Iowa Lawyer & Attorney : Sullivan & Ward Law Firm : Iowa Law Blog

The Iowa Court of Appeals recently had before it a sad (sad for the child that was injured and sad for the dog) and somewhat surprising dog-bite case in which they decided that a fact question was created, necessitating further review, when a landlord had knowledge that a dog had a propensity towards violence and yet that landlord allowed the dog to remain on the property.

The abbreviated facts are as follows:  Landlord's son, who was also a tenant, had a German Shepard as a pet.  German Shepard was kept outside, possible neglect occurring (Disclosure Alert: dog owner writing this blog post). German Shepard attacks neighbor.  Landlord/father is aware that tenant/son's dog attacked neighbor.  Steps are taken to insure that dog does not get loose again.  Tenant/Son sent jail for unrelated matter.  Dog left in fenced in yard (testimony showed neglect).  Landlord/father insists that dog be removed.  Son/ex-tenant threatens suicide, father/ex-landlord relents.  Dog eventually escapes and severely injures neighbor boy.  Court of Appeals finds, among other things, that a fact issue requiring further review had been created as to whether the landlord was negligent in allowing a dangerous dog to remain in his property.

The lesson:  If you are going to allow your tenants to have pets you should have your tenants provide you with information regarding the animals demeanor and any past displays of abnormal aggression.  Also, you should put a provision in your leases that would allow you to terminate the lease should you become aware of an animals aggression and after such aggression the tenant refuses to find alternate accommodations for pet. 

Photo by flickr

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Besides taxes, the other sure thing in life is that it comes to an end eventually.  A common question becomes "what's next?"  (I'll skip the whole afterlife heaven and hell discourse and stick to the worldly issues.)  And of course you have the whole "what to do with the body issue".

Depending on the planning that was done beforehand will dictate a lot that will be done afterwards.  For example, if the decedent properly used a revocable trust, it may not be necessary to go through the probate process.  Good planning and organization prior to our "time" is important in helping to alleviate the work that our family and friends are forced to go through.

Transfer of Assets

If all of the assets were held jointly, it may not be necessary to go through the probate process, although there may be some other advantages with going through probate.  Also, if the asset has a named beneficiary (e.g. life insurance, IRA, etc.), that asset will pass automatically and not subject to any will, trust or other dispositive document.  Otherwise, other than joint assets or named beneficiaries, the estate plan of a will, trust, or the state's plan will determine where those assets go. (And it might not matter that you're the child from the first marriage or dad liked you the best.)

Payment of Bills/Claims

Depending on financial situation of the decedent, there may be certain bills and expenses that need to be paid.  Through certain publication processes in the probate process, all potential claims can be "pulled out of the woodwork" in order to determine how much should be paid and whether it is a valid debt or not.   Also, if the decedent was receiving certain public assistance benefits (e.g. Medicaid) during life, of if the decedent's predeceased spouse received such benefits, there may be a lien against any remaining assets that follows those assets.

Taxes

In Iowa, if the only beneficiaries are a surviving spouse, children, grandchildren, parents or other lineal descendant or ascendant, there is no Iowa Inheritance tax and no need to file an  Iowa inheritance tax return.  There are some issues if there have been certain gifts within the past three years which should also be examined.

Federal estate taxes are normally not applicable for estates less than $2,000,000 (for 2008).  If the estate is below that figure, typically it is not necessary to file a federal estate tax return.  Again, gifts during life of the decedent are important to review also.

Summary

This list is not meant to be exhaustive, but mainly as a guide of some items to consider when it becomes necessary, and hopefully help you choose to do some proper planning ahead of time.  You should consult with an experienced attorney when it becomes necessary to sort through all of these items.

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With the tough real estate market now, home sellers are looking for any advantage to maximize their equity from their real estate.  One option that many are pursuing is trying to sell the home on their own without the services of a Realtor.  Typically, Realtor fees for residential sales are around 6% to 7%.  By attempting to sell on your own, with your own hard work, you can avoid that expense as that fee is normally charged to the seller.

