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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.

 

disinherit, probate, estate planning, Las Vegas, Nevada

 

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.

The Rights of a Beneficiary of a Trust

 

 

Does a Trust Beneficiary have the Right to a Copy of the Document?

Transcript:

Jordan: Hi, my name is Jordan Flake. I'm an attorney at Clear Council Law Group, and one question that we get from some of our clients. Sometimes we'll get a phone call from somebody who's the beneficiary under their father and mother's or their parents trust, and they're sitting there saying, "I know my dad is going to leave me some property through his trust, but I don't really know what it is he's leaving me, how much, when I get it." Sometimes one question that we get a lot is can I demand a copy of that? Basically, am I entitled because I'm a beneficiary under this trust, am I entitled to receive a copy that I can then review?

The answer is while the grantors, or the creators of the trust, are still alive, then beneficiaries don't have a right to receive at that point any kind of copy or any kind of documentation. Basically the law protects a grantor's right to just go back and change documents in a revocable trust context. You can't while they're still alive. Now after they pass away, Nevada law does allow you to receive a copy of those provisions that directly address and affect your beneficial interest, your distribution. You can request a copy of that from the trustee. You can't often get the entire trust, but you can at least get those provisions that directly affect you. Again, here in this situation we're talking about after the grantors have passed away. Any follow up question on that?

 

Brian: The follow up question can a grantor put language in the trust where the beneficiary is allowed to see the language?

 

Jordan: Yes. In fact, grantors can always just ... If you're creating a trust for your kids and they say, "Hey, Mom, Dad, I want a copy of it." Then grantors can always just give a copy to whoever they want. It's their trust. They could also put language in there that says, "Under all circumstances, notwithstanding any of the foregoing language in this trust, I desire that my beneficiaries all have a copy of this trust." You can really customize that to your family circumstances. Sometimes you might think it would be best for all of my beneficiaries to have a copy of this and I want to make sure that that happens. In any event if you're listed as a beneficiary in your parents trust and you're wondering or maybe you're worried about whether or not ... what your beneficial interest is in that trust and you just want to know, that's a great question for us. Come to us, bring any documents that you might have, and whether they're alive or deceased we can reach out, make inquiries, and figure out what you're entitled to.

 

What Happens to Your Estate Plan if You get a Divorce?

How a Divorce Affects Your Estate Plan

Transcript:

Hi, I'm Jordan Flake. I'm an attorney at Clear Counsel Law Group.

One of the questions our law firm gets a lot is: What happens to my estate planning if I'm in a divorce?

You can imagine a situation where maybe a husband and a wife did their estate planning, maybe they got a trust or some wills or power of attorney documents, and then a few years later there's trouble in paradise and they have to go file for divorce.

Do they have to, in that situation, go through all of their estate planning and unwind and undo everything and reexecute new documents?

The answer is they probably should do that, but the reality is Nevada has a law that makes it so that after a divorce all of the provisions of your estate planning that include either your husband or your wife who is now your ex-husband or your ex-wife are considered invalidated by the divorce.

Those documents are largely invalidated by operation of law.

However, it also makes a lot of sense in that situation to come back and see your estate planning attorney or just bring it to us so that we can take a look at it and see what else might need to be done.

That's normally the process.

Brian, any follow-up questions on that?

Brian: Can you plan for a divorce in your estate plan?

Jordan: You could. You could say in the event of a divorce, this, this, and this.

It's an interesting question as to whether or not that would be invalidated under the law.

I think it wouldn't be because that would be like a prenup where it was basically, listen, this contemplated our divorce so you could put provisions that said, listen, this is how it's going to go, but in the event of a divorce, this is how we want it to go.

That language might be given the same legal validity as your basic pre-nuptial agreement. In any event.

If any of these situations are affecting you, come in and let us do a free consultation where we just sit down and review what you have and review what you want to accomplish.

We'll make sure we get it done.

 

Under What Circumstances Do You Need a Guardianship?

 

 

How Do You Know When You Need a Guardianship?

Transcript:

Jordan: Hi, my name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. Our law firm practices estate planning, probate. We also practice guardianship. One of the questions we get is: Under what circumstances do I need a guardianship? When can a guardianship be granted? When we're talking about guardianship, really that arises in two contexts: either guardianship of a minor or guardianship of an adult.

Guardianship of a minor oftentimes can be like a family law issue. Most of the time when we're talking about guardianship of a minor we're not talking about physical disabilities or incapacities, although that can be the case. We're talking about the fact that they need a guardianship because they're too young. Most of our practice focuses on this other scenario, adult guardianship, where the issue is, hey, we have this elderly individual who doesn't have the ability to care for themselves. How do we know who should make decisions on their behalf?

