There are certainly advantages to deeding property prior to one's death, rather than waiting for that property to pass by will. However, it comes with some negative side effects.
When it is done the landowner no longer has it on the balance sheet or the responsibly for it. It can also allow the landowner the enjoyment of watching the next generation take over and begin operating the land that the next generation now owns. Conversely once the property is deeded, the landowner has no more control and the deed is irrevocable. This means if the landowner gets angry at the heir, he or she cannot take back the transfer. Similarly, if the heir decides that he or she wants to do something with the property that the landowner disapproves of--like selling the land, growing Aronia Berries, or making it an ATV park, the landowner has no say over that decision because the land is owned by somebody else. Also, if the new owner gets sued and has judgments against them, the land stands to pay for that judgement in most cases.
The transfer allows the land to pass without going through the probate process. it is a process that can take time, effort, and money to complete.
Transferring the property starts the five-year window prior to qualifying for Medicaid and avoiding Medicaid Estate Recovery Program. When a person seeks to apply for Medicaid benefits, one question that they will have to answer is whether they have transferred property within the last 5-years. If they have, then they may be ineligible to qualify for Medicaid for a certain period of time if it is less than market value. Additionally, the value of the property transferred within that 5-year period would be counted towards the value of the person's assets for purposes of determining whether they qualify for Medicaid.
Tax implications of making this type of lifetime transfer are fact dependent. If property is deeded during a person's lifetime, that may have gift tax consequences and may also affect the landowner's lifetime exemption with regard to estate taxes. It is critical that a landowner consult with a tax professional before making a decision to gift during his or her lifetime. It also impacts the basis on the property. Generally, if property is passed by will at a person's death, the heir receives a step up in basis for capital gains tax purposes, thus likely decreasing the capital gains taxes that would be owed if the property is sold by the new owner. If property is transferred prior to death, the heir will not receive this step up in basis.
July 1 is when new laws generally take effect. Here are some of the recent changes to Iowa Law that impact rural Iowa and ag.
Children under the age of 16 can hunt without a license as long as they are accompanied by an adult who has a hunting license. This includes out of state residents who may be back visiting family for example. Deer and Turkey still require licenses.
Here is what you can hunt deer with during the pistol or revolver seasons:
Any pistol or revolver firing a magnum three hundred fifty-seven thousandths of one-inch caliber or larger, centerfire, straight wall ammunition propelling an expanding-type bullet with a barrel length of at least four inches and firing straight wall or other centerfire ammunition propelling an expanding-type bullet with a maximum diameter of no less than three hundred fifty thousandths of one inch and no larger than five hundred thousandths of one inch and with a published or calculated muzzle energy of five hundred foot pounds or higher.
A person 20 or younger can use a pistol or revolver to hunt if they are accompanied by a person 21 or over who has a hunting license.
The special senior statewide antlerless deer only crossbow deer hunting license is now available to 65-year-olds instead of making them wait until they are 70.
Hunters may use a trained, leashed dog to retrieve a wounded deer. The leash must be no more than 50 feet in length.
It is illegal to hunt coyotes in Iowa using an infrared light source, except during muzzleloader, bow, or shotgun deer hunting season.
Animal Abuse update
The categories of what is allowed to be charged and the punishments as to animal abuse under various code sections has been redefined, which will increase protections to some non-livestock and certain wild animals.
The law states that animal abuse occurs when a person intentionally, knowingly, or recklessly acts to inflict injury, serious injury, or death on an animal by force, violence, or poisoning. Prior law restricted animal abuse to intentionally injuring, maiming, disfiguring, poisoning or destroying an animal owned by another person. Animal neglect is defined as failing to reasonably provide sufficient food, water, sanitary conditions, ventilated shelter, grooming, or veterinary care to an animal in a person’s custody. That is a much lower standard to prove for the prosecution. Recklessly means you should have known. The old standard of intentionally is a much more difficult bar to achieve. A defense of “I didn’t know horses weren’t’ supposed to be skin and bone bags” is not a defense under the new law.
Animal torture is intentionally, knowingly, or recklessly inflicting upon an animal severe and prolonged or repeated pain that results in the animal’s suffering and serious injury or death.
The crimes range from a serious misdemeanor for injuries that are not serious and do not result in death to a Class D felony for repeat offenses. Again, this is a marked increase from the old law, which was a simple misdemeanor (30 days in jail and a fine of $750). The law allows a court to order a person who commits animal mistreatment to undergo a psychological or psychiatric evaluation in some cases.
Hay Hauling Getting easier.
No wide load permit required for hauling hay, straw, stover, or bagged livestock bedding, as long as the width does not exceed 12 feet, five inches. The prior limit was eight feet, six inches.
