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Wednesday, March 5, 2014

Michael W. Brown Admitted to Utah State Bar

Beard St. Clair Gaffney is please to announce that attorney Michael W. Brown has been admitted to the Utah State Bar. With attorneys licensed in Idaho, Wyoming, Utah, Colorado, Oregon, and Washington we are positioned to offer our business clients regional representation.
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News
Tuesday, March 4, 2014

Michael D. Gaffney Selected to Serve on IF Citizen Review Committee

Members Named & Kickoff Meeting Scheduled for 1st Round of Citizen Review Committees 

IDAHO FALLS, Idaho: Members of the first round of Citizen Review Committees will meet for the first time during a kickoff meeting on Saturday, February 22nd, 2014 from 8:00 a.m. – 10:00 a.m. in Council Chambers located inside the City Annex Building, 680 Park Avenue.  In mid-December, Mayor Casper called for applications from city residents to review basic functions and budget processes of city divisions to improve efficiencies and service delivery.  Four of the city’s eleven divisions will be examined over the next three months, including the Idaho Falls Library, Idaho Falls Regional Airport, Municipal Services, and Planning and Building. The other divisions will be evaluated in the next two years.  Applicants with various backgrounds and experience were selected based on their area of interest and the criteria of living within city limits. Those who would stand to receive a direct financial benefit from a particular city division were not selected. 

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News
Wednesday, January 8, 2014

Beard St. Clair Gaffney Welcomes Kent W. Gauchay

Beard St. Clair Gaffney is pleased to announce that Kent W. Gauchay has joined the firm. Kent has practiced law here in Idaho for over 30 years. He has extensive experience representing clients in business transactions, real estate, debt collection, family law issues, and complex litigation. Kent’s broad experience and expertise brings new depth to the firm’s already-accomplished team.

Kent W. Gauchay

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News
Thursday, August 8, 2013

John M. Avondet Receives BV Distinguished Rating

Beard St. Clair Gaffney is pleased to announce that John M. Avondet has been awarded the BV® Distinguished™ Peer Review Rating by Martindale-Hubbell®, the country’s leading legal directory. This is a well-deserved achievement and demonstrates John’s strong legal ability and high professional ethics.



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News
Friday, March 8, 2013

Estate Planning Independence

Fifth-grade girls basketball is more intense than most of my courtroom battles. In a recent game my daughter, the point guard for her team, got into foul trouble. One more foul and she would be gone.  Her team’s seemingly insurmountable lead of seven had dwindled to two points with about three minutes left in the game.  My daughter tried to make a steal, got the ball, and then was whistled for a reach-in foul (the moral – never trust a referee who looks older than Yoda and is wearing protective goggles to officiate a basketball game of 11 year-olds).   I felt powerless as she was shown her seat on the bench after fouling out.  She sat there with tears running down her face as the other team won and advanced to the championship. 

Any parent whose child participates in sporting events knows that once their kid is on the court the parent is no longer in control.  Watching my daughter learn through adversity on the basketball court without stepping in is difficult but necessary for her development as a player and person.  Giving up control may be a hard choice to make but undoubtedly is the right choice. 

As part of the estate planning process, families need to decide who will be in charge of taking care of their estate after they are gone.  If you are forming a trust this person is known as the successor trustee.  If you are forming a will this person is known as the personal representative.  For simplicity’s sake I will refer to such person as the trustee in this article.  Most people appoint another family member as the trustee.  Perhaps, this is because they want to keep control of the estate in the family or because they believe it is the privilege of their oldest child.   

While there are some benefits to appointing a family member as trustee, such as understanding family dynamics, there are disadvantages.  Most family member trustees are inexperienced with the legal and financial implications of dealing with a trust or estate.  Errors in judgment or mismanagement of trust property can leave a trustee personally liable to the other beneficiaries of the trust.  Inadvertent mistakes can lead to litigation and unnecessary stress.  Litigation will deplete the assets of the trust.  Other family members may perceive that the trustee is acting on his or her own behalf, leading to family strife and conflict that could last many years.  Being the trustee of a trust is a difficult job.

Fortunately, there are independent trustees such as financial institutions who are capable of acting as trustees.   A competent estate planning attorney can recommend a good independent trustee.   Good independent trustees are professionals who understand the process of being a trustee.  They know how and under what circumstances to make investments.  A good independent trustee is skilled at dealing with the legal process and beneficiaries who do not always see eye to eye.  Appointing an independent trustee gives the trust maker the best opportunity to make sure his or her intent is carried out in an impartial fashion.  Appointing an independent trustee removes the risk of a cherished family member getting sued when all he or she is trying to do is carry out the intent of the trust maker.

