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ClearCast #14: In Response to the Rob Graham Matter

[Editor's note]

Welcome to today's ClearCast!

A quick word about today's video.

If you are unfamiliar with what is being alleged, you can read more here about one of the victims. This is a horrible story about a local probate lawyer allegedly misappropriating client funds; it could be for even more than 13 million dollars.

If you are a client (or prospective) of Clear Counsel Law Group, we understand that it's important that you trust us with your most valuable assets.

In turn, we produced this video to explain how your money is protected.

Of course, if you have specific inquiry (or just need a little reassurance, certainly understandable), please reach out to us at (702) 522-0696.

Thank you and Merry Christmas!

-Brian

[End Note]

 

ClearCast Episode 14: Answering Your Questions Regarding Rob Graham

Jordan Flake: Hi, I'm Jordan Flake and I'm here with my partners Jared Richards, Jonathan Barlow. The three of us are the managing partners are Clear Counsel Law Group, and welcome to another ClearCast. Today we're going to be talking about something that has kind of rocked the legal community. We've had friends and family who've asked us questions about this news story. Through this ClearCast and potentially others, we hope to respond to some of these questions we receive, but I'm referring to the Rob Graham issue. Rob Graham is an attorney here in town. He practices in the areas of guardianship, probate, trust administration. The allegations right now are that he stole money from his client's trust account, basically that he misused that money. A lot of my friends and family have asked me, "What's a trust account? How did this happen? Why can an attorney all of a sudden steal a lot of money?" The allegations are that he stole $13 million, potentially, of his client's money is missing.

First of all, before we even get into those questions, we just roundly wholly 100% condemn any type of misuse, any type of unethical illegal access to clients' funds. That should never, ever, ever happen and we'll talk a little bit more about that. We all feel horrible and we spend a lot of time talking about the clients who are victims in this situation, and our heart goes out to them and their families. We'll talk about that a little bit more too as well, that we feel really, really bad. It's the worst possible way to spend the holidays, knowing that there was money that was being held and entrusted in an individual and now that money has essentially been stolen.

First, Jonathan, you're the one who, in our firm, in the three of us, you take a little bit more of a lead role in managing the trust account. Can you talk to us and some of our viewers about what is a trust account and difference between a trust account and operating account, how that works. There's a chance that people viewing this may actually be our clients and have money in our trust account right now and they'll want to know what's going on.

Jonathan Barlow: What we're doing. In short, there's two types of accounts that a law firm generally holds. One is what we call the operating account. That's money that we've earned. It's our law firm's money. We've earned it through fees, through clients paying us money to perform our services. That's our money as a law firm. We use that to pay our employees, we use it to pay our rent, and all the other expenses of operating the law firm. That's our operating account.

The story about Rob Graham doesn't really have to do with his operating account as far as the missing funds. What the missing funds came from was that second type of account that's called a trust account. A client trust account. Attorneys in various types of practices will have a reason to be holding money in a bank account that is not our money. For instance, just like Mr. Graham did probate work, we do probate work. That's when a deceased individual leaves behind assets that need to go through a process before they're distributed to the heirs. In doing that probate work, we'll collect a bank account. We'll close a bank account that the deceased individual had and we'll bring that money and deposit it to our client trust account.

Though that account at the bank is held with our law firm's name on it, it'll say "Clear Counsel Law Group" on the account statement as a designation IOLTA interest on lawyers' trust account, it's not our money. It's not ours. We are responsible to ensure that it goes to the right places, that it's applied appropriately. We are strictly prohibited from reaching into that client trust account and using it to pay anything other than the client's expenses.

Jordan Flake: Let me just stop you there and make sure that everybody's understanding. Grandpa John passes away and there's a bank account just in his name at Wells Fargo. There's $48,000 in that account. We get a probate started and we can go and we can liquidate that $48,000. We can't turn around and use that $48,000 to pay our employees, to buy Christmas presents for our family. We can't do anything like that because it's actually the family that Grandpa John left behind, that's their money we're just holding in trust. Can I shift over here to Jared? Jared does personal injury. Can he talk to us a little bit about the mechanics of a trust account in the personal injury context?

Jared Richards: Right. In a personal injury context, we go and we gather money for an injured person. When we gather the money, we put it into our trust account. Again, the moment it hits the trust account, it is somebody else's money. We then are responsible for making sure that that money goes to the right places. The money will often need to go to pay for medical providers. Sometimes it'll need to go to pay back, say if Medicare or Medicaid had paid medical bills. Sometimes that happens and we have to repay the government. Then we have to pay our clients. Out of that, we also get paid a fee.

At the end of a case, when we are going to distribute money, before we distribute money to ourselves for certain, we will send the client an accounting so the client knows where all the money went, where if we had to advance money for filing fees with the court or to pay to go depose another party's expert and we advance that money, we also account for that money when we get paid back for that amount. At the very end of the case, the client knows where every penny has gone and then gets the money that the client deserves.

Jordan Flake: There's a $50,000 vehicle insurance policy, $50,000 policy. You make a demand and say, "Hey, insurance company, your guy, your insured hit Tommy, our client." We give us the $50,000 and we hold that in trust because Tommy has medical bills that need to be paid out of that purse.

Jared Richards: Right. For example, as you said, let's say that Tommy got hurt and there's a $50,000 insurance policy. We make a demand on the insurance. The insurance company agrees and they pay $50,000. That $50,000 would go into our IOLTA trust account, the trust account we hold for clients. We then do an analysis of are there medical bills that need to be paid out of that account? Are there contractual obligations that our client has that we need to honor in that account?

Jordan Flake: If we just gave that money to the client ...

Jared Richards: Then it would be a problem because then we may be breaching the client's contractual obligations. We may be breaching our own contractual obligations, and we may actually be violating the law that require us to, say, pay back Medicaid.

Jordan Flake: Right, and if we use that $50,000 to run off and pay our own expenses ...

Jared Richards: Then we've got major problems. We've just stole the money.

Jonathan Barlow: Then a similar issue related to that is several law firms have several different actual trust accounts with different account numbers. We hold all ours in one account. We got Mr. Jones's money in there, we got Ms. Smith's money in there. It's all in there. Just like we can't use the trust account to pay our expenses, I can't use Mr. Jones's money to pay Ms. Smith's medical bills for her case.

Jordan Flake: Which is why from an accounting standpoint we have sub-accounts that we keep track of who has what share of that account.

Jonathan Barlow: What we do is we have every single case that we have, every single client that we have, we separately distinguish, this is their money, this is where it went, this is where it's going. Because I can't dip into this account or this person's money to pay the other person's money. That's essentially how a trust account works until it's determined, like Jared said in the personal injury context, this is where all the money's going. Similarly, we do that in the probate or trust context of determining where it's going to be distributed.

Jared Richards: We're all very careful to not make mistakes. However, if the attorney does make a mistake with that money, the attorney is personally responsible for that money. While that money is in the attorney's trust account, that attorney's on the hook for all of it.

Jordan Flake: Right, and that's been my experience since starting our law firm, is that when we have our trust account checks and I'm signing a check and that check's going out the door, I look at that and I say, "Am I sure that this money is money that is under the law ready to be legally paid out?" There's no other considerations here, because if I did send out a check that I shouldn't have sent out, then I personally am on the hook for that. I would go to Jonathan and I'd say, "From operating account you need to reimburse this client because we mismanaged some trust funds and we need to put it back immediately." If that ever happened.

Jared Richards: Not that that does happen because we're careful, but if it were to happen, that's exactly what would happen.

Jonathan Barlow: In the Rob Graham context, one of the big questions is it's $13 million, and that's a significant and sizable trust account.

