Welcome after...
another warm week across the Midwestern Plains to Iowa Law Talk here on KXEL 1540 100.5 FM on the Catbird Seat Saturday, noon hour edition every week and you can tell your friends all about the show.
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Speaking of the two giants, Critelli and Piper, who are the commandeers of this most auspicious enterprise, Nicholas J. Critelli, JD Esquire.
a Drake Law alumnus, the first American in 150 years to become invested formally as a British barrister.
He has offices in Des Moines, in New York City, and in London, and the great Joseph Piper, Joe Piper J.D.
Esquire, a fellow Hawkeye Iowa Law alumnus from my hometown area of Hiawatha.
Marion and Cedar Rapids, ag and business legal strategies.
Guys, this show has been on.
Now we are well into our fourth month.
We have really covered some tremendous ground and all I can say is maybe it's just me, but now every news feed that I get has a major, major set of legal issues.
Some are domestic, some are crime and punishment related, whether it's the Clancy trial or the
Kirk assassin trial, whether it is back and forth between the Supreme Court and our district and appellate judges on voter laws as we are caroming toward on November midterm.
or whether it is tariff-related legislation involving rebates or indeed whether it is international law involving war and peace.
Guys, the courts are involved in everything and you guys are here to kind of make the complex understandable for us here on Iowa Law Talk.
Welcome, Nick.
Welcome, Joe.
Got some interesting things to think about today.
We're right at the time when we've got
college students going back to school some as freshmen for the first time they just turned 18 they're emancipated from their parents and there are a few things that Nick and I figured we better talk about think about this imagine if you will your 18 year old goes off to college and lo and behold
perhaps they have a drink or two or three or four become inebriated and end up in an accident of some kind and they're rushed to the hospital.
They're 18 and they're rushed to the hospital and now the question comes up, who makes the decisions for them if they're not capable of making their own decisions?
Nick, what's that doctor gonna say when the parent asks the doctor, what's the status of my child?
who I know has been in an accident and is in the hospital.
Well, here's the, you know, we never had to deal with this before when the age of consent was like 21.
Now, all of a sudden it's down to 18.
And frankly, Joe, until you mentioned this on the phone the other day as we were chatting, I had never given this any thought.
But this is a serious question.
We send our kids off to school at 18.
It couldn't even be at high school, John.
All of a sudden, you know, we have as parents, no ability
to take care of them from a medical standpoint or whatever.
The hospital physician is going to say, look, you know, do you have the power of attorney?
You know, prove that you can deal with this.
And that's a serious question.
And frankly, Joe, until you brought it up, I don't know if anyone's ever voiced that.
What's wrong with giving or getting a health care power of attorney from your 18 year old?
and just keeping it when you need it.
So
at least you
have some ability to help them.
Joe's question is so excellent.
I mean, Joe, I am teaching 126 college kids this semester.
10 to 15 percent are literally from overseas.
South America, Europe, Asia, Asia Minor, Australia, and many others are from Florida, Texas, California.
up to Washington and indeed there are health and medical issues that arise in emergency rooms and there are also little let's just call them brushes with the law often involving motor vehicles and your question is really perfectly timed as the kids are all across America back in classes this is just a week two being completed for most kids they're barely gotten their orientation and their dorm
residence hall situation figured out and here we go
you know they by now they've been had parties weekends are great for partying I've told and things happen and without the health care power of attorney mom and dad can't step in mom and dad can't do anything mom dad can't get any information the doctor will tell them if the kid if their student is able to give consent to the doctor and say hey doc you can talk to mom and dad but
Absent that if you haven't got assigned durable health care power returning by HIPAA they can't tell us anything can they
Nick?
No they can't and that's what you're going to get folks when you try to get information.
uh you know you'll get somebody will say look we can't provide you with that information because of HIPAA which is basically the medical version of the of the confidentiality that a professional has uh so if you've got that power of attorney then you've got it covered uh my concern Joe is that why am i just hearing about this okay
well your youngest is far older than that
You should have thought about this when she was 21 and went to college.
True.
You know, I can take care of that just by going with her, but she didn't want that, you know.
No, I know.
It's so folks, heads up.
When they're 18, they are legally an adult and you know that the schools are not going to provide you with any information.
Just try going there and getting their grades.
or whatever it is, you know, good luck.
It's not like the old days.
So yeah, we're to the wise, get a health care power of attorney on behalf of your children, so at least you can protect
them.
Okay, so now we talked about the health care power of attorney, and so you can have that information.
Let's take it a step further.
