Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

702-522-0696

A Short Conversation Explaining Community Property and Ademption

What You Need to Know about Community Property and Ademption

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, a Partner Attorney at Clear Counsel Law Group. Here at our law firm, we do quite a bit of estate planning, we create wills and trusts for people. Important concept to understand with doing this is called community property. Nevada is one of a fairly large handful of states that applies this principle of community property.

What is community property? Essentially what it is, the law presumes that after a couple is married, any assets they acquire after marriage are treated as community property, meaning that both spouses have an equal interest, ownership interest in that asset. This would apply even if after the spouses are married, a house is purchased in just the husband's name. Even if the deed says this house belongs to Bob as his sole and separate property, the law would still presume, because the house was acquired after marriage, that the wife also has an equal interest in that property. It's important principle to understand when you're helping somebody prepare a will or a trust, or when you're thinking about a will or trust. What intent do you have as far as community property? Do you intend to be treated as community property? It's a common question that comes up as we're sitting down with our clients, and I think my assistant, Brian, had some questions about community property.

Brian: Is there a way for a spouses to have property that's not community that's purchased after the marriage? Are they able to make an agreement similar to a prenuptial agreement?

Jonathan: That's a good question. A prenup, as you commonly hear, is something that people sign before they're married that deals with hey, this is how we're going to own our property. If you have the presumption in the law of community property, meaning that both spouses have an interest, how do we get around that, so to speak, or if the spouse's intent to not have an equal interest for using the example where they purchase the house in just the husband's name, how do we get around that to make sure that they agree that yes, absolutely, after the marriage, the spouses can sign a written agreement that says we intend to have this asset be held in Bob's own name as his sole and separate property.

Yes, it does usually require a written agreement where both spouses sign it and agree to own one property or some asset as separate property, and that would change the nature of community property. There are also some other interesting exceptions to the community property rule. For instance, after marriage, let's say, Brian, you inherited something from your father's estate. An inheritance, even though received after marriage, would be treated as your separate property. It's an interesting exception to the community property role. Any other questions about community property that I can answer for you?

Brian: Often, when I hear about community property, I hear the term ademption. If you could clarify it, it would be helpful.

Jonathan: Sure. Ademption is an interesting concept in estate planning. Ademption means if you put into a will or a trust or you say, for example, I give my house at 123 Anywhere Street to Brian, and then after you die, you no longer own Anywhere Street. Sometime in between the signing of the will and your death, you've actually sold Anywhere Street and you don't own Anywhere Street anymore, but in your own, you had specifically given 123 Anywhere Street to Brian. What happens to that gift? The general rule of ademption means because that specific gift no longer is in existence, you don't own Anywhere Street, that gift is deemed adeemed or it goes away, in other words. You no longer get that gift.

There are some exceptions to ademption where Brian might still get 456 Elsewhere Street that you currently own at the time of your death, but that gets a little bit dicier and you have to be careful when you're doing estate planning to say what you mean and mean what you say when you're giving specific gifts. Otherwise, worst case scenario, you would have a situation like ademption apply where somebody's not getting a gift that you really intended for them to get.

When spouses sit down and they're doing this analysis of what's community property, what's separate property, we want to make sure that ademption doesn't apply. We want to make sure that when we give this gift, it goes to the person we intended it to go to. You want to make sure that you're very careful about how you write that in your will or your trust so that you mean what you say and say what you mean in your will. I encourage you to talk to a good estate planning attorney, we have several of them here at law firm at Clear Counsel Law Group, but they will always be able to understand these principles and these issues in helping you with your estate planning.

Probate / Probate Videos - 11/28/2015

What is America's Greatest Thanksgiving Tradition? (Hint: Not Football)

Thanksgiving Pop Quiz, dear readers, what is America's Greatest Thanksgiving Tradition?

Is it:

A.) Turkey, stuffing, et al.¹⁾and the subsequent malaise from over-eating

B.) Football, football, football²⁾This can't be the right answer, Iowa doesn't play until Friday...Go Hawks!

C.) The Department Store-sponsored parade of over-sized, inflated objects.

D.) Awkward³⁾sometimes very. My instincts say Mr. Trump will only help with this political conversations with relatives you should know a little better before speaking to with such a harsh tone.

I mean these are all great, obviously. But the greatest? It does not seem to be listed above...