The answer to that question is first we try to find out whether or not they have estate planning documents, because normally if you have a full and robust estate plan, you will never have to worry about guardianship because you will have previously designated who will take care of you in the event of your incapacity. If you don't have an estate plan, then we need to make a decision for that elderly person, for that incapacitated individual. We need to essentially say we've got to go down and get somebody appointed to basically have full authority to say what medical treatment they receive. How do we use their finances for their benefit?

Really the first relevant question is capacity. Are they able to make decisions on their own? The guardianship court requires us to show a medical opinion regarding capacity before granting any type of guardianship. If we go and we say Ms. Jones is 82 years old, she can't take care of herself, she doesn't at this time in her life have her mental capacity, the court's not just going to take our word for it. They're going to require us to provide a doctor's note saying that Ms. Jones can't take care of herself. Those are some of the prerequisites and considerations when we're thinking about guardianship. Guardianship can be helpful or even necessary if you have an elderly person who needs care but we don't have a way to access their property or we don't have a way to establish who has the right to make decisions on their behalf. Bryan, does that cover it there or did you have other follow-up questions about guardianship?

 

Brian: You covered it very well. A couple follow-up questions. If a person is worried about her own capacity, can she acquire the guardian on her own?

 

Jordan: You can actually consent to a guardianship. If you want to say, "Listen, I have some concerns about my own capacity, and at this point maybe a power of attorney document or the right estate planning documents wouldn't be held valid if I were to execute them because I have some concerns about my own capacity," in that scenario you can consent to a guardianship and say, "Listen, I'm concerned. Therefore, I want to appoint Brian to be my guardian." No? No, you don't want to be my guardian?

 

Brian:  No.

 

Jordan: The better situation and the more ideal way of handling this is while the skies are sunny and clear, while you have your capacity, you should be executing power of attorney documents that say, "In the event of my incapacity, here are the individuals who I want to serve as my agent, my power of attorney agents." You can think of that the same way as you think of a guardian. This person, one, two, three, maybe list three people. Put their address, phone number, email address. That's a much better way to go than guardianship. Other questions?

 

Brian: With the robust estate planning described, how is guardianship triggered? What needs to occur before power of attorney is taken from the individual and given to the third party?

 

Jordan: Let me see if I understand your question correctly. When we do estate planning, we prepare these power of attorney documents, and we recommend to our clients, "Listen, give a copy of the power of attorney documents to your agents. If you've designated Brian to serve as your agent for power of attorney, give Brian a copy. That way Brian knows if you have something happen here, you're in an accident and you become incapacitated, he needs to step up and make medical decisions on your behalf."

It should be people who are close to you, people who you trust, people who you know will act in your best interest, and people who generally will be aware of what's going on in your life. That's why we always say estate planning is for everyone. You may not be rich. You may not have a lot of kids or be married. All of us have to worry about the possibility of incapacity at some point in our life. If you want us to address this with you, please come sit down with me for a complementary consultation. We'll go over your different options for your power of attorney documents so that you can avoid that guardianship scenario. Thank you so much.

What is the Better Estate Planning Document, Will or Trust?

 

Will or Trust? What is the Best Estate Planning Instrument for Your Situation?

Transcript:

Jordan: Hi, I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. One question I get a lot in my estate planning practice is what's better to have, a will or a trust? It's a good question because everyone has heard of a last will and testament. It's kind of the traditional estate planning document. When you think about movies, you think about going into the lawyer's office after a loved one passes away and reading a will, and that's kind of the older mentality of estate planning, is this idea of a last will and testament.

Nothing is wrong with a last will and testament. It tells the world essentially where you want your property to go in the event of your passing, and that's good. That's something we want. A will has a drawback, which is it still requires a proving process, which we call the probate process. By proving, I mean it has to be proved and shown to the courts to be a valid legal estate planning document. We have to prove that all of the terms of the will are fulfilled and that the personal representative has complied with all the aspects of the will. These are things that have to be proven to the court.

Maybe some of you viewers, and certainly a lot of my clients are thinking why does the court have to be involved at all in my financial affairs? Is there a way to do this entirely exclusive of the need for court supervision? There is, and that is where a trust comes in. If you don't want the court to oversee the distribution of your estate after you pass away, then I would strongly encourage you to consider having a revocable trust or some sort of a trust instrument.

A trust operates like a box, and inside that box you have specific instructions. The law recognizes the independence and the validity of this box or this trust and basically says anything that you title into this box or this trust will pass according to the terms of this trust after you pass away. In a trust, it's similar to a will in that it says this is who I want to be in charge, this is where I want my stuff to go and under what circumstances, but it's different than a will because it never has to go into court to be proven to be a valid legal instrument.