What if they're in an accident and they die?
Do you have the right to take their body to have a proper burial taken care of?
Yes, you do.
And I'll tell you why, because we've had one of those cases, all right?
At that point, the body is considered personal property, right?
And as the, by the laws of intestate succession, remember that?
If they assume they die without a will or whatever
it is, the
executor, the administrator of the estate would have the ability to do that.
But wait, you don't have an administrator until a probate is filed, Nick.
Right, that's true.
And if push comes to shove, you can do that.
You can go down to court and deal with it.
I've never seen it go that far, Joe.
At that point, generally, they're more than happy to have the parents to come in and deal with it.
But the issue deals with the treatment, and where the problem is here is HIPAA, where you have medical facilities that are saying, I can't take instructions from you, nor can I give you any information.
because of a federal statute that prevents
it.
And that's
why the health care power of attorney is important.
Okay, but let's take it a little further though.
Let's say that we have the parents are divorced and which parent gets to have disposition or control over the body.
You can have dad say, hey, it's all mine to make these decisions.
And the mom say, no, it's all mine to make the decisions.
How do we avoid that problem?
for the child.
The child's not their problem, but how do we avoid the fight between the war of the roses here over the body?
Well, that's a good question.
Obviously, there's a divorce decree.
99% of the time will not cover that issue.
And
now you're back to the situation where you got to rely on the custodial parent.
These
days, we deal with joint custody.
So the mom and pop have got to get along.
And if they don't, then guess what, folks?
You're in a lawyer's office.
Ah, but let's say there's another thing that we can, another form that can be filled out by the student to say that if I should die, this parent has control of my body.
It's another form in the Iowa bar forms that we can have our clients
fill out.
Sure, pre-death transfer
or
possession.
Pre-death
transfer.
So they notify, they sign it.
then the parent that's got it can say, hey, dad or mom, whoever it is, or somebody else, maybe it's going to be an uncle or an aunt, or some other party can take care of that.
It's not something else that should be thought about there, just in case it
happens.
Yeah, and once again, this is the first time I've heard the discussion on this, Joe.
John, you've been in the estate and trust business forever, okay?
Have you ever run into any of these issues?
Nick, what
I've seen most often are situations where you will have an injured child who maybe is a post-accident, a quadriplegic, with just grave, grave, ongoing, situational decision-making that has to happen with respect to health care and with respect to the meeting out of finances.
The complicator there is parental strife.
And unfortunately, in these situations,
I see parents not on the same page.
And tragically, I believe that sometimes these premature early deaths among children, or these grotesque injuries that happen to high school or college-aged kids in their prime, often themselves ultimately are the approximate cause of the rift that separates the parents that puts enmity between them in this very depressing, post-traumatic situation.
And this is where I believe, going back to you guys, lawyers as counselors are so important.
You know, Nick, it's interesting.
When I was an undergrad student, I was writing in the back of a Ford Mustang hatchback with two college friends.
All were behaving very well.
We were on our way to Godfather's Pizza in Omaha when
I can't remember exactly what happened.
We were T-boned broad-sided with the right of way.
We had the right of way by of course a drunken driver who of course naturally fled the scene of an accident.
I somehow was catapulted about 50 feet in the air out of the back of that Mustang hatchback and they found me laying in the street 25 yards back.
somehow still upright and mildly coherent.
Obviously, I was rushed to the hospital and they worked on me, but of course, think of that terrible call that my folks got their five-hour drive away, not knowing whether I was in true extremists or not.
They got very vague admonitions that they should get in the car and roll, and I'm sure that was five of the worst hours of their lives.
So just think of what my folks went through.
in that situation.
Yeah, you want info and yet that was pre-hippa.
Those were in the pre-hippa days.
This was 1980, 81, 80 I think to be exact.
And so what you had in that situation was they got a little bit of information.
They knew I was alive, but they didn't know the extent of the injuries.
extend the damage cognitively or physically.
And can you imagine today what a parent goes through?
My heart goes out particularly to these kids.
I have a lot of kids that play sports that the injuries are rampant.
It's not just football, it's baseball, it's softball, it's soccer, it's lacrosse, it's volleyball.
And you've got parents literally
half a world away.
I mean, a parent in Australia can't possibly get here in much under 24 hours if there's an emergency situation.
So just having surrogates, oftentimes those are university coaches or trainers or international faculty advisors.
But I think there's work to be done in this area because it's one of those low probability but high significance events.
And how do you make that work?
Yes, we're in a FaceTime world.
