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Probate in Nevada

Is There an Easy Way to Avoid Probate in Nevada?

 

As anyone with any experience in estate planning will tell you, probate proceedings are a thing to be avoided at all costs.

Of course, they cannot always be avoided. Sometimes family members of a deceased individual find themselves in probate court, dealing with the associated costs and maddening bureaucracy.

These individuals will probably wish to find ways to get out of probate as quickly as possible. In the state of Nevada, unfortunately, there are not as many options for doing this as these individuals might wish.

If the estate that’s ended up in probate is sizeable, then you’re stuck in probate. However, the state of Nevada allows for certain legal shortcuts for those estates that are not especially large.

There are two categories of estates that can be considered in this manner, those that are $20,000 or less and those that are less than $200,000. We will handle them each separately.

 

Probate in Nevada for Estates Worth Less Than $20,000

For these estates, a simple affidavit will suffice for settling the estate and getting it out of the probate courts.

To do this, a person that believes they have a right to inherit property or assets from the dhttps://www.clearcounsel.com/services/nevada-probate/synopsis-nevada-probate-law/eceased submits a document that is signed under oath to make such a claim.

In other words, they submit an affidavit to the probate court. It is important to note, though, that these affidavits cannot be submitted to claim real estate.

Also, not just anyone can submit such a claim.

These affidavits can only be filed by immediate family members, as well as siblings, grandchildren or parents. Finally, any assets or property that are inherited in this manner are subject to a 40-day waiting period.

 

Probate in Nevada for Estates Worth More Than $20,000

For estates that have more value than the above and include real estate, the executor can file a motion for a simplified probate proceeding. If the court approves, then a simplified, more expeditious probate proceeding will take place.

Also in some cases, the courts will permit that executor to divvy up the estate without the need for a probate proceeding. For estates that are valued at $100,000 or less, the probate courts may simply divide the estate’s assets between the deceased’s children and spouse.

If you find yourself dealing with an estate of this nature, it may be wise to consult an estate planning lawyer who can determine if a simplified probate proceeding is the best course of action.

 

We Can Make Probate in Nevada Easy for You

The best way to avoid probate all together is to have an ironclad plan for your estate. To do this, you will want to consult with a qualified estate planning attorney, experienced with probate in Nevada, like the ones in our office.

At Clear Counsel Law Group, we will be able to help you establish a last will and testament, create trusts, and pursue other options that will allow you to keep your estate out of the probate courts after your demise.

Ultimately, doing this will be to your beneficiaries’ benefit.

Not only will they not have to deal with litigation in a probate court, but they will also stand a better chance of receiving their inheritance without the government taking substantially more than its fair share through estate taxes.

 

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How Inherited IRAs are Affected by the Supreme Court’s Decision

This past summer in Clark v. Rameker, the Supreme Court ruled unanimously that inherited IRAs are not retirement funds and thus are not protected during bankruptcy proceedings. This decision will have a clear impact on estate planning because IRAs passed onto heirs are no longer protected like they once were, and spouses who receive IRAs after death must now make a decision regarding IRA rollover.

In Clark v. Rameker, Heidi Heffron-Clark inherited an IRA after her mother passed away in 2001. In 2010, she and her husband filed for bankruptcy and intended to shield this inherited IRA from creditors by counting it as retirement funds. In the past, courts have allowed heirs to do this, but in a stunning reversal, the Seventh Circuit Court of Appeals and the Supreme Court ruled that inherited IRAs cannot be counted as retirement funds and cannot be shielded during bankruptcy.

In its decision, the Supreme Court asserted that inherited IRAs do not function the same way as IRAs that you set up yourself, and so they should not have the same legal protections. The Court explained that inheritors cannot add funds to inherited IRAs, inheritors must begin to withdraw from the IRA even if they are not close to retirement, and inheritors can take large distributions from the IRA at any time and without penalty. Because of these three differences, the Supreme Court argued that inherited IRAs are not like normal IRAs and do not function as retirement funds, so they will not be afforded the same protections. Individuals should now adjust their estate plans accordingly because transferring IRAs to heirs will no longer be as beneficial as in the past.

