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In this divorce dispute, the wife claimed that the trial court should have divided her husband’s retirement account equally between them. Here, the parties were married for nearly twenty-two years. The case proceeded to a trial on financial issues because the husband’s retirement account had been liquidated prior to trial and the proceeds were used to pay outstanding bills of the marriage. However, neither party had “clean hands” in the financial arrangements of the marriage.

In cases involving interpretation of a provision in a will, the testator’s intent controls.  In this case, the executors of a will sought the court’s interpretation of a will provision.  The provision specifically bequeathed to the decedent’s husband, should he survive her, household items, such as furniture and cars. The provision provided as follows:

Guardianships and conservatorships are court-ordered legal devices used to protect a person’s personal and financial well-being in the event that they are unable to do so. Typically, these court-supervised arrangements end upon the death of the person they are designed to protect or when the court deems they are no longer necessary.  

In this case, a father died owning nearly 400 acres of Iowa farmland. The father’s will bequeathed most of his property to his children (each child inherited a separate parcel) and the “homeplace” went to the grandchildren.  Before he died, the father leased the farmland to his son. The lease specified that upon termination, the tenant would relinquish possession of the farmland. If the tenant failed to relinquish the land, he would owe $150 per day to the landlord as liquidated damages. The lease specified that it terminated upon the father’s death.

April 24, 2010 | Erin Herbold

A fundamental point of estate planning, especially in families with both on-farm and off-farm heirs, is that “fair” doesn’t necessarily mean “equal.”  Here, the Iowa courts were asked to determine the value of shares distributed from a trust and whether those shares should be valued at the time of the grantor’s death or at the time of the distribution of the assets. 

May 27, 2010 | Erin Herbold

In this case, the parties' father died and his estate property passed to the parties' mother.  She subsequently died in 2006 with a will providing that her property would be divided equally among her four surviving children and the heirs of a predeceased child.  

May 27, 2010 | Erin Herbold

All fifty states have adopted a version of the Uniform Anatomical Gift Act (UAGA).  State legislatures adopted these acts to encourage the making of anatomical gifts and to govern “dignified disposition of human remains.” The drafters of the UAGA anticipated problems between an independent donor’s decision and the interests of surviving family members and specified that the surviving family has rights to the remains only after the donor’s intent is satisfied. Iowa adopted the UAGA in 1968 and the Revised Uniform Anatomical Gift Act (RUAGA) in 2007 (codified at Iowa Code Ch. 142C.) 

Here, an 84-year-old man worth nearly $2.5 million disputed the actions of his conservator (a bank) with respect to his stock portfolio. About half of the ward’s entire net worth consisted of stock in ExxonMobil. The conservator determined that it was unwise to hold such a concentration of one stock and recommended a liquidation plan, whereby at least 10% of the stock would be sold each year until the total holdings of the stock were 10% of the estate. The ward, through his guardian, opposed the bank’s plan.

Normally, attorney’s fees for probate work in Iowa are capped at 2% of the net worth of the estate. In some cases, the estate is so complex and requires so much time that extraordinary legal fees may be awarded by the court.

In this case, a father died and left the remainder of his estate (after funeral expenses and costs) equally to his three children.  The will was admitted to probate, and named one of the children as executor. Creditors and beneficiaries were notified.  Months later, the executor filed a separate action in the trial court to have his father’s will set aside.  The executor named his two sisters as defendants in the action. One of the sisters asked the court to remove her brother as executor.

This case involves issues of a mother’s competence to make a will and convey property by deed. Here, one of the sons (the executor of his mother’s will) appealed the trial court’s ruling that set aside his mother’s 2004 will in which she conveyed the homestead residence to him.  

A longstanding legal rule is that if language contained in a testamentary instrument (such as a will or testamentary trust) is unclear as to the disposition of probate assets, the court should try to determine the testator’s intent based on extrinsic evidence that helps explain the language.  But, that rule applies to assets that are properly disposed of by the testamentary instrument.  Some assets are not governed by testamentary instruments – they are non-probate assets.  For example, they have a designated beneficiary or a survivorship designation.  The language in a will has no impact o

July 29, 2010 | Erin Herbold

In Iowa, the “Slayer Statute” was enacted in 1987 to prevent murderers from inheriting property from an estate they are otherwise entitled to inherit from. In pertinent part, Iowa Code §633.535 provides that:

July 29, 2010 | Erin Herbold

Here, three siblings of the decedent objected to the last will and testament of their brother, claiming that he was unduly influenced by two cousins and lacked testamentary capacity when he made a will giving his entire estate to his cousins and appointing them as executors of his estate. The will was executed and signed by the decedent in 2004, specifically providing that his siblings were not to inherit under his estate.

