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

Prior posts on this site have dealt with terminating a trust or breaking a trust in Iowa.  A recent case from the Iowa Court of Appeals further clarified the ability of beneficiaries to terminate a trust in Iowa under the Iowa Trust Code.  In the Matter of the Trust under the Last Will and Testament of Mary E. Weitzel, Mom executed a will which provided that her assets would stay in trust for her life, then upon daughter's death, the balance of the estate would pass to daughter's children (mom's grand kids).  The will contained a relatively common provision, called a "spendthrift" provision, which prevented the daughter or the creditors of the daughter from getting access to the trust principal.  The daughter claimed that the creditor issues that once existed were no longer an issue, and thus the spendthrift provision was no longer needed.  Apparently, daughter and sons didn't care for the bank as the trustee and having restrictions in their access to the trust assets, so they sought to have the trust terminated. 

The Iowa Trust Code permits termination of a trust if all of the beneficiaries consent and there remains no further material purpose of the trust.  The question in this case focused on whether the spendthrift provision constituted a material purpose, thereby not permitting the trust to be terminated even if all of the beneficiaries consent to the early termination.  The ruling from the Iowa Court of Appeals was that the spendthrift provision, with the facts of this case, was a material purpose and would not permit the trust to be terminated before the trust was directed to be terminated.

This ruling further emphasizes the direction that Iowa courts are going in preserving trusts.  Some other states are taking a different approach in adopting a flexible approach permitting the termination of trusts when all of the beneficiaries consent.

Rather than terminating a trust, what if the beneficiaries sought to simply amend the provisions of the trust?

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The eviction process (also called a "Forcible Entry and Detainer" or "FED) in Iowa is just a little more strict.  A ruling from the Iowa Supreme Court today now requires that the landlord give personal service notice of the eviction hearing.  Previously, under the Iowa Uniform Residential Landlord Tenant chapter of the Iowa Code (Iowa Code 562A), if a landlord was ready to evict and had followed the necessary "notice to quit" requirements, the landlord could give the tenant notice of the eviction hearing (which must be less than 7 days away from the notice) by certified mail.  Whether the tenant actually received the notice or signed for the certified letter was irrelevant as notice was deemed made when mailed.

The Iowa Supreme Court found that service of the eviction hearing by certified mail was unconstitutional as it violates the due process clause of the Iowa Constitution.  Accordingly, in order to evict a residential tenant, the landlord must give the tenant timely personal service of notice of the hearing.  Personal service requires, basically, delivered in hand to the tenant.

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If your business is majority-owned by a female, a person with a disability, or a minority, your business may qualify as a "Targeted Small Business" (TSB).  If the business meets the requirements of a TSB, you have the opportunity for certain preferential treatment in state-funded projects.  For example, certain projects may require a certain amount of work be completed by a TSB.  By qualifying as a TSB, you are placed on a central list where contractors and state agencies are able to locate you and seek your services as part of the project.  In addition, TSB's are given the opportunity to bid on certain projects 48 hours in advance.  TSB's also have the opportunity to seek financial assistance in the form of grants or low-interest rate loans.

The Iowa Department of Inspection and Appeals administers the TSB certification program and have the application materials posted on their website.  Also, the Iowa Department of Economic Development has additional general information on their site. 

If you have questions about forming your business or the TSB process in general, feel free to contact us.

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1. Her political affiliation was constitutionally protected;
2. She suffered a deprivation likely to deter free speech or her freedom of association; and
3. Her political affiliation was at least a motivating factor in the College's decision.  A motivating factor does not amount to the only factor, but is rather a factor that motivated the University's actions.

George v. Walker, 535 F.3d 535, 538 (7th Cir. (Ill.) 2008). 

If Wagner can prove that an improper purpose was a motivating factor in the decision, the University will have to show that the same decision would have been made in the absence of the protected speech. 

If the University carries that burden, the Wagner must then demonstrate that the College's proffered reasons for the decision were pretextual and that political affiliation was the real reason for the decision.