We're in a Zoom meeting world.
There is telemedicine, and yet they're still stringent.
procedures and controls over even that.
So I kick it back to you guys.
We are in a new era with HIPAA.
We're in a new era with technology.
We're in a new era where we've got still so many international students going to school over here.
How do we meet this all out, guys?
I'm flummoxed for a magic bullet.
I don't have one.
Okay, let me think.
Let's take this a little bit further here, John.
You talked about how the
death or the serious injury with a student can split the people.
What I've seen when you get into tragedies like this, it either pulls them together or it splits them.
Yep, absolutely.
It's a trend water and this type of thing.
Either they bond tighter than hack or splits they'll happen.
So that's why we need to talk about doing this up front.
Who's going to have the decision making power?
And for example, let's say they give it to dad.
and dad's off on a business trip somewhere and can't be reached.
If dad can't be reached, is it to mom or is it both?
Do you have a decision-making tree in place?
That's a question to have as you're drafting these documents as well.
Who is it?
And now, if they're both on it and they can't agree, now what do we do?
Nick, what do you do with that situation?
Well, Joe, years ago we had a situation similar to that.
We had a case where a little boy was injured on a motorcycle accident.
In a motorcycle accident, the dad was driving, and the little boy was on life support.
And the issue was, who pulls the plug?
The kid was brain dead by all objective criteria.
that the medical profession used, and the medical people were wanting to pull the plug.
The dad, of course, was saying, no, don't pull the plug.
I don't believe in that.
And thus, you have a big court battle.
And we had to go to court, had to deal with it, had a day-long trial with medical experts and so forth over when is life over and how you deal with it, just so that you could, so that the healthcare people could get clearances to what to do.
either to keep the life support applicable or not.
And it was terrible for everybody.
Now, there's really no way that you can foresee all of these things when you have a child.
We get that.
More often than not, I suspect what occurs when consent is needed.
It's given by a parent over the phone.
People agree with that.
But in today's world, where everything is contentious, where law becomes warfare,
You're going to find people that will hunker down to the precise meaning of the law.
They want the i's dotted, the t's crossed.
They want CYA folks in paper.
Goes to this, when you go ahead and have your estate planned by going to a lawyer to do your wills, your trust or whatever your estate planning lawyers do, is this part of the routine
bundle of services that an estate planning lawyer should do.
I know they, I don't do estate planning, so I don't know what the bundle is, but I suspect that what they do is, you know, here's your healthcare power of attorney for the person that's making the will and that type of thing, but do they extend it out?
to cover other members of the family.
The very important issue that Joe raises with regard to the 18-year-old child, and I'll put it in those terms, because I think it focuses what the issue is.
I don't know that they go that far.
Joe, do you guys do, I don't know if you do a state plan or not.
I didn't think so.
But John, you did.
I mean, that's what you were about.
Yeah,
yeah, I think so among good professionals absolutely is and you know again as we've talked in prior episodes There's not one family that I have worked with in a trust situation that has not had the idiosyncratic nuance of either family feud or a special needs or de facto special needs member of the family who needs some type of
situational outlining for contingency.
And this is why I think it is so important to have this done.
Now that means over time, you need to modify your estate planning.
When you have children born out of the womb, you may not know at that juncture that they might be prone to clinical depression or other types of serious situations.
You may not even know
early on of a significant cognitive impairment or physical malady that could shorten their lifespan, so to speak.
So there are times when that plan needs to be updated, particularly as the parents age.
I have a very special friend who is a special needs adult.
He is now in his mid fifties.
His mother just passed away and the father is 90 years old.
And the question is, what happens in that situation?
Well, that family has planned very well for him to be very lovingly taken care of by siblings and cousins in that eventuality.
I think the important thing, remember, you talked about intestates earlier for those that have no will or state or trust documents.
We know that
in treatment of a patient at law, there's a default position too.
If you go into the emergency room of a hospital and you've got no documentation, whether you're a college student from near or far, whether the parents get along or they don't, if there's no documentation or people can't be reached, there is a default position on the part of the medical community.
And I believe, correct me if I'm wrong, they are to err on the side of treatment.
And correct me if I'm wrong on that, but they are not to make any major decisions that would run a thwart of the prolongation and the attempt to have a curative restoration of health.
I defer to you guys, though, you work in this area directly.
Well, you're right, John.
Life comes first.
Treat the patient.
You got to treat, these are legal issues that come down the road.
And thank God we've got good healthcare professionals that put the patient first.
Okay, we don't rely on the the building office.
