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Do Verbal Instructions Create a Valid Will?

 

Are verbal instructions sufficient to create a valid will?

Transcript:

Hi, I'm Jordan Blake. I'm an attorney with Clear Counsel Law Group. I do probate and I also do estate planning. I have this question that comes up from time to time as to whether or not verbal instructions can be valid for disposing of someone's property after you pass away. The question is, sometimes I meet with an elderly individual who says, "I told my kids what I want done and they know. They know what needs to be done." That may be the case. The kids may cooperate. The question is, is that verbal instructions actually enforceable and legally valid. The answer is, no, it's not.

That's why we have. That's why we have trusts. It's because merely verbal instructions are not actually legal and enforceable. They're certainly better than nothing in terms of letting your loved ones know what your wishes are, but if there's any kind of dispute as to those verbal instructions, it's gonna be a situation where it's very much he said, she said. There's not gonna be any kind of legal guidance as to what happens. If you merely leave verbal instructions, what's likely to happen is the court will divide the property via what's called intestacy, which just means they will consider you to have passed away without a will. Usually that goes first to the surviving spouse, then to the kids, then to brothers and sisters, kind of in that order.

In any event, we would strongly, as attorneys, as estate planning attorneys, we would strongly, strongly advise against just trying to leave assets via verbal instructions. Very important to get into CS so that we can talk about the different options for making valid, enforceable, written instructions. Feel free to give us a call, Clear Counsel Law Group. We'll gladly sit down with you and do a free estate planning view.

 

Estate Planning / Probate / Probate Videos - 10/26/2015

How Probate Works in Nevada if You Live Out of State

 

Probate in Nevada for an out of state resident

Transcript:

Hi, I'm Jordan Flake. I'm an attorney in Clear Counsel Law Group. We often times get phone calls from individuals who live out of state of Nevada, who their parents have passed away, or one of their parents passed away here in Nevada. But they're out of the state. One of the questions they invariably ask is "Do I need to come out there? Do I need to come out and go through my parent's stuff? Do I need to come out there to meet with you in order to hire you to handle the probate matter? Do I need to come out to the court hearings in order to get the authority to deal with the estate?"

Most of the time the answer is no. We have a lot of out of state clients who we actually never meet face to face because as a full service probate law firm, we're able to cover all of the issues that can arise in having to administer an estate. Mom or dad passes away in Nevada, and you're living in South Carolina. That's really not a problem. We can talk to you on the phone. Give you all of the information. Hire individuals out here to perhaps clean up the property and send you the documents for review and signature, and really make you feel very involved in the whole process.

That being said, we oftentimes do have people who want to come out, because it's Las Vegas and it's a good opportunity to come out and visit. We're more than happy to have you come out and see us. Meet us face to face if that's going to help you get a level of comfort and familiarity. Please also know at the same time that if your parents pass away here, you can hire our law firm, and we can handle the entire process without you having to make the trip.

Probate / Probate Videos - 10/17/2015

How a Personal Representative is Assigned to Your Estate

 

Who is the Personal Representative of My Estate?

Transcript:

Hi, my name is Jordan Flake. I'm a managing partner at Clear Counsel Law Group. One question we get a lot in out estate planning practice is, how do I know who's going to take care of my stuff, after I pass away? To put the question in more legal terms, how do I know who is going to be the personal representative, at the time of my passing? You really have 2 choices. First choice is, you decide, second choice is, the state decides.

Under the first choice, you can decide whoever you want. You can list them in your will, to be your executor, or if you use a trust, you would appoint them as your trustee, in your trust. That can be anyone, and the court will honor your wishes. Sometimes, there could be limitations on that, in terms of, whether or not this person is maybe in jail, or a felon, or whether or not the appointment was obtained through their undue influence. By and large, you can make that decision, and you should make that decision, because the alternative is number 2, which is the state decides.

That's not as horrible as it might seem, because there are laws in place that tend to try to replicate our desires. For example, I'm married, and if I passed away without creating an estate plan, my wife would have authority to serve. Well, even with my estate plan, my wife has authority to serve. You can see how the state laws try to do what's reasonable under the circumstances, and appoint people close to you.

However, we deal with a lot of situations where there's a mother who passes away, who has been estranged from, for example, her daughter, for years, and wants her daughter to have nothing to do with her. The daughter has basically abandoned the mother, and yet, because the mother didn't do valid and proper estate planning, the daughter, actually, can be appointed to serve, under the statutes, because the mother didn't take that initiative.