Spouses Who Inherit IRAs

Unlike other individuals who inherit IRAs, spouses have the option to roll over the IRA into their own existing IRA. In the past, surviving spouses often had no reason to roll over because they could just maintain both IRAs and be confident that both would be protected during bankruptcy. With the new Supreme Court decision, surviving spouses should seriously consider rolling over their inherited IRAs. According to Investment News, the spouses may have to pay 10% early withdrawal penalty if the funds are transferred before they turn 59.5 years of age. However, in many cases this penalty is worth it in order to protect those funds in the case of bankruptcy.

Protecting IRAs for Non-Spouse Heirs

Although the Supreme Court has taken away the primary protection for inherited IRAs, there is still a way for estate planners to make sure that these IRAs are protected from bankruptcy proceedings. According to Forbes, by naming trusts as the beneficiaries of IRAs instead of naming people, these funds can still be available to your loved ones after you pass away and can still retain their prior protections. Of course, establishing trusts is a much more complex process, so individuals should make sure they want to take this route and should seek the advice of estate planning experts.

Clark v. Rameker has changed the rules regarding inherited IRAs and made them a less attractive asset to pass on to your spouse or children, but it’s important to remember that with rollovers and trusts you can still protect these assets and make them available to your loved ones.

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How to Write a Will

While most people understand the importance of having a will, they typically do not know what steps to take to write one. In some situations, having a professional write your will is best, especially for large estates. However, it is possible to write your own will.

Writing a Will

The first step in writing your own will is deciding which tool you will use to draft it. While it is legal in some states to hand write a will, it is strongly suggested that a typed copy is created, as a formal document will make the probate process after you death much easier.

There are various tools that you can use to draft your will, including:

  • Statutory forms – These forms are customized to various state laws. (Only a few states have these.)
  • Flat forms – These blank forms are filled in by using your word processor.
  • Will software – With various will software programs, you answer questions and then the program automatically creates the will based on your answers.
  • Will books – Will books provide helpful instructions on completing flat forms, as well as offering advice on other aspects of estate planning.
  • Online will programs – Like will software, you create the will within a template program, however this would be done online.

Make sure that you pick the tool that works best for you and one with clear instructions. That way, the will that you create effectively communicates your last wishes.

What to Include in Your Will

While no states require specific information or language in wills, you do want it to be easy to understand for those who will work with your will after you death. Wills are typically used to distribute property, as well as other assets. Wills can also do the following:

  • Name an executor – Executors are in charge of fulfilling the deceased’s last wishes and to clear all debts.
  • Name guardians for young children – This will include stating how the children’s inherited property and assets will be managed.
  • Explain how debts and taxes are to be paid and cleared.
  • Designate a caretaker for pets and how to provide for them.
  • Act as a backup for a living trust.

Wills are not intended to do the following:

  • Put conditions or guidelines on gifts. (For instance, courts will not enforce conditions such as a recipient only receiving inheritance if he or she marries a specific person or if he or she changes religion.)
  • Leave property for pets.
  • Name life insurance beneficiaries or other payable-on-death bank accounts.
  • Funeral arrangements. (It is best to create a separate document that states how to handle final arrangements.)

Make Your Will Legal

Making a will legal involves the following:

  • The will maker’s signature.
  • Two witness signatures.

Keep in mind that your witnesses do not need to read the will, as they are only signing to acknowledge that it is a will. In most states, you can also include a self-proving affidavit that will make the probate process easier after your death. Also, wills do not need to be signed by a notary public to make it legal.

Seeking Legal Assistance for Wills

If your estate is more complex and you think that an attorney would be helpful in creating your will, contact Clear Counsel Law Group to set up a consultation. The estate attorneys at Clear Counsel Law know how to create a will that reflects your final wishes.

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Don’t Wait to Plan Your Estate

Although we all know estate planning is important, most of us would prefer to put it off. However, it’s one of those things you simply need to get done or the repercussions could be severe for those most important to you. Let’s discuss some of the reasons you should get started today.

It’s Not Just for When You’re Deceased

No one wants to think about their own demise, which is one of the main reasons they put off planning their estate. It’s important to remember, though, that estate planning is not just about when you pass away.