We're going to admit you to the ER provided you sign this form and you can show us you can pay.
You know, we're going to stop the bleed first, then you'll hear from the building office.
Now, I can only imagine that Joe, I'm a city mouse.
You know, I don't know anything about the country, but I can imagine there are people listening to Iowa law talk right now that are going, wait a minute, all these lawyers are talking about
is go to a lawyer, get this, go to a lawyer, get that, plan this, plan that.
All they want to do is run business into their office to planning, planning, planning.
Now, as a city mouse, I know that farming is really easy.
There's no planning at all involved in farming.
Okay, you just take a seed and put it in the ground, Joe.
Why all the need for farm planning?
And if we don't need farm of planning in the farm context, okay, we sure don't need it in the legal contest.
Yes, that's a hook, Joe.
Yes, a lot of planning and farming.
There's a lot of planning in any business if it's run well.
What we're trying to do is to set it up so that people will think about what could happen, and you can go to your local lawyer.
You don't need to come to Nick or me.
Your local lawyers do this stuff all the
time.
And you're better off going to your local lawyer, either.
Yeah, so you need to be set up and do that, but you know what, John?
We've come to the top of the hour or the bottom of the hour and it's time for you to tell us it's Ival Law Talk, right?
Is this KXEL,
the voice of the Midwest?
It is.
You guys have got this.
honed down and it perfected the craft as broadcast radio professionals knowing to get that station ID and that midterm break, so to speak.
Indeed, Nick, it is KXEL.
And Joe, you know that 1540 was the first 50,000 per watt channel to be broadcast all of North America out of Waterloo and now.
Cedar Rapids over a century ago.
Very proud of that here at 1540 and 100.5 as the AM signal alone because it's the only 1540 AM in North America is unimpeded by any competition.
This signal goes out raw to 21 states and four Canadian provinces.
And I know Nick Saham radio guy, but you know Nick, broadcast radio
is for the mass populi.
Yeah, but John, 20 some states, look at my little old ham radio thing, get 25 different countries.
But on a serious note, folks, this is AM radio.
I'm worried that we're going to see AM radio as something of the past, the AM broadcast band.
okay as we go to satellite as we go to uh you know fm etc the the importance of am radio is exactly what john said it covers many many states doesn't need repeaters or other high tech broadcasting equipment to repeat over and over and in times of of emergencies john okay weather insurrection or whatever it is it's am radio that you turn to folks don't ever
let them take the AM band away from you.
Local
AM radio is your safety net.
It really is.
I know Joel will weigh in here because I was terribly chagrined that the great voice of Iowa WMT radio 600 AM now has no local talent anymore on the radio.
It's all being piped in.
I would tell you that back in April
while I was teaching as a visiting professor down the Kansas City excerpts.
We had tornado, severe tornado outbreak.
I did what I've always wanted to do on my bucket list.
That's being a mobile unit one weather tracker for live broadcast.
And I literally was reporting.
Six blocks from the touchdown with the cell phone the sirens were blaring Nick and Joe here's what was interesting because we were not in the city itself We weren't getting TV coverage because local TV affiliates weren't going out that far to the Ottawa area that would have been about an hour for them the local newspaper
couldn't get the type set all set up and printed.
It's a print paper and even online there's a paywall there.
The way people are able to get their information largely came from us that night on AM Radio.
As a matter of fact, one of the great legendary Wichita or Topeka radio maestros
did a nice write-up about Brad Howard and his station there at KOFO, saying that the 40 minutes of coverage, saying take cover prior to the advent of the Dirtanos tornado strike, was very significant.
So, Nick, you talk about you're a city mouse, I think for the country mice, AM radio is particularly relevant in the severe, whether it's a burn ban because it's so hot, or whether it's a
flash flood situation or as a tornado situation or whatever.
The big TV affiliates aren't camping out on your lawn.
Response time for sure isn't there.
Your print local paper isn't going to be able to cover it.
And so it is incumbent upon AM and FM radio to be that community voice that
Paul Revere on horseback, Joe.
Wouldn't you agree that's still the case?
Absolutely.
Cedar Rapids has had a couple of major natural disasters in the last 20 years.
2008, the flood that flooded thousands of homes, hundreds of businesses, and the radio stations were on for a very long time.
Then we hit the duration, August 10th, 2020.
And people, the power was out.
WMT broadcasts continuously for an extended period of time on there and you know people go out in the car and hear it.
