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How to Learn the Status on Your Probate Case

 

How do you check on the status of your probate case?
Transcript:

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

I do a lot of probate work. One of the questions that we get from time to time is, “I have a will that is being probated for a deceased loved one, but I really want to check on the status of that.”

There are different websites in Nevada court systems that basically will tell us what the status of the case is. We can go on those websites and look up the case and see where they are in the probate process.

This is really important sometimes, especially if you have a personal representative named under the will who maybe isn’t doing all the things they need to be doing or who is not maybe doing them as quickly as they need to be done.

If you’re in a situation where maybe you’re not the executor of the will, or maybe you’re not the personal representative of the estate, and you want an opinion about whether or not the personal representative is actually doing their job, that would be a great reason to give us a call.

We will happily look up the case, let you know what has been done, what hasn’t been done, the time frame that you’re looking at, and the different elements that should be there.

That’s something that we’d be happy to help you out with. Give us a call.

 

How Much is a Personal Representative Paid to Administer an Estate?

 

How is the compensation of the personal representative determined?

Transcript:

Hi, I’m Jordan Flake with Clear Counsel Law Group and I practice a lot in probate. One of the questions we get is, what kind of compensation can a personal representative expect to receive for acting in that capacity? Basically, the question here is, when someone passes away the court often has to appoint a personal representative to deal with that individual’s assets. Of course that can be a difficult job sometimes. It can require … It could be as easy as maybe liquidating a few bank accounts, but it could also be as difficult as cleaning out a house or notifying a bunch of creditors. There can be a lot that goes into that. The question is, what does that person get paid for all of their work?

In Nevada there’s two ways that a personal representative gets paid. There’s something called ordinary kind of statutory type fees. These are determined as a percentage of the overall estate. You could expect on maybe a $100,000, $200,000 estate to get paid $2,000 or $3,000 for your work as a personal representative. However, if you think you’ve done more than that, and you’ve had to do what’s called extraordinary work such as cleaning out various storage sheds or a house. That would be covered under extraordinary work and the court basically just looks at what’s fair and reasonable under those circumstances.

In any event, if you’re listed as the personal representative on a trust or on a will, then feel free to give Clear Counsel Law Group a call so that we can help you with those responsibilities. Definitely if you’ve gone above and beyond just the statutory bare minimum for the kind of work you put in, then absolutely we’re going to make sure that you’re compensated fairly. If you’re listed as the personal representative under a trust or a will, feel free to give us a call and we can help you out with this.

Does a Trustee Have the Option to Exclude Beneficiaries?

 

May a Trustee Unilaterally Exclude You as a Beneficiary?

Transcript:

I’m Jordan Flake with Clear Counsel Law Group. One question we get a lot in our probate practice is, can an executor of a will or a trustee of a trust unilaterally exclude a beneficiary from receiving their share. This is obviously a big concern if you’re a beneficiary and you feel like the personal representative of an estate or the trustee of a trust is just kind of arbitrarily saying, “Yeah. I know you’re listed in the will, but I don’t like you and I don’t want to give you anything.”

The answer is that’s not allowed. If the individual who left the last will and testament or the individual who wrote the trust leaves a beneficiary something through that document, then the executor or the trustee has to actually comply with those wishes. They can’t just decide on their own not to give that gift. If you are the beneficiary of a trust or a will, and you are concerned that maybe you’re not receiving everything that you’re entitled to, then feel free to give us a call at Clear Counsel Law Group. We’ll sit down with you and review the documents, and review your options.

 

Do Verbal Instructions Create a Valid Will?

 

Are verbal instructions sufficient to create a valid will?

Transcript:

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

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

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

 

A Short Conversation Explaining Undue Influence in Estate Planning

 

Some Good Information on Undue Influence

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)

Hello. I’m Jonathan Barlow. I’m a probate attorney here at Clear Counsel Law Group. An important question that I’m often asked about is undue influence. It frequently comes up both in when we’re preparing wills and trusts for people, but also often comes up after a person passes away.

What is undue influence? Undue influence is when a person who is in a position of authority over another person, who’s called the vulnerable person, exerts influence or control over that other person to the point that the vulnerable person acts against his free will, or he does something that he otherwise normally wouldn’t have done. Frequently we see that in the context of the vulnerable person creating a will or a trust where he leaves an unnatural gift to that other person who had been exerting influence over him. It’s a question that often comes up from people who call in or write to our law firm.

In fact, I think Brian has some questions about undue influence right now.

 

Brian: You just mentioned an unnatural gift. Will you explain what that means?

 

Jonathan: Yes. An unnatural gift would be something that you wouldn’t expect to see. For example, if we have Mom; Mom has three kids; a natural disposition of Mom’s estate would be to give each child one-third. A third, a third, a third. If Mom’s passed away, and suddenly a will pops up where 50% or 100% of her estate goes to the caretaker who had been coming in to help her with her medications, and her finances, and things like that, and the kids are cut out, or the kids’ amounts are shrunk down to some degree, that would be unnatural. That’s something that we wouldn’t normally see happen. It certainly can happen, if Mom wants to, but it raises questions of why did Mom do that. Did she do that because she was exercising her own free will for the caretaker, or did the caretaker exert some type of influence, or undue influence, over Mom in creating that will? Did that kind of answer that question a little bit?

 

Brian: It did, but I am curious if it is possible at all to give an unnatural gift.

 

Jonathan: Good question. Yes, that’s a good question. Let’s say the will did pop up after Mom’s passed away, and we have that situation where the caretaker gets 50%, and the other three kids, now instead of splitting the full, they’re splitting the other 50% so they get a sixth each.