What happens if you were to become incapacitated? A tragic event could leave you disabled too. With a drafted estate plan, you can rest assured that someone is available—someone you trust—to look after your affairs. Furthermore, they’ll have clear-cut instructions to follow for doing so.

Avoid Unnecessary Taxes

That being said, obviously, estate planning is central to planning for your passing. One of the major disadvantages every family faces when their loved one passes without an estate planned is taxes. Income and capital gains taxes can strip your savings, leaving far less left for your loved ones.

With a well-drafted plan, estate taxes can be greatly minimized or even avoided altogether.

Ensure Your Wishes Are Honored

Without an estate plan, you’ll be lucky if all of your wishes are properly honored when you’ve left this life. Once you’re gone, divorces in your family, lawsuits and creditors can all challenge who owns what you’ve left behind. Your spouse could also remarry someone with children, who would then have some entitlement to your money.

Once again, with a solid estate plan, you’ll have your wishes spelled. Challenging them will be difficult.

In fact, with a “no-contest” provision, your plan will be virtually bulletproof. Such a clause will most likely discourage anyone from challenging it.

Help Inexperienced Loved Ones

Just because your loved ones get your money as you planned does not mean they will use it as you would have liked. Some of your family members may not have experience with the amount you’re leaving them.

Fortunately, you don’t have to be around to guide them in using the money responsibly. Your estate can actually include instructions that the beneficiary has to follow. For example, you could leave some of it as a college fund or insist that it goes into an account that can’t be touched for a certain number of years.

You can even take things a step further and stipulate that certain funds can only be accessed by family members after they’ve completed certain milestones in their life. This will also protect your money from depletion if your heirs do make poor decisions.

With Clear Counsel Law Group, you don’t have to put your planning off to another day. Our firm was created by the joining of two others, giving us unrivaled experience in the area of estate planning. Call us today at 702-522-0696 and we’ll work with you to ensure your wishes are known and followed.

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Elder Financial Abuse – What You Need to Know

One of the most serious problems confronting our growing elderly population is the risk of elder financial abuse. Elder financial abuse is defined as the use of unfair or deceptive practices that financially exploit and rob the elderly of the money that they spent their whole lives saving. In fact, it is already a widespread problem affecting people across the country. According to Consumer Reports, only 1 in 44 acts of abuse is ever reported, and the rate of elder abuse continues to grow.

Who Commits Elderly Financial Abuse?

One of the scariest things about this crime is that it can be perpetrated by almost anyone who is in direct contact with the victim. Most frequently, this abuse is committed by close friends and family, but caregivers and other helpers also have the ability to steal from their elderly patients. According to the National Adult Protective Services Association, elderly financial abuse can be committed by:

  • Caregivers
  • Family
  • Friends
  • Attorneys
  • Neighbors
  • Bank employees
  • Priests
  • Medical professionals

How Can You Prevent It?

The financial exploitation of the elderly is a serious problem, but fortunately there are steps you can take to make sure that you do not become a victim. Firstly, you should make sure you have trustworthy professionals who will help you manage your estate. CPAs and certified financial planners can help you manage your retirement accounts, but you also want to hire a reliable estate planning attorney such as one of the many at Clear Counsel. A good estate planning attorney will help you write power of attorney documents, as well as will documents. With their help, you can also establish trusts and structure them so that your relatives’ access to the money is controlled or limited.

When your attorney is helping you craft your power of attorney, you want to give a lot of thought to who you should give that power. That person is legally obligated to act in your best interests, but with the power of attorney, he or she will have the ability to manage your money without your supervision. That is why it is critically important that you assign power of attorney to a family member who is very trustworthy. Consumer Reports recommends that you give that power to a family member who is financially secure and more detached from you instead of the family members who are closest to you. That may reduce the risk of abuse, but it always depends on the situation. It is also possible to assign a separate relative or friend to monitor the person who has power of attorney and that will give you greater protection and control over the situation.