Thanksgiving Means "Alice's Restaurant"

This is the 50 year anniversary of what might be America's best holiday song⁴⁾after that awkward Adam Sandler one, obviously. There seems to be two groups of folks when it comes to "Alice's Restaurant": those who know and love the song dearly, and those who have yet to have the pleasure. We will need to cultivate this conversation for the latter group, as we do not want anyone to feel left out.

Most of the pieces I have read about Arlo Guthrie's (Yes, he is the son of Woody) song spend some time discussing the song, then wait until the end to have folks give it a listen. I think this is a mistake. The following tidbits are much more fun if you are familiar with the song, so let's start here, without context (this is where you trust me). The humor is a bit subtle, and if you would like to read along (helpful but not necessary) I recommend the Genius annotations. Plus, you'll get to see a few of the locations/characters mentioned in the piece.

http://genius.com/Arlo-guthrie-alices-restaurant-massacree-lyrics

The Story Behind "Alice's Restaurant"

For the 40th year anniversary of the song, Arlo Guthrie did an interview with "Fresh Air" on NPR in which he gave us a little background:

A lot of people thought it was fiction and this is all real stuff. I had visited my friends during the Thanksgiving break, Ray and Alice, who lived in this abandoned church. They were teachers at a high school I went to just down the road in the little town of Stockbridge, Massachusetts. And a friend of mine and I decided to help them clean up their church, and because I had gone to school there, I was familiar with all of these little back roads and nook-and-cranny places. And I knew a place that local people were using to get rid of their stuff.

It's hard to pick out a favorite part of the song, but for starters, when they come across the sign below, for some reason, they just turn around and continue on, looking for the one dump in the area that is open on Thanksgiving? Pretty great.

Additionally, I challenge you to find a better description of a trial in song than that of "Alice's Restaurant."⁵⁾Not counting Dylan's "Hurricane" of course As the Genius annotations highlight, it is just too much that Arlo is convicted by a blind judge with the only evidence being the twenty-seven, 8-by-10 "color glossy pictures with circles and arrows and a paragraph on the back of each one."

There is another great excerpt from the NPR interview I want to share:

ELLIOTT: So do you remember the first time you actually played "Alice's Restaurant" for an audience?

Mr. GUTHRIE: Well, the first time I started talking about it some of the events hadn't taken place. I started it the night that Officer Obie called. He called in the daytime--in the morning--the--which would have been Friday after Thanksgiving, 1965. We went and we picked up the garbage. We went back and we were sitting around the kitchen in the church that night. And I had a guitar and we were making up funny little verses like, `You can hide from Obanhein at Alice's Restaurant,' stupid stuff. We were just, you know, just hanging out. And it wasn't a song and there was no story. We were just having fun. But as the draft scenes unfolded in my real life, I began to include them in the song and it took about a year to put that together...

The only thing I really miss about doing it these days is that there's maybe a few people in every crowd that haven't heard it, but it's nothing like having the few hundred or a few thousand people years and years ago--40 years ago--when nobody had heard it. Those moments can't be repeated. And not only that, there were people singing this song together who politically had nothing in common and probably wouldn't have talked to each other. But to see them all singing together reminded me of the spirit of what the country was all about, and I was thrilled. And, unfortunately, those days are gone for me. Not--that can't be repeated. (bold added)

Completely agree with the bold statement above. Might not be such a bad idea, especially in political season, for all of us to take a moment on this Thanksgiving to think about what unites us all.

It is a Great American Tradition to Give "Alice's Restaurant" a Listen Every Thanksgiving

As you saw in the quote above, the first time Arlo Guthrie played "Alice's Restaurant" was in front of his friends in 1965. In 1966, at radio station WBAI in New York City, Mr. Guthrie played the track live on Bob Fass' overnight radio show⁶⁾Source. Every since then, classic rock radio stations throughout the country adopted the tradition; the earliest example I could find was Chicago station WXRT which claims to have begun playing the song on Thanksgiving in 1973.

Unfortunately, our radio friends in in the Las Vegas area stopped playing "Alice's Restaurant" years ago. But do not despair dear reader! Besides Youtube, SiriusXM channel 741, The Village, will play four different versions of the song throughout the Thanksgiving holiday.

