What Are the Legal Requirements of a Trustee?

 

What are the Legal Obligations of a Trustee?

Transcript:

Hi, my name is Jordan Flake. I’m an attorney with Clear Counsel Law Group. Sometimes a client, or potential client, will come to me and say, “I was left as the trustee on my parent’s estate and now they’re both passed away,” and they want to know what do they have to do?

Well, a trust basically imposes several different legal responsibilities on the named trustee. There’s a trust administration process that we have to go through in order to make sure that that trustee fulfills all of his or her legal responsibilities. That’s basically the trust administration process.

 

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A lot of people don’t realize that they have these duties. When their parents’ listed them as trust, maybe they didn’t reach out to them and say, “Hey, by the way, I’m going to impose all these legal responsibilities on you,” but the duties, nonetheless, exist. Sometimes, a lot of questions can arise about making sure that everything is distributed properly, administered properly.

Our objective, as a law firm, when we represent trustees, is to make sure that everything is done, according to the terms of the trust, and especially that the trustee isn’t in any kind of legal peril or that there’s no liability or any potential claims of breach of fiduciary duties.

In other words, the trustee, when they hire us, can take complete comfort and confidence in knowing that they are doing everything according to the law and that nothing’s going to come back to bite them. If you’re listed as the trustee of your parent’s trust, you may want to set up an appointment, we don’t charge for the initial consultation, just to come sit down with me.

If you have a copy of the trust, that’d be best. If not, we can just talk about how a trust administration works and what some of your responsibilities will be. Thank you.

How Should You Own Your Property?

 

 

What Is the Best Way to Hold Your Property?

Transcript:

Jordan: I’m Jordan Flake with Clear Counsel Law Group. I’m an attorney who does estate planning primarily. Occasionally, questions will come up about how property ownership works and operations of law. What I mean by that is how do you hold property in such a way that it will accomplish some of your estate planning objectives? We call this non-attorney estate planning, usually because it doesn’t necessarily require an attorney.

When you purchase a house, you can just tell your real estate agents and the title company how you want to take title to that property. Let’s just use the example of a client who said, “My wife and I and a friend own this duplex together, the three of us. We want to make it so that the last of us to die, the survivor among the three of us, gets all the property?” They don’t necessarily have to go see an attorney to make that happen. They can just tell the title company that they’d like to own the property in joint tenancy with rights of survivorship

What that means is that everybody just owns the property and then the survivors own the property and then the survivor of the survivors gets all the property. That’s called joint tenancy with rights of survivorship. Now there are other ways to own it. There’s something called tenancy in common, which means each would get one-third, one-third, one-third and their undivided one-third share would go to their estate when they passed away.

 

property, estate planning, Las Vegas, Nevada

 

That wouldn’t accomplish the objectives of which they were requesting from me. Normally, a better way to do all of this is to put it all into a trust because then you can clearly delineate who gets what and when and under what circumstances. Brian, do you have any questions on this form of ownership?

 

Brian: Is it difficult to change the ownership from a joint tenancy to a tenancy in common?

 

Jordan: You can do that just by recording a deed. We can help you prepare the deed that would change the vesting status, it’s called vesting status meaning what happens when a person passes away, but we can prepare a deed that will change the vesting status and we don’t charge much to do that. In fact, we don’t charge at all for the consultation. Any other follow-up questions on this though?

 

Brian: Of the options you described, you said that a trust is preferable to just having it recorded on the deed.

 

Jordan: When you prepare a trust, you also prepare a deed, generally transferring the property into the trust. A trust operates like a box, then you can put property inside that box. The house or the duplex in this case would be something that you’d likely want to deed into the trust. Then the trust gives specific instructions about what happens to that property. Say the husband and wife pass away, but their friend at that time is an elderly gentleman, who’s incapacitated just because of old age.

The trust will prepare for that contingency, whereas merely creating a deed that puts the house into joint tenancy with rights of survivorship doesn’t address that contingency. A trust is much more comprehensive and flexible in terms of addressing several different possible scenarios. That’s what we do as estate planning attorneys. We look out and say, “How can we preemptively address all of these things that can and do happen to people?” That’s why it’s really important to set up a consultation with me. I don’t charge for the initial consultation. I’d be happy to go over this or any other situation that you’re looking at. Thank you.

How to Disown an Adult Child

 

Is It Possible to Disown an Adult Child?