It is also a good idea to set up most of your recurring payments as direct deposit. Payments such as those that come from pensions, Social Security, and tax refunds should go directly to your bank account. That will reduce the risk that someone close to you, such as a caregiver, will have access to your money. Finally, you can work with your bank so that recurring payments such as mortgage payments and utility bills are paid out automatically from your account. This will further reduce the risk that someone close you can exploit you financially.

Call the experienced staff at Clear Counsel today to set up a consultation about your legal rights and set up the documents that will help to protect you from elder financial abuse.

Why Should I Set Up a Trust?

A very common misconception among people engaged in estate planning is the idea that only the extremely wealthy should establish a trust. This is actually not true. If you have more than $100,000 worth of assets, it is typically a good idea to set up a trust. There are other circumstances when a trust would be a good idea:

  • A business, real estate property, or an art collection makes up a large portion of your assets
  • Paying out your estate to your heirs in very specific ways
  • Setting aside a portion of your estate for children from a prior marriage
  • Maximizing exemptions from estate taxes
  • Providing benefits to a disabled relative

Benefits of a Trust

Control: With a trust, you can decide exactly how much of your assets are distributed, when, and to whom. For instance, if some of your heirs are less responsible with money, you can arrange the trust so that they receive their disbursements in smaller amounts and at a later date. You can also set conditions such as graduation from college or marriage, so that the money is distributed in exactly the way you prefer.

Reducing Taxes: There are many different types of trusts, and they are subject to taxes in different ways. Generally speaking, trusts are a great way to reduce the amount of estate and gift taxes that would normally be paid.

Avoiding Probate: Probate is a long and costly process. CNNMoney.com reports that probate can cost between 5-7% of your estate. By setting up a trust, your heirs can get access to your estate quickly and easily and bypass the probate process altogether. Another advantage is that the probate process is public record. If you would like to distribute your assets privately and provide privacy to your heirs, a trust is the perfect way to do that.

Protecting Your Assets: Transferring your assets to a trust can protect them from lawsuits and creditors. If you can survive financially without many of your assets, creating a trust is a good way to protect them long term.

Supervision: For most types of trusts, you will name a successor trustee. This person will manage the assets after you pass away, and by choosing a savvy and capable trustee, you can ensure that your assets will be managed wisely. This is a great solution if your spouse or heirs lack the skills to manage your assets effectively, or if you wish to distribute assets to children or disabled relatives who may not be able to watch over your assets on their own.

Providing for Charity: Trusts can be drafted so that a portion of your estate goes to charity. For instance, some trusts are designed so that they give the maximum tax-exempt amount to your heirs and then transfer the rest of your estate to charity. If you would like to donate a large portion of your assets, a trust is an excellent way to do that.

Like all forms of estate planning, you will need professional help to establish a trust. According to Investopedia, you will need to pay between $1000 and $3000 for attorney fees when you are setting up a trust. But if these benefits appeal to you, creating a trust is a smart investment.

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What Is a Totten Trust?

In 1904, the New York Court of Appeals ruled that individuals could name a beneficiary to an upon-death bank account. The case was referred to as Matter of Totten, which is where this trust got its name. While a totten trust does not meet the formal requirements to be considered a traditional trust, the courts ruled that because these types of bank accounts usually held smaller amounts of money, the practice could continue.

How to Open a Totten Trust

If you are in the process of planning your estate, you may be wondering what will happen to your bank accounts once you die. In most situations, bank accounts are jointly held between two people within marriage. When one person dies, the surviving spouse will become the sole owner of the account, and the account will not need to go through the probate process. However, if you are the sole owner of a bank account, then you will need to take other steps to ensure that your bank account is transferred to the individual you prefer.

A totten trust is basically a “payable-on-death” account, where a named beneficiary will take sole ownership of the account upon your death. In order for the beneficiary to receive the funds in the account, this individual will need to present a certified copy of your death certificate, along with valid identification to prove that he or she is the beneficiary.

To name a beneficiary to a totten account, you will need to go to your bank and ask for the appropriate forms, fill them out, and then turn them in at your bank. Be sure that your bank receives these completed forms, as it is not enough to simply fill them out and keep them with your important documents. The bank will need to have this information prior to your death.