Chauffer License Exemption for Farmers and their Workers
Farmer or the farmer’s hired help (eighteen years of age or older) is not a chauffeur when operating a special truck owned by the farmer and used exclusively to transport the farmer’s own products or property to a destination no more than one hundred miles from farmland owned or rented by the farmer. This allows smaller operations that are spread out to avoid having extra licensing requirements.
No Permit Requirements for Agricultural Experiences
This law prohibits counties from requiring a permit for agricultural producers offering “agricultural experiences.” An agricultural experience is defined as “any agriculture-related activity, as a secondary use in conjunction with agricultural production, on a farm which activity is open to the public with the intended purpose of promoting or educating the public about agriculture, agricultural practices, agricultural activities, or agricultural products.”
This law would prevent a county from requiring a farmer from obtaining a permit to host a harvest dinner or a group of students on his or her farm. The law specifically prevents the imposition of special exceptions, variances, conditional use permits, or special use permits, but it is unclear whether a county could impose other requirements upon these producers.
Agricultural-Exempt Property not subject to County Zoning Regulation even to get a permit to say you are exempt.
Iowa law has long exempted from county zoning regulations all land, farmhouses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted and used for ag. This means that a farmer can build an ag building or a grain bin on his or her property without getting a permit from the county.
The new law adds that a county shall not require an application, an approval, or the payment of a fee to show they are exempt from regulation. It is not clear under the new law whether voluntary hearings or applications for determining exempt status would be allowed or whether all enforcement would occur after the building is built.
The law also specifies that the board of adjustment will consist of five members who are eligible electors and who reside within the area regulated by the county zoning ordinance. Prior law required a majority of them to reside within the county but outside the corporate limits of any city. Finally, the law requires county boards of supervisors to follow the same procedures to adopt an amendment to a comprehensive plan as it would to adopt the comprehensive plan. These procedures include submitting a final report and holding a public hearing.
New Tax law
Signed into law by the Governor on June 29, 2020, the primary intent of the bill was to streamline the administration of Iowa’s tax laws and coordinate their interaction with federal law. The provisions generally went into effect immediately, and many changes were retroactive. It’s a whole separate topic.
The law also modifies the newly enacted food operations trespass law (SF 2413 summarized below) to specifically exclude food establishments and farmers’ markets from the definition of a “food operation.”
The law now establishes acceptable billing methods and standards that electric utility companies can employ when working with “private generation customers.” These are customers who generate their own electricity and use that generation facility to offset a portion or all of the customer’s electricity bill. Excess electricity is purchased from the customer by the electric utility company.
A debtor may borrow additional funds secured by the original mortgage without the burden of fees and additional paperwork. A lender may file a 10-year extension on behalf of the borrower without additional acknowledgment. Current law requires a formal mortgage execution for such an extension. That means that a 10-year mortgage can be stretched to 20 with a simple filing, which may come in handy as financial fortunes change in the coming years.
Iowa Trust Code has been updated to provide authority for trust decanting, expanded directed trust provisions, and delegation of notices to beneficiaries under 25. This law will allow in some cases, amend irrevocable trust provisions outside of a formal court supervised proceeding. This would allow, for example, trustees to correct errors, modify trust provisions to better fit newly passed laws, or adapt trusts to changing conditions, such as a beneficiary who becomes disabled or one who would benefit from extra protection from creditors.
Transfer of Property
Fiduciaries of estates, trusts, guardianships, or conservatorships must provide a disclosure statement to a potential homebuyer if that fiduciary has lived in the home at any time within the 12-month period prior to the date of transfer. But otherwise is not required to, which makes sense when an executor from out of state comes back to deal with Uncle George’s house.
I remember in 3rd grade collecting insects for school. I loaded on all the different things I could find on the farm and had the largest collection to turn in. I lost a couple of points for style (Styrofoam board and handwritten names) over the banker’s kid who had a polished and stained wood slab with wood burned names for the minimum number of insects. I clearly remember the large monarch butterfly on her display. That activity, at least as to monarchs may not only not be a recommended science class project but also potentially violate federal law.
The monarch’s status as protected will be determined by 15 December 2020. The work to make it a protected species has worked through court cases, petitions and federal review. Here is a look at some of the things that might happen more than a feel-good moment if the monarch butterfly receives different designations. The options are endangered, threatened, or non-listing.
An endangered listing is the strongest protection Endangered species become eligible for designated critical habitat, and federal agencies must ensure that their actions will not put the species in jeopardy of becoming extinct. This is the highest level of protection available. Protections include outlawing take, import and export of the species, possession, and sale. “Take” includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. “harm” is “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” That means milkweed, the only source of food and its host plant would also get protection. It is possible that any agricultural activity which would cause “take” of the monarch would be a violation its protected status. That includes spraying the milkweed in the ditch.
Endangered species are eligible for critical habitat designation where they live under two ideas. Where they were at the time of the listing and where they might go to keep living. Pretty broad. Remember, monarch is migratory traveling from Canada to Mexico. Nearly every state in the US is has potential monarch butterfly habitat.