But I am most excited to report that your local PBS station will be showing a live performance of "Alice's Restaurant" with the original band to celebrate the 50th year anniversary! (8 p.m. local time in Las Vegas). For those of you just learning of "Alice's Restaurant" for the first time, what a perfect time to begin the yearly tradition!

Below is a a little further reading if you are interested, plus a live performance of "Alice's Restaurant" recorded for the 40 year anniversary.

All the best from us at Clear Counsel Law.

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/11/AR2005081100624.html

http://www.rollingstone.com/music/features/arlo-guthrie-looks-back-on-50-years-of-alices-restaurant-20141126?page=2

Footnotes[+]

Footnotes
↑1	and the subsequent malaise from over-eating
↑2	This can't be the right answer, Iowa doesn't play until Friday...Go Hawks!
↑3	sometimes very. My instincts say Mr. Trump will only help with this
↑4	after that awkward Adam Sandler one, obviously
↑5	Not counting Dylan's "Hurricane" of course
↑6	Source

General Interest / News - 11/25/2015

What a Casino Worker Needs to Know about Declaring Bankruptcy

Addressing the Special Concerns of Casino Workers Thinking about Bankruptcy

Transcript:

Matt: Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Here in Nevada, a big segment of the population is employed by the casino industry. A very real concern of these people that run into financial difficulties is whether or not they're allowed to file for bankruptcy, and if they did, whether that would jeopardize their employment.

In my experience, it hasn't been a problem. I've filed bankruptcies for dealers, for guest room attendants, for cage cashiers and porters. All these individuals have had garnishments and bank levies, and we've been working closely with the human resources department and the payroll department at various properties to make sure that these individuals can stop a wage garnishment for example. In my experience, the casinos have been very cooperative in helping us deal with wage garnishments and help their employees out.

In my experience, there has been no difficulty whatsoever with these types of people being able to keep their jobs and still file for bankruptcy and address the debt that's hanging over them. Very common issue. I haven't seen it be a problem. It is theoretically possible because these are gaming institutions and they are very concerned about protecting the financial integrity of their institutions. However, for most, actually for all, individuals that I've filed bankruptcy for that worked in the casino industry, it hasn't been a detriment to their job. Brian, did you have any follow-up questions in this area that you've been seeing?

Brian: Is it unique for a casino employee, in particular because they need a sheriff's card to deal with money? Is that going to stop them from declaring bankruptcy?

Matt: No. Having a sheriff's card and working in this type of environment isn't going to prevent you from filing bankruptcy. The only real issue is whether or not their employer would view the bankruptcy negatively and in such a light to where it would disqualify them from remaining employed at that property. In our experience, that hasn't been the case. If you have any particular concerns about your situation and you work at a casino or a gaming institution and you're thinking about filing for bankruptcy, please come and see me. We'll discuss it. If necessary, we'll reach out to your employer to make sure it won't be an issue. This is Matt McArthur at Clear Counsel bankruptcy department. I hope to hear from you soon.

Bankruptcy / Bankruptcy Videos - 11/24/2015

A Conversation about the Guardianship Process

What You Need to Know about the Guardianship Process

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, a partner attorney at Clear Counsel Law Group. In 2015, there was a lot of review in the media here, especially in the local newspaper, Las Vegas Review Journal, and other media outlets about problems with the Guardianship Court and guardianship process in Southern Nevada. A lot of this concern came with what was happening with our elderly population here? Were they being taken advantage of by guardians? Was the court properly overseeing this process? It led to a lot of concern from people who had an elderly parent living here in Nevada, who may have been subject to the Guardianship Court process. A lot of things have been happening to fix these problems.

We've received a lot of calls, and a lot questions, a lot of concern about guardianship. What it is? Why is my parent involved in Guardianship Court? Really quickly, let me tell me shortly. What is Guardianship? Guardianship occurs when an individual, usually an elderly person, but it can be anybody of any age. When an elderly person has lost capacity to the point that it's no longer safe for them to make decisions for themselves. That can be a decision related to finances, or related to their person meaning healthcare choices, living choices, things of that nature. If that person has gotten to the point where they're no longer able to take care of themselves, the Guardianship Court can appoint somebody called a guardian, to essentially step in that person's shoes, and be a guardian for them. Be able to make all decisions related to finances, health care, and so on. That's what Guardianship Court is like. Our assistant, Brian, here in the office that has heard some of this discussion and had a question for me.

