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Directives Often Overlooked In Estate Planning, Wills, and Trusts

Much has been written about the importance and benefits of a person having a Will or a Revocable Trust for the disposition of his or her assets, a Statutory Power of Attorney (Financial Power of Attorney), a Medical Power of Attorney, and a Declaration Concerning Life Sustaining Procedures (a Living Will). There are two other estate planning directives that often get overlooked.

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They are:

  1. A Testamentary Letter;
  2. Final Disposition of a Person’s Body.

Iowa Code Chapter 633.276 makes provisions for a person who desires to make a specific bequest of tangible personal property may do so by signing what I refer to as a “Testamentary Letter”. Chapter 633.276 states:

“A Will may refer to a written statement, letter or list to dispose of items of tangible personal property not otherwise specifically disposed of by the Will, except tangible personal property used in a trade or business. Tangible personal property, for purpose of this Section, includes household goods, furnishings, furniture, personal effects, clothing, jewelry, books, work of art, ornaments, and automobiles. If the writing is dated and is either in the handwriting of the testator or is signed by the testator, and it describes items and distributees with reasonable certainty, the personal representative (the executor or the administrator) shall distribute the described items of tangible personal property to the distributees entitled to them. The writing may be referred to as one to be in existence at the time of the testator’s death. The writing may be prepared before or after the execution of the Will. The writing may be altered, added to or changed in any respect by the testator after its preparation, and it may be a writing that has no significance apart from its effect upon the disposition made by the Will. Property passing by the writing shall be considered as property passing at a specific bequest under the Will.”

One must understand that tangible personal property means an object or item that a person can touch. It does not include cash, certificates of stock or other types of evidence or ownership of an asset.

Iowa Code Chapter 144C is entitled “Final Disposition Act”. The Iowa Code makes provision for a person (a Declarant) to designate a person (a designee) who shall have the sole responsibility and discretion of making decisions concerning the final disposition of a Declarant’s remains and the ceremonies planned after the Declarant’s death. This is unique in that it precludes a person from making specific instructions in the Declaration for the disposition of the Declarant’s remains and arrangements for ceremonies planned after the Declarant’s death. A Declarant can name a person as his/her designee and also name an alternate designee who would act in the event the person first designated is unable or unwilling to act.

This seems rather strange to me. A person can designate another person to make the decision for the disposition of the body but cannot leave instructions for his/her specific disposition of the body. The best one can hope for is the Declarant can advise their designee what he/she would desire to have done with the disposition of the body but may not give specific instructions for disposition of the body and the ceremonies planned after the Declarant’s death.

If a person does not sign a Declaration before his/her death, the Iowa Code Section provides for a series of individuals beginning with the surviving spouse who have the authority to make arrangements for the disposition of the body and post-death ceremonies.

So what is the bottom line? There are multiple decisions to be made pre-death and post-death. Once again we are confronted with the decision making process which has three elements; (1) being aware that a decision is to be made, (2) gathering information to make a decision, and (3) implementing the decision.

By Ned P. Miller

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