Jordan Flake: Clear, I'm going to lawyer this one. To be clear, we don't know. We don't have any personal knowledge about what went on with Rob Graham. We just read the same newspapers everybody else does and we hear the same allegations. When people are hurting and they lost their money and it appears that an attorney abused a position of trust, we're all human first and we are rabid and we want justice, but Jared, I think what you're getting at is facts are going to come in and we need to be careful.

Jared Richards: The allegation is right now that he stole $13 million, and if that's true, then [crosstalk 00:09:56].

Jonathan Barlow: My only point is the price tag is shocking, the amount.

Jared Richards: It's a huge amount.

Jordan Flake: What is alleged to have happened here, if you guys want to go into that at all? Did Rob Graham one day open up his online trust account and see that there was $13 million and think, "Okay, this is my chance to write a check to myself?" What's the allegations say?

Jared Richards: I think that what happens in situations like this, you have two possibilities. Either the attorney makes a conscious decision to liquidate the entire trust account and run away with it, which I don't know of any actual incident where I've heard that happening, but I'm sure it has happened before. I think that the allegation here is that Rob Graham was not running as efficient and as successful as a business as he wanted to project, and that he was using client money to supplement his own business, his own money, which is just as illegal and just as wrong. It's just a slower and more slippery slope.

Jordan Flake: So there wasn't a $13 million check?

Jared Richards: Probably here. We don't know.

Jonathan Barlow: I don't think that's the allegation. I think the allegation right now is that over the course of time, he started dipping into some client funds and then continue to dip in to try to make that right. Sort of a Bernie Madoff type of a transaction.

Jordan Flake: Ponzi scheme.

Jonathan Barlow: Almost a Ponzi scheme.

Jordan Flake: Almost, where he's using the money that's there today to meet those obligations.

Jonathan Barlow: Exactly.

Jared Richards: And hoping that the money tomorrow will come in to pay yesterday's obligations.

Jordan Flake: The money that he's waiting to have come in through the door in this situation appears to have not been his money, and that's the major, major problem. If we're just running all of our expenses out of the operating account, that's business. That's just the way it's done. If an attorney were to ever dip into the trust account and say "I need to make payroll this month. Shoot. I only have $15,000 in my operating account and I have $4 million in my trust account. I could use some of the $4 million to pay my payroll since I don't have enough in my operating account." That's kind of what might have happened here.

Jonathan Barlow: Who knows if thinking, "I'll pay it back."

Jordan Flake: I'll make it back and I'll ...

Jared Richards: The only difference between the allegation of him stealing all $13 million in one fell swoop or him dipping in month after month for a number of years is the dipping month after month, we can more humanize it, but it doesn't make it any less wrong.

Jordan Flake: Right, because the end result is the same, which is a tragedy of thinking, "My Grandpa John died. He had $48,000 in his Wells Fargo account. We hired Rob Graham to go and liquidate that $48,000 account and we were going to split it up three ways."

Jared Richards: Exactly.

Jordan Flake: "We were hoping to be done around the holiday season so we could all have that extra money to go out and buy Christmas gifts or whatever for our family." Now that money's gone. That's horrible.

Jonathan Barlow: It's devastating.

Jordan Flake: It's devastating to the families.

Jonathan Barlow: There's a couple other allegations that raise points that are red flags in the way that a lawyer handles his trust account. Apparently, according to allegations, it appears that Mr. Graham was the only person at his office who really controlled the trust account, who had any access, knowledge of the trust account. That sure makes it easier to hide some things that you don't want other people to know about. One good protection, and particularly with the three of us here, is to have multiple people who have control of the trust account, who have eyes on the trust account, and who review that trust account and realize, "What's this payment coming out?" And can question those things if necessary. That's been a good thing for us, is that the three of us can have that equal access to it, equal control over it. Heaven forbid one of us try to do something wrong. You have two people who are going to watch over it.

Jared Richards: Exactly. You have at least multiple partners that have oversight that can track it. Also, something that we do that I think more firms ought to do is we have a bookkeeper that is the employee of a separate accounting firm who helps us keep track of our books. If there are abnormalities that happen in the books, the bookkeeper would be alerted and the partners would be alerted. Those two things are safeguards: multiple partners with oversight, and somebody outside the firm that's connected to a separate accounting firm that has oversight as well.

Jordan Flake: To that point, you have the bookkeepers keeping their books and we're keeping our books and they have to match up every single time. That's all done internally. One of the problems with the Rob Graham case, the allegation is that his mother-in-law was the bookkeeper, and so those conversations and those huge red flags that needed to pop up in this context apparently never did.

Jonathan Barlow: Right. If our books that we keep here on my computer don't match with the accountant's books, then we make the correction as necessary.

Jordan Flake: Do either of you expect to see more regulation from the government or the state bar? State of Nevada, or the state bar?

Jared Richards: The problem is that from time to time, you will hear the Nevada bar reprimand somebody for overdrawing their trust account. Because any bank, the rule is the banks, if they hold attorney trust account money, if the check bounces, if the account is overdrawn, the bank is required to notify the state bar so the state bar can do an investigation as to why. The shocking part of Rob Graham is yes, it appears that he may have stolen some money. I know, I'm a lawyer, I'm being all cautious. That's why they're smiling. Because we don't know. The allegations may have some ...

Jonathan Barlow: It'll come out.

Jared Richards: Yeah, the allegations will come out and the facts will come out in their own due course. The two things that are utterly shocking about this case is the size of the alleged theft and the prominence of the attorney. In the probate estate planning community and those people that watch, I can't remember what news channel Rob advertised on, but Rob Graham's a known name. We all know the name. Between those two things of a large amount stolen by a noted, prominent attorney, it may jar the rule makers into making more rules.

Jonathan Barlow: I wouldn't be surprised, really, to see something else change. Really, the only time that the state bar, and this is why I think there probably will be some changes, the only time the state bar will come and look at your client trust account and make sure to get a truly outside from the government or state bar or whatever, is if there's a complaint made against one of our attorneys, that doesn't even necessarily have to do with a client trust account. Say one of our attorneys messed up a case. Client gets upset and they file a complaint with the state bar.

Jordan Flake: I'm going to lawyer that one too. We don't do that.

Jonathan Barlow: Right, it hasn't happened because we haven't ever been audited. Anyhow, in the context of the state bar coming in to investigate, "Why'd you mess up this guy's case?" They will audit the book at the same time.

Jordan Flake: Just as a matter of course.

Jonathan Barlow: As a matter of course, almost. That's about the only time that they independently come in to audit books. I wouldn't be surprised to see some audit requirements coming out of this.

Jared Richards: The problem you have with that is the sheer number of attorneys out there handling [crosstalk 00:18:06].

Jonathan Barlow: Trust accounts, yeah. It's a monumental task.

Jared Richards: It would be a monumental task to send in auditing standards for everybody.

Jordan Flake: Right, but if that task is necessary to restore the community's faith in our profession, which is one of the goals of the state bar, then they'll have to do it.

Jonathan Barlow: One of the good things to that point is what's happening with Rob Graham's client. As discouraging as it was to see a very prominent name like this happen, we have observed the rest of what we call the probate bar. The other probate attorneys have rallied around this issue, not to pour dirt on Mr. Graham's grave, but to try to get his clients back to where they need to be. That was primarily led initially by Jason and Brandy Cassidy, excellent probate attorneys here in town, who took the initial task of .. What the state bar's asking them, "Cassidies, would you do this?" They took those client files and they've been trying to sort through those files. They've done an excellent task of doing that. Now, I've seen multiple attorneys who have offered to help and who will be probably taking on some of those cases, including our law firm. We'll be taking on a large handful of these cases to help them move forward.

Jared Richards: With the understanding that the money for those cases already seems to have been embezzled.