When you think about this question, who's going to be appointed, who's going to be responsible for your estate after you pass away? I'd really encourage you to come see us for a consultation, so that we can make sure that the person you want serves in that capacity, rather than just what the statutes have happened in that situation. Come see us at Clear Counsel Law Group, and we'll help you out with this issue.

Estate Planning / Probate / Probate Videos - 10/12/2015

How Far Must Alzheimer's Progress before Testamentary Capacity is Lost?

 

When you may no longer have the Testamentary Capacity to amend your will

Transcript:

Hi. My name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. One of the questions that we field from time-to-time, we'll get calls from individuals who say, "Hey, my mom," or my dad, "has started exhibiting some of the symptoms of Alzheimer's," or maybe is starting to show some signs of dementia, "can we still go back and amend their estate planning documents?" Maybe, you know, one of the sons comes along and says, "Hey, mom said she wanted to do this change or that change and we never got around to it and now she's starting to maybe lose a little bit of her capacity."

That's a tough issue, can you actually go and change the estate planning documents in these situations? The one obvious very lawyerly answer is, "It's much better not to. The best time to do estate planning is when the skies are sunny and blue, everybody's clear in the head." If you think this may be an issue, obviously, get in here and see us as soon as possible.

The next somewhat lawyerly answer also is, "Maybe," or "Depends." One of the the things that it could depend on is the difference between what they call testamentary capacity and contractual capacity. Contractual capacity means that you have like a savvy business mind and you can really understand all of the implications of your decision making and where you sign your name. That's a pretty high standard, contractual capacity. Testamentary capacity could mean you may not understand enough to go into business for yourself, but at very least you understand, "I want this to go to this person." We call that testamentary capacity.

Now, both of those, whether contractual or testamentary capacity, are kind of subject to the analysis of ... There are medical issues at play here. We're just lawyers. You're just a son or a daughter. We really don't understand all the time what the implications of these different symptoms are, and their impact on your parent's decision-making abilities. What we like to do at Clear Counsel Law Group is if there is any doubt as to your parent's capacity at the time that they want to change their estate-planning documents, we will go to their physician and basically get a signed certificate of physician, or some kind of a statement from their doctor that says, "Listen, you know, I understand that mom and dad might not be as clear as they used to be, but in the opinion of this doctor they still have the capacity to be able to make these changes that they envision."

Those are some of the ways that we analyze this big issue. I would not just leave it up to fate, or leave it up to chance. If you think that you or your parents may fall into this category, or have this situation on their hands, please come see us as soon as possible and we'll definitely help you out.

Probate / Probate Videos - 10/10/2015

When is a Will Preferable to a Trust?

 

When are you better off with a will or trust?

Transcript:

Hi, my name is Jordan Flake. I am an attorney. I am also the managing partner of Clear Counsel Law Group. One question that we end up getting a lot in consultations is, "Is there ever a time that a will is preferable to a revocable living trust?" I know that out there, you hear a lot about a trust and how important it is. You hear your friends talk about it. Maybe you have a trust.

Probably the main difference between a will and a trust in terms of when will it will ever be more preferable is a simply a question of cost. It's almost always in every example that I can think of, it's going to be more costly in terms of attorney's fees to set up a trust than it is to do a will. Now that being said, don't let cost deter you from setting up a trust, because a lot of times especially if you have real property, if you have minor children, if you have significant assets, then the trust is a much better way to go.

I'm thinking of a client of ours, Clyde. We'll call him Clyde, Clyde the Client. Basically, he just lived in an apartment. He lived on his social security. He didn't really have any assets, but he had a stamp collection or whatever any other items of personal property. In that situation, we didn't want to charge him and put him through the additional process of creating an entire trust. There really wasn't anything that he was trying to pass at that time in his death that would necessitate a trust.

We just advised him to do a will because really all he had were some items of personal property that he would pass. I would say that's one scenario where a will could be preferable to a trust. Again, I would reemphasize, don't let the difference in cost dissuade you from getting the right legal instrument for your situation. Furthermore, at Clear Counsel Law Group, we're very, very competitive with the marketplace in terms of making sure that you get an outstanding product at a very, very competitive rate.

Even if you do need a trust, we can assist you with that. We can also be flexible in terms of payments and things of that nature. If you think you might need a trust or a will, or if you'd like to have your state plan reviewed, please set up a consultation with me. I'll do a complementary consultation in our office. I look forward to seeing you.