Yes. Mom absolutely can do that, an sometimes Mom wants to do that because she’s grateful for what the caretaker did for her. Maybe all three kids abandoned her; they haven’t been out to visit Mom for years, and Mom felt bad about that; she was grateful for what the caretaker did, and so she left a gift for the caretaker. Mom can do that, no doubt.

It’s just a question of why did Mom do that. Did Mom do that because she was exercising her own free will in doing so, or did she do so because the caretaker had been giving her subtle suggestions? “Hey, Mom, let’s go take you over to the attorney’s office; I want you to sign a will. Don’t you think it would be a good idea to decide what you’re doing with your house? You know I’m living on my own, and I don’t have a house.” Suggestions like this could indicate some type of improper influence by the caretaker.

It’s just a question of why did Mom do that: Did Mom do that of her own free will, or because the caretaker was influencing her to do so?

Anything else, Brian, you think about this question that’s important?

 

Brian: I’m confused. Can just a caretaker exert undue influence, or can someone else, as well?

 

Jonathan: That’s actually an excellent question, and it often comes up. The type of relationships that we watch for to see whether an undue influence is occurring, it’s not confined only to a caretaker situation. That’s a common situation because that’s someone usually outside of the family. However, it’s really any person who is in a position of authority or control over that other individual. Less frequently, it could possibly even be a spouse. That would be pretty unusual, but you could see a spouse improperly influencing their spouse to do something. More common, though, would be a child situation where a child may exert some type of improper influence over their mother or their father. For instance, a lot of times we see here in Las Vegas where one child lives here, Mom lives here, and the other kids live in the other parts of the country; so that one child has a lot more access to Mom. If we see Mom making larger gifts through the will, or otherwise, to this one child, we certainly question why is she doing that. Is that because that one child has access, and is exerting undue influence?

We typically would see someone like a healthcare provider, like a nurse or someone like that, helping in the house; it could be a friend down the street who is fulfilling the role of caretaker. It could be a spouse. That would be pretty unusual, but it could be a spouse, and it could often be a child who has access and control over her parent.

The most important thing in this analysis, and thinking about undue influence, is simply to determine did the vulnerable person act of his own free will, or did he do this thing, giving a gift to somebody else, because that person exerted improper, undue influence, or control over him, suggesting to him in ways that essentially destroyed his free will. That’s the big question in undue influence, whether that person acted under his own free will, or not.

We have some excellent blog entries about this on our website, ClearCounsel.com.

Myself and other attorneys here have blogged about undue influence, a very informative blog post. We encourage you to go read those blog posts at ClearCounsel.com for more information.

 

How a Personal Representative is Assigned to Your Estate

 

Who is the Personal Representative of My Estate?

Transcript:

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

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

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

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

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

When is a Will Preferable to a Trust?

 

When are you better off with a will or trust?

Transcript:

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

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

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

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

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

Be Careful Using Online Forms for Your Estate Planning

 

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

Transcript:

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

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

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

Why should my Estate Plan include a Pet Trust?

 

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

Transcript:

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

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

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

 

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Timeshare Rentals, probate, estate planning

Your Timeshare Trouble Will Not Die with You

Timeshares can be a source of endless fun and excitement. However, there is another side1)perhaps a bit nefarious of timeshares that cause significant anger and frustration. This can be said for timeshares while the owner is alive and even more so after s/he is deceased.

The complexity and frustration of transferring ownership in a timeshare after death depends on one simple factor, type of ownership.

Timeshares come in two different forms. A significant portion of the first category of timeshares are deeds. This would be similar to a home or condo. When the timeshare was purchased, a portion of the real property where the timeshare sits is deeded to the purchaser.

A smaller percentage of timeshares are in the second category, contractual right to use. For this type, there is not a deed or real property transfer. The owner of the timeshare has a contractual right to use the facility where the timeshare is located according to the time and dates specified in the contract.

Both types present different issues in transferring the interest in the property or the right to the property at the time of the owner’s life. I will first tell you a little more about each type of timeshare, then more importantly, how to avoid the costly probate process with timeshares.

 

Deeded Timeshares

In Nevada, if the timeshare is a deeded interest, then there must be a probate in Nevada in order to transfer the interest to the beneficiaries or heirs of the decedent. For example, if a Decedent was a resident of Ohio and passed away in Ohio, but held interest in a timeshare in Nevada by deed, then the Decedent would have a probate proceeding in Ohio and a separate probate in Nevada. A probate administration established for the sole purpose of transferring an interest in a timeshare is extremely time consuming and expensive, and most importantly, can be avoided.

 

Contract Timeshares

If the timeshare is a contractual “right to use” and the value of the timeshare is less than $20,000, then in Nevada the beneficiary or heirs of the Decedent can possibly transfer the interest by use of an Affidavit of Entitlement without any court proceedings, with the assumption that there are no other assets in Nevada. If the value is more than $20,000, then it may be necessary for a probate administration to be established. Similar to deeded timeshares, the need for probate can be avoided with contract timeshares.

 

Avoiding Probate

If you own a timeshare in another state or own more than one parcel of real property in different states, the easiest way to avoid costly probate is to create a revocable living trust. A trust, if funded properly, removes the assets from the jurisdiction of the courts and, upon death, the trust will pass ownership interest to the listed beneficiaries of the trust without court involvement. A trust will alleviate the necessity of creating numerous probates in different states.

If you own a timeshare, it is important to contact an estate planning attorney and put the timeshare in a living trust so you do not inadvertently burden your loved ones.  If you have inherited a timeshare, it is important to contact an attorney in the jurisdiction where the timeshare is located to determine your options.

Footnotes   [ + ]

1. perhaps a bit nefarious
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