Just as I give up some control over my daughter every time I allow her to walk on the basketball court, families give up some control when they appoint independent trustees.  Giving up control may lead to tears and thoughts of “did she not trust me enough to appoint me as trustee?”  Just as my daughter will be better off from participating in sports, in most circumstances your family members will be better off not carrying the weight of a trustee’s obligations.  One of the main purposes of estate planning is to protect your family.  Appointing an independent trustee provides that protection and grants your family freedom from unnecessary strife.  If only there were a way to protect unsuspecting fifth-graders from goggle-wearing octogenarians. 

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

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Estate Planning
Tuesday, March 5, 2013

March Madness Party

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Events
Friday, February 22, 2013

Food Safety Modernization Act Update

Idaho farmers may soon be facing new regulations under the Food Safety Modernization Act (FSMA). The Food and Drug Administration (FDA) has been working with food industry stakeholders to address food safety concerns. On January 4, 2013, the FDA announced two proposed rules under the FSMA, including a proposed rule to establish science-based standards for growing, harvesting, packing, and holding produce on domestic and foreign farms.

This proposed produce rule, if adopted as currently drafted, will have a mixed impact on Idaho farmers. The proposed rule would apply to farms that grow, harvest, pack, or hold most fruits or vegetables in their raw or unprocessed state. Notably for Idaho farmers, the proposed rule would not apply to produce that is rarely consumed raw, such as potatoes. Furthermore, farmers may be entitled to partial exemptions under the proposed rule if their food sales average less than $500,000 per year during the last three years, and if the majority of their sales are to consumers or retail food establishments.

For those farms affected by the proposed rule, the proposed regulations focus on common sources of microbial contamination of produce: agricultural water, manure and other soil additions, worker health and hygiene, domesticated and wild animals, and equipment, tools, and buildings.

Agricultural water. The proposed rule would require that all water that is intended or likely to come into contact with produce or food-contact surfaces be sufficiently sanitary.

Manure and other additions to soil. The proposed rule establishes requirements regarding the types of manure treatment, application methods, and timing necessary to reduce the risk of pathogens from manure and other additions to soil.

Worker health and hygiene. The proposed rule would require farm workers follow prescribed hygiene practices, including hand washing.

Domesticated and wild animals. The proposed rule addresses possible produce contamination by both domestic and wild animals by establishing a waiting period for harvesting produce from a growing area in which domestic animals have grazed, or where wild animals may have intruded.

Equipment, tools, and buildings. The proposed rule establishes sanitation standards for farming equipment, tools, and buildings.

If you have any concerns with any of the requirements of this proposed rule, now is your time to act.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com.

 

 

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Agribusiness
Wednesday, February 13, 2013

Fairness and equality in estate planning

When meeting with me to establish or update their estate plans, my clients often ask me for advice on how to treat their children “fairly” or “equally.” The meaning of these terms depends on a client’s value system, financial condition, family circumstances, and a variety of other factors. For some parents, it is “fair” to disinherit a son from their estate because he never repaid substantial loans. For others, it is “fair” to leave a family business to a daughter because she played a significant role in making it successful. Decisions on how to treat children fairly are among the most difficult and stressful in designing an estate plan. While every situation is unique, below are some helpful tips parents should consider when deciding how to leave their assets to their children.

Parents are under no obligation to treat their children exactly equally.

It is important for parents to remember they accumulated their wealth and it is their prerogative to transfer it however they wish. Now, I do not recommend that parents arbitrarily favor one child over another in their estate plan. Transparently unequal treatment of a child in a will or trust can cause hurt feelings or damage relationships among siblings. However, I do encourage clients not to worry themselves sick about making sure that every last penny is divided in exactly equal amounts and on equal terms among their children. Anyone who has raised teenagers knows it is nearly impossible to treat them equally. Not surprisingly, teenagers that have run-ins with the law generally are not allowed to take summer road trips to Las Vegas. Responsible teenagers, on the other hand, generally avoid a strict curfew. Just as teenagers occasionally require different treatment, it may be wise to treat adult children differently in an estate plan. For example, an adult child constantly living on the brink of bankruptcy should probably not receive a large inheritance all at once. Instead, it may be preferable to leave his inheritance in a trust from which he is restricted from demanding distributions.

Leaving real estate equally to multiple children can cause headaches.