It is important to know that you can revoke or change the trust at any time during your life. This means that you can withdraw the trust or change the beneficiary if you need to. If you do not name a beneficiary to your bank accounts, the accounts will go through probate upon your death and the court will decide who will receive your money. If you do name a beneficiary, this person will only have access to your account after your death. The named beneficiary will not have access to your account while you are alive, not even to inquire about the funds in the account.

Upon your death, the beneficiary will be contacted and will typically receive the funds within a short period; the account will not have to go through the probate process.

Contact an Estate Attorney

If you are interested in beginning the estate planning process, contact the estate attorneys at Clear Counsel Law Group. The attorneys at Clear Counsel understand the importance of financial planning and securing your family’s financial well-being. Call today to set up a consultation.

How to Leave Assets to Children

How to Leave Assets to Children

When considering wills and inheritances, most people think about adult inheritors, however, there are situations where children will be left with property and other assets. Leaving assets to minor children (under age 18) can be trickier from a legal standpoint, as individuals under 18 are not usually able to understand the complexities that come along with monetary gifts. Even more, some children inherit monetary gifts that involve more intricate planning and management, such as stocks, CDs, real estate, and other investments.

While most people know that it is wise to name a guardian in their will for their minor children, most people do not realize that this named guardian will not automatically be able to manage the children’s inherited money. Once you die, your will goes through probate, at which point a guardian is named for your child. This will usually be the person you name. As for inheritances, the court will be in control of this money--not the guardian--until the child reaches 18. When the child reaches legal age, the court will disburse the inheritance as one lump sum.

Once this child reaches legal age, this money is completely theirs, and unless they are willing to let a trustworthy adult help them manage it, chances are that money will not be managed as well as it could be. While some people may consider opening a custodial account for a minor, this also may not be the best method of leaving money to a child. In custodial accounts, a designated custodian, not the court, will be named to manage the funds. However, all of the money will still be disbursed to the child once they reach legal age.

To avoid money management issues, it may be best to set up a living trust for your child. In your will, you can also name someone who will manage the inheritance until the child takes over. Using this option, the trust will not be handled by the court. Revocable trusts are set up while you are alive and you decide who will inherit the money and at what age. With revocable trusts, the person you choose to manage the money will still have power even if you become incapacitated. (This is not always the case with irrevocable trusts).

All assets that are in a trust are protected from the courts. This is beneficial because court hearings and other legal technicalities can be expensive, thus reducing the value of the inheritance. Trusts also protect the money from irresponsible spending, as you are able to name a trustworthy individual who will manage the money. Even more, assets in trusts are protected from creditors. This is especially important should a divorce proceeding come into the picture.

Seek an Attorney

If you have questions about estate planning or would like to start planning your estate, contact Clear Counsel Law Group to set up a consultation. The attorneys are Clear Counsel know how to help plan estates based on individual needs.

 

How to Choose the Right Executor for Your Estate

How to Choose the Right Executor for Your Will

When it comes to planning your estate, it is necessary to designate an executor. This person, or institution, will be responsible for clearing all of your debts, as well as carrying out your final wishes. Choosing the executor of your estate is one of the most important decisions regarding estate planning, so careful consideration should be given as to who best would serve this role.

The individual who assumes this responsibility should work diligently and promptly to finalize all of your final earthly matters, as well as allocating assets appropriately to beneficiaries. Even more, ensuring family harmony will be another responsibility of this person, as family friction can be especially high during times of grieving.

Some of the responsibilities of the executor, include:

Filing documents to probate court to ensure the validity of the will (this is typically required by law)

Paying final bills, funeral costs, and taxes with estate funds

Canceling credit cards and notifying government agencies of the death (post office, banks, and Social Security)

Filing final income tax returns

Allocating possessions to the heirs designated in the will

Because of the complexity of an executor’s responsibilities, the person you choose should be well organized, trustworthy, dependable, and good with preparing and filing paperwork.

Who to Choose

Typically, most people will name a family member as the designated executor, usually a spouse or child. In some cases, a close friend could be chosen if you do not have a relative that could take on the role. If the executor you choose lives out of state, be sure to check state laws that may require an out-of-state executor to be a relative. Also keep in mind that third parties can be designated as executors if you do not have a friend or relative that you feel can take on the role, especially if the estate is larger in size.

