The Rights of a Beneficiary of a Trust



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


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

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


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


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


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

How a Divorce Affects Your Estate Plan


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

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

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

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

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

Those documents are largely invalidated by operation of law.

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

That’s normally the process.

Brian, any follow-up questions on that?

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

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

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

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

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

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

We’ll make sure we get it done.


What Are the Record-keeping Requirements for an LLC?



How to Keep Records for Your LLC


Jonathan: Hi my name is Jonathan Barlow I’m a partner attorney at Clear Counsel Law Group. One of the main things that we do here is advise people about businesses and about operating their businesses. A lot of people in Nevada have an LLC for their business entity and they often ask me, “What are the record-keeping requirements for an LLC?” It’s a really important question for LLCs because that is actually one of the main differences or one of the best benefits of an LLC and a difference from a corporation. Under a corporation, you typically have to follow strict recordkeeping requirements which include holding an annual meeting of shareholders, holding an annual meeting of the board of directors and then keeping minutes and resolutions related to those meetings and you have to have those in your documents and books at the end of each year.

The LLC disposes with those requirements. You don’t have to do them. The LLC can do so if it wants to but it’s not required. So then, what are the recordkeeping requirements for an LLC? Best practices are to make sure that you’re keeping good books and accounts and records related to your financial dealings with the LLC. You need to be able to show that the LLC is treated differently from yourself and that you’re not co-mingling your personal assets with business assets, so you’re not paying personal expenses with business money so you need to make sure that you’re keeping good records related to your finances.

It’s also important for an LLC to keep good records of who are the managers and members or owners of the LLC. Managers are those persons who are authorized to act on behalf of the LLC in a management capacity. You want to have good documents that reflect that. You also need to keep good track of who the owners of the LLC are and what their ownership percentages are. You want to keep a good membership log, make sure you’re keeping up to date on the percentages. Heaven forbid you ever have a dispute about who owns what with the LLC and you never documented it. So while the recordkeeping requirements are a little bit less with an LLC, it still is very important that you treat the LLC like a business, keep good records about your finances, about the members, about the managers, about the activities of the LLC so that you avoid any liabilities or problems down the road with the LLC.

We have a question from Brian who is also interested in business law.


Brian: What happens if you don’t … God forbid, they don’t follow your advice and you don’t keep these records. What will happen to you?


Jonathan: That’s a good question, Brian, and my clients always follow my advice to the T, I’m sure, but in the event that they didn’t follow my advice and they didn’t do some of these things, they did’t keep good financial records, they didn’t keep good record of who owns what with the LLC, that’s litigation waiting to happen. They’re waiting for someone to sue them and have a problem. The worst case scenario is with the financial records, if you can’t prove that you treated this business separately from yourself or if the financial records show that you paid your personal mortgage out of the business account or that you bought your groceries with the business account or that you’re mixing the money back and forth, the worst case scenario is that does what’s called pierces the veil. It allows a creditor to get into the L.LC to satisfy judgment against you. In other words, it makes all the assets of the L.LC available to somebody to whom you owe money potentially.

Also with records related to ownership percentage, again, if a dispute ever arose about who owns what in the L.LC and who has what percentage, it could become very difficult to prove what your percentage is and what their percentage is and it asks for a lot of litigation in court and expense in that. I encourage all my clients to make sure they keep up on those things, make sure they keep good records for their L.LC and if you have any questions about how to do that, how to run your L.LC properly, how to operate it properly, feel free to give me a call here at Clear Counsel Law Group and we’re always glad to help you.

Under What Circumstances Do You Need a Guardianship?



How Do You Know When You Need a Guardianship?


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

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

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

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


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


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


Brian:  No.


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


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


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

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

What is the Difference Between an LLC and an S Corporation?


Is it Better to Organize as an LLC or an S Corporation?