Brian: Are you saying because the guardian can make all the financial decisions that he will be able to set his own rate of pay?

Jonathan: That's a good question about the guardian's pay. Everything that happens in Guardianship Court is overseen by the Guardianship Judge. That's part of the problem that occurred earlier this year. There was some question about what kind of oversight is occurring? It's been a lot better now, but yes. The Guardianship Court sets the rate of the pay. The Guardianship Court will examine that and determine whether the guardian is charged a reasonable amount for their services. A good answer to your question on that one?

Brian: You did. I have another question, if that's okay?

Jonathan: Yes, anytime.

Brian: Can a guardian amend an estate plan? If you worked with your parent, and you guys set up an estate plan, and you went back to Ohio where you live. Can a guardian take over and amend it?

Jonathan: That's a great question. The guardianship statutes in Nevada actually do allow a guardian to do something related to estate planning. Typically, for example, the guardian statutes could allow the guardian to create a will, or even a irrevocable living trust for the person under guardianship called the ward. That all requires court approval, and that would only be approved if the plan that was putting it to place any will or a trust, essentially does what would happen if they didn't have a will, which means, if they are leaving the assets to all children in equal shares.

Yes, the guardian could actually petition the court and receive approval to create a will, or a trust for the ward. Your question was about amending. They would typically not be able to amend what was been done previously by the person or guardianship.

Brian: You are saying that they would be able to make a will if there was not one previously?

Jonathan: Correct. Typically, we see that happening in Guardianship Court because the guardian recognizes that they can set up some documents that would make it easier to administer that person's estate after they pass away. They can even set it up to avoid probate, and that's why you would set up a trust to help that person's estate of with probate process. It's flexible, and guardianship can definitely do some things to help the ward be more comfortable, make sure their plans are put into place the way that they would have otherwise wanted to do.

Any other questions about guardianship, Brian?

Brian: There is a concern from a client who lived out of state that his parent would be assigned a guardian by court, and the child would never be told as such. Is that true?

Jonathan: That's not entirely true. It's partially true. Let me explain. A lot of times we have elderly individuals here in Nevada, who don't have family close by. If a concern arises with that person's well being, it's possible for somebody called a private professional guardian, or somebody else, to ask the court through a petition to be appointed as that person's guardian, without a hearing, and without notice to anybody. It's called an ex parte petition for temporary guardianship. Yes, they could be appointed.

The part that is not entirely true is that after that appointment occurs, they had to then give notice to everybody else. Everybody has to receive notice that the temporary guardianship has been put in place. At that point, it would be important for the family members to come forward and say, "Hold on. Wait a minute. We want to be involved. We want to be here taking care of Mom. We want to be the guardian." It would be important for them to come forward to do that.

Yes, and technically, they could be appointed guardian without that. Guardianship is not necessarily a bad thing. It can help elderly individuals that take care of themselves and make sure they're not subject to exploitation, or undue influence from other people. It's important for family to be involved to make sure the process goes smoothly for their parent here, who lives here in Southern Nevada. For more information about guardianships and issues that arose earlier this year with guardianship, and what you can do protect yourself against issues that might arise in guardianship, I encourage you to read our blog at Clearcounsel.com, where you can receive more information from myself and other attorneys who blog about this.

Probate / Probate Videos - 11/23/2015

How Long Do You Have to Live in Nevada Before You May File for Bankruptcy?

Nevada Residency Requirements for Filing Bankruptcy

Transcript:

Hi, Matt McArthur, attorney at Clear Counsel Law Group. I'm a bankruptcy attorney. We're going to speak to you a little bit about the timing of filing for bankruptcy. Nevada is known as a transient state. There's a lot of people coming and going from in and out of state, from places like nearby California or far away New York. It's not uncommon that I meet with people that are new to the area, and they're looking to file for bankruptcy. The related question to just having moved here and needing to file bankruptcy is how long do you have to live in Nevada before you can file for bankruptcy here.

The bankruptcy rule is that the court has jurisdiction over you as long as you have lived in Nevada over 90 days of the last 180 days. The actual rule states that the greater part of the last 180 days you have to have made Nevada your residence. If you've been here for three months continuously, you can file for bankruptcy here in the State of Nevada.