July 29, 2010 | Erin Herbold

This case involved an examination of the question of whether a surviving spouse may transfer land during life in contravention of mutual wills that had been previously executed with the now-deceased spouse.  The mutual wills were executed in 1987, and specified that the entire estate, including nearly 12 acres, would go to the survivor of the two and upon the death of the surviving spouse the property would be distributed between their children from prior relationships.

July 29, 2010 | Erin Herbold

In this case, the beneficiaries of a trust appeal from a trial court order denying their objection to a 2008 annual report and denying their application to remove a bank as trustee.  The trust was created under a will executed in 1994 by a husband and wife to provide for their daughter during her life. After the daughter’s death, the remaining assets were to pass to her children, the couples’ grandsons.

Updated July 29, 2010

The decedent died in 1998.  At the time of his death he had two sons that were named as beneficiaries of his life insurance policy.  The decedent’s estate was probated but, of course, the life insurance policy was not included in the probate estate – it’s “bypass” or “will substitute” property via the beneficiary designations.  After payment of administrative expenses, the estate lacked the funds to pay the federal and Iowa estate taxes.  When it was closed, the estate was insolvent, and the two surviving sons did not inherit any probate assets.

August 31, 2010 | Erin Herbold

The decedent died in 1999 leaving a will which gave his wife a life use of all real estate that he owned. The remainder interest in most of the property went to several other family members equally.  A separate provision of the will stated that the plaintiffs would have the first right to purchase 80 acres of farmland “at the appraised value in the Estate.” The right of purchase was to last for four months from the date of the decedent’s death. The 80-acre parcel was valued at $140,600 at the time of decedent’s death. 

In this case, a substitute postal carrier slipped and fell on the defendants’ property when he was attempting to deliver their mail.  Apparently, the postal carrier slipped on the defendants’ steps which were covered with leaves. The postal carrier filed suit in 2007, alleging that the defendants were negligent in maintaining their property.

Overview

In order to close an estate admitted to probate in Iowa, the executor must prepare and file a final report. Here, a married couple had four sons between them, but only one child was a child of the marriage. The husband died in 1996, followed by his wife in 1998. The wife deeded her home to their biological son and appointed him executor of her estate. The remainder of her estate was divided equally among all four sons. The executor sold his mother’s home for $58,500.

Here, three siblings appeal a trial court’s decision to remove them as co-trustees of a trust created by their parents. In this case, the parents owned 2000 acres of Iowa farmland which they operated through a farm corporation. They had three children. The son was the on-farm heir and worked on the farm all of his life. The son was paid a monthly salary by the corporation and was provided with employee benefits including health insurance. The two daughters were not involved in the farming operation. All three siblings own minority shares in the farming corporation. 

November 15, 2010 | Erin Herbold

This case involved the determination of the ownership of property held in joint tenancy after the death of a joint tenant who had created and funded the joint tenancies.  The father died in 2008 survived by three children. His will specified that the three children inherited equal shares of his property.  Before his death, the father attempted to give away property because his children were concerned that funding his long-term health care needs would significantly decrease the inheritance they anticipated.  The children began pressuring their father to make property transfers in 2004.

In this case, two churches named as contingent beneficiaries under a testamentary trust alleged that an attorney intentionally interfered with bequests under a will. The trial court and appellate court disagree, finding that the attorney handling the decedent’s estate properly administered the estate.  A married couple owned an 80-acre farm in Iowa which included their homestead. In 1978, they retired from farming and sold the homestead and cash rented the farm. They moved to town and met another couple at church who helped them out around the house.

In this case, a wife executed her last will and testament in 2008 and passed away in 2009. The wife made a specific bequest of certain assets to her husband “per stripes.” But, he had predeceased her leaving four children from a prior marriage. Under the wife’s will, the residue of her estate was to pass by trust to be administered by a bank in South Dakota. The beneficiaries under the trust were four other people (the court did not state who they were).

December 30, 2010 | Erin Herbold

This case demonstrates the damage that can be done and the confusion that may result when a family member steps into the middle of a divorce proceeding. “A fraudulent conveyance is a transaction by which the owner of real or personal property places the land or goods beyond the reach of the owner’s creditors, to the prejudice of the creditor’s legal or equitable rights.” Here, a married couple divorced in 2007.  Before the divorce, the husband built hog confinement facilities on land owned by his parents. He financed the confinements with a $250,000 bank loan.