I know there's bills pending in Congress now to keep AM radio on the in the cars and I don't have to remember the text number to text to it but there's something we'll get that up because I think it's important that AM radio stay on the cars because I love listening to it and I can hear the AM signals across the state.
Well Joe, that's how we know that this show has resignation because KXEL stands out uniquely now as the only 50,000 watt clear channel in the region that is not corporately owned by one of the behemoth media giants, which means that Jeff Stein and his news crew as well as the other programming has an authentically
local and oftentimes live countenance.
For news, for newsmakers online, live interviews, live news broadcasts, remotes, local live sports, as well as breaking weather.
And I think it is a real honor for us to be on this frequency.
As Dan Rather would say, what's the frequency, Kenneth?
The frequency is 1540, 100.5.
So guys, we've talked a bunch now about the durable health care power of attorney and other things.
What about what happens if that same student dies and they had some property?
What happens to the property if they don't have a will, Nick?
It's a better question for John.
John?
Well, you know, without a will, you've got intestacy.
And of course, normally to cut to the chase,
the money stays in the family, so to speak.
Now, the states
are based this decision, John.
Well, by default, the court says that the decision for the property allocation goes up to the biological family members.
Well, let's back that up a little bit there, John.
The court's going to say that, but what's the court going to rely upon?
The court's not just going to make that up out thin air.
Isn't that a
creature of state law, what the state legislature has said, it happens if you die without a will?
Oh, absolutely.
And in Iowa and Nebraska, for instance, you have different ways that inheritance is needed out.
In some states, it goes directly down to any lineal descendants, which would be wife or children.
We obviously have many young people with wives and with children, but in many other states,
is bifurcated.
It will go to wife and children, but also up to the parental lineage.
And sometimes it's both.
So you're right, Joe, each legislature is different.
I would tell you that between Iowa, Nebraska, and Kansas, you've got three different modalities right now.
So now let's take that a little further.
Let's assume that the person the home address
for the student is in Iowa.
And he goes to school, perhaps at Creighton, or perhaps at Ottawa, where you teach.
So what happens?
Whose law controls then?
Mom and dad live in Iowa.
The students go into school in Omaha at Creighton.
Does Nebraska law count where he died?
Or does Iowa law count where mom and dad live?
Well, you know that the court talks about sufficient nexus.
And a lot of times, even if property is located in a different state, if the person is still deemed a resident of the other state, the estate can still largely be administered from the state of the residence.
And it doesn't have to be the temporary domicile of a college dorm room.
I'll take you back to
going to school at Creighton University as an undergrad in Omaha prior to going to University of Iowa Law School.
But at Creighton in Omaha, I lived in the dormitories there.
But after my freshman year, of course, I still deemed myself to be an Iowa resident.
Later on, when I started working in the summers in Omaha, I concerned myself a full time.
resident of Nebraska because I lived and worked there literally whole time as well as was domiciled there.
It's interesting Joe, in 1980 when I was still, I had just lived at home that summer and basically had never been away from home other than college life as I was starting my sophomore year.
I voted by absentee ballot with an Iowa absentee ballot because Mary and Iowa was still my address.
However, there were no jobs back in those days in the summer.
And so I immediately, for the rest of my life, started working full-time summers in the Omaha or Council Bluffs areas.
was actually in various of those areas and depending on where I was domiciled, you know, and where I resided, that was my area of residence.
But it did change once I took on a workload and once I physically
was no longer living in Marion and Cedar Rapids.
I was no longer a Marion Iowa Lynn County resident and through the next 50, well, 40 some years of my lives, I've been alternatively for a large bulwark at that time, either a Nebraska resident or an Iowa
residents.
Okay, John and Joe, I think there's rules on this.
If the person dies and has land in a particular state, the court where the land is located has jurisdiction to determine the disposition of that land.
If they die with a will, that will can be probated in that state.
Okay,
if they die
in chest state,
meaning without a will, there's generally a question as to whether the intestacy laws of the state where the land is probated controls or the intestacy laws of the state where the person was domiciled.
controls.
Now there's a difference here between the term domicile and residency.
We had a case with Supreme Court on this and it's an interesting distinction.
I always thought they were one and the same until you start digging into it.
And you find out that a person can have many, many residencies.
I'm a resident of London, I'm a resident of Des Moines and resident of New York, meaning I've got junk there.
But I only have one domicile.
Now, when you drill down into this, you say, well, how do I define that to be able to argue that to the court?
You'll get language that says, well, what do they consider to be their home?
Well, you know, that's a term that you and I understand from being old fashioned, but...
New-fashioned people have many homes.