Estate Planning / Probate / Probate Videos - 10/08/2015

Be Careful Using Online Forms for Your Estate Planning

 

Why using online forms for your estate plan makes very little sense

Transcript:

Hi. I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I do a lot of estate planning, and one really popular question that we get is, "Mr. Flake, we could do this a lot cheaper by going online, and downloading legal forms, and just using those instead of hiring an attorney." Oftentimes when I confront this issue, I will jokingly respond that the online forms for estate planning are actually really good, because if you're lost in the wilderness you can use them to start a fire, you can use them for making paper airplanes. They're not entirely without their use. That being said, I would still say as an estate planning attorney that online forms are better than nothing. If that's all you want to do, and that's all the whole level of estate planning that you want, more power to you.

In our estate planning practice we help people estate plan, but we also resolve what I would call estate planning disputes after people pass away. We look at wills, and trusts that are heavily contested. Of the wills, and trusts, and estate planning documents that are heavily contested I can tell you that the majority of those have been because they were not lawyer drafted. In other words, I would say seven or eight times out of ten, the estate plan documents that are in dispute were drafted by maybe a financial advisor, maybe by the deceased individual themselves, maybe they were pulled offline, or purchased at a bookstore and filled out. The real question that you need to ask yourself is, "Are my assets enough, and is everything I've accumulated enough, and is my interest in making sure things happen smoothly enough to warrant the expense of hiring an attorney to correctly prepare my estate planning documents?" Most of the time I feel if you sincerely ask yourself that question you'll realize, "Yeah, absolutely. This is worth getting right."

Now the online forms are not always going to be wrong. There's a lot of times that I'm sure it works out just fine. You shouldn't gamble with something as big as all of the assets that you've accumulated. You shouldn't gamble with what your wishes are. You shouldn't gamble with whether or not these documents are actually valid and enforceable. Especially when Clear Counsel Law Group has ... We've really tried to be optimized to the point that we can be very inexpensive, and make estate planning very affordable for everyone. We offer a high quality product at the lower end of the marketplace in terms of cost. Under all circumstances I'm more than happy to sit down with you for a complimentary consultation, so that we can just give you our take on your estate planning options, and really then put the ball in your court just to decide what's best for you. Love to have you give me a call, so we can help you out.

Estate Planning / Probate / Probate Videos - 10/06/2015

Why should my Estate Plan include a Pet Trust?

 

Why is a pet trust a good option for my estate plan?

Transcript:

Hi, my name is Jordan Flake. I'm an Attorney, I'm also a managing partner at Clear Counsel Law Group. A few weeks ago I was invited to be on a radio program, and the host of the radio program pulled out an article about a wealthy family who had left millions of dollars to just like two or three dogs, and maybe one or two horses that they had. The host was kind of baffled by this and said, "Is this a real thing? Do people actually do this and leave money to their pets?" He asked that question and my response to him and my response to you is, absolutely. When you think about your assets, anything that you want to spend your money on, it is your money, during your life and when you pass away.

What these individuals probably set up is colloquially known as a Pet Trust. A Pet Trust really isn't a Pet Trust, there's nothing really pet about it besides the beneficiaries are normally the clients pets. I guess they can differ a little bit from regular Trusts because the Trustee may not be responsible for the care of the pets. Often times the clients will list an individual who's actually going to take care of the pets themselves. Then the Trustee will compensate this individual who's taking care of the pets. It is totally possible, and it's reasonable, and it doesn't even register with me anymore as to whether it's weird or strange or inappropriate or anything like that.

To be honest with you, we just consider it our job to take whatever you're estate planning wishes are. If they are legally enforceable, if they don't run a foul of any kind of laws, or ethics, then we simply put those into motion, and make sure that you have the documents, to make sure it happens exactly the way you want. So feel free to come see us and we'll set your pets up with something great.

 

Make sure to subscribe to our YouTube channel! Thanks for watching.

Estate Planning / Probate / Probate Videos - 10/03/2015

Is a Will Invalid with an Incorrect Middle Initial?

 

Will a court deem a will invalid if it contains the wrong middle initial?

Transcript:

I'm Jordan Flake, Managing Partner of Clare Counsel Law Group. One of the questions we get is, "I had a lawyer file probate for my mother and they didn't include the middle initial in her name. Does that matter?" Basically, when you file a probate, the question is ... You get authority from the court to perform certain tasks on behalf of the estate. The reality is, if the bank ... let's say your mother passed away and she had a bank account or she had a home ... If the bank or the county, where the property is located, recognizes the individual who's listed in the order, then you're not going to have a problem if there's a minor typo.

Oftentimes we will list out an individual's name, other names that they go by, initials, different titles, that go along with them because we find that individuals have assets titled in many different ways. That's the safest way possible to make sure that you don't run into a problem with the bank or with the county, in terms of making sure the property gets transferred properly.

