this case, our polestar must be this principle . . .

Basically the court will use such-and-such as its guiding principle.

direction sign on a mountain

For example, in the law of wills, the Iowa Supreme Court stated In the Estate of Twedt that “the testator’s [maker of the will’s] intent is the polestar and if expressed must prevail.” You’ll see the same in the law of trusts, the intent of the settlor of a trust must be the polestar.

The word is also used in the law of charitable giving. The intent of the donor is the polestar which courts must follow if there are any issues. For example, suppose a donor posthumously donates $100,000 to a nonprofit, but the nonprofit no longer exists. What was the donor’s intent? Is it stated anywhere what the donor wanted to happen to the charitable funds if the nonprofit was no more? If not written, did the donor discuss the matter with anyone? To resolve any dispute involving a charitable gift, the guiding principle–the polestar–must be the donor’s intent.

Practical application of the Word Polestar

A major reason to have an estate plan is that YOU get to control your own future, rather than being controlled by outside forces or outside events. Through proper estate planning, you can be in total control of the answers to the following questions:

And if there are any questions or issues regarding your estate plan, lawyers and judges looking at your estate plan will make decisions based on YOUR intent. Your intent will be the polestar!

Don’t delay any longer – thank your lucky (North) stars you still have time to make a proper estate plan. I’d be happy to talk with you about your estate plan any time, or you can get started on organizing your important info in my free Estate Plan Questionnaire. I can be reached via email (gordon@gordonfischerlawfirm.com) or by cell (515-371-6077). I’d truly love to hear from you.

tennis court net

Serena-ity Now!

On the blog we’ve been going “back to school,” and our lessons wouldn’t be complete without a mandatory gym class. Which brings us to the question: is there gender bias in sports? Duh, yes. Mos def. It’s been especially newsworthy in tennis too.

There was nothing wrong with Serena Williams’ catsuit. Please, if a guy wore that, it would be noticed for sure, but certainly not banned.

Even worse: France’s Alizé Cornet received a code violation at the U.S. Open on Tuesday for removing her shirt on the court sidelines (she had a sports bra underneath). This is something men do all the time, and even while on the court.

The conversation continues in the aftermath of the US Open Finals last night between Serena Williams and Naomi Osaka. Were the umpire’s penalties in U.S. Open Final match the result of sexism? I certainly think so. I mean, I’ve seen male players such as, say, Rafael Nadal or John McEnroe, go absolutely bananas on the court and not receive a penalty to the tune of $17k.

Three Truth Bombs

Here are three truths that aren’t changed by any contretemps at Arthur Ashe Stadium:

First, Serena Williams is the greatest tennis player in history.

Second, at least on this day, Naomi Osaka outplayed Williams thoroughly for an amazing upset win.

Third, America, I love you like crazy, the crazy way that only an immigrants’ kid could love America. But, you have serious problems with sexism and misogyny.

Pink tennis ball stuck in fence

From the Tennis Court to Law Court

Here’s yet another truth bomb: nonprofits, already under terrific scrutiny by board members, donors, stakeholders, and government agencies, can’t afford even a whiff of a controversy like the tennis examples above. Even allegations of scandal can destroy previously successful nonprofits. And, just like the game of tennis, both need to consistently be working toward implementing rules and standards that ensure equity.

Such situations can split Boards, cause stakeholders to resign or pull back, snap shut donors’ wallets, and even result in expensive litigation. Fortunately, there are policies and procedures that can prevent your hardworking organization from ever having to deal with controversy (particularly those relating to discrimination, gender bias, and the like), by deterring such actions from every occurring. Let’s first discuss the IRS Form 990 and then the policies that relate to this annual information return.

IRS Form 990

IRS Form 990. This is the form that (most) nonprofits have to annually file some version of. Say what you will about the IRS – but in Form 990, the IRS provides nonprofits a path to prosperity. On Form 990, the IRS asks about several major policies and procedures that actually help nonprofits govern smarter. Any and every nonprofit should have all of these policies and procedures in place, with regular updates as appropriate. But, in our context, three policies are particularly relevant here.

At this point in the blog post, I feel as though I can actually hear you: “I don’t think we could ever afford that in our budget…we don’t know where to start!”

Before I delve into specific policies that will help your fave nonprofit combat discrimination and bias, let me repeat a special offer. I offer all nonprofits 10 major policies and procedures on IRS Form 990, drafted specifically and individually to each organization. for a flat fee of $990. No jokes, tricks, or hidden fees. Interested in learning more? Give this post a read, and don’t hesitate to contact me to take advantage of this solid, straight-up deal.