Jonathan: Hello, I am Jonathan Barlow, I’m a partner attorney at Clear Counsel Law Group. We have many business clients who own small businesses or large businesses here in Nevada and often when they come in to see me to talk about opening their business or starting their business, they ask me, “What’s the best way to create the business?” Or “What corporate structure should they use?” Often, they ask me what’s the difference between an LLC and an S corporation, so let me answer that question for you. What’s the difference between an LLC and an S corporation?  An S corporation really deals with the tax code and how income is taxed under the tax code. In general, an S corporation will treat all income at the partner level. What that means is that the corporation, the business entity itself, doesn’t have to pay a tax when it receives a money. When the money comes out to the owners of the business as distribution of profit, that’s where the partners or the owners of the business are taxed at that level. It avoids the double taxation of traditional corporations.

Now a LLC can choose to be taxed like an S corporation. Even though it is an LLC, it can make an election and say, “We want to be taxed like an S corporation,” meaning flow the income down to the owners and the owners then pay the income tax. Alternatively an LLC can choose to be taxed as a partnership. So really it becomes a question of do you want to be taxed as a partnership or as an S corporation? That’s the main difference when dealing with an LLC or an S corporation. Typically most businesses will choose to simply choose to do business as an LLC because they have that option of either being treated as a partnership or an S corporation under the tax laws. Brian has a question about that as a small business owner himself.


Brian: Sure. Can you give an example of why a business might want to organize as an S corporation?


Jonathan: Sure. Typically you would want to organize as a corporation as opposed to an LLC, usually the main advantage is if you’re thinking about possibly going public at some point down the road, that is one of the main advantages, it’s easier to go public, meaning having your stock offered for public purchase on the stock exchanges, things like that. That’s typically when you’d want to choose to be an S corporation. Otherwise like I said, an LLC is more flexible, it has the same advantages of the S corporation because you can choose to be taxed like an S corporation, but you don’t have the same restrictions as a corporation does in its annual document requirements and things like that. Yes Brian?


Brian: If you are organized as an LLC, can you reorganize as an S corporation if you want to go public?


Jonathan: That’s an interesting question. Yes, that would require if you want to change to be able to go public, now an LLC could go public itself but there are things that have to happen, elections have to take place in order to change to an S corporation, the LLC can make an election with the state of Nevada and change its corporate status. There are filings that can be done to do that. If you’re thinking about starting your own business, wondering whether you should be an LLC, an S corporation, a C corporation, how you should structure your business and what’s the best for your business, I encourage you to give me a call at 702-476-5900 and I’ll answer any questions you might have about an LLC.

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


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


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

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

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

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

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


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


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

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


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


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

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

Should You Own Your Home in a Trust?


Is It Best to Own Your Home in a Trust?


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

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

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


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


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

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


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


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


Why Estate Planning is for Everyone


Why Everyone Needs Estate Planning, Not Just the Very Wealthy


Jordan: I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group, and I do a lot of estate planning in my legal practice, and one thing that people are starting to catch on to is that estate planning isn’t just for the elderly or the rich. It’s really for everyone because we all have an interest in protecting, for example, what happens to us if we become incapacitated, and so as we start to cater our services to a younger generation who see the need for estate planning, we’re getting a lot more questions about why does this costs so much or how much is this going to cost, or am I going to get additional bills?

Let me tell me you a little bit about how the marketplace generally charges for estate planning services. On the extreme low end of the spectrum, there are non-attorney solutions to estate planning, and those non-attorney solutions can include, for example, drafting your own legal documents, and that’s something where oftentimes you can go online and purchase the form for maybe a few hundred dollars. I would caution against putting too much confidence in that situation. Obviously, I’m an attorney, so I’m the one who sees a lot of the times that those documents don’t work out, but at the same time, I’m willing to say that that’s better than nothing. In that scenario, you’d be looking at a few hundred dollars and working on it on your own. You wouldn’t really have the backing of a law firm with respect to those documents, and so that’s something you have to consider.

Kind of moving up the line, you have what are considered the simple estate planning documents, which often just include a will and power of attorney documents, and power of attorney documents are those documents that say what happens to me if I’m incapacitated. Who’s going to make medical decisions on my behalf. Who’s going to make financial decisions on my behalf, and if you’re just doing those, you might be in the $200 to $300, possibly $400 range just to prepare those documents.