Jonathan Barlow: Almost in every case, the attorneys will be doing that pro bono, including our firm. Meaning without payment.

Jordan Flake: Without payment. You're right. This is just a small silver lining on this sad story, but it is nice to see that the attorneys all recognize how wrong this is and what a tragedy it is for the clients involved, and to the extent possible we're trying to mobilize our resources, and especially good shout out to Jason and Brandy Cassidy, who are really taking on the bulk of that project, and we're all here to help. Any last closing thoughts on this from either of you? On this whole situation and what you would want to tell our viewers.

Jonathan Barlow: It's shocking to see a story like this. It shocked us to see a story like this about an attorney. It'll shake confidence. A lot of people don't have good opinions of attorneys in the first place, so it'll certainly shake some confidence of them. If there's any hope behind this, is the fact that this is such a rare occurrence. I've been practicing 10 years and nationwide, this is the first story that I've seen of this size or nature. Just happened to happen in our backyard with somebody we know. It's such a rarity to see something like this happen that you can take some comfort in knowing there's a lot, 99.9% of the attorneys out there are doing this the right way, including our firm trying to do the right way the best we can.

Jordan Flake: Great, any last thoughts?

Jared Richards: No, I think Jonathan covered it.

Jordan Flake: I think the only last thing I'd say is really with any regulations, the biggest and best regulation is just be extremely trustworthy. To know why we're doing this and to know that there are real people, our clients are real people and that they deserve trust, respect, and especially when it comes to valuable assets and things of that nature. Thanks so much for joining us for ClearCast. If you have any thoughts on this ClearCast, please link us, comment us, ask us any questions. If you would like to see us answer questions in a future ClearCast, please let us know. Jonathan, Jared, thanks so much for joining us today and we'll see you next time.

 

ClearCast / Estate Planning / General Interest / Las Vegas / Nevada Law / News / Probate / Probate Videos - 12/21/2016

ClearCast Episode 10: Parentage & The Prince Estate's Tricky Probate Matters

[Editor's Note]

Welcome to today's ClearCast!

I don't know about you, but thought the world of Prince and so saddened to see him pass away last April.

You may not believe this, but the man worth between $100-300 million dollars didn't even have a will, let alone an estate plan.

As you guess with an intestate estate of this size, there have been complications. Namely: two women have come forward purporting to be Prince's niece and grandniece, asking for their share of the estate.

The hearing in Minnesota is scheduled for today. We get you all prepared. Plus, we will give you a sense of how this would work out in Nevada.

Thanks for watching.

-Brian

[End Note]

 

[End Note]

The Prince Estate: When Parentage and Probate Laws Mix

Transcript:

Jordan Flake: Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. Welcome to another ClearCast. I'm here with my partner, Jonathan Barlow. He's also a expert in the field of probate and trust disputes and litigation. Back in the news this week is Prince, the musician who died of an overdose last April. Maybe you were a big fan. Basically there's some really sticky probate issues that they're dealing with off in Minnesota. He was a resident of Minnesota. Essentially, what I understand from the situation is that Prince didn't have any surviving children or parents.

Jonathan Barlow: Not married also.

Jordan Flake: Not married, and he passed away without a will, which means intestacy laws apply. Which in that case what would happen is it just goes equally to Prince's brothers and sisters. However, if Prince has a predeceased brother or sister then that share would pass down to that brother or sister's children. Basically we have a situation where two women, one claiming to Prince's niece and another claiming to be Prince's grandniece have come along and said, "Hey, our dad, Dwayne, was Prince's brother. Dwayne passed away five years ago in 2011, and therefore we're entitled to Dwayne's share of the estate because he was Prince's brother." By the way, the estate is a pretty big estate. Rounding out possibly as high as, this is speculation, but possibly as high as 30 million dollars or even more. It's not a small amount of money that we're talking about here.

Jonathan Barlow: It's worth fighting about.

Jordan Flake: It's definitely worth fighting over. The niece and grandniece have come along and said, "Hey, listen. We're entitled to this because Dwayne was Prince's brother, and he's predeceased Prince, and this is the share." What are the complications here?

Jonathan Barlow: Well, it all sounds very reasonable.

Jordan Flake: It sounds great.

Jonathan Barlow: All things being equal the niece and grandniece would be exactly right. They would be entitled to that one share. The complication comes in because Prince's other siblings are saying that Dwayne, who you mentioned, the father of this niece and grandniece ... That Dwayne was not Prince's biological sibling, nor he was Prince's adopted sibling. Meaning, Prince's parents did not legally adopt Duane, and Duane was not their biological child.

Jordan Flake: Duane could've just been a guy.

Jonathan Barlow: Duane was just some guy.

Jordan Flake: Just some guy ...

Jonathan Barlow: Sorry, Duane.

Jordan Flake: ... who as young, little bundle of joy just showed up in Prince's family's household. Is that what happened?

Jonathan Barlow: Something like that. I wish we had known. Maybe Prince wrote a song about this. I don't know.

Jordan Flake: "Raspberry Beret", that's what it was referring to.

Jonathan Barlow: Dwayne's daughter and his then granddaughter, the niece and grandniece of Prince, are saying, "Hold on a minute aunts and uncles. We think you're aunts and uncles even though you don't think we're nieces of yours." They're saying, "Hey, wait a minute. Dwayne's and Prince's father brought Dwayne into his house," essentially that's what they're saying. Brought him into his house, treated him like his child, raised him as his child, always treated him as a child, and for all purposes he was never treated as if he wasn't. In fact, even Prince himself later in life and more recent years had acknowledged Dwayne as a half-brother or brother of some sort.

Jordan Flake: Prince's dad was saying, "Hey, these are my kids. This is Prince over here. He's really famous. This is my son, Dwayne. He's okay." I'm kind of the Dwayne of the family, by the way, in my own family, but anyway ...

Jonathan Barlow: We all have one of those.

Jordan Flake: We all have a Dwayne in our family. Basically Prince's dad was saying, "Yeah, Dwayne is my son." To what extent is that a legal hook?

Jonathan Barlow: It's interesting. Most states have adopted this law called the Uniform Parentage Act, and we have that here in Nevada, which gives us an interesting interplay in what's going on in Minnesota and Prince's estate right now. The Uniform Parentage Act basically says, in a very short way to say, just as Prince's father had done with Dwayne, if you bring a child into your house and treat that child as your child, even if you don't adopt them, even if it's not your biological child, and you hold them out to the whole world as your child, and for all purposes treat them as you child the law will say that person is that person's legal child for all purposes. Including for inheritance. Including for child support. Any purpose of establishing parentage it will establish that, so what's the niece and grandniece are saying is that parentage has already been established.

There was actually any interesting case in Nevada just last year in 2015 that dealt with the Uniform Parentage Act in a probate proceeding. Similar to this situation occurred a woman named Joyce was raised by her parents. Robert was her dad, but it sounds like it was never really clear whether Joyce was his biological child. On Joyce's birth certificate did list Robert as her father, but apparently it was not clear. When Robert died Joyce's, same thing, her aunts and uncles, came along and said, "No. Everyone knows Joyce is not Robert's biological child. Everyone knows that Robert did not adopt her, and so if we want Joyce wants to claim something she's got to have a DNA test." Essentially they wanted to exhume Robert and force a DNA test, which is horrible in itself to think that they would do something like that.

Anyway, the Nevada Supreme Court came along and said, "No, no, no. Sorry, under the Uniform Parentage Act," that law, the Uniform Parentage Act, "it says that if you're going to challenge somebody's paternity that is established in this way you have to do it within three years after that person turns 18 years old."

Jordan Flake: In application to the Prince case, they would've had to challenge Dwayne's being Prince's father's son, and also Prince's brother by the time he was 21?

Jonathan Barlow: Essentially. That's correct.