A Realtor does provide several benefits.  A Realtor can help determine what a fair price to ask.  Entry on the all-important multiple listing service (MLS) brings the largest set of eyes to your house, which can only be achieved through a Realtor that subscribes to the MLS.  Also, a Realtor can take care of arrangements for interested buyers to view the home.  A Realtor can also walk you along the selling process from beginning to end.

But, if you already have a buyer or think you are capable of selling your house without a Realtor, it isn't necessary that you get a Realtor to help you out.  A real estate attorney can help you out on the key steps in selling your house for a fee typically much less than the 6% fee.

Some of the critical points that a seller needs to be aware of in selling their home include: proper disclosure information to potential purchasers, binding purchase agreement, updating abstract, and the conveyance documents (deed, groundwater hazard statement and declaration of value).

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Did you ever want to know how much your neighbor or a family member had when they died?  Were they the "millionaire next door"?  Did so-and-so blow through all that money? Well, in Iowa, as in many states, a complete listing of a deceased person's assets are listed in the public court records.  The Report and Inventory, as it is called in Iowa, is a filing that the personal representative (either the executor or the administrator) is obligated to file with the court which breaks down the assets into real estate, stocks, bank accounts, life insurance, miscellaneous property, and annuities (retirement).  The itemized assets also show the value as of the date of death.

To get this information, all you need to do is go down to the courthouse and look up the file number for the deceased individual, have the courthouse personnel pull the file, and then review the information.  Pretty easy to review someone's financial life!

For most people, keeping financial information confidential is very important.  Now, you might say, "what do I care, I'm dead?'"  True, but as far as your family members are concerned, your financial information soon becomes their financial information.

If your estate does not go through the probate process, then this listing of a report and inventory is not necessary.  To avoid probate in Iowa (& most other states) you can use a revocable trust plan.  A properly created trust, that is properly funded,skips the probate process and helps maintain your privacy.

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The Question of the Week posted this week got me thinking about the classification of temporary employees. Temporary workers are workers that are employed by a staffing agency which supplies workers to the client company. Temporary workers report to the client, but receive pay and benefits from the staffing agency. Temporary workers, therefore, are considered to be the employee of the staffing agency rather than the client company.

The risk of having a temp become an employee of the client company arises when the client company retains a certain amount of control over the temp. If that happens, the client company may face liability for a wide variety of employment related issues including discrimination and wage and hour violations.

How can the client company reduce the risk of having a temp become classified as an employee? The suggestions listed below are taken from “Get Smart When Using Temporary Employees” and a 2004 Iowa case, Willms v. Associated Materials Inc.

• Allow the staffing agency to communicate the rate of pay and hours to the temp;
• Require the staffing agency to perform drug testing or background checks;
• Request the staffing agency perform periodic visits to the job site;
• Differentiate the temp uniforms, badges, parking spaces, break rooms, etc. from the permanent employees’;
• Allow the staffing agency to make hiring and firing decisions as well as take disciplinary action;
• Limit the time period a temp works at the site;
• Refer to the temp as a worker who is assigned rather than an employee who is hired;
• Always have your attorney review your agreement with the agency.

In short, treat temporary employees different than your permanent employees. A client company may not be able to completely eliminate the risks of having temporary workers classified as employees, but by using some of the suggestions above the risk will be reduced.

Photo on flickr by DCvision2006

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The deadline for filing claims in the Microsoft Iowa Class Action Settlement is December 14, 2007.  If you have any questions about how to file a claim be sure to email the claims administrator at claimsadmin@iowamicrosoftcase.com.

For a recap of articles on the Microsoft Iowa case click here which includes one of my most popular blog posts entitled On the Seventh Day She Rested.