Federal agencies must “fund, authorize, or carry out” activities that do not jeopardize the survival of any listed species or adversely modify any designated critical habitat. If an agency concludes that its proposed action “may affect” a listed species, it must consult with FWS to avoid jeopardy or adverse modification. The length of time necessary for the consultation process varies from project to project. It includes studies. That means Corps of Engineer projects consider the butterfly before making dams or draining waterways. That means USDA housing projects consider the butterfly before putting up a new multifamily housing unit. That means new chemicals getting listed for use in ag must consider the butterfly before federal approval is granted.
Threatened species need to have the feds “to provide for the conservation of such species.” It is not the same as endangered. The protections outlined for endangered will only be triggered if a separate rule for the butterfly is issued.
NO listing does not mean no protection. Sometimes industry, in an attempt to avoid mandatory protections will enter into Candidate Conservation Agreement with Assurances (“CCAA”). The agreements required participants to engage in certain conservation efforts and skip others without the listing. These agreements are in effect in some cases for up to 25 years.
For Ag, a non-Listing will mean no big change in the immediate future. A non-decision doesn’t mean more court cases and reviews aren’t on the horizon, after all, lawyers are involved.
The assumption is that the COVID impact on farm real estate would be dramatic. However, between the delay in foreclosure actions by the courts, the stimulus money payments and the time of year it is interesting to see that while real estate auctions were down 36.5% compared to a year ago, the acres auctioned in that time period where only off by 1%. For those who are waiting to reap the harvest of cheap land prices, the sorrow may be their own and not of failed landowners.
Here are some interesting facts to consider about why farmland in Iowa remains largely unphased by the upheaval.
By comparison in 2000-2002 when the tech industry screwed up the stock market (the Dot Com Crisis), the S&P 500 lost 44% and crop ground gained 18%. In 2007-2009, when the mortgage crisis was at its height, the S&P dropped 46% while crop ground gained 26%.
Every day, a new company goes public and offers a new stock investment opportunity. Every day, pave over productive farm ground and ask the remaining ground to do more with less. It is clear that land remains a solid investment.
CFAP program sign up is underway. Sign up for the Coronavirus Food Assistance Program is open through August 28, 2020. For producers who have suffered 5% or greater price decline. Relevant commodities in our area include barley, oats, soybeans, wheat, wool, cattle, hogs, sheep, Diary, Select vegetables and fruit. Be patient with the folks at USDA, they are learning the program at the same time we are.
Navigable Waters Protection Rule” aka (New WOTUS) was articulated by the EPA and the Army Corps of Engineers and promptly challenged. Lawsuits have been filed by cattle trade association groups claiming the rule is too broad, and lawsuits have been filed by several states and environmental groups claiming the rule is too narrow. This isn’t the first change or challenge nor will it likely be the last. A collation of states are suing the EPA for not doing enough to protect the waters of the US. Other litigation over what is or isn’t include muddy up the court docket as well. The litigation flows slower than a creek in a July drought.
For an example, 2012, the US Supreme Court found that Idaho landowners could bring suit to challenge the EPA’s determination that their property was a “water of the United States” and a Section 404 permit was required under the Clean Water Act. In April of this year, the EPA filed a motion to dismiss the case, which was opposed, and the appeals court agreed with the landowner. So back to court it goes. Some of these litigation events grow so long in the tooth that not only do they have birthdays, but they are in some cases eligible for driver’s permits.
Sumner, Iowa Attorney practicing in Iowa primarily in Ag Law, Bankruptcy, Estate Planning, Real Estate Law, Family Law & Criminal Defense. Lawyers at the Dillon Law P.C. are dedicated serving Iowa, including but not limited to the cities of Allison, Charles City, Cresco, Decorah, Des Moines, Dubuque, Elkader, Grundy Center, Independence, Manchester, New Hampton, Waterloo, Waverly, Waukon, West Union & Vinton, and the communities that makeup Allamakee, Benton, Black Hawk, Bremer, Buchanan, Butler, Chickasaw, Clayton, Delaware, Dubuque, Fayette, Floyd, Grundy, Howard, Polk, Winneshiek, counties. © 2020 Dillon Law P.C. Sumner Location | 209 E. 1st Street, Sumner, IA 50674 Directions Volga City Location | 502 Washington St, Volga City, IA, 52077. We are there most Fridays 10-3 and by appointment. Directions Telephone: (563) 578-1850 Email: email@example.com Home | Attorneys | Blog | Ag Law | Bankruptcy | Estate Planning | Real Estate Law | Family Law | Criminal Defense | Contact | Iowa Ag Law Attorney Sumner Taxation Commercial Transactions Production Contracts Labor Hobby Farm Liability Bremer Fayette County Lawyer