December 30, 2010 | Erin Herbold

In Iowa, courts handling divorce matters must make an “equitable division” of the marital property.  Ultimately, equitable division is to be evaluated on a case-by-case basis in accordance with the special circumstances of the marriage. Iowa Code §598.21(5) lists the factors for the equitable division of inherited or gifted property.  Those principles can be difficult to apply in the context of a farming business.  The division of inherited and gifted property in a divorce was the major issue in this case. 

December 30, 2010 | Erin Herbold

In this case, the Iowa Court of Appeals affirmed the trial court’s interpretation of the method required in Iowa to execute an option to purchase under a will. Here, the testator had five children whom she named as residual beneficiaries under her 2003 will. Article V of that will gave one of the sons the first right to purchase the testator’s real estate at 65% of its appraised value. The option was to be exercised within six months of the date of the mother’s death or it would be “null and void.” When the mother died in January 2009, the son was appointed executor.

December 30, 2010 | Erin Herbold

In this case, three children were the beneficiaries under the wills of each parent. The parents’ separate wills created a trust for the care of the surviving spouse so long as one of the parents lived. Upon the death of the surviving spouse, the trustee was instructed to divide the residuary funds equally among the surviving children. The father died first, in 1994, followed by the mother, in 2008.

December 30, 2010 | Erin Herbold

In this case, the Iowa Court of Appeals was asked to determine whether a 2010 trial court order denying an ex-husband a trust accounting should be set aside. The ex-husband claimed that a 2006 court order quieting title to farmland was inequitable under the 2003 dissolution decree between he and his ex-wife and was not consistent with the trust the parties created after the divorce was final. When the parties divorced in 2003, they transferred all of their assets into a trust for the benefit of the ex-wife. One asset transferred into the trust was farmland.

In this case, a married couple divorced after four years of marriage. They had one child.  The husband worked as a survey tech earning about $31,000 per year and farmed on the side. The farming operation sustained a net loss in each of the 2006-2009 tax years. This was shown on the Schedule F (net earnings and losses from farming). Most of the net loss was attributable to substantial accelerated depreciation under §179.

January 31, 2011 | Erin Herbold

In this case, the beneficiaries of an estate filed a petition for the removal of a bank as executor of the estate. The bank resisted and stated that no positive purpose would be served by their removal at such a late stage in the probate proceedings. The wills involved in this case (executed by a husband and wife) included a residuary trust and appointed the bank as trustee and executor. The husband died in 1989, followed by the wife in 2007. The trust included real estate tracts and all of the stock of a farming corporation.

Here, the Iowa Court of Appeals was asked to determine whether a right of first refusal in a real estate contract is freely assignable or whether it is personal to the party who contracts for it.  In this case, the defendants entered into a contract to sell their farmland to a cattle farmer, but retained the acre of land on which their homestead was located. Under the real estate contract, the farmer had the right of first refusal upon the sale of the one-acre tract. A year after the sale, the farmer turned around and sold the farm to the plaintiffs.

March 1, 2011 | Erin Herbold

Here, a mother and son bought a residential property in 1990 and held the property as “joint tenants with right of survivorship.”  At various times, the mother resided with her son in the house or lived with other relatives.  From 2005 to 2007, the son claimed his mother as a dependent on his income tax returns. In 2003, the property was refinanced and re-titled. However, the new deed indicated that the mother and son were “tenants-in-common.” 

March 1, 2011 | Erin Herbold

The nieces and nephews of a married couple with no children contested their aunt’s last will and testament, claiming that the will should be set aside because the aunt was unduly influenced by her husband and lacked the requisite testamentary capacity to transfer her assets to his intervivos trust.  The husband died in 2006, followed by his wife in 2009.  One of the nieces was named executor.  Anticipating a challenge to the wife’s will, the niece asked the trial court to appoint a bank to assume the executor’s duties.

In this case, a second marriage brought about problems for a husband after his wife’s death. Here, the wife died and her children from a former marriage challenged the husband’s authority with respect to a trust agreement between the couple. The couple executed the revocable trust in 2003, naming themselves as co-trustees and their six children (both had three from a prior marriage) as the alternate trustees and remainder beneficiaries. The wife died in 2008 and the husband became the sole trustee.

The decedent in this case died in 2009 and was survived by three adult children. She was preceded in death by her husband. Before her death, she served as the executor of her husband’s estate and was unhappy with the lack of help given her by the co-executor, a local bank. She expressed an interest in changing the executor designation in her own will before her death, but died before making any change.  Upon her death, but before the estate was opened, the bank made several payments from an “estate account” before being formally appointed as co-executor.  