Transcript:

Hi. I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group. I specialize in estate planning. One question that I sometimes get is, “Can I disown my adult child for various reasons?” You may have had falling out with your son or daughter and you just really don’t want anything to do with them anymore. Reality is a lot of the disowning process just happens by operation of law. When someone turns 18, they essentially are considered an adult and have their own rights, responsibilities, and duties, and are really no longer your legal responsibility once they turn 18.

Aside from that though, one thing that a lot of clients will do if they have a child who they have disowned or the relationship cease to exist is disinheritance. What that means is you come into an attorney’s office and whatever you were planning on giving to anyone, you need to explicitly state that you want to disinherit your child. It’s really important that the disinheritance provisions are drafted correctly because if not, you could be facing a situation where your disinherited child comes back and says, “Whoa, it’s very unclear that … They didn’t say anything. They didn’t say the right things about disown me. He told me before he passed away that he wanted me to have something.” They can make all kinds of claims in those circumstances.

 

disown, estate planning, Las Vegas, Nevada

 

The law requires that you specifically disown your own children, and so those provisions have to be drafted correctly. If you’re worried about where your assets go after you pass away and possibly, you have a situation in your family where you don’t want your assets to go to a certain child, then please give us a call, so I can meet with you for a no-charge consultation. We’ll go over your options. Thanks.

What You Need to Know about Power of Attorney

 

Power of Attorney and Your Estate Plan

Transcript:

Hi, I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group. I specialize in estate planning. I got a question from a client about how to become a power of attorney. Can you just essentially declare yourself to be power of attorney of someone? Or, do you have to write it down? What’s the process?

Power of attorney is a very important mechanism in estate planning because it essentially gives another person the right to make financial and healthcare decisions on your behalf. It’s a right that you can give to someone else. Obviously it has to be somebody that you trust a lot, because you wouldn’t want to let somebody else make financial and healthcare decisions for you unless you really knew that they were going to act in your best interest. Also, you can’t simply just say it. It actually has to be written down. There’s also a lot of formalities in the law that need to be met and fulfilled in order to give that document credence and validity.

 

Power of attorney, las vegas, nevada

 

One important thing to remember about power of attorney documents is that the entity that will often be enforcing those or rejecting them, as the case may be, would be a bank or a hospital or doctor’s office or an insurance carrier. It’s not always going to be interpreted by a judge. That’s why it’s very important to make it very crystal clear, so that somebody without a law degree can actually understand what the power of attorney is intending to do and what it says and leave no doubt whatsoever as to the fact that you’re giving someone else the right to make decisions on your behalf.

If you feel like you need to make a power of attorney document

When a Short Sale Might Be Your Best Option for Your Home

 

How a Short Sale Might Assist You

Transcript:

Hi, my name is Jordan Flake. I’m an attorney at Clear Counsel Law Group. We deal with a lot of real property issues, and there are times that we help people accomplish a short sale. Pretty much everyone I know has either seen a foreclosure, or a short sale, or a default at some point in the last several years, because so many people have gone through that, here in the Valley; but just so that you know exactly what your short sale options are:

The term short sale just means that you’re selling the property out there in the world, and the proceeds from the sale are not sufficient to cover the loan balance. Let’s use an example. Let’s say you owe $80,000 on a house, but the house is only worth $60,000. The owner of that house basically can get a buyer for $60,000, and go to the bank and say, “Hey, listen, I don’t have enough money to cover all $80,000 that I owe. However, I have this buyer, and rather than default on this and have it go into foreclosure for several years, why don’t you accept this $60,000 buyer, and we’ll basically allow that to wipe out the loan.”

 

Short Sale Home, Las Vegas, Nevada Real Estate

 

It’s very important when you do a short sale that you cross all your T’s and you dot all your I’s, because you don’t want that $20,000 deficiency, in other words the amount of the mortgage that wasn’t covered by the sale, to chase you down, and hunt you down, and follow you around for a long time. That’s, depending on whether not you have a first and/or a second, there’s different rules that apply; but if you’re thinking about short selling your home, please reach out to Clear Counsel Law Group. I’m more than happy to do a no-charge consultation, just to discuss your short sale options, give me a call. Thank you.

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.

How Understanding a Series LLC Will Improve Your Real Estate Business

 

 

How Understanding a Series LLC is Necessary for a Real Estate Agent

Transcript:

Hi, my name is Jordan Flake, I’m an attorney with Clear Counsel Law Group. We do estate planning. We do a lot of work with realtors, and just one very, very specific tip for real estate agents that they may wish to consider is understanding what a series LLC is, and what it does. When I use the word series LLC, you may know a little bit about it, but what I really want is for that to trigger in your mind the following scenario. You may have an investor who owns various properties, and the way that those properties are titled are in his or her own name. Sit here and just imagine that person for a second, that client of yours who has Jane Smith, she has five properties that are all in the name of Jane Smith. That’s the client who needs to learn from you first, and then from us second as the attorney about what’s called a series LLC.