Jordan Flake: That would've been back in the '60s, or '70s, or whenever it was.

Jonathan Barlow: Sometime a long time ago, and so the law says-

Jordan Flake: Otherwise it's conclusively established?

Jonathan Barlow: It's done. In fact, those third parties, the aunts and uncles, the brothers and sisters, whoever it is they are legally prohibited, they're barred from contesting that paternity that has been established under the Uniform Parentage Act.

Jordan Flake: Is the niece and grandniece going to win in Minnesota then?

Jonathan Barlow: That's a good question. We never predict, right?

Jordan Flake: Right. Yeah, we don't.

Jonathan Barlow: Minnesota's going to do what Minnesota does, but interestingly the Nevada case, the Nevada Supreme Court case last year cited to a case that happened in Minnesota several years ago.

Jordan Flake: I'm sure there's not a lot of case law anywhere in the country on this type of topic.

Jonathan Barlow: Really unique interplay of parentage in probate. If they follow what the Nevada Supreme Court said they're going to have a very hard time disproving that this niece and grandniece are not entitled to inheritance.

Jordan Flake: Wow.

Jonathan Barlow: They're likely going to ... Without knowing Minnesota law really closely myself, if I was to guess they're going to receive a share Prince's estate.

Jordan Flake: I would love it if we could get ahold of one of the attorneys in this matter to come and smack us down, and tell us why we're wrong. We may be. If anybody out there knows. This is kind of interesting-

Jonathan Barlow: Which reminds me, I have a greeting card that I got from Prince a couple years ago. It said, "Hey, brother." I think I need to show up at hearing on Friday and see.

Jordan Flake: He probably has a song where he says, "You're all my brothers and sisters," or something like that.

Jonathan Barlow: He was talking about us.

Jordan Flake: He was talking about us, exactly. This is also interesting because if you're out there in the world right now and you suspect that your parents are holding out a non-biological sibling/child as an actual child then you have to get on top of that business before that individual turns 21.

Jonathan Barlow: It really sets up a really strange circumstance where essentially essential siblings that have been raised together-

Jordan Flake: "We're the real siblings."

Jonathan Barlow: That's right.

Jordan Flake: They get together and they say, "You're a fake sibling. We're going to get a court order," or what? How do they ...

Jonathan Barlow: That's theoretically what would happen. When that child turns 18 or 19 you can throw them into court to disprove that they have parents.

Jordan Flake: Do you see what a weird law this is? Because who is going to actually come along and challenge that unless there's a death in the interim.

Jonathan Barlow: Right, which is very rare.

Jordan Flake: Which would be very, very rare, so it's a very bizarre law, but this is why we enjoy being probate attorneys. We enjoy being estate planning attorneys. We love it when stories like Prince hit the national media because as always it highlights the need very good estate planning.

Prince was worth 30 million dollars, speculatively. He could've afforded an attorney to prepare a simple estate plan.

Jonathan Barlow: Even a simple will.

Jordan Flake: Even a simple will would've clarified.

Jonathan Barlow: A $99.00 will could've solved this whole thing. For all we know Prince would've wanted Dwayne's children to receive.

Jordan Flake: Right. Absolutely.

He may have wanted that. In any event, as we always do, we invite you to leave any thoughts, or comments, or additional information in the comments section, or on our Facebook, wherever we post this video.

Thank you so much for joining us.

 

ClearCast / News / Probate / Probate Videos - 10/21/2016

Watch This Before Adding a 'Pay on Death' Provision to Your Estate Plan

Transcript:

Hello, my name is Jonathan Barlow. I’m an estate planning and Las Vegas probate attorney here at Clear Counsel Law Group. Thank you for tuning for yet another riveting video about probate and estate planning tips and practices that you can use to help you in your life and probably actually your elderly parents who actually most need this advice.

Today we’re going to about what are called “pay on death designations” or “transfer on death designations,” sometimes called “beneficiary designations” also. You might typically think of these in the context of life insurance policies.

That’s what people most think about. If I have a life insurance policy, I get to name somebody. When I die the money goes to little Jimmy or little Sally or whoever you want it to go to.

You can do these same type of beneficiary designations on a host of other type of assets, and not just life insurance. For example, you could put they’re called “POD” or “TOD”, for short, you can put POD designations on your personal bank accounts.

You could put a POD designation on a vehicle title. You can put them on stock certificates. In fact in Nevada and some other states, not all states, but Nevada in particular, allows you to do a form of a deed called a “beneficiary deed” or “transfer on death deed” for your house.

What the effect of these are POD or TOD designations is, is that when you die the ownership of that asset transfers automatically simply by virtue of your death to the person you designated. Let’s think about the house.

 

Potential Problems with 'Pay on Death' Provisions with Real Property

If you’ve done a beneficiary deed for your house, and you say, “When I die,” basically in this deed, “When I die this house shall be transferred to Brian, Jim and John, my three sons, as joint owners. They essentially, after you pass away, they go down to the County Recorder, take your death certificate with a form of an affidavit and say, “Hey, dad’s died and now we own the house.”

That’s essentially in layman’s terms how that would work. That transfers the title automatically to them. They’re then the current owners. It’s quick, it’s easy and it gets those assets transferred really quickly.

Now, we want to contrast that to what happens if you don’t use these type of designations. Typically these type of assets would go through probate, which is something that we do here at Clear Counsel Law Group quite a bit.pay on death, nevada, las vegas, probate

Probate’s a core process that oversees the transfer of those assets to whomever they’re supposed to go to. Whether they go to your closest next of kin or whether you’ve done a will that says you want them to go somewhere. Probate can be expensive in the attorneys’ fees that are paid.

In Nevada, typically, and of course it depends a lot of factors, but attorneys’ fees are going to be somewhere between five to ten to fifteen thousand dollar or more to get that estate through probate. A lot of people are concerned about that cost and that’s why they look for these other vehicles to … or ways to transfer assets without incurring that cost after they pass away.

Again, it’s a quick and easy way to do it. However, I want also point out some important pitfalls and reasons why you might not want to do that. That’s really the main reason why we’re talking about these today.

Let’s think about this. Let’s think about, again, that house. You’ve got Brian, Jim and John, your three sons, and you want to make it easy for them to get your assets after you pas
s away. After you pass away, and if you make Brian, Jim and John the co-owners of the house, that is in almost every situation I’ve ever seen becomes a disaster scenario for those three sons.

Suppose Brian no longer wants to pay for his share of the house mortgage, or Jim says, “I’m not going to pay for the property taxes. I don’t got that kind of money to do that.” John says, “Well, I want to rent the house out and I want to get some rental income.” The other two are like, “Well, I don’t want to be landlords for some period of time.”

It’s a disaster waiting to happen because all three of them essentially have to agree on how they’re going to hold the property, how they’re going to use the property, who’s going to pay the expenses, when are we going to sell, how much are we going to sell for.

It’s a very, very difficult situation to put people in to be able to be on same page with that.

 

Potential Issues with 'Pay on Death' Provisions with Bank Accounts

Now, with financial accounts it’s not as big of a concern. If you have, again, let’s say your savings account has got fifty thousand dollars in it, and you go into the bank and you designate Brian, Jim and John as the pay on death beneficiaries of the savings account it is really easy for them because the bank is just going to cut three checks in equal amounts to the three of them.

We’re not going to have problems with co-ownership. Let’s think about a couple of things that could go wrong with that situation.

Let’s say John is actually sixteen years old when you pass away. He’s a minor child. The bank is not going to give him that money.

If you have a minor child, and even if it’s life insurance, if it’s a bank account, if it’s any asset those assets will not be transferred to that child unless somebody sets up a court appointed guardianship for that person.