So I don't know that that old home test, you know, is as powerful as it once was, but you could see the problems you get into.
We've had this internationally a lot,
and it's a mess.
Nick, it is because in this new world now, people have multiple homes, vacation homes, but you know, domicile comes from Domus, the Latin for home.
You're exactly right.
The idea was, what do you consider to be your home?
And
Nick, you raise a couple of fascinating issues here.
One is sometimes we actually have conflicts of laws interpretations, but also the sticky wicket of voting in your college dorm room.
Are you still a resident, maybe of Chicago, but you're voting in a Johnson County election?
There's a whole trail of tears that we could go down there.
This is a fascinating issue.
And frankly, there's a lot of great area.
There's a lot of ambiguities here.
And there's some wiggle room, frankly, in the courts.
You should vote early and vote often.
Only if you're Chicago.
And you voted Chicago.
but you know this is the
stuff that drives this is the stuff that drives the public crazy they look at this they go can't you guys get it right you know folks we've been trying to get it right for about 500 years this is the same problem we've got in the uk and it goes back to the middle
ages by the way joe i i appreciate your reference to mayor daily because uh
I'll remind some of our younger listeners that that time that Mary daily Pope Paul the sixth and gold of my year were a shipwrecked on that island and they were arguing over who should be the leader and Pope said why I'm the leader of the Catholic Church the oldest church we go back 2000 years I should be the leader I have the infrastructure in gold of my years says I'm the Prime Minister of Israel I've led us through the 67 war in the 73 war and I know how to keep our people together I should be the leader
And Richard J. Daly, senior, said, I am his honor, the mayor of Chicago.
I keep the streets plowed.
I keep the lights on.
I keep the streets safe.
I should be the leader.
We'll do it the old fashioned way, the democratic way.
We'll have an election.
And they all agreed.
And daily one, three to two.
Yep.
Haven't heard that one a long time.
So on that happy note, let's get back to the basic issue.
Why do you really need a will?
I mean, if the law says you die and everything goes to your children and a big chunk of it goes to your surviving spouse, why do you need to go to a lawyer and have all these wills done?
What if I got the black sheep and the children and I've got a black sheep in there that I don't care to leave a dime to?
If I don't have a will, he's going to get stuff through intensity, right?
Yeah, exactly.
Or a special needs child.
Or the necessity.
You don't
have any of that.
All you do is you're a mom and dad, you got three kids.
You want them to get it individually.
Why do I got to go through all this expense?
My grandpa had nine kids, didn't have a will.
He said, I have nine children.
I want them all to get things individually.
Equally.
Well, that made a lot of sense, grandpa.
But the problem is we still had a contest, a fight.
Why?
Not because I wanted more than my one ninth share, but because we're Italian and we always fight over
everything.
I just thought
Italians fought over wills
and I find out you Germans are worse.
Well the nicest thing about the wills is they have those lists attached that are referenced in the will that talk about tags on China or other
Who gets the guns?
Who gets the hummels?
Who gets this, that and the other thing?
That's an aspect of it.
And furthermore, bringing in the idea of a trust, there are many wills that pour over into a trust that take a lot of the hassle off of kids from fighting, decision making, having to continue to do ongoing management of things such as farms, such as large investment portfolios.
You want that.
to pour directly from a will into a trust.
Frankly, there are some tax advantages to that depending on what wealth base you're at as well.
But for a variety of reasons, if you want to customize, you know, at the law, we talk about the hand rising from the grave.
In your will,
you can say that grandchildren will inherit if they complete high school or if they go to college or if they are members in good standing of a church.
I mean there's so many different influences whether people like that idea or not those are allowed into estate planning including the aggressivity or the passivity
at which people should continue to manage assets that might be of a more permanent nature, such as
what to do with the farm.
You can, to some extent, make
sure.
There's no doubt there's a lot of advantages to having a will if you want to get that precise.
But I suspect that a lot of people listening to us going, you know, I don't have that.
I don't want to get that precise.
I got two kids.
I want one.
I want them to divide it up and go from there.
So why do I have to go through all this to let the law deal with
it?
You said you wanted them to just divide it up.
Right.
Have your kids ever fought?
Which day are you talking about?
Of
course.
Joe, how can you fight if the law says 50-50?
Where's the fight?
And if they're going
to fight over that, they're going to fight if you put it in a will.
The question is, if you say 50-50, do you want it to be sold or do you want it to stay together?
So they're going to sell the house or does one get the house and one gets the cabin?
They've got to get along.