Compensation Policy

Data related to compensation is reported in three different sections on Form 990: “Officers, Directors, Trustees, Key Employees, and Highest Compensated Employees;” “Statement of Functional Expenses,” lines 5, 7, 8, and 9; and Schedule J;” and “Compensation Information for Certain Officers, Directors, Trustees, Key Employees, and Highest Compensated Employees.”

Having a set policy in place that objectively establishes salary ranges for positions, updated job descriptions, relevant salary administration, and performance management, is used to establish equality and equity in compensation practices. A statement of compensation philosophy and strategy, which explains to current and potential employees and board members how compensation supports the organization’s mission, can be included in the compensation policy.

Generally, this policy provides the benefits of:

  • Enhanced confidence of donors and supporters
  • Consistent framework for decision making on compensation
  • Increased compliance with federal and state employment laws
  • Reduced risk to the organization and its management and governing board

This policy can state clearly an organization’s intention to abide by federal and state law under which it is illegal to have pay differentiate based on gender.

Document Retention and Destruction Policy

This policy should clarify what types of documents should be retained, how they should be filed, and for what duration. It should also outline proper deletion and or destruction techniques.

The document retention and destruction (DRD) policy is useful for a number of reasons. The principle rational as to why any organization would want to adopt such a policy is that it ensures important documents—financial information, employment records, contracts, information relating to asset ownership, etc.—are stored for a period of time for tax, business, and other regulatory purposes. No doubt document retention could be important for proof in litigation or a governmental investigation.

When I was a litigator, I represented employers who could not find a key document–a personnel file; written warning; performance review, and the like. Needless to say, in all these situations, the missing documents were a huge disadvantage to the employer in defending itself. Make sure that doesn’t happen to you by setting down rules as to what documents to keep and how long to keep them.

You know, there’s even a question of federal code. You may have heard of the federal law, the Sarbanes-Oxley Act of 2002. It reaffirms the importance of a DRD policy. Sarbanes-Oxley reads:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

While the Sarbanes-Oxley legislation generally does not pertain to tax-exempt organizations, it does impose criminal liability on tax-exempt organizations for the destruction of records with the intent to obstruct a federal investigation.

Yet another reason a DRD policy is an excellent idea, is it forces an organization to save space and money associated with both hard copy and digital file storage, by determining what is no longer needed and when…it’s like sanctioned spring cleaning!

Whistleblower Policy

Nonprofits, along with all corporations, are prohibited from retaliating against employees who call out, draw attention to, or “blow the whistle” against employer practices. A whistleblower policy should set a process for complaints, including gender bias or harassment, to be addressed and include protection for whistleblowers.

Ultimately this policy can help insulate your organization from the risk of state and federal law violation and encourage sound, swift responses of investigation and solutions to complaints.

A whistleblower policy encourages staff and volunteers to come forward with credible information on illegal practices or violations of adopted policies of the organization, specifies that the organization will protect the individual from retaliation, and identifies those staff or board members or outside parties to whom such information can be reported. (Instructions to Form 990)

The Sarbanes-Oxley Act (referenced under the document retention and destruction policy above) also applies here. If found in violation of Sarbanes-Oxley, both an organization and any individuals responsible for the retaliatory action could face civil and criminal sanctions and repercussions including prison time.

Employee Handbook

On top of the super important policies he first line of defense for nonprofits is a well drafted, individualized employee handbook. Really, 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.

In terms of gender discrimination, there are several provisions that should help insulate your favorite nonprofit. Your employee handbook would have an equal opportunity statement; anti-harassment policy; complaint procedure; and rules about compensation, document retention, and whistleblowing.

I offer a free “starter” employee handbook that can get you thinking about the types of provisions you should/could include in your employee handbook.

Update As Needed

If you already have some (or all) of the above policies or employee handbook in place, seriously consider the last time they were updated. How has the organization changed since they were written? Have changes to state and federal laws impacted these policies at all? It may be high time for a new set of policies that fits your organization.

Playing tennis Without a Net?

tennis shoes on red court

Robert Frost famously opined that writing free verse is like playing tennis without a net. Well, I don’t know about that, but any nonprofit without the 10 major polices asked about on IRS Form 990, or without an employee handbook, is definitely like playing tennis without a net, ball, lines, umpires, or rules! And, the best way to play the “game” while assuring equity and fairness for all the players involves preventing bias and discrimination from ever holding a place on the court.

Schedule your free one-hour consultation and let’s talk about your organization’s needs!