You’re throwing them into a guardianship proceedings in order for that person to get access to the account or benefit from the account. Even if that happens, when John turns eighteen in a couple years he’s going to get all that money straight out, straight into his hands at eighteen years old.

There’s not very many eighteen year olds that can handle a substantial amount of money very well. That’s something you’d probably want to avoid.

Other problems that could come up; let’s Jim, he’s an adult, however Jim’s receiving government benefits. I had this situation just last week actually with somebody whose father has passed away.

We’re not into taking care of his estate, and one of the children was receiving a government benefit. If he receives a large inheritance, he’s going to lose that government benefit for a period of time, and becomes ineligible for that. It kicks him off of the government benefit because he’s received a large inheritance.

That would happen if a person is designated as the pay on death beneficiary of a bank account. They receive twenty thousand dollars, the Government’s going to want to know about that, and he’s probably going to lose a benefit that is conditioned upon his level of income and assets and things like that.

These are considerations you really have to think about. Sorry, one more consideration. Let’s say you designated Brian, Jim and John five years ago, and two years ago Brian died. Brian has children. You love those grandchildren very much, and you’d otherwise want to take care of them.

Guess what, when you pass away, and you have forgotten to go and update that, so when you pass away the only surviving beneficiaries are Jim and John. That bank account is going to go fifty percent to Jim, fifty percent to John, and zero percent to Brian’s kids who are your grandkids that you love.

They get nothing.

You effectively have disinherited that line of your family. Also, an unintended consequence that happens frequently with these pay on death beneficiary designations.

There are a lot of good things about these pay on death designations. They do make it easy to transfer the assets. They’re very inexpensive because there should be no need for an attorney to be involved at all. There’s going to be no court costs to transfer them.

However, there’s all kinds of pitfalls to using these in certain situations.

If you’re thinking about using a pay on death beneficiary designation on your bank account, on your car title, on your house deed, you’re still well worth talking to an estate attorney who can advise you about the benefits of using a trust, benefits of doing a will, benefits of doing the pay on death designations, which a good estate planning attorney will go through that and say, “Yeah, you know what, that will work for you the pay on death designation. That makes sense in this situation. Why don’t you go ahead and do that.”

They’re not always going to have to try to sell you on the trust or the will or anything like that if you get a good one.

Sit down with a good estate planning attorney, somebody that you trust to give you the best advice to go through your situation with all your kids or whoever you want to benefit.

Are they minors? Will they be able to handle co-ownership after you die? Are they receiving benefits that would be affected by this?

Those are all considerations that you should take into account when deciding whether to use a pay on death beneficiary designation.

I hope this has been helpful for you. If you have any more questions about pay on death designations certainly give us a call here at Clear Counsel Law Group.

We’d be very glad to answer your questions, to give you a free consultation about your estate planning situation, to give you the advice about what tools you should use or not use.

If you end up doing some planning with us then we’ll charge you for that, but the consultation is free.

Give us a call here at Clear Counsel Law Group.

Take care.

 

Probate Videos / Estate Planning / Probate - 09/29/2016

Can a Witness be Compelled to Appear in Probate Court?

 

 

 

How to Require a Witness to Appear in Probate Court

Transcript:

Hello, my name is Jonathan Barlow. I'm a probate and trust attorney in the Las Vegas, Nevada area. In particular over the course of my career I have handled many trust and estate disputes so disputed matters, litigation matters within the probate and trust context.

It often comes up that we become aware as we're trying to resolve this dispute, as we're trying to get the court to have a trial on it and determine what should happen, we often become aware that there is a person somewhere who has information, a witness, who has information that would be helpful for us in our disputed case.

If that's your situation, you come to me and say, "We've got to get this testimony of Joe. Joe knows what happened in that situation. He could tell us what happened."

There are two things that I could do to help you get that testimony and make sure that the court hears that testimony.

 

How I Compel A Witness to Testify

The question is, can we make Joe come to court and testify as a witness? Is there a legal process that we can force Joe to come into court as a witness?

First, if Joe is in the state of Nevada and our case is happening here in Nevada, yes. I can give a subpoena to him, have a subpoena served on him. It's a legal document, a legal command to Joe that says, "Joe, you are commanded by the state of Nevada to appear at a certain place at a certain time to give testimony."

That's usually in a trial. We can have a subpoena served on him. He is legally required to come to court to give his testimony. Now Joe can choose to ignore that and not show up and that's a risk that could happen. However if he does that he's going to be in contempt of court, he could face jail time and a civil penalty, so usually people don't ignore those subpoenas.

 

What if the Witness Doesn't Live in Nevada?

Now the second situation that often comes up though, which is a little bit sticker is, what if Joe is in New York? How can we get him from New York into Nevada?

We've got to have this information from Joe. In this situation, a lot of law firms get bogged down and they get tripped up on this and they say, "Well, we can't do it. We can't bring Joe into Nevada."

That's true, but we can't stop there and we don't stop there.

It's true, there is no legal process to force Joe to come from New York to Nevada to give his testimony. However, there is a way to get his testimony, preserve it so that we can use it in trial, and to support your case.

What we do is we start again with that basic Nevada subpoena and the Nevada subpoena says, "Joe, you've got to give us testimony."

We take that Nevada subpoena, we go to New York. We'd go open a case in New York actually and have the New York courts take the Nevada subpoena and out of that, create a New York based subpoena where the state of New York says, "Joe," just the same thing as in Nevada, "Joe, you are commanded to appear at a certain place and a certain time within the state of New York to give testimony."

 

witness

 

I as the attorney can either fly out there to be there in person which is most effective. It can be done over the phone if the parties agree.

I'll go out there to New York. Joe arrives, he's put under oath just as if he is in a court of law, sitting there at trial, he takes an oath to tell the truth.

We have a court reporter there who's taking down every word that's being said just as if we're sitting in a court. I get the opportunity to ask him questions. He's under oath to tell the truth and answer those questions. We get the opportunity to preserve his testimony through what's called a deposition. That's that deposition process.

Now we bring that deposition back to Nevada and we get to the point of having our trial. We call Joe and say, "Hey Joe. We'd really appreciate you coming out to Nevada to come to the trial and give your testimony." Joe says, "Not going to do it. Not coming out there. Not going to take the time nor the expense to do that."

 

The Value of a Witness Deposition

We're not up a creek. In that situation, we can go in and ask the court to allow us to have permission to use Joe's deposition, to use the video from that deposition or to simply have the transcript, the document read, the answers and questions read, into court at the trial. That's treated just as if Joe was sitting there in court at trial giving his testimony.

That's a way to preserve his testimony even though he's all the way out on the other side of the country and even though we can't legally command him to Nevada to give that testimony.

You're not out of luck if we've got to get this testimony from other people and we here at Clear Counsel know how to do that process and we've gone through that process of going to other states to get those subpoenaed issued in the other states to get that testimony.

We've flown to other states to take that testimony and use it in trials successfully to preserve their testimony.

If you're in that situation, where you're wondering about getting this evidence or testimony or we need this information from a witness, we here at Clear Counsel would be glad to talk to you about that.

We do a free consultation to review your case, to review the disputes that you're having and help you plan a way to resolve those disputes and preserve testimony from witnesses whether they're in Nevada or out of New York.

I encourage you to give me a call and let's have that free consultation today.

 

Probate Videos / Estate Planning / Probate - 06/08/2016

Big Changes in the Nevada Estate Planning Law

 

Are You Familiar with Nevada's New Estate Planning Laws?

 

 

Transcript:

Hello, my name is Jonathan Barlow. I'm a probate and Nevada estate planning attorney here in the Las Vegas, Nevada area at Clear Counsel Law Group.