 

real estate agent, series LLC, estate planning, Nevada, Las Vegas

 

Essentially this type of LLC says that Jane Smith can take those properties and put them each in a separate, compartmentalized liability protected box similar to as if she created five LLC’s. Because it’s a series LLC, it’s really only one LLC, with five separate compartments. Think about who your investor client is, or who your friend or neighbor is who owns various properties in their own name, and then think about learning and telling them about the option of a series LLC. Hopefully, if their interested, they can meet with us, and we’ll do a free consultation to discuss the process for getting a series LLC set up properly. Reach out to me if this interests you, Jordan Flake, Clear Counsel Law Group, I look forward to hearing from you, thank you.

What to do if You Want to Disinherit an Heir

 

How to Disinherit an Heir

Transcript:

Jordan: Hi, I’m Jordan Flake. I’m an attorney at Clear Counsel Law Group. I do estate planning. Sometimes we have clients who want to disinherit one of their family members. That’s perfectly fine. We understand that sometimes that’s necessary. We get this question: Under what circumstances can I disinherit an heir?

I think first and foremost is really important to reinforce the idea that when we’re talking about your estate planning it truly is your estate planning. The same way that during your life no one can tell you how you should or shouldn’t spend your money, it’s yours, you can do whatever you want with it, that same principle applies in estate planning. It’s your estate. You can plan it however you want. Our job as attorneys is to simply facilitate that and also to let you know if there are some considerations that you might want to think about when making your estate planning.

 

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In terms of disinheritance, you can just disinherit anyone at any time. Now, there might be certain circumstances where the disinheritance might not stand up. If you try to disinherit completely your spouse, you might run into a situation where community property laws in Nevada prevent you from really accomplishing all of that. You could disinherit perhaps as to much of your separate property, but there’s going to be community property issues. That’s one of the many things you have to take into consideration.

Another thing is simply that if you don’t specifically disinherit, you can run into problems. Say for example you have three kids. Let’s say instead of disinheriting the third you simply just say, “I want number one and number two to have 50% each.” The implementation is that number three doesn’t get anything. If you do that and you leave out the specific disinheritance of number three, number three can come into court after you pass away and say, “Oh, mom made a mistake. She really just intended for all three of us kids to have it equally. She’s just forgot to list me down there.”

That number three child has a chance of blowing up the distribution scheme. It’s a much better practice to actually use the correct language to specifically disinherit those people who you don’t want to have in there any longer. That’s a good reason to come see an attorney about it. Any follow-up questions on this one?

 

Brian: Does it make sense to put language in the disinheritance as to why you may have taken someone out?

 

Jordan: It may or may not make sense. Estate planning is just about peace of mind. If you don’t want to address it, that’s fine. I have some clients who the reason they disinherit is because they bought that kid a house. It’s not because they dislike them. It’s because they already did a big huge financial favor and they think that everything else needs to go to the other two kids. In that situation, it might make sense to say, “I have previously provided for child number three. Therefore I’m giving my estate to children number one and two.” That might make sense. If the situation is a big traumatic family thing that was the subject of many years of turmoil and dispute, it might not make sense to include all of that in the estate plan. Just keep it simple and disinherit the party that needs to be disinherited. Any other follow-up on this?

 

Jordan: All right. If you are thinking about doing your estate planning and you want to disinherit someone, it needs to be done currently, and that’s a good reason to come see us for a free consultation. We’ll help make sure that you accomplish that.

Who is Permitted to be Your Personal Representative of Your Estate?

 

 

Who Should You Select to be the Personal Representative of Your Estate?

Transcript:

Jordan: Hi, my name is Jordan. I’m an attorney with Clear Counsel Law Group. I do a lot of estate planning. Invariably people who are my clients want to know who can I list as my executor or my personal representative, or trustee. I use all of those terms interchangeably, but really when you do estate planning there’s a lot of situations where you have to say, “Who can I trust? Who do I trust? Who can I put down? Who’s going to be responsible for everything when I pass away.”

Again, when we’re talking about personal representative we’re not necessarily talking about to whom the assets are going to go ultimately in terms of distribution. We’re talking about initially after I pass away or if I become incapacitated, who’s going to be there to assume responsibility. Sometimes I’ll have clients say, “I don’t really have anyone. Could I have attorney, could you do it? Could I have my CPA serve in that capacity?”