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Given the current real estate market with its increasing foreclosure rate and ensuing credit crunch, individuals and families are choosing to rent rather than buy.  If you have the financial ability and the interest in owning rental property then this could be an intriguing possibility.  However, there is more to owning rental property than simply finding a property and suitable tenants.  If you own a rental unit in central Iowa, before you can move any tenants into your property you must first obtain a rental certificate, according to the Iowa Uniform Residential Landlord and Tenant Act and the City of Des Moines Municipal Code. 

If in your haste you neglect to obtain a rental certificate it could come back to haunt you should you find yourself in the unenviable position of having a tenant whom neither pays nor exits the premises on their own volition.  Under Iowa Law, without a valid rental certificate the tenant is considered a tenant at will and the landlord must give thirty days notice prior to eviction, on top of that the past due rent will not be recoverable either.  Bottom line, if you are a current landlord or a prospective landlord, be sure that you have a  rental certificate for each unit before renting.

Photo on Flickr by The Rocketeer

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A recent article and analysis of a Florida case by Juan Antunez emphasizes the need to funding a revocable trust and what can happen if you skip that step of the plan. As this case illustrates, the best drafted trust may not handle the disposition of your assets as you anticipate if you don't properly fund the trust and the ruling from this case illustrates one of the pitfalls of failing to do just that.

In the Florida case, certain real property was never conveyed to the trust during the life of the individual who established the trust. As a result, despite specific provisions in the trust on who and how the property was to be conveyed, the property went to another individual. This resulted in the second wife getting all of this real property, which was intended to pass to the adult children from the first marriage. This was the important second step of the estate plan which the client failed or refused to follow, despite warnings by his estate planning lawyer. As a result, families were forced to litigate the issues and spend attorney fees for a determination of the matter. I doubt that the children from the prior marriage will entertain their step-mother during the holiday season.

If you're going to spend the money on establishing a revocable trust, do it right: transfer your assets to the trust.

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Not everyone has an idyllic marriage, and some have much less.  One issue to keep in mind as you plan your estate is that in Iowa, you can't entirely cut your surviving spouse out of an inheritance, unless they consent to it.  The Iowa Code provides surviving spouse with many rights which are not affected by the testamentary documents.

For example, if you execute a will that leaves all of your assets to your secret lover, your spouse can "elect against the will" and receive basically one-third of your probate assets.  Iowa Code § 633.238 (2007).  It doesn't matter if you've been married one day or ten thousand days.  It doesn't matter if the surviving spouse is a billionaire and you're just trying to leave your small estate to your children.  The result is the same - the surviving spouse can elect out of the disinheritance under your will.

Leaving your spouse out of your will doesn't invalidate the will, but don't expect it to be binding.  You might think you got the last laugh, but your spouse will be laughing last.  If you have any concerns or special matters, you should contact your legal advisor. 

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The Iowa Supreme Court recently issued a ruling granting the surviving spouse the right to disinter and reinterr her deceased husband's remains.  It seems that the widow of Joseph Stark wasn't real happy that her husband was buried next to his first wife.  After thinking a few months about it, she decided to have him dug up and moved to a new cemetery to be buried with his parents.  The kids from the first marriage did not take too kindly to having dad and mom separated, so the battle was on.

Based on Iowa Code § 144.34, the Court found that if the state issues the permit with the consent of the surviving spouse, a court cannot override that permit.  The procedure to get a permit only requires that a spouse, or the next of kin if there is no surviving spouse, apply for a permit for purposes of autopsy or reburial.

All the Stark children need to do now is wait until step-mom passes, then go back to the State of Iowa for a permit to dig dad up again and move him back.  This sounds like a good process to keep grave diggers in business.

A better approach would be to enact legislation enabling an individual to select their designee to make the decision over disposition of their body remains.  This allows the individual to make the decision over what happens to their body by choosing who makes that decision.  Until then, communicate with ALL of your family as to your wishes and hopefully they will honor your intentions.

Is there is no peace in death?

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