If you really want to do a comprehensive estate plan, then if you own property, it may likely include a revocable living trust, and once you do that, then you probably in the marketplace are looking more along the range of $1,000 to $2,000, and in terms of how attorneys actually bill for this, most firms know what preparing a trust entails because they’ve possibly done a lot of them like our law firm has, and so we know that we can simply prepare these documents on a flat fee basis because we understand what work will be involved in preparing the documents. That’s how most lawyers are going to charge, is just on a flat fee basis.

That being said, you do have to be cautious because there is a tendency in advertising to want to bait and switch and say $499 for a trust, and then you go in and find out it didn’t include other documents, such as a power of attorney document. That’s just a brief overview. Different marketplaces can be different. If you want obviously the most accurate quote, please reach out to our law firm, so we can let you know exactly what it is that will work for you and how much we would charge you on a flat fee basis. Brian, do you have any questions on this at all?


Brian: Is there an age which would be too young to form an estate plan?


Jordan: Obviously, you’d have to be an adult to be able to sign those with any type of legal authority, but every estate plan that most lawyers are going to recommend will include a statement that says this is what I want to have happen to me if I’m incapacitated, if I pass away, and so there’s no age at which there’s no risk of incapacity or death, and so the answer is 18. If you’re 18, you can use an estate plan. Now, whether or not that actually happens in practice, I would say certain life events would more determine the real need to come in and get an estate plan done. These life events could include, for example, marriage. It could include having a child, owning your first home. Those are some types of things that I would say definitely should trigger more urgency in your mind in terms of getting an estate plan done. Any other questions on that, Brian?


Brian: You’re saying that if someone calls Clear Counsel Law Group, you’ll be able to tell them up front what the cost will be for the trust.


Jordan: We will with a lot of accuracy be able to tell you after the first phone call because really it’s just a question of what you’re trying to accomplish, and if you have property, a house, life insurance policy, children, we’re going to know pretty well. We’ve seen situations that we can let you know with a high degree of certainty exactly how it’s going to come out. Now, in terms of exactly what it’ll cost, we would like to do a free consultation, sit down with you, complimentary consultation. The reason we do that is because that’ll allow us to get to know you better and get to know all the different circumstances. At the end of that free consultation, we will tell you exactly what we’re facing.


How Does Legal Capacity Affect the Ability to Bequeath a Home?



What to Know about Legal Capacity in Order to Bequeath a Home


Jordan Flake:  I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group. I have a question here. My sister has agreed to care for my mother and her home. Is there a legal way of ensuring that the home will be given to her after mother passes so that she’ll not have to sell it before then? I think the idea here is they want to be able to keep the mother in the home during the course of the mother’s life.

Whenever a client comes to us and says, “I’m caring for my mother, or I’m caring for my father and we want to do this.” The very first thing that pops into our head is the highly relevant question of does your mother still have her capacity. What I mean by capacity is the ability to make decisions by herself and for her own benefit. When we talk about capacity, we’re not necessarily at her prime, can she solve all the math problems that she would have been able to solve in her 20’s or 30’s.

We’re more asking the question of does she know, if she says I want this property to go this way, or to this person. I want this person to take care of me. Does she understand the implications of those questions. Is there consistency. That’s the first question that I would ask in response to this. Basically, if the mother still has her capacity and is pretty sharp then there are a lot of options for making sure that the mother can stay in the home and make a designation as to who the property will pass after she passes away. She could do a reverse mortgage, she could do a simple will, she could do a revocable living trust. There’s just a lot of different options in that scenario.

If the mother does not have her capacity anymore, and again, just settling quickly on capacity, this can often be a medical question and it would fall outside the expertise either the sister in this scenario or a special interest lawyers. Often times we may wish to consult a physician in order to determine whether or not an individual, elderly individual has the capacity. But if we’re on a case where the mother has lost her capacity, then yes, we’re a lot more restricted in what we can do. If we want to take some serious action like selling a property, it may be necessary to obtain a guardianship order from the court to that effect.