In the last legislative session, the Nevada legislature passed a significant change to the probate and wills laws in the State of Nevada, and something that has significant benefit for people in the State of Nevada, and what I'm here to talk to you about today.

What the legislature did was they added a provision in the statutes, in the laws that says that while you're alive, before you die, you can go into court and ask the court to look at your will or even your trust but, particularly here, your will and have the court look at that, take your testimony about it, talk to you about it while you're alive and well and have the court enter a court order that says that your will is valid.

If that happens while you're alive, you get a court order that says your will is valid, after you die, nobody can contest it. Nobody can come along after you die and cost a whole bunch of money, cost a whole bunch of attorney's fees to be incurred, a lot of litigation in a will contest after you die.

It's a fascinating new law that could have significant benefit for most people in the State of Nevada, particularly those who have some nontraditional estate planning. We'll talk about that in a second.

 

What is Declaratory Relief? Why Does it Apply to Nevada Estate Planning?

First, how does this happen? Let me tell you about the basic premise behind this. There's always been a right under Nevada law to get what is called declaratory relief. It's where you go into the court and ask the court to declare your rights or to declare the obligations of parties to an agreement or other situations. That's called declaratory relief.

Let me give you a short example. If there are two businesses who've entered into a contract for business purpose, and they come to some dispute or disagreement about what this provision means in the contract, and one person or one business is alleging that the other has breached that provision, one of the parties could go into court and ask the court to declare the rights of the parties related to that contract.

What that means is the court could interpret that contract, interpret that provision and tell the businesses, "This is what you're obligated to do. This is what your rights are under that contract." That declaratory relief has always been here in Nevada law. Now it just applies to Nevada Estate Planning as well.

 

Nevada estate planning

 

The Changes Made to Nevada Estate Planning Law Last Legislative Session

Last legislative session, the Nevada legislature took this declaratory relief right, and they married it with the probate and will laws of the State of Nevada to provide this before death declaratory relief regarding the validity of a will. It's a fascinating change to the law.

The reason this is really important is we've seen for as long as there has been wills, there have been will contests. Those have always happen after the person dies.

Mom creates a will. Say, she disinherits one of her sons. She's mad at one of her sons and leaves nothing to her son.

After mom dies, that son is always mad and, almost always, they start what's called a will contest, or they bring an action in court to say, "Hey, court. You need to look back in the past when mom did her will several years ago, and go back in the past, and determine that mom either didn't know what she was doing, she wasn't of sound mind. That somebody coerced her or there was undue influence. That there are some reason that will is invalid, and we're going to rid of that will."

That's a will contest. It cost tens of thousands of dollars of attorney's fees for the parties, let alone the difficulty it causes with families, obviously. That's traditionally been the will contest paradigm is it's all happening after death, after the person who created the will is gone.

 

What Declaratory Relief Means for Nevada Estate Planning

Well, with this new declaratory relief, we have this amazing ability to bring the person who wrote their will, who prepared their will, bring them in front of a judge and have that person sit there and tell a judge, "Judge, this is exactly what I'm doing. I know what I'm doing. I know why I'm doing it, and this is exactly why I want to disinherit my son."

The person who knows the most about whether the will is valid can do that while they're alive and not wait until after they're dead, and gone, and buried in the ground to have their children fight about it.

What's the process to do this? You have to file; it's essentially like a civil lawsuit. You're going to bring an action in the court to have the court and ask the court to take a look at your will, take your testimony and declare it to be valid while you're alive.

Important thing about this though you need to know is that your children and anybody else that you name in your will, say, you've named a charity, or a friend, or somebody else like that to receive a gift, your children and anybody named in the will are going to be entitled to receive notice. They get to know that you filed this action.

What that means is that child that you may have disinherited has every right in the world to come into this case while you're alive, and sit across the courtroom from you, and tell the judge why the judge should find you to be incapacitated, or of not sound mind, or some reason why your will should not be valid.

They have that right to come here and say while you're alive why it shouldn't be considered valid.

 

How the New Law Changes Nevada Estate Planning

The truth of the matter is I believe that there are going to be a strong disincentive to do that. How awkward will that be amongst other things to have a son come in, look across the courtroom, look across the table and tell you why you're crazy while you're sitting there, and the judge can look at you and talk to you, and explain why you're not crazy and determine that you're not crazy?

It changes the whole paradigm from this after death will contest where it's a free for all. There's so much angst, and dispute, and litigation after death when the person most important is already gone. It's going to change that paradigm and cut way down on those cost of litigation to do it before death.

I think those people who are disinherited are going to have much less incentive, or it's going to be much more difficult for them to come into court while you're still alive and try to prove you to be incapacitated or some reason why the motion shouldn't be valid.

If you have already done a will or a trust, or if you're considering doing a will or a trust where you do something that we call nontraditional, meaning that you're not just giving it in equal shares to your children or something like that, maybe you're disinheriting one of your children or you're giving one of your children a much larger share than the other kids, something that I promise you causes will contest after you die, if you're considering that, I strongly encourage you to get specific advice about this declaratory relief action.

Here at the Clear Counsel Law Group, we are trained to do that. We've gone over this. We have a firm understanding of Nevada Estate Planning.

We're prepared to provide this advice. Whereas I know that most other firms are not providing this advice out there, and it's something you need to know if you're going to be doing nontraditional estate planning.

Give us a call.

We'll walk you through, not only the process of creating that will with the nontraditional gifts in it, but also advising you about whether it makes sense or not to take this into court and get declaratory relief before you die that your will is valid.

I look forward to talking to you about this. It's a super fascinating change in Nevada estate planning law and we look forward on being on the forefront of this as we implement this in the State of Nevada.

 

Probate / Probate Videos - 06/01/2016

Will Nevada Appoint an Administrator to Your Estate?

 

Transcript:

Hi, good afternoon, my name is Jonathan Barlow. I'm a probate attorney at Clear Counsel Law Group. There was a recent very famous case that has just recently come up due to the death of Prince in Minnesota, the famous musician Prince.

When he died, it turns out that no one could find a will which was a pretty shocking result for somebody who was extremely wealthy and extremely well-to-do that he had not apparently done any estate planning, not even a basic and simple will.

The question's been asked of me, what happens in that situation? What happens in the Valley in that situation?

 

What Happened in Minnesota

First let's take a look at what happened in Minnesota. The sister of Prince filed a petition or a request with the probate court there asking that she'd be appointed as what is called the special administrator, somebody with court authority to handle Prince's estate, gather his assets, start getting their arms around what's happening with the estate.

It turns out that for whatever reason though, the Minnesota court appointed a third party independent trust company to fulfill that role, to act as the special administrator rather than the family member.

The question is, can that also happen in Nevada? Could a third party administrator or a third party company be appointed and inserted into the estate to handle the estate in place of the family member?

 

Will Nevada Appoint a Special Administrator?

The short answer to that is yes, that can happen. However, it's important to note that family in Nevada, the family members of the deceased have the priority or the highest entitlement to serve as that administrator after somebody dies.

The Nevada Statutes are drafted to give the closest next of kin the highest and first right to request to be named as the administrator of the estate with authority to take care of the estate. There's a preference and priority for the family.

However, there are certain times when either the family doesn't come forward to do that or the situation is simply not appropriate to have a family member fulfill that role and that position as the administrator.

 

administrator

 

Those situations could be where there's a conflict of interest between the administrator and the estate, or the family member and the estate, excuse me, or there's allegations that that family member has participated in some form of wrongdoing against the estate or the decedent or that they would not be able to fulfill the job appropriately or that they wouldn't know what they're doing basically.

Basically some reason that it would not be appropriate to have that family member who otherwise has the highest priority to be in that position to serve.

When that happens, yes, it is possible that a Nevada court, the probate judge here can appoint a third party neutral company or individual to serve as the administrator of the estate.