One other consideration that you may want to think about if you're new to the area, is which state's laws will apply inside of your bankruptcy. In a chapter seven case, which laws applies is of great importance, in particular because a chapter seven is a liquidation bankruptcy. Any property that you own that cannot be protected is subject to liquidation by the court. The court can sell your property, which isn't protected, and take the money from that sale and give that money to your creditors in exchange for the wipeout of your debt.Which protections are we allowed to take? That depends on state law and which state's law applies depends on how long you've been in Nevada. If you've been in Nevada for two years constantly, Nevada's laws will apply. Nevada is generally known as having very generous protection laws or exemptions when filing for chapter seven bankruptcy. Keep that in mind. If you've been here less than two years, make sure you bring it up with your attorney when you're talking about potentially filing for bankruptcy so that they're aware of any potential exemption issues that may affect your personal or real property.

My name is Matt McArthur, a bankruptcy attorney at Clear Counsel Law Group. If you're thinking about filing for bankruptcy and you're new to the Nevada area, please come and speak with me and I'll let you know exactly where you stand.

Bankruptcy / Bankruptcy Videos - 11/21/2015

What Can You Do About Wage Garnishment?

How Declaring Bankruptcy May Help You with a Wage Garnishment

Transcript:

Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. One of the most pressing issues I see on nearly a daily basis is the issue of wage garnishment. People come in all the time and ask, "What can I do about a wage garnishment?" In particular people are very curious to know whether or not they can get the money back from a wage garnishment if they file for bankruptcy.

In certain circumstances, we can actually get that money back. If we have filed your bankruptcy case and a payroll department or a creditor continues with the wage garnishment after we have filed your case, that is money that belongs to the bankruptcy estate and is most likely an exempt asset that will be returned to you. However, if the money has gone through the wage garnishment process and we file your bankruptcy after that money has been already taken, usually that money is gone.

In some situations, if the money hasn't been delivered to the creditor yet, we can get the money back but as a general rule of thumb, you probably want to consider money that has already been garnished before you filed as gone and any money that may unfortunately be taken after we file for bankruptcy as money that you can get back. The reason being is the moment we file for bankruptcy, a collections freeze goes into place. This collections freeze is known as the automatic stay of the bankruptcy code. It's a very powerful law.

Unfortunately sometimes it takes a little bit of time to get all parties noticed and stop the ball from rolling forward with the wage garnishment. People's payroll are typically run earlier in the week before pay day and once the pay day rolls around, it's after payroll has already been prepared earlier in the week. In other words, even if we're to file for bankruptcy before your pay day, there's a chance your payroll department may have already processed your check with the wage garnishment intact. It's then a matter of us getting that money back because we [would 00:02:12] file for bankruptcy and put into place the bankruptcy protections before the actual pay day when the money is supposed to be received.

This is absolutely something that is a time issue. We want to file your case as quickly as possible. If there is a ongoing wage garnishment, so if you are facing a wage garnishment, please come and speak with an experienced attorney and I'd be happy to help with you. Again, this is Matt McArthur at Clear Counsel Law Group talking to you about wage garnishments and getting your money back.

Bankruptcy / Bankruptcy Videos - 11/20/2015

Accident, car accident, Las Vegas, Metro, non-injury, investigation

Las Vegas Metro to Resume Investigating Non-Injury Accidents in January

In March of 2015, the Las Vegas Metropolitan Police Department announced it would stop responding to car accidents where neither party was injured. This was quite an interesting change since Metro had been reporting to all car accidents for nearly forty years. Budget and staffing concerns were cited as the reason for the cut back, and citizens were left puzzled. Many clients raised concerns to our office: What happens if I don't feel injured right away but later realize I am? What if the person deserves a ticket? What if someone who hits me denies s/he were at fault and my insurance will not cover me?

These are just a small sample of the dozens of concerns that were raised. Personally, the concern that stuck me the most was a question of safety. A female client expressed concern to me that if she got in an accident after dark, she would not feel comfortable exchanging insurance with a complete stranger, leaving her vulnerable on the side of the road. This resonated with me. Particularly of concern was when a person who causes an accident and might face someone with “road rage,” which is quite rampant in Nevada. All of these concerns appeared likely to cause other problems for the citizens that the police may not have anticipated.