I know I’m jumping all over the place, but the other thing you have to consider is whether or not the mother has valid power of attorney documents, because if she does then a guardianship wouldn’t be necessary. There’s kind kind of an analysis that we go through whenever we get these types of questions to determine whether or not there’s capacity. Whether or not there are or not estate planning documents that will help out, and if not we might be looking at a guardianship scenario.

Brian, I kind of jumped all over the place during that answer. Did you have any follow up questions on that?


Brian:  Just one follow up. If a person has been determined to have lost capacity, can a person regain capacity?


Jordan Flake: Absolutely, yes. I use the term elderly when we’re talking about capacity, because it is often the case. I’ve had a few cases where there was a severe liver disorder, for example, on one client that I’m thinking about. He was a 52 year old man, otherwise fully had his capacity, but his liver disorder affected his ability to make decisions. We had to go out and get a guardianship for him. Fortunately a few months down the road, the liver issue was solved and we watched as his capacity came back fully and we were able to close out the guardianship. Guardianship is by no means a permanent situation. It’s often times, though, when we’re talking about adult guardianship, we are talking about elderly people who might be toward the end of their life, and that’s why they have lost their capacity.

In any event, if you are trying to provide for the care of a parent, and you have questions about how the assets are supposed to be distributed, please reach out to Clear Counsel Law Group. Talk with me. We can go over the scenario on the phone or I’m happy to meet with the elderly parent and basically we’ll go through this analysis and make sure we take all the right steps. Thank you.

What Estate Planning Documents Will Help You Avoid Probate?




Hi, I’m Jordan Flake. I am a managing partner at Clear Counsel Law Group. A lot of times we get the question: what kind of estate planning documents can help me avoid the probate process? In order to tackle that question, it’s important to understand that probate is the court supervised process of determining where assets go after an individual’s death. When a person passes away, with assets in their own name, we’re in a place of insecurity where we really don’t who gets those assets and under what conditions they get those assets.

That’s when the state law steps in and says, “Okay, if Molly, 87 year old woman, Molly,” I’m thinking of a client of ours, “passes away, and there’s assets just in here name. A house, a bank account. The bank is not just going to give that money to her kids just because they can produce a birth certificate. They need more assurance in order to release Molly’s account to the children.

What do they need? They need a court order saying that these individuals are entitled to this bank account. The process of obtaining that court order is known as the probate process. It is not as simple as it may seem. You have to prove to the court, the word probate actually comes from the same word “to prove,” you have to prove to the court where these assets go and why they should go there. In order to do that, you have to hire an attorney and go through a very long and costly process. A lot of what we do as estate planning attorneys is to ensure that your loved ones are not left, at the time of your passing, in a probate situation.

What documents can bypass the need for probate? The main one that you want to look for, in an estate planning attorney, is a revocable living trust. It sort of operates like a box. You can think of it as a box. You can also think of it as a living legal entity, not a human, but a legal human entity of sorts. Once you place assets into that box, then for purposes of the law, that’s kind of set aside outside of your own name.

Let’s just go back to the example of Molly, whereas she passed away with a bank account in her name, the bank had this confusion about where to send this asset and basically told the loved ones, “Go get a court order saying where this goes.” Let’s take that exact scenario with Molly had seen an estate planning attorney in advance.

Molly puts the assets into a box, into a revocable living trust. The bank account, instead of listing Molly on it, lists her trust. When the survivors go in, at that point, then the bank says, “Oh, this is a trust account. It’s not owned by an individual. What does the trust say to do with this account?” At that point, the bank doesn’t need any kind of court guidance to determine what to do with the assets in the bank account. Instead, they look to the trust, which was signed previously by Molly, and they follow the instructions contained in the trust.

If you think about estate planning and how to avoid probate, it’s just the preemptively declaring in a very formal and official legal sense, declaring to the whole world, what you want done with your assets at the time of your passing. Normally, by putting them into this separate legal entity or box, if you want to think of it like that, that will persist in its validity even after you pass away.

Please come see us at Clear Counsel Law Group if we can either review an existing trust or give you a consultation about your different options in terms of putting your assets into a revocable living trust. Thank you.


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