When choosing an executor, be sure that this person is emotionally capable of fulfilling such an important duty. Some individuals handle death better than others, while others may not be able to take on such a significant responsibility like that of an executor. Always be sure to ask the individual you have chosen if they accept the role, as sometimes individuals do not feel comfortable taking on the associated responsibilities.

Cost of an Executor

If a family member or close friend is designated as the executor, chances are that they will take on the responsibility for free. However, you can set aside a monetary gift for them if you decide to do so. If a third party is designated, such as a bank, this institution will charge a fee that is determined by your state. In most states, the fee will depend on the size of your estate and will range from one to five percent of the estate’s value.

If you have any questions about estate planning or choosing an executor, contact Clear Counsel Law Group to talk with one of our experienced probate attorneys.

7 Ways to Protect Assets from Creditors

7 Ways to Protect Assets from Creditors

When it comes to planning your estate, it is not always easy deciding where your assets will go once you are gone. Not only should you try to reduce your estate taxes as much as you can, it is also important to protect your assets from creditors. But be careful, because some measures to protect your assets may be considered fraudulent under the Uniform Fraudulent Transfer Act. If an asset transfer occurs with the intent to defraud or hinder a creditor, it is considered a “fraudulent conveyance.” Below are 7 safe methods you can use to protect transferred assets from being claimed by creditors.

1. Outright gifts – By giving an outright gift to an heir, it is protected from creditors. However, be aware that you will lose control over the asset, including all economic interest.

2. Family Limited Partnerships (FLPs) – Limited partnerships within a family means that each partner pays taxes independently of each other. So when assets are involved, when one of the partners die, the assets left to the limited partner will be more difficult for creditors to access to cover debts. Only the limited partner’s interest can be reached by creditors in most cases.

3. Inter Vivos qualified terminable interest property – This trust is to be created for your spouse while you are alive. Once created, it qualifies for the gift tax marital deduction. When your spouse dies, the QTIP trust will be a part of his/her estate. If your spouse does not have enough assets to cover federal estate taxes, only then will the QTIP assets be used to fulfill taxes.

In the case that you survive your spouse, the QTIP assets that you established for your spouse will now fund a family trust. This amount will be equal to the estate tax exemption, which is currently $1.5 million. Any assets left over after this transfer will be assigned to you under the marital trust law, and because it qualifies for the marital deduction, there will be no federal estate tax on these assets at the time of your spouse’s death.

Because assets that enter a family trust do not qualify for estate taxes, it is beneficial to set up your QTIP trust in this manner. This structure protects your assets from creditors because assets moved to a family trust for a surviving spouse’s benefit are not subject to federal estate taxes. This is because these family trust assets are not legally part of the surviving spouse’s estate.

4. Irrevocable life insurance trusts (ILITs) – For federal estate tax purposes, insurance proceeds in ILITs are not considered part of your estate. This trust protects insurance proceeds during and after your death from creditors.

5. Qualified personal residence trusts (QPRTs) – With a QPRT, you can transfer a residence, either primary or vacation, to a living trust. With this trust, you reserve the right to live in the residence for a set number of years that is determined by using IRS tables. The “remainder interest,” the amount of time that you can remain living in the residence, is calculated by taking the value of the property, minus your term interest’s value. The QPRT protects a residence from the gift tax through your $1 million gift tax exemption.

6. Charitable remainder trusts (CRTs) – In this type of trust, a percentage of assets are provided to a “grantor” annually for his/her lifetime. When the grantor dies, his or her spouse will become the CRT annuitant for the remainder of his or her lifetime. After both grantors have passed, the remaining CRT assets are given to charity under the “remainder interest” qualification.

7. Grantor retained annuity trusts (GRATs) – With a GRAT, a donor makes a donation into a trust. For the remainder of the fixed term of this trust, the donor will receive an annual payment. Once this term has ended, selected beneficiaries will receive any remaining value of the trust as a gift.

Estate planning is very complex. Protecting yourself and your family should be your top priority, so speak with an experienced probate attorney at Clear Counsel to discuss your options.

 

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