Joe, you've got to have the same problem with the will.
Oh, yeah, you could put all kinds of little stuff in there that says that, you know, the snuffy gets the house, but junior just gets the car.
You can do all that's what a will does.
There's certainly value to that, okay?
But for most people, do you really need it?
If you want to have people know what you wanted to have happen, a will works well.
If you're satisfied with the distribution scheme that the state has written,
in its laws then you don't do a damn thing and you hope and pray that they aren't fighting there but when you do that you haven't said anything your indecision is the decision to let the state decide the distribution
well no no no i disagree this well the state will decide how it gets divided but it's you're still going to have a fight okay what you want to do with the will is you're going to decide a different version of the of the division of what states
you want to show you
still get the fight
Every case we've got on a will contest revolves a will.
We also have fights where there is no will.
And what do they do?
And they're fighting over the same thing, except you avoid all of the will contest expenses.
It's the same fight.
What about if the will has a clause in it that says, if anybody contests a will, they're effectively written out of the
will?
Those are called interim clauses, and they are enforceable.
In other words, I'm going to give this to you Joe, but if you can test the will you get nothing or worse yet Okay, I'm going to give fifty fifty thousand dollars to John But Joe if you can test my will I'm gonna that gift to John goes away now John's ticked off at you
And I've used John's leverage against you.
And folks, you see this in the state plans.
Some of these hands from the grave are really hands around the throat.
They are.
And you wonder why there's a
fight?
Think about
it.
Well, Nick, speaking of fighting, and this is the third rail to talk about perhaps, but I'm going to go there when you say, why not just go and test, save the hassle?
The fundamental facts are today that roughly half of all marriages end in divorce.
and there's a very high remarriage rate.
Nick, I worked for decades in the trust business, and I can tell you that every trust I worked on, they were all variations on a theme, like Rachmaninoff's rap scene on the theme of Paganini, where you literally had the second wife, usually the patriarch would die first, the second wife,
at loggerheads in perpetual enmity with the children from the first marriage and the patriarch or the matriarch it could be a matriarchal situation where the money property woman mother passes first with the second spouse but children from the first marriage and if that's not fleshed out with precision in the state planning documents then there's nothing left for anybody because you got a dozen lawyers involved
in a perpetual struggle for five years and there's nothing left when it's done.
The reality of the situation is today because of the construction and the structure of the families today.
It's absolutely, uh, boutalitarian to your family.
If you're on a Brady bunch situation and you do not take care of the competing interest, uh, it all goes all the way to how to take care of people in terms of what do you do with the assets?
Do you put them to work for income or do you put them to work for appreciation?
Because oftentimes you have a bifurcated, uh, uh,
payout to people where the widow is first in line for a lifetime interest, but then it reverts back to the children after the second spouse diseases.
That's arguably fundamentally the most common sense reason for doing this now, just because of where the family
how we're situated with all these blended families, frankly.
Folks, this is not a new problem.
There's a case in American law that's often referenced.
It's called Jardins vs. Jardins.
This is a fictional case written by Charles Dickens.
Okay, in his novel The Bleak House, Dickens wrote a book on all of this about the fact that estate fights will go on and on and on, ending only when there's no more money to fight over.
John, you lived in this world.
Oh, yeah.
Charles Dickens, correct?
He's absolutely.
Is he a
Jardin's
Bleak House?
Yeah, yeah.
Charles Dickens had a great
pulse on the box popular.
He knew the common man.
He was the ultimate populace in so many respects.
And you know, what Dickens understood was that even paupers will fight over pots and pans.
And it gets down to that idea of again, of reason versus emotion.
And I had pre successive cases in a row as a trust officer of
multi-million dollar farm operations, a very strong patriarchal figure, generally split or divorce or remarried, and children from that first marriage that were still dealing with issues from childhood between and among the siblings or between and among their parents.
And same chapter, different verse, everybody lawyers up, everybody
fights with enmity because it's emotional.
There are decisions made that are not even rational for a financial standpoint.
And it is something that with better estate planning probably could have been nipped in the bud.
I think it's incumbent upon any young person who is married, once they have that first child, you need a will if only
to make certain that your offspring are properly taken care of as you believe they should be.
Otherwise, the court will make a decision.
You want to have a will set up because your children that are the age of minority cannot invest in portfolios.
You have to earmark who is that most trusted person.
Maybe it's a fiduciary.
Maybe it's a relative.
who is a financial genius, you've got an earmark.
Who is going to control the life insurance if moms and my plane goes down and we've got two little kids?