Clients frequently insist that a particular piece of property “must be kept in the family.” They want to be fair to all of their children, so they ask me draft a will leaving a 500-acre piece of farmland equally to all six of their children. There are situations in which joint ownership of property produces fine results. However, in my experience, it often leads to frustration and discord in families. What happens when three of the children wish to sell the property for cash, but the other three wish to “keep it in the family?” The answer is not always pleasant. If they own the property as tenants in common, a child wishing to sell her interest could sue her siblings and force a partition – a legal division – of the property. These disputes are costly, not only in terms of the dollars spent on legal fees and court costs, but also in terms of the emotional toll they take on families. Through thoughtful estate planning, it is usually possible to find a satisfactory solution that avoids intra-family conflicts while providing for all of the children.

Make an estate plan.

If you do not have a will or a trust, you actually do have an estate plan, believe it or not. Your estate plan is the law of intestacy, which is a collection of statutes that determine what happens to a person’s property when he dies without a will. These statutes are designed to approximate what the Idaho legislature believes most people would have done if they had left a will. Generally, these statutes divide property equally among a deceased person’s children (unless there is a surviving spouse). While this result may be perfectly acceptable to some, it may be disastrous for others. For example, if a Medicaid recipient’s parent dies without a will, the Medicaid recipient could immediately lose Medicaid eligibility due to an inheritance from the parent’s estate. While a statutorily required equal distribution of assets may appear “fair” at first blush, the Medicaid recipient could be required to spend his entire inheritance in order to regain Medicaid eligibility. The parent should instead establish a supplemental needs trust for the Medicaid child in order to avoid loss of eligibility upon the parent’s death.

While there is no universal answer to the question of what is fair in estate planning, discussing your particular situation with a qualified professional is an excellent first step in discovering the best solution.

Michael W. Brown is a shareholder with the law firm of Beard St. Clair Gaffney PA. He concentrates his practice in the areas of trusts, wills, estate administration, and business succession planning. He can be reached at (208) 523-5171 or mbrown@beardstclair.com
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Estate Planning
Friday, September 7, 2012

Trespassing pigs

Several years ago we brought home from the Bonneville County Fair a pig that my daughter had won in the greased pig contest.  We had never raised a pig before, and this pig wasn’t very big to begin with.  However, when we got home with the pig we quickly built a pen out of some cattle panels, gave it some feed and water, and went to bed.  The next morning we awoke and discovered that the pig had evaporated!  It was nowhere to be found.

We organized a search party and soon discovered that some neighbors had seen the pig wandering through their yard.  Another neighbor was surprised to find it peering through her front door.  At last we discovered the pig in a neighbor’s corral more than a ½ mile away from our home.  We made some improvements to the pig’s pen and were grateful to have found our lost pig.

Since 1881 Idaho has legislated against trespassing pigs.  Idaho law does not require a landowner to fence out pigs.  Rather, when pigs trespass onto someone else’s property the owner of the pig is responsible for any damages caused by the pig.  Idaho Code § 25-2102. 

A person who finds a trespassing pig on their property may hold the pig and must post three notices in a “plain, legible hand” giving a correct description of the pig, including a description of marks and brands, and post the notices in a conspicuous place in the precinct where the pig was found.

If there is a dispute over the amount of damages owed, the owner and the aggrieved party must each select a disinterested person who then hear all the evidence and determine the amount of damages.  The amount determined for damages becomes a lien on the pig any any other non-exempt property of the owner.  If the damages are not paid within five days the Sheriff may sell the pig at public auction to satisfy the lien.  § 25-2104.  Either party feeling aggrieved by the award of the disinterested arbitrators may appeal to the courts, but must first post a bond to cover the cost of all costs and expenses.

Lest all of this pig procedure seem a little silly, be advised that it is unlawful to willfully or negligently allow your pigs to run at large within the limits of any city, or within the vicinity of any farm, ranch or dwelling, without a drover (i.e. a person who drives animals).  Idaho Code § 25-2107.  A violation of this statute is a misdemeanor and punishable by jail time and fines.  Id.

(Note:  The Idaho statutes referenced all refer to “hogs” rather than “pigs.”  However, the technical definition of a hog is a pig in excess of 120 lbs.  Therefore, the author believes that his escaped pig was too small to qualify as “hog” and he is therefore not guilty of having violated the misdemeanor provisions referenced in this article.  The author also eventually ate the pig to avoid any additional incidents of trespass.)

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

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Agribusiness