I certainly can understand this non-response policy working well in smaller, slower paced cities but not in the Las Vegas Valley. Our city continually ranks high in the number of accidents, making a decreased police presence on the streets all the more concerning. If the thought of getting a ticket for causing a minor accident is not looming over people’s heads, drivers will probably take more risks and end up causing more accidents in the long run.

On the other hand, of course, we all want the police to be protecting the streets from murders, robbers, and kidnappers and not spending hours taking statements from victims of a paint-smudging minor collisions. I am sympathetic the the resource concerns of Metro.

Metro changes course with non-injury car accidents

As it turns out, public safety concerns outweighed this ill-fated policy. Starting January 2016, the policy will be officially reversed. Metro will again respond to any accident where they are called and prepare a report for the parties.

Clearly, there are other ways to save officers time in responding to accidents, specifically by reducing the number of accidents! It is clear that Las Vegas has too many, and the reasons are many and complicated. The roads need to be safer for our citizens, but getting there will not be easy. Perhaps if tickets were more expensive and more common, drivers would be more cautious and more motivated to be careful. There are many options for reducing the number of accidents on our roadways. Intersection cameras might be expensive at first, but are likely to pay off in the long run. Or perhaps, harsher penalties for those who drive under the influence. This, combined with the presence of ride shares like Uber and Lyft may help keep Las Vegas safer by making it easier for folks to get a ride home. Lowering speed limits, raising the age to start driving, adjusting the patterns at high-accident intersections, mandatory insurance increases with each accident, or even public ad campaigns reminding people how getting a little bit ahead on the roadway really does not save time in the long run.

These are just a few options for making our roads safer. However, all public safety measures come with a cost and it’s often hard to get the citizens on board for raising the funds needed, i.e. taxes…. But for now, it is a step in the right direction to put police back on the scene of even minor accidents, so these small inconveniences do not end up as big hassles later on.

General Interest / Las Vegas / Nevada Law / Personal Injury - 11/18/2015

How Will Declaring Bankruptcy Affect Your Employment Prospects?

Will Declaring Bankruptcy Affect My Employment?

Transcript:

Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. It's not uncommon that I get asked the question: How will filing bankruptcy affect my current job or any potential future employment? The answer to this question is a very difficult one to provide because it's a very specific answer to each employer. Each employer has their own policies and their own requirements for employment.

However, I will note that if you're seeking employment from an employer that has very strict credit background guidelines that they're going to be doing a background check and looking into your financial history, chances are that if you have poor credit and you're thinking about filing bankruptcy, you may already be disqualified for this job because if you have a very low credit score they're going to see that you've been either financially irresponsible or you've gotten in over your head in some way or another.

Filing bankruptcy may actually help you with some employers because it shows that you are taking the initiative to address this debt and you're not letting the debt remain a lingering issue that's going to affect you and follow you throughout your life with wage garnishments and bank levies and the like.

Now there are certain types of perhaps government jobs that I've been informed of that have more strict regulations. Working for high end financial institutions. These are the types of companies generally that are going to look very closely at your background and your financial history. However, by and large I haven't really heard a lot of feedback from my own clients that they've been negatively affected by filing for bankruptcy.

If you're concerned at all about how this may affect your employment before filing bankruptcy, and you're either worried about your current job or a potential future job that you're looking into, please make sure to speak with the hiring individuals or the human resources department for these employers to get a clear statement on with their policy is toward bankruptcy, towards bad credit. Then we can take a detailed look at your particular situation and see whether or not bankruptcy will actually help you in terms of keeping or getting that new job. This is Matt McArthur at Clear Counsel Law Group. I hope to hear from you soon if you're thinking about filing for bankruptcy and you're worried about your employment, because I'd be happy to help you.

Bankruptcy / Bankruptcy Videos - 11/17/2015

Holographic Wills: You May Write Out a Will on Almost Anything

What is Necessary to Complete a Holographic Will?

Transcript:

(Editor's note: Brian is Clear Counsel's Communications Director. His prompts represent a conglomeration of inquiries submitted. If you have you have a question you would like answered in an upcoming video, email the inquiry to brian@clearcounsel.com)

Jonathan: Hello. My name is Jonathan Barlow, I'm a partner attorney at Clear Counsel Law Group. I was recently talking in the office with some of our assistants here in the office about how you can actually write a will on anything. You can write it on the back of your receipt in the grocery store aisle. You could write it on a letter. That could be a valid will depending on if you follow the requirements in Nevada.