 

The Two Types of Nevada Administrator

That could be usually one of two people or one of two options. There are professional companies, usually they're called trust companies, that can be appointed to serve as the administrator of the estate.

There doesn't necessarily have to be a trust involved in order to serve that position. These are companies, it's their job and profession to handle estates and deal with those matters.

Uniquely in Nevada, we have an elected official called the public administrator and it's his job as a publicly elected official to serve as the administrator of estates when there's not a family member or when there's otherwise a reason to throw it out to a third party independent party to serve in that position.

Those are usually the two ways that we see that go out to a third party to handle the administration either to a private trust company or to the public administrator in his office. Now, that begs the question of course, how does the third party become inserted into this situation?

Usually, it's very rare that the third party itself would come forward and say, "Hey, here we are. We want to insert ourselves here into this situation."

Usually that comes one of two ways where the third party gets appointed.

 

How a Special Administrator is Appointed

One of the other family members could come forward and say, "Hey listen, my sister has requested appointment, but I don't think it's appropriate for her to serve for whatever reason.

She doesn't know what she's doing. It would be a conflict of interest," one of those things that we talked about earlier, "and so, court, would you please appoint a third party neutral administrator? That's really what we need." Somebody in the family could request the appointment of a third party.

Also, interestingly though, and we see this frequently especially here in Clark County with the probate judge here in Clark County, the judge on his own, acting on his own accord could look at the situation and say, "You know what? There's nobody in the family appropriate to do this. They're fighting. It's a disaster.

It would be inappropriate for this situation of the estate to have them, so I on my own accord am going to appoint a third party," whether that's the third party trust company or the public administrator's office. The judge on his own could throw that out and have it be appointed to a third party to do that situation.

 

Will a Special Administrator Only Be Appointed for Large Estates?

Now the question is, does this only happen when it's a really large estate like Prince in Minnesota? Prince is obviously very wealthy, has a lot of intellectual property rights, a lot of things that need to be protected.

The answer is no.

I've seen this happen with estates of all sizes, from very, very small estates, less than a hundred thousand dollars where the family members can't agree, where there's disputes, and the public administrator usually with those smaller ones will become involved through the court appointing the public administrator.

Of course, it can go all the way up to very, very large estates.

The answer is no, it could happen with any size of estate, any amount of assets that we're dealing with, any time that there's a dispute or otherwise non-appropriate situation to appoint a family member, we're going to usually see a third party become appointed as the administrator of the estate.

If you have concerns about this and you think that it might be appropriate in your situation to have a third party become involved and want to know how that happens or you've had a third party appointed and you're not happy with that situation, these are questions that I have a lot of experience with.

Our attorneys here in the office can help you walk through those questions, those issues, and try to find a resolution to it, so give us a call here at Clear Counsel. For more information about these issues, I encourage you to check out our blog at clearcounsel.com, and we'll be happy to answer any questions you might have.

 

Probate Videos / Probate - 05/25/2016

Will Your Estate Be Subject to a Second Probate?

 

 

 

Transcript:

Hello, I'm Jonathan Barlow, a probate attorney here at Clear Counsel Law Group. We have a question today about a second probate.

Is there a time when a probate has to be reopened and a second probate occur for the same estate of a deceased person?

 

Your First Call is Free. Seriously, No Obligation.

If you have questions about this, we offer free consultations, whether on the phone or in person, and we do that for a free 30 minute consultation with no obligation to you.

We'll answer any questions that we can during that time, and you may not have any further questions beyond that.

You may not have to hire us. If you do have to hire us, we're glad to give you an estimate of our fees at that time, and you can decide whether to retain us to help you finish up your legal matter.

Let's assume that you've called and asked me a question about this where you've taken care of mom's estate, or at least you thought you'd taken care of mom's estate, you've already gone through probate, and all of the sudden you have another asset that pops up that you didn't know about.

This is what the question is about. Is there a second probate? Do I have to do probate a second time?

 

A Common Example of a Second Probate

Often this can occur when you're cleaning out mom's garage, you come across some old stock certificates from this Apple Inc. from 1981 that you never knew about, or in cleaning out the old boxes in the garage, you find this dusty old deed for five acres out in the middle of nowhere in Nevada and you investigate that a little bit and go to the county seat and determine, "Wow, mom actually still owns five acres out here in the middle of nowhere."

You've discovered some other asset that is in mom's name, and that asset, in order for it to be transferred, has to go through probate, just like all of the other assets in mom's estate, but the problem is you thought you'd already taken care of probate.

You already got a final order from the judge.

The judge said, "Go ahead and distribute everything out. We think we're done and closed," and the estate's closed. This situation has come up.

You've got two things you need to worry about or two things that have to happen.

second probate, las vegas, nevadaCopyright: ginasanders / 123RF Stock Photo

 

Now What Do You Do?

First, you're going to have to reopen the estate. You're going to have to go through a process to get the estate opened again.

The second thing you have to worry about is that discovering that asset may push you into a different level of probate than you followed previously.

Let's talk about those two things.

First, reopening the estate. In order to take care of that asset, somebody has to be appointed and court authorized to handle and administer that asset.

That's that appointment of an executor or a personal representative that's done only by the probate court.

You have to file a petition, a request with the probate court that handled the case originally, inform the court that you've discovered an additional asset and that you need somebody to be appointed by the court as executor or administrator, the personal representative of the estate, to be able to handle and administer that asset.

It may entail selling the asset, it may entail just dividing it up and distributing it amongst the heirs, as the case may be, but we need somebody with court authority to do that. Again, that can only be done by reopening the probate case.

Thanks for watching. See you next time.

 

 

Probate Videos / Probate - 05/02/2016

When You Might Come Across a Double Probate

 

 

Transcript:

Hi, my name is Jonathan Barlow. I'm a partner at Clear Counsel Law Group.

Free Consultations Available at No Obligation to You

Recently had a question asked about what is a double probate.

That can be a fairly complex probate question and before we get into the complexities of that question about what double probate is, I want to make sure that if you have any questions about a double probate after watching this video, wondering how it might apply to your situation, we do a free consultation here at our office that has no obligation to you.

We're glad to answer any questions you might have about the process. Often times during that free consultation, we end up resolving all of the questions for the client at that time and it costs them nothing to get the answers they need and they go on their way without any further obligation to us.

If it looks like there may be further questions or further legal work that has to be done, we'll give you a roadmap of where you have to go with that, what you might expect in the legal process, and we'll give you an estimate of the cost it'll be to hire the attorney to help you finish that part of the legal process. Again, that's at no obligation to you. We're happy to do that as a free initial consultation to answer any questions.

Let me tell you a little bit about what might happen in that consultation if you came in with a double probate question.

You're wondering "Hey, someone told me I have a double probate on my hands. What do I do?" As an initial matter, it's important to understand some basic issues about what probate is, how it arises, and how that could lead to this double probate.

 

First, What is Probate?

First of all, what is probate? A probate occurs when somebody dies and they have an asset, whether a house or a car or a bank account, whatever it might be, that is in the deceased person's name only.

Again, meaning there's no surviving joint owner, there's no beneficiary designated to receive that asset. Again, it has just the deceased person's name on that account, only the deceased person's name on the title to the house, something like that.

 

double probate, Las Vegas, Nevada

 

If you have an asset like that or if the deceased person has an asset like that, the only way to get that asset transferred to whomever it's supposed to go to is to go through the probate court process, which may be very simple or it may be much more complex depending on the assets involved.

 

What is Probate Court?

What is the probate court process? That is a process where the court oversees essentially the payment of your assets to whomever they're supposed to go to. The court oversees the payment of your debts and the distribution of your assets to your heirs or to those that you list in your will to receive your assets. So it's a process for somebody to take those assets through that and the court oversees where that money goes.