March 12, 2011 | Erin Herbold

In this case, a 51-year old man died intestate.  To pass the assets, Iowa law requires that the court appoint administrators to administer the intestate estate.  As a result, the decedent’s parents were appointed as administrators. Upon their appointment, the administrators issued the man’s long-time partner and “common-law” spouse a notice to vacate the homestead that she shared with their son. The administrators subsequently moved into the home. The administrators indicated on the estate report and inventory that their son was unmarried at the time of his death.

The Iowa Supreme Court recently recommended a six-month suspension from the practice of law for two attorneys (a husband and wife) licensed to practice in Iowa and Kansas.  In 1998, they moved their family to care for the wife’s bedridden mother. The mother was the beneficiary of a trust account in which her social security benefits were also customarily deposited. The wife was the trustee of her mother’s trust and routinely paid her bills and ordinary expenses from the trust account.

In 2004, a farmer disappeared and was never heard from again.  His son moved back to the farm and began operating the farm, including paying the expenses and personally receiving the farm income.  In 2009, some of the surviving children requested a declaration of their father’s death and asked for the appointment of an administrator. The court declared the father dead and appointed one of the farmer’s daughters as administrator.  Estate proceedings were later begun.  During estate administration, the son filed a claim for farm management fees in the amount of $316,000.

In this case, mom’s only child, a daughter was given a general power of attorney (POA) in 2001.  The POA specifically provided that the daughter could not use the POA to make gifts to herself. Mom owned 120 acres of farm ground, including a homestead where she had lived for nearly 50 years. In 2004, mom personally guaranteed a loan in favor of her daughter and delivered to the bank a signed a mortgage agreement securing a note for $170,000 for her daughter. The farmland was listed as collateral. 

July 16, 2011 | Erin C. Herbold-Swalwell
  1. “If Momma Ain’t Happy, Ain’t Nobody Happy”

In this case, an ex-husband appealed the trial court’s division of property and order of spousal support on the basis that the court didn't treat the parties equitably and failed to recognize the eccentricities of his “non-conventional marriage and non-conventional business.” The couple had a 30-year relationship that began when they were teenagers, but they had only been married about 13 years before being separated. The couple had two children, now adults, during the relationship. The husband’s father ("Big Earl") owned a strip club and his wife worked there periodically as a dancer.

August 11, 2011 | Erin C. Herbold-Swalwell

The plaintiff sued, alleging he had properly exercised an option to purchase Nebraska real estate, but that the title holder refused to honor the option. The fair market value was substantially more than the option price of $5,700,000. The plaintiff asked the court to order specific performance on the option contract. Before the matter was resolved, the plaintiff died. The administrators of the estate continued the litigation with the same law firm. In 2008, the bank filed a claim against the estate based upon an unsatisfied judgment they had obtained against the estate. 

August 11, 2011 | Erin C. Herbold-Swalwell

Here, husband challenged the trial court’s decree dissolving his 18-year marriage, arguing that the court miscalculated the amount he owed his ex-wife as a “cash equalization” payment and that the court wrongly considered his farm rental income when determining his child support obligation. The couple had three children born of the marriage.

August 20, 2011 | Erin C. Herbold-Swalwell

Iowa law provides for the reopening of an estate in circumstances.  For example, Section 633.489 of the Iowa Code provides:

October 5, 2011 | Katie Fiala, Law Clerk, Iowa Third Judicial District

A married couple, without children, held a large amount of their assets in bank accounts as joint tenants with full rights of survivorship.  Both the husband and wife became seriously ill, with wife subsequently moving into a nursing home.  The husband then decided to take complete control of the couple’s assets by withdrawing the couple’s joint funds, and putting them into his personal account.  The husband then made his account payable on death to the wife’s sister. The couple had previously designated their joint account as payable on death to the wife’s brothers.

January 23, 2012 | Erika Eckley

This case involved the distribution of an Iowa estate’s assets to the surviving spouse, adult children, and minors following the lump settlement of a wrongful death case filed in Nebraska. On appeal, the court was asked to determine choice of law for the distribution and the equitable distribution of the settlement proceeds.

Typically, knowledge of, or consent to, improvements on property completed by a lessee does not subject the lessor to a mechanic’s lien for the work done. But, if the work is done “by virtue of a contract” either by an express or implied agreement with the lessee to make the improvements, then the lessor may be subject to a mechanic’s lien for the reasonable value of the labor and materials furnished.

August 1, 2013 | Roger McEowen

At the upcoming Agricultural Law seminar on September 12, 2013 one of the topics to be discussed will involve self-defense issues and liability issues with respect to firearms.  That has become a big issue recently. 

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