The answer is you can have anybody serve in that capacity as long as they are an adult and as long as they have their competence and ability to do that. Who should you have is a very, very personal type question and you have to go through and see what factors are relevant in your life. Some people don’t have anyone. They could list a CPA or a financial planner. You could under certain circumstances list your estate planning attorney. Oftentimes if we are asked to do it, we’ll say Clear Counsel Law Group or an individual pointed by them just so that potentially we don’t actually assume that responsibility. We might find somebody to actually do it for you.

 

Trustee, personal representative, Las Vegas, Nevada

 

Really oftentimes it makes sense to look at those people who are closest to you, who you trust, who are most familiar with your preferences and your personal circumstances. It’s very, very fact-intensive. Any follow up question on this, Brian?

 

Brian: You said sometimes Clear Counsel Law Group will find a trustee for you. Could you talk a little bit more about who those folks are?

 

Jordan: Sure, one of the reasons why you might not want to have an attorney serve as a personal representative is that sometimes our time is billed at a higher rate than a private professional who would do these types of services. Some people aren’t aware that there’s an entire industry of basically private professional fiduciaries. By that, I mean individuals who basically say, “Look, I will serve as a trustee of a trust or the executor of a will. I will be paid out of the proceeds of the estate. I’m a disinterested third party. I am very good at keeping books and accounting. I’m going to do a really good job of this. You’re going to have to pay somebody to do it, whether it’s a family member or a private professional fiduciary. Might as well pay me. I’m not going to get caught up in any of the family drama. I’m just going to do exactly what the documents say.”

There are really good private professional fiduciaries out there in your local marketplace. We can help you find those people and get them onboard with serving in those personal representative-type capacities. When I say some of our clients list Clear Counsel Law Group or an individual appointed by them, what I mean is we reserve the right to not serve in that capacity but to find a capable, disinterested third party personal private professional representative, some kind of professional fiduciary to fill that capacity.

In any event, if you’re in this situation where you aren’t sure who you can trust with the decision-making aspects of your estate, that would be a really good reason to give us a call so that we can walk you through some of the different options that you have. Give us a call. We’ll do a free consultation. Come in and meet with us and we’ll see what we can figure out. Thank you.

Estate Planning with a Car Title only in the Name of One Spouse

 

 

What to do with Your Estate Plan if Your Car Title is only in the Name of One Spouse

Transcript:

Jordan: Hi, I’m Jordan Flake. I’m an attorney at Clear Counsel Law Group. I have a question here: My husband’s name is on the title of a vehicle that I have made all the payments for. If he dies before the title can be put in my name, will the vehicle go into his estate?

That’s a good question. The general response to that is when we’re trying to determine what assets go into someone’s estate, what we look at is whose name is on the title. For this client here, if your husband’s name is on the title of the car and he passes away, then automatically we’re going to assume that that car is part of his estate. Now this is a tough situation because for this individual they made all the payments for this car. You have two response about a better way to handle this.

One is how do we handle this better in advance of this problem. That would be probably with the vehicle, just putting it in some kind of joint ownership. You can put either and/or on the title. You probably would have done well to put or on the title of the vehicle and say husband or wife owns this. That makes it as simple as possible. Obviously, in this case, maybe they didn’t get a chance to do that. The vehicle’s just sitting there in the husband’s name and he’s now passed away.

The next part of the analysis would be what else is in the husband’s estate. Because if it’s just the car, we may be able to do a small, simple DMV form affidavit of entitlement that basically gives the wife the title of the car without any problems. If there are properties and bank accounts and investment accounts in a larger estate, then basically dealing with that estate is going to have more procedure, more requirements. That becomes a very fact-intensive analysis.

In any event, though, if the spouse was the one that make all the payments, if the wife in this scenario was the one to make all the payments, we should be able to get those basically back in her pocket one way or another. Any other questions on this?

 

Brian: Back to the DMV affidavit. If the wife had not made all of the payments, but let’s say three-quarters of the payments, is that still a possibility?

 

Jordan: Here we’re assuming that maybe it’s an intestate estate. Everything would go to the surviving spouse in this scenario if there is no will. If there is a will or if there’s a trust, that can affect maybe the distribution, but here it wouldn’t matter if the wife had made none of the payments. If there’s no will, state law says everything goes to the surviving spouse. It really wouldn’t matter if the spouse had made all or none of the payments in that case.

In any event, though, if you come across a situation like this, call me up. We can discuss it. We can meet for a free consultation. I’d be happy to walk you through this or any other type of estate-related question you might have.

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