A trust is a way of taking your estate planning ... The bull by the horns from an estate planning perspective and preemptively making sure that everything is done correctly. Brian, do you have any follow up for me here?

 

Brian: You're saying that even if a will is very clear bequeathing an item specifically to one person, you still have to prove it to the court?

 

Jordan: Yes. That's a great question, and it's actually a source of frustration for some of our clients or some of the loved ones of individuals who've passed away. They think he had a will. He went to an attorney. It's crystal clear. It says exactly what needs to be done. The legal reality is it has to be proved by a court to be a valid will. The court needs to make this declaration that says this is a valid will. After that declaration is made, the court has to also prove and oversee the administration of the estate to show that all of the terms of the will were basically obeyed and followed.

That's why we recommend a trust in a lot of cases, is because we can cut out the court entirely and keep it way, way less expensive in the long run. Does that make sense, Brian?

 

Brian: It does. Do you have to pay fees to the court to prove that the will is valid?

 

Jordan: You do. Yes. Somehow the court has got to keep its doors open and stay staffed and working, and they do that through the form of charging filing fees. The filing fees for a probate case are fairly expensive, or can be fairly expensive. That's also not taking into consideration that you will more likely than not need an attorney, and that can get really expensive too.

When considering a will or a trust, please feel free to reach out to us, Clear Counsel Law Group. Reach out and we'll set up a free consultation. We'll go over your situation. I'll have a better opportunity to explain some of the differences between a will and a trust and we'll make sure that we can get the right estate planning documents for you.

Should You Own Your Home in a Trust?

 

Is It Best to Own Your Home in a Trust?

Transcript:

Jordan: Hi, I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I'll often get the phone call from someone who just purchased a home, and they'll say, "Hey, I just purchased a home and my real estate agent said something about a trust. Do I need to own my home in a trust?" The answer to that question is what are you trying to accomplish with the purchase of this property. There can be a lot of different reasons why you buy a home, and a lot of different things to take into consideration.

In Nevada, if you own a home in your own name and then you pass away, that home just continues to stay in your own name until a court has come along and said this is what is going to happen with this property. They do that by way of a court order that gets recorded in the county where the property is sitting. Obtaining that court order is the probate process. That will trigger, in a lot of the viewers' minds, correctly trigger, this image of something that's a little bit of a time consuming, potentially expensive court process that can lead to a lot of problems and difficulties. When somebody asks me if they need a trust for their home, then usually I explain what this probate process entails and how to avoid it. The way to avoid having to go through the probate process is to put the property into a trust.

A trust operates like a box, and everything that's placed into that trust will not need to be probated when the individual passes away. That's the advantage of owning real property in a trust. There can be a lot of different ways to hold real property. If you own the property as a rental, you may wish to consider using an LLC, which is a business, to own the property. It's really just a case by case basis. I'd love to sit down with you and go over what you're trying to accomplish so that we can make sure that we use the right estate planning instrument for your objectives. Brian does that cover the question or was there any follow-up on that?

 

Brian: That covered the question very well. One follow up, though. Could you explain how the probate process gets expensive?

 

Jordan: The reason the probate process gets expensive is because the ... The word probate just means to prove or to try. The thing that the court is trying to prove or try is that the people who have come to the court saying, "Hey, my mom and dad passed away. We're entitled to these assets," the court kind of ... you can think of it like the judge leaning back in his chair and saying, "Really, are you really entitled to this? Prove it." Basically, the probate process is saying prove to us that you deserve the deceased individual's property. That gets expensive because that requires an attorney to come to court. It requires the appointment of a personal representative. It requires that we publicly announce the probate to allow competing claims to have an opportunity to come into court. There's certain time frames involved with probate.

It just gets costly and time consuming. That is part of why people should seriously consider doing a trust, is because a trust is an estate planning instrument that will allow you to avoid the probate process entirely. Other questions on this, Brian?

 

Brian: You said that a trust is good for real property. Will a trust help me plan for property that isn't real property?

 

Jordan: Yes, absolutely. Take a bank account, for example. The same scenario exists if it's just in the name of client Bob Jones and Bob Jones passes away and he has a bank account at Wells Fargo that has $40,000 in it. Bob Jones' children might go to the bank and say, "Well he was our father. We think that we are entitled to this." The bank will say, "That's all very well and good. However, we need a court order allowing us to release these funds to you." Obtaining that court order is the probate process. That's what we're trying to avoid. What Bob Jones could have done instead is go to his bank account and list the Bob Jones Trust as the paid-on-death beneficiary, and that would have gone into the trust, and therefore avoided probate. If you have any questions about that, feel free to give us a call at Clear Counsel Law Group. Thanks.

 

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