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Yesterday on IowaIndependant.com, Lynda Waddington reported on an 8th Circuit Court of Appeals decision on three prisoners' rights to observe their religious holiday at the Iowa State Penitentiary in Fort Madison.  The three plaintiffs are Wiccan, and sought 8 full hours to observe Samhain, their most important day of religious observance, which takes place at the end of October.  The inmates brought their suit under the Free Exercise Clause under the First Amendment of the U.S. Constitution.  The Appellate Court ruled that 3 hours was a sufficient amount of time to observe the holiday, especially given the timing and safety constraints within which the prison officials must operate.  The Iowa Department of Corrections officially recognizes approximately 12 other religions.

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Asbestos is also used in protective clothing to protect workers from flames and heat. Asbestos became more popular as the Industrial Age got rolling. It was cheap, easy to get and easy to use. Homes and buildings built prior to 1980 maintain the likelihood of containing asbestos materials. It should be known that asbestos exposure can cause many health concerns for you and your family.

When asbestos fibers are inhaled, it can cause a fatal lung-ailment known as mesothelioma. This type of lung cancer takes the lives of thousands every year and mesothelioma treatment has varied effects on patients. Since asbestos-related illness can take 20 to 50 years to show up, experts believe that the numbers of cases of both mesothelioma and asbestosis will increase over the next few years and peak in about 2015. A mesothelioma lawyer can protect victim’s rights and advocate fair compensation as a result of their asbestos attributed disease.

The Environmental Protection Agency has ordained specific regulations in handling asbestos. The removal of asbestos and toxic materials must be performed by licensed abatement contractors who are trained in these matters. Many citizen-based organizations assist the removal and disposal of asbestos in public facilities and homes. Once asbestos is removed from the location, environmentally friendly options such as lcynene, cotton fiber and cellulose should be considered.

The use of recycled building materials such as cotton fiber can reduce energy costs in the household per year up to 35 percent. As public awareness and technology continues to grow, the number of options will also be on the rise. Alternatives to asbestos allow for a healthy and safe home, free of health damaging materials.

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In the Des Moines Register today, Jeff Eckhoff wrote a story today about businessman Anthony Herman in Polk City, Iowa.  Apparently, Mr. Herman is involved in several legal battles with the City of Polk City, and began using a sign on his property to display his distaste for the City using choice statements about the Mayor and members of the City Council.  The Polk City city council "has no plans to try to interfere with his right to free speech." 
 

Pursuant to a 1971 U.S. Supreme Court case (an oldie but a goodie), Polk City might face a tough challenge regulating Herman.  In Cohen v. California, the Supreme Court ruled that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of [an] expletive a criminal offense."  Justice Harlan famously wrote that "one man's vulgarity is another's lyric."

As individuals, the Polk City Mayor and City Council could try to sue Herman on defamation grounds.  However, the City officials would probably be considered "public officials."  To prove libel (written defamation), the Polk City officials need to prove that 1) the statements were defamatory; 2) of and concerning the city officials; 3) the statements were published; 4) the statements damaged the reputation of the officials; 5) that Herman knew the statements were false; and 6) that his statements were made with reckless disregard of the truth.

 

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Looking out my window at today's snow accumulation, I am unfortunately reminded of my legal duty to shovel my sidewalk when I get home.  According to Iowa Code Section 364.12(2)(b):

The abutting property owner is responsible for the removal of the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice.

 

A "reasonable amount of time" means:

• Des Moines:  within 48 hours following the end of the snowfall. Property owners who do not comply are subject to a civil citation.
• West Des Moines:  after the 24 Hr period after the storm ends, complaint calls will be routed to the Police Department for complaint follow-up and code enforcement.
• Urbandale: after twenty-four (24) hours or more, 12 hours to shovel following complaint, then subject to criminal prosecution.
• Clive: twenty-four (24) hours after a snowfall or the deposit or formation of ice.

If your City is not included in my list above, suffice it to say, you should still shovel your walk tonight.