Brian, my assistant, didn't believe me. In fact, Brian, what was your question about this?

Brian: You can't be serious, Mr. Barlow. You're saying if I write out a will on the back of a cocktail napkin, then, ... I leave assets to my children that the court can uphold it? That can't possibly be real. Come on.

Jonathan: It actual is, Brian. It actually is. Believe me. It's called a "holographic will," a hand-written will. In Nevada, there're only three requirements to make that a valid will. Again, if you write it on the back of a napkin, and you date it in your handwriting ... Let's try. Let me be clear. One is, it's in your handwriting. Number two, you date it. Number three, you sign it. That's a will. That's all Nevada says you have to have in order to have a valid holographic, or handwritten, will.

Let me tell you an interesting example, Brian. It wasn't the back of a cocktail napkin, but a few years ago I was involved in a case where a gentleman had gone back to Oklahoma to attend his mother's funeral. While there in Oklahoma, he was sitting in the hotel room, and he pulled out a piece of hotel stationary. You can actually see at the top of it, the name of the hotel. It's just hotel stationary. On this he writes a letter to his long-time girlfriend. Not married. Long-time girlfriend. In that he says, "Dear Susie. I want to make sure that you get everything that I have, and that my children and my other relatives get nothing", basically. "I intend to create a will at some point in the future. Love Bill." The girlfriend was actually able to get that one-page letter written on hotel stationary admitted as a valid will. The kicker is, the estate was worth over two million dollars. The children were cut out of two million dollars due to a hotel stationary letter.

Yes. You can do it on a hotel ... Excuse me, on a napkin. You can do it on a hotel piece of stationary as long as you meet those three requirements of, "in your handwriting," "date it," and "sign it."

Brian: You're saying that we don't need a witness?

Jonathan: Not for a holographic will. That's an excellent question. You don't need a witness. You don't need to have it notarized. All it needs to do is meet those requirements, as long as it's in your handwriting. A common problem that we sometimes see with this is that somebody will go on the computer and type out the will, and they'll sign it. If you do that without a witness, or without two witnesses in Nevada, then that will not be a valid will.

Again, the whole thing ... At least what's called the "Material Provisions" of the will have to be in your handwriting. Yes, it doesn't need a witness at all. It's really an interesting technique. Obviously, as an estate planning attorney, we don't advise doing this technique of a holographic will because, inevitably, it causes problems, which I'm grateful to have the work for the disputed part, the litigation, but I would prefer not to do that. Yes, you can do a holographic will on any piece of paper you want, but the best practice is always to go in and visit with a good estate planning attorney and get it done formally. Yes. Meet those three requirements, and you can have a holographic will on the back of a napkin.

Probate / Probate Videos - 11/16/2015

What Expenses are Permitted to be Included in a Chapter 7 Bankruptcy Means Test?

What Expenses May You Include in Your Chapter 7 Bankruptcy Means Test?

Transcript:

Hi. Matt McArthur. Clear Counsel Law Group. I had a question come from a client the other day. What expenses are allowed to be included in a needs test analysis? Now, first off, we need to take a step back before I answer this question. The first part of this analysis is whether or not an individual filing for Chapter 7 bankruptcy is under-median or over-median. What I mean by that is you look at your household size and what state you live in. There is a median income figure for a houseful of that size in that state.

If your median income over the last 6 months is under that figure, then there's no need to go into the detailed analysis of what expenses are allowed to be used as deductions in a Chapter 7 needs test analysis. However, if you are over-median, there are a whole slew of different deductions that are available to an individual. Whether or not you are able to use those deductions is going to require some pretty specific detailed analysis for your particular case.

Some common deductions are income taxes that are withheld from an individual's pay stubs, out-of-pocket healthcare insurance premiums and the list goes on and on. If you are over-median and you're thinking about filing for Chapter 7 bankruptcy, please come see me. I will give you a customized, detailed, personal analysis for your particular situation. I'll let you know whether or not you qualify for Chapter 7 bankruptcy. Hope to see you soon.

Bankruptcy / Bankruptcy Videos - 11/15/2015

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