Estate Planning / Probate / Probate Videos - 09/27/2015

What is the Difference Between a Revocable and Irrevocable Living Trust?

 

What to know about a revocable and irrevocable living trust

Transcript:

Hi, I'm Jordan Flake, managing partner of Clear Counsel Law Group. A lot of our clients ask us what's the difference between a revocable trust and a irrevocable trust. As the names imply, a revocable trust you can revoke it. That includes amending it, changing it. Altering it over time, adapting it to your life circumstances. One other subtle feature of a revocable trust a lot of people don't know about is that you can access the assets that are held in the trust at any time. You can liquidate them and use them however you want.

An irrevocable trust is very different because, as the name also implies, you can't revoke it. Once it's created and once you place assets in that box that is the irrevocable trust, they're gone. They can still be used for your healthcare benefit, maintenance, support, things like that; but the reality is, under almost all circumstances with the irrevocable trust, you can no longer reach into that box, grab out those assets and use them however you like. In a sense, you've disclaimed ownership or some control over assets in an irrevocable trust.

Because of this, a lot of people opt for the revocable trust. There's a lot more flexibility. Why would you ever want an irrevocable trust? The irrevocable trust has a really big advantage over the revocable trust because it is also much more creditor protected. If you properly place assets away into an irrevocable trust and you do it correctly and the right amount of time passes, and you go through all the formalities, those assets can actually be kept out of the hands of your creditors to where they can no longer collect against them. In a sense, you think about it, you don't have access to those assets and neither do they. That's the give and take of irrevocable trusts.

Revocable trusts, you have access to the assets, so do your creditors, but it comes with the advantage that it's amendable, changeable, and you can reach in grab those assets. That's the difference between revocable trust and an irrevocable trust. We'd love to talk to you about both those options.

Estate Planning / Nevada Law / Probate / Probate Videos - 09/26/2015
Vintage key

Help! My Trustee has Gone Rogue

What is a rogue trustee and how can s/he be stopped? A rogue trustee is someone who stops following the instructions set forth in the trust documents1)Contrary to popular belief, a rogue trustee is not necessarily from Alaska. In legal terms, the failure to follow the trust is termed a “breach of fiduciary duties.” In such cases, the beneficiaries of the trust are responsible for holding the rogue trustee responsible. If the trustee refuses to admit and correct the breach, this process will require the Court’s intervention. The following brief article provides some background on trusts that I hope will protect you from the actions of a rogue trustee.

 

A rogue trustee: what to do next

After reviewing their options, the majority of my estate planning clients choose to prepare a revocable living trust as a means of distributing their property upon their passing. A trust is the best estate planning vehicle for many folks because it does not require probate for the estate to be distributed, and because it is more flexible than other estate planning options. Trusts are flexible, in part, because they allow for the appointment of a successor trustee; an individual who will administer the trust upon the passing of the clients if the primary is unable or unwilling to do so. A trust empowers a trustee to exercise his or her discretion to achieve the objectives of the trust. However, generally, a trustee may not simply decide what s/he would like to do and disregard the instructions of the trust entirely. A trustee who has substituted his or her own wishes in place of the instructions of the trust is a rogue trustee.

Our firm once represented a beneficiary of a trust who was the victim of a rogue trustee. Shortly after our client’s mother passed away, the trustee sent out a letter stating that she was in charge and that she could decide who got how much money and the conditions from which the listed beneficiaries would receive the gifts. The trustee withheld money from our client and our client’s daughter because the trustee felt like the beneficiaries were ungrateful, and because they refused to do exactly what was demanded of them. The problem was, of course, the trustee's actions were contrary to the language contained in the trust2)The trust contained no language requiring our client-beneficiaries to make the trustee feel appreciated. As to if this type of condition is legally legitimate is another matter. To make matters worse, the rogue trustee took money from the trust and purchased a property for herself. Immediately upon recognizing the problem, we filed a petition to the Court asking that she be removed as trustee and otherwise held accountable for her actions. The Court forced her to provide an accounting showing how she had managed the money. Once the Court saw the extent of her breaches of fiduciary duties, the Court also removed her as trustee and appointed our client in her place.

If you or anyone you know is the beneficiary of a trust, and you are concerned that the trustee is not doing as instructed by the trust's terms, please let us review the situation to ensure that a trustee has not gone rogue.

Footnotes

Footnotes
↑1 Contrary to popular belief, a rogue trustee is not necessarily from Alaska
↑2 The trust contained no language requiring our client-beneficiaries to make the trustee feel appreciated. As to if this type of condition is legally legitimate is another matter
Estate Planning / Probate / Trusts - 07/28/2015
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