Let's assume that mother has passed away. When mom passed away, she had a house. The house was in just mom's name. However, mom was still married at the time of her death so she had a surviving spouse.

Well dad was still living in the house after mom passed away and he never bothered to go through the probate court process because again he was living there, he didn't think he needed to do it, maybe he forgot that his name wasn't on the title, everyone just assumed that mom and dad were both on the title to the house.

Some years later, I've seen this actually 25, 30 years pass before this pops up, dad dies.

Now the children realize, "Well we need to do something with mom and dad's house."

They realize well we've got to take care of dad's estate in probate court, meaning we got to get dad's property and assets distributed and transferred out.

In that process, they look at the deed to the house and lo and behold they discover that dad's name wasn't actually on the tittle to the house, it was just mom's name. Mom died 20 years ago.

 

Now It's Time to Discuss Double Probate

That gives rise to that double probate situation because when mom died 20 years ago, that house was in her name only.

In order to transfer that title, her estate, her property has to go through the probate court process. Now the interesting thing is when mom died, had her estate gone through probate, the persons that would have received her property, depending on various things, her husband, dad, would have received part of that property, would have become his property at that time.

Thus when he died, his interest in that property would have to go through probate court.

So that's where this double probate comes up. Mom died and had an asset in her name only. That's got to go through the probate court process.

The end result of mom's probate process is that dad's interest in that property goes to dad's estate. Then dad's estate has to go through probate to decide who gets it from dad's estate.

So we end up having to file two probate cases to transfer the same property from one person to the next, and from that person then to whomever is supposed to receive it at that point, whether that's the closest next of kin or whether he prepared a will and said "Under my will I want it to go to the following individuals."

This double probate can be a pretty messy thing, it usually happens and it surprises people that there was some asset that was in one person's name only that they didn't take care of many years ago.

It gets into some complexities that you have to resolve and go through this process.

 

We Can Help You With Complex Probate Matters

We here at Clear Counsel have done this many times and have dealt with this issue and helping people get through this process of resolving two estates in one shot and getting it done so that those assets are transferred on to the heirs that are entitled to them at that point.

So if you have questions about this, again we're glad to answer questions about probate, about a double probate again in a free, no obligation consultation where we can answer your questions for you.

If you have any questions about that, go ahead and give us a call at 702-476-5900 and we'll be glad to answer any questions you might have.

 

Probate Videos / Probate - 04/12/2016

How Long Does It Take to Sell an Estates Assets?

 

The Time Period to Sell Estates Assets

Hello, I'm Jonathan Barlow. I'm a probate and estate planning attorney at Clear Counsel Law Group. People often ask us the question of how long does it take to have assets transferred to me after Mom or Dad have passed away? How quickly can I get the bank account transferred to me or how soon can I have the house put into my name? The answer to that question depends largely on the value of those assets. The Nevada statute set out what those values are and what we have to do in those circumstances.

 

Estates under $25,000

First, there's total assets under $25,000. There's a level between $25,000 and $100,000, and in general, anything above $100,000. I'm going to describe briefly these three categories. Under $25,000, if there is no house or land importantly, you can have those assets transferred to you in about 40 days. The statutes say you have to wait 40 days after date of death and after 40 days, you can prepare a document or have a document ready that says, "Mom passed away. She had the following bank account, the following car. We list the assets there. I'm the closest next of kin. I have resolved her debts and I'm entitled to receive her assets."

Assuming you've filled that document out appropriately, you can take that into the bank on Day #40 after Mom passed away, present them with that affidavit, and they would process it through their legal department and in about an hour's time, they should come back to you with the check with Mom's bank account and giving that money to you. That's the fastest you can do it, when it's under $25,000. There's a same process with the DMV that you can get car tiles transferred in the same manner when it's under $25,000.

 

Estates between $25,000 and $100,000

The second level is between $25,000 and $100,000. This is also a fairly quick process but you have to wait 30 days after date of death and after 30 days, you can file a document in the probate court. It does require probate court filing. However, it's quick and abbreviated. Within about three weeks time after filing, you can have a court order that says, "Hey bank, transfer the bank account or give the bank account to so and so or to so and so." To whomever it's supposed to go to.

estates, asset, inherit, probate, Las Vegas, Nevada.

 

That court order could also transfer the title to the land or the house also and so you take that down to the county recorder and that would transfer the house to you. That's a 30 day wait after Mom or Dad have passed away. You've filed your document and then you have a hearing about two to three weeks after that. That'll take care of estates under $100,000.

 

Estates over $100,000

Now if you're over $100,000 in assets, you're in a situation that's going to require generally a full probate process. Those full probate processes can take ... At the very quickest, you're going to be done in about four months. That's really cruising through there. In general those usually take six to nine to twelve months, possibly longer depending on what type of assets you're dealing with and it's a very involved process at the probate court, a lot of court filings, a lot of court requirements that you have to keep up on.

Now here at Clear Counsel Law Group, we focus on probate, in taking care of those things whether it's under $25,000 or over $100,000, we file hundreds of probate cases to deal with those estates from very small to several million dollar estates. We also focus on the estate plan part of it, so if you have an estate that's over $100,000 and you're concerned about your children having to go through this probate process that's time consuming, it's expensive, it's public, and you want to make it very easy and very simple for your children to get your assets after you pass away, even if they're over $100,000, come and see us and talk to us because there's some really great tools that you can use right now and put in place that make it very simple for your children to get your assets after you pass away.

In any situation, whether you're faced with the under $25,000, under $100,000, over $100,000, here at Clear Counsel Law Group we've got years of experience in these areas. We've done hundreds of these cases. We'll be able to help you answer your questions and get those assets to you as quickly as humanly possible as quickly as the statutes will allow you to do that. Give us a call here at Clear Counsel Law Group and we'll be glad to help you with those things.

 

Probate Videos / Estate Planning / Probate - 03/14/2016

How the Probate Process is Affected by an Underwater Home

 

 

What You Need to Know about an Underwater House and the Probate Process

Transcript:

Hi, my name is Jordan Flake. I'm an attorney in Henderson, Nevada. I do a lot of probate work which means when an individual passes away and there's property in that person's name still, there needs to be a court legal declaration as to where that property goes and how it's handled. One really common scenario especially since the economy went down a few years ago is that Jane Smith will pass away, she'll have a house in her own name, the house is worth $80,000; however, the mortgage is $94,000. A lot of times family members will just say, "Well, the house is underwater so we don't need to worry about it. We don't need to do anything with it. Nobody's going to take responsibility for it." The idea is that it can't be probated.

That's not correct. It is true that the liability won't come and haunt her heirs so the children of Jane Smith don't have to worry that the $14,000 that represents the underwater amount, that's not going to come back, chase them down, but what you should know is that you actually can do a probate for that property and short sell the property and oftentimes get paid out of the proceeds of the sale, at least an administrator's fees, the legal fees can be paid out of the proceeds of the sale, the realtor's fees can be paid out of the proceeds of the sale, and the property is, and this is maybe the best thing, is that the property is actually resolved rather than sitting there empty for years and years and years, you actually tie it up. It doesn't cost you anything and oftentimes we can get you paid an administrator's fee for the work of having dealt with an attorney and a real estate agent to sell that.

 

underwater home, probate, Las Vegas, Nevada

 

Real estate tip of the day is if you come across a house where it's underwater and it's owned by a deceased individual, reach out to Clear Counsel Law Group, contact me, we'll do a free consultation, and we'll discuss our options for doing a short sale on that property by opening up a probate. Reach out to me if you'd like to discuss this more. Jordan Flake at Clear Counsel Law Group. Thank you.

Probate / Probate Videos - 02/04/2016
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