Photo on Flickr by Marko K

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A December 2008 report by the Generation Iowa Commission finds:

• Iowa had a “brain drain” of 19,500 college-educated people for 1995-2000.
• 12 percent of currently available jobs in Iowa are for college graduates.
• Iowa’s brain drain is 4th worst in the nation since 2000.
• Iowa is one of only six states facing a declining rate of the percent of our population with at least a bachelor’s degree.
• Iowa has the 9th lowest average wage out of 10 regional states.
• Iowa’s wages are 20 percent lower than the national average.
• Cost of living adjustments do not make up the wage gap.
• Iowa college students rank 17th nationally at a volunteer rate of 32 percent.

The Commission offers several recommendations to attempt to reverse these alarming trends, including:

1. Allowing Next Generation more participation and input on state economic commissions and boards,
2. Advancing a more ambitious and expansive job-creation program throughout the state,
3. Expanding internship availabilities to Iowa college students in higher-educated growth industries, and
4. Providing increased incentives for participation in Americorps and other volunteer organizations within the state.

Iowa is a national leader in alternative fuel and energy production.  It would be interesting to see if the state can create a new model for economic success by powering the country through the utilization of young talent and ideas, before these college graduates leave our state in search of greener pastures.

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On this much anticipated first Tuesday after the first Monday in November, millions of people are flocking to the polls to cast their ballots.  For Iowa voters, there are some nuances to election law that are important to keep in mind:

• Unregistered voters can register and vote on election day.  You must be at the precinct where you live, complete a voter registration application, sign a written oath, and present appropriate identification.  Iowa Code § 48A (2008).
• A student who attends an Iowa college or university may vote in their hometown or at their college residence.  Obviously, you have to choose one or the other.  Iowa Code § 48A (2008). 
• People convicted of felonies who have completed their sentence (including probation, parole, & supervised release) before July 4, 2005 are eligible to vote.  On that date, Governor Vilsack signed Executive Order No. 42, which granted a blanket restoration of the right to vote and hold public office to persons who were disqualified from registering to vote because of conviction for a felony or aggravated misdemeanor.

If you have any questions, contact your county auditor.  Remember, the polls in Iowa close at 9 p.m., so make sure to cast your ballot before then! 

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Todd Ratner of the Estate Planning Bits has a good post about the dangers of using estate planning software to prepare your estate plan.  Like the old adage goes, "you get what you pay for."  I have probated wills for individuals who drafted wills on their own and more often than not, mistakes were made, or believed to be made as it was unclear what the decedent intended.  When it comes to selling your house, performing surgery or handling your investments, most people don't try to do it themselves - they get an expert.  Putting together an estate plan that distributes your wealth, plans for your incapacity, and cares for your family is just as important and should be handled by an experienced attorney, not a "point and click" software program or on-line service.

Of course, I know there are cynics out there that believe that "you lawyers" just say these things to make money.  To which I respond - the cost and attorney fees in any court battle will quickly dwarf the cost of drawing up and executing a well-drafted will.  So go ahead, do your own estate plan and then have your family spend your money fighting over the money you "saved".

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I recently attended an employment law seminar in St. Paul, Minnesota. One key topic that kept resurfacing in the sessions I attended was RETALIATION. Title VII retaliation claims have increased 19% from 2006. 

An employer retaliates when it makes an adverse employment decision which tends to discourage an employee from engaging in protected conduct. What is an adverse employment decision? Although not clearly defined, the Supreme Court has made it clear that it is not necessarily have to be a tangible employment decision, such as termination. What is protected conduct? Whistleblowing, filing a complaint, taking FMLA leave or making a worker’s compensation claim are all examples of protected conduct.

What should employers do to minimize retaliation claims?

• Have a clear policy prohibiting retaliation;
• Educate managers and supervisors about retaliation;
• Enforce policies consistently for all;
• Refrain from making hasty decisions when employees have engaged in protected activity in the recent past even if you believe the decision is warranted;
• Investigate all retaliation claims and discipline those who have engaged in retaliation. Inform the employee alleging retaliation of your findings and whether any disciplinary action will take place;

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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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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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