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

 

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

Transcript:

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?

Transcript:

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

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

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

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

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

 

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

 

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

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

 

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

 

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

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

Should You Own Your Home in a Trust?

 

Is It Best to Own Your Home in a Trust?

Transcript:

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

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

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

 

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

 

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

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

 

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

 

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

 

Why Estate Planning is for Everyone

 

Why Everyone Needs Estate Planning, Not Just the Very Wealthy

Transcript:

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

Transcript:

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?

 

 

Transcript:

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.

 

A Conversation Explaining How a Series LLC Will Protect Your Small Business

 

Why You Need to Reorganize Your Small Business into a Series LLC

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 Johnathan Barlow. I’m a partner at Clear Counsel Law Group. Recently, this year, Google received a lot of press by announcing that they were reorganizing a parent company called Alphabet Inc., and that they were then going to essentially separate Google’s operations into separate subsidiary entities underneath Alphabet Inc.

I’m going to leave the reasons why Google did that to the talking heads, but let me explain some reasons why it makes sense to you, even as a small business, that may not be a multi-million dollar business, like Google, but a small business, would take advantage of this organizing into separate legal entities.

The most important reason why you might separate your business into separate businesses, is for asset protection. For instance, let’s think of a dentist’s office. The dentist has different aspects of their business that they might not think about. You have the actual practice of dentistry, the seeing of patients, billing patients for dental care. The dentist also owns a lot of equipment. He owns examination chairs, X-ray machines, a lot of equipment. He may also own his building where his office is located.

If you think about all three of those different aspects, each of those three could be separated into separate business entities to take advantage of asset protection between them. For instance, if he had a problem with one of his patients, and the patient began to look for collections against the dentist, the patient would be limited to the business receipts. They wouldn’t be able to take out the examination chairs. They wouldn’t be able to put a lien against the building. It becomes beneficial to separate these assets into different business entities.

There’s some interesting other techniques about this, and I think Brian, one of our readers here, has some questions about that. Brian, could I answer a question for you regarding that?

 

Brian: Sure. There’s some confusion as to if a single individual could create multiple companies under a series LLC. Wouldn’t they just look at all these LLCs, and go, “This is just one person.” Is that really going to work?

 

Johnathan: You’ve actually brought up a really good magic word, so to speak, in Nevada. Nevada has this fascinating technique, or business entity, called a series LLC. What it does is that, with the state of Nevada, you create one LLC, just one with the state, but under that LLC, you then create separate series, and you could have series one, series two, series three, series four, and so let’s use the example of the dentist.

He’s going to create Dentist LLC, and in series one, he’ll put his business practice. In series two he puts his dental equipment. In series three he puts the ownership of the office building. Each of those series is treated as if it was a separate LLC with asset protection between each one, and yes, one single owner can do that and take advantage of the effect of having different business entities, but using just one LLC through the different series. Does that answer that question a little bit?

 

Brian: It does. I have another question if that’s okay?

 

Johnathan: Go for it.

 

Brian: How many of these series LLCs am I allowed to have? Is there a cap?

 

Johnathan: If you create one series LLC, how many different series could you have underneath that, is that …

 

Brian: Correct. Yes.

 

Johnathan: The statute in Nevada doesn’t define that answer. The statute doesn’t say you can only create 10 series, so theoretically, until somebody tells us otherwise, you can create as many series as you want, and they don’t all have to even be related to each other.

Again, talking about the dentist, he may have three series to go with those three aspects of his dental practice, and series four actually could be his investment property that he owns, that he rents out to Brian, to you Brian.

 

Brian: Big mistake.

 

Johnathan: It would probably be a big mistake to have you as a tenant, but let’s assume that we don’t you, when you fall down the stairs, for the purpose of suing the dentist, we don’t want you getting into his dental assets, and so that’s why we separate these liabilities between the different LLCs.

Even a small business in Nevada can take advantage of these really powerful techniques to separate liability, separate assets between different business entities, using a series LLC, or you can use different LLCs, whatever works best for you. Nevada has this really unique tool of using the series LLC. It’s very flexible, and it’s an awesome tool. It can be used by all Nevada business entities.

For more information on this, I encourage you to go to our blog on clearcounsel.com and read more about the series LLC, and about the Alphabet Inc. analysis, when Google transferred to that.

Why Do You Need an Attorney for Probate Matters?

 

How Will an Attorney Assist You With Probate?

Transcript:

Hi, I’m Jordan with Clear Counsel Law Group. I’m an attorney who practices a lot in probate. One of the questions that we get, when a person passes away, their family comes to us and says, “Why should I have to hire an attorney in this situation?” The answer is because it’s actually pretty difficult to interface with the court. Here in Nevada we have a little bit more of a complicated probate statutory structure. The process is a little bit more difficult. I assume, in a lot of ways, that’s because we’re a retirement destination. I think there’s a lot of exploitation in our state. When a person goes to the court saying, “My loved one has passed away and I want to get their property,” there’s really a lot of hoops that that individual has to jump through.

There’s getting all the right notices put out there, noticing everybody who’s entitled to notice that you are seeking to become the personal representative of the estate. There’s notifying creditors. There’s doing orders and notices of entry of order, and just a lot of different documents. There’s letters of administration or letters testamentary that need to be filed. I’m all for do-it-yourself legal solutions; however, in the probate context I’m very, very confident that it’s going to be much more economically advantageous to hire an attorney. Not just because it simplifies things and the attorney has the expertise to do that, but also because if the personal representative were to try to go it on their own and make a huge error, that can come back to them in the form of liability. I would strongly, strongly recommend that if you have to administer the estate of a deceased love one, that you contact Clear Counsel Law Group so that we can give you an idea about what to expect and how we might be able to help you.