You want control provisions in that will so that you know the people you want to be the guardian of your children end up being the guardian of your children, a trusted sibling, a trusted uncle.
Heaven for Fendt is the dreaded in-law that could sweet talk the court.
and literally spend thrift through the kids money that they inherit.
Nick, this is serious stuff.
And, you know, I suppose a young married yuppie couple could go without a will.
And, you know, in testacy, depending on what state you're in, the spouse would get it all, or spouse would get the biggest chunk, and mom and dad would get a little bit left.
But once that first child is born, Katie bar the door.
You've got to have a will to take care of who's the guardian and who's the conservator for those kids.
You don't want anybody squandering that life insurance money.
You don't want anybody beating your children at night and inflicting corporal punishment on them.
You don't want your children in with bad people.
Let's be thinking about one other thing.
So you die and you have a
your will says everything goes to my spouse.
You haven't set up anything separately for the children and so your spouse gets it all and then your spouse decides to get married to husband number two and now she has more kids and what does she do?
Does she take good care of the kids from marriage one as you would hope she would or is she influenced by new husband and
things don't go as well for their kids from the first marriage.
Oh boy, that's a great question, Joe.
And many men are worried about that exact same thing, and many women are worried about that exact same thing.
They are fearful that the hubby's gonna be remarried and sweet talked by some sweet young thing, or they think that the woman is gonna fall prey to the charms of some Spengali.
who will then forget about the kids and make them eat porridge.
And so literally, you know, you can't disinherit a spouse.
Nick and Joe can tell you about that more detail.
You can't totally disinherit a spouse, but in most states, you don't have to give them 100%.
You can do a carve out to make certain that the kids independently are provided for, that's money that can't be attached by the surviving spouse.
and then the magic of a trust.
You can set up a trust that the kids and the kids only are the beneficiaries to.
That's where I was going.
Well,
it gets to be complex, but it's things that quite frankly our listeners need to know.
Now, let's turn the table a little bit and
Tell our listeners why they need to turn in next, tune in next week.
Joe, if you have a pit bull and all of a sudden your family pet, the pit bull gets out and goes after and bites your neighbor, are you responsible for the damage in the injury that that pit bull causes?
Maybe, maybe not.
You're going to find out next week, right?
Yes, sir.
Maybe it's the answer to the question, depending upon many other circumstances.
Exactly.
And
folks, we're not going to tell you until next week, okay?
Next question, particularly from the Cedar Rapids area.
You have a large elm tree.
It's been on your property forever, okay?
Long time.
And you notice that, you know, it's showing its age, but it's been there since the dawn of time.
And all of a sudden, the derecho comes and crook.
it lands on your neighbor's house.
Are you liable for the damage caused by your elm tree?
They're going to say you didn't keep it up, etc.
Third question that we're not going to answer that you're going to tune in next week to find the answers on.
You have a particularly onry boy, little boy, okay?
Let's say 13.
And this gets the terror of the neighborhood.
and he runs around and you know throwing stuff and hit baseball hitting baseballs and so forth and crack into your window it goes and it causes a lot of damage or hit you in the head or whatever are you liable for the
act tortuous acts of your children.
Reading, what is your responsibility for your possessions and those people who are who's under your control?
This is a big issue, folks, because everybody's starting to complain that either our stuff is out of control or our children are out of control.
And we have parents who won't control them and the children are causing problems.
So what is your liability?
Thirdly,
Can you get insurance to cover it?
When your kid screws up and you get sued, can you, you know, turn it over to your insurance company?
So, John, what do you think of those
questions?
I think those are awesome guys.
And so you need to tell your friends to tune in next week.
Same bat time, same bat channel here on KXEL 1540 100.5 FM, the cat bird seat during noon.
on Saturdays with Critelli and Piper Iowa Law Talk.
In the meantime, get that podcast, Iowa Law Talk KXEL.
Type it into your browser or go directly to kxel.com slash podcast.
Look up Iowa Law Talk.
These three questions that Nick portends for next week.
We want additional questions from our audience.
Type those in to Nick and Joe at Iowa Law Talk at KXEL.com.
In the meantime, guys, be safe, be smart, be good, be strong, and early voting for midterms is less than a month away.
Can you believe it?
Iowa always leads the way.
And so we might even talk about in a future episode.
election law heaven for fend boy was i part of that draftsmanship in iowa and oh my goodness the stories i could tell uh stay tuned for more excellence on kxl uh tip of the fedora always jeff stein uh so we meet again bye bye