At Clear Counsel Law Group, our goal, and our motto when it comes to representing individuals who have had loved ones pass away, is maximize your inheritance, not your attorney’s fees. That’s why we charge on a flat fee basis rather than some kind of hourly basis that can get way out of control. Come talk to us about how we can maximize your inheritance and minimize your attorney’s fees by charging on a flat fee basis. We’d love to talk to you about it.

What You Need to Know about a Special Needs Trust

 

 

How a Special Needs Trust Will Help You

Hi, I’m Jordan Flake with Clear Counsel Law Group. I do a lot of estate planning in my practice and one question that I see from clients is what do I do about my son or daughter who has special needs? When we think about a special needs beneficiary, we’re thinking about somebody who maybe is receiving government assistance or who can’t live on their own or maybe has some kind of incompetency that prevent them from being able to handle all of their own affairs. Often times, these individuals are receiving government assistance that we don’t want to disrupt. That’s the really big concern. If you leave your child maybe $100,000 under a life insurance policy, that money will just land in their lap and could threaten their ability to continue to receive government assistance or government benefits.

You don’t want to just list your special needs child on a bank account or list them in a life insurance policy because you might actually end up harming them to the extent that that gift would limit their ability to receive financial assistance from the government. What you may wish to consider instead is doing what’s called a special needs trust. The essence of a special needs trust is that the money, all the money set aside for the special needs child will go for their use, benefit, and enjoyment. However, all that money will go to them in a way that will not prevent them from receiving government assistance. It can go to them, but just not in an outright, direct kind of way that would prevent them from receiving government assistance.

So if you do know of anybody who has special needs and their parents or their loved ones are trying to set up a trust for their benefit, it’s absolutely necessary that you come see an attorney so that that special needs trust is set up properly so that it doesn’t end up hurting the special needs individual in the long run. Feel free to meet with us at Clear Counsel Law Group and we’ll do a free consultation and we’ll discuss your different options for dealing with giving gifts to special needs individuals.

Divorce, estate planning, nevada

Estate Planning and Divorce: What to Keep in Mind

Here at Clear Counsel Law Group, we make sure all of our clients know how important estate planning is. While it is daunting to plan for the unexpected, we have all too many probate cases where families disagree over what the deceased would have wanted, but without something in writing, there is only so much attorneys can do. For instance, if someone’s grandmother intended to leave one specific grandchild her home but never put anything in writing, it is unlikely that the home will end up with that grandchild when there are other heirs. With an estate plan in place, the house will end up in the right hands. But even a good solid estate planning might need to periodically updated.

For example, over half of all marriages sadly end in divorce. No one ever thinks it will happen to them, yet it does.

 

How Divorce Affects an Estate Plan

We have seen several cases where someone passes away at an intermediate stage of the divorce process, before the divorce becomes final. While it would seem rather obvious that a person divorcing their spouse would not want their estranged partner to inherit all of their assets, unless the divorce is final, a spouse is considered a spouse under the eyes of the law. Therefore, even with divorce papers on file, unless the ink is dry, the soon-to-be ex-spouse has all the same rights to inherit as a spouse who was not divorced.

In addition to divorce papers, when couples separate they are likely financially tied in even more ways than they realize. Situations often come across my desk where life insurance policies are designated to a future ex-spouse. Fortunately, life insurance designations are automatically revoked upon divorce in case someone forgets to amend. But even so, life insurance policies with revoked beneficiaries often go to a decedent’s estate, which might then end up in the hands of that same divorcing spouse. Not only that, but sometimes married couples with joint bank accounts forget to remove an ex-spouse who then drains the account upon death with no regard for children or other intended beneficiaries1)This is not an exhaustive list of examples. Some spouses never legally divorce but live for 30 years completely separate and apart, practically forgetting they were even married in the first place. But, the Nevada probate courts are crystal clear on the issue: if two people are legally married, the spouse inherits in the exact same manner as a spouse that never spent a day away from her partner. We have even had cases where a decedent “married” twice and the legal wife and the cohabitating wife were left to duke it out. What a mess this can cause, financially and emotionally!

 

Divorce and Incapacity: A Lesson from Recent Headlines

In addition to a divorcing spouse inadvertently inheriting an entire estate, what about a divorcing spouse who becomes incapacitated? This situation arose very publicly this month with “Keeping up with the Kardashians” star Lamar Odom. The former NBA player was found comatose and required someone to make medical decisions that he could not make while unconscious. Lamar was in the midst of a nearly-but-not-quite-final divorce from Khloe Kardashian. Because the divorce is not final, Khloe is the spouse for all intents and purposes, as if the couple were headings towards happily ever after. It is unlikely that a person facing an impending divorce would think to designate a medical power of attorney once they file for divorce, but this is important!

Strangely enough, the tabloids are reporting that Khloe and Lamar have decided to give their relationship another shot after Lamar’s near death experience. But, I do not suspect that this is the typical outcome. Although we never really anticipate this specific situation, someone whom you are getting divorced from is probably not the person you want making medical decisions on your behalf, much less inhering under your estate.

As estate planning attorneys, we regularly check in with clients to update their plans. Any new homes purchased, accounts acquired, children born, or even a new job with a 401k plan can warrant updating an estate plan. I mention to all estate planning clients that not only should they contact me for changes in assets and when they get divorced, but they should contact us the minute they decide to divorce so we can help them adjust their estate plan accordingly. In some situations, it is even appropriate to insert a divorce contingency in certain estate planning documents to make clear what should happen if it appears parties are headed towards divorce.

We can never plan for the unexpected, but we can certainly try. Contact our attorneys today for a free consultation to set up an estate plan, including a plan for whom should make decisions on your behalf if you ever become unable.

Footnotes   [ + ]

1. This is not an exhaustive list of examples
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