Nevada Law Archives - Page 10 of 10 - Clear Counsel Law Group

Nevada Law

It is common knowledge that an intoxicated person may be held liable for causing injury to another. The question arises, however, if a purveyor of alcohol or social host would be held liable for the harm caused by a person consuming alcohol on their premises. The laws vary quite a bit from state to state; this commentary will focus on the liability for Nevada businesses and social hosts.

Social Host Liability is Limited

Unlike many other States, Nevada does not hold purveyors or social hosts liable for the behavior of their guests, so long as the guests are at least twenty-one years of age. Because there are so many different places where a guest could drink without a bar employee or social host having actual knowledge of how much liquor the guest has consumed, the legislature could not find a reasonable basis to declare these third parties liable for the actions of their patrons.

There is an exception. If a minor (person less than twenty-one years old) consumes alcohol at a residence or business, the host or seller may be held liable for the damage caused by the underage individual. NRS 41.1305 is instructive:

NRS 41.1305 Liability of person who serves, sells or furnishes alcoholic beverages for damages caused as a result of consumption of alcoholic beverage: No liability if person served is 21 years of age or older; liability in certain circumstances if person served is under 21 years of age; exception to liability; damages, attorney’s fees and costs.

      1. A person who serves, sells or otherwise furnishes an alcoholic beverage to another person who is 21 years of age or older is not liable in a civil action for any damages caused by the person to whom the alcoholic beverage was served, sold or furnished as a result of the consumption of the alcoholic beverage.

      2. Except as otherwise provided in this section, a person who:

      (a) Knowingly serves, sells or otherwise furnishes an alcoholic beverage to an underage person; or

      (b) Knowingly allows an underage person to consume an alcoholic beverage on premises or in a conveyance belonging to the person or over which the person has control, is liable in a civil action for any damages caused by the underage person as a result of the consumption of the alcoholic beverage.

But what does “knowingly” mean? If construed in its most strict sense, so long as the dram shop (the old legal term for alcohol sellers) had no actual knowledge that the patron is underage (meaning, that the minor never actually informed the bar employee that he is not at least twenty-one), then there would be no liability for the establishment or the employee. This is an incorrect reading of the law.

The Legislative Counsel’s Digest (This is where the legislature leaves notes so that the public can have a better understanding of what they intend a law to mean), from 29 May 2007, is helpful:

[The legislation] makes a person liable in a civil action for damages caused as a result of the consumption of alcohol by an underage person if he knowingly served, sold or furnished alcohol to the underage person or allowed the underage person to consume alcohol on premises or in a conveyance belonging to him or over which he had control. (Emphasis added).

I think we can safely say that a strict construction of the term “knowingly” is inappropriate. By assigning civil liability to those who “allow” minors to consume alcohol on his or her premises, the legislature requires hosts and servers of alcohol to take reasonable care in preventing minors from drinking at their establishments. This includes, but is not limited to, verifying the age of guests or patrons.

Since the Gaming Board does not look kindly upon serving underage individuals, there is a strong incentive for businesses to verify the age of their bar patrons. However, for a regular person just hosting a few (dozen?) folks at his or her home, he or she will want to verify the age of the guests before serving them. Although the Gaming Board has no power to take a license away from you, the potential for being sued because of the irresponsibility of one of your underage guests, should be plenty of incentive to ensure everyone is of age.

Nevada Law / Personal Injury - 05/21/2015

Dog Bite Liability

With more and more folks keeping their dogs off the leash, (I have come across at least three-dozen unleashed dogs in the past year in my outdoor activities, luckily all those pups were kind and loving), questions arise about dog bite liability in our community.

Below I have provided a summary of Nevada law regarding dog bite liability.

Different Classifications of Dog Caretakers

The state of Nevada classifies dog caretakers into three distinct categories to help assign liability. The different categories are listed in decreasing levels of assigned responsibility:

Dog Owner:

The person who purchased/cares for the dog and provides living quarters.

Dog Keeper:

The person who cares, controls and provides shelter for a dog, with or without permission of the owner.

Dog Harborer:

The person who, although not performing enough functions for the dog to be considered a keeper or owner, still provides food and refuge for a dog. Providing a meal for a stray or allowing a dog to wonder on your property is not be enough possession to be classified as a harborer.

Usually, harboring takes place for a limited amount of time, keeping for a more indefinite period.

If your dog bites another individual, and are an owner, keeper, or harborer, then you may be liable for the damages.

Dog Bite Liability in Nevada

Nevada, unlike many other states, has very little legislation with reference to dog injuries. The majority of dog bite cases will be adjudicated through the common law (meaning evaluated and compared with past Nevada case law).

A dog’s first bite will likely be decided under the scienter or negligence framework. If your dog has a biting history, there is a statute that applies. Each will be explained in turn.

Scienter

Meaning, “knowingly” in Latin, it refers to what you may know as the “one-bite rule.”

That is, in particular cases, you will not be held liable for your dog’s first incident of causing harm to another person. This is not a steadfast rule! If your dog is found to have a “dangerous propensity,” then this defense will not apply.

Dangerous Propensity means that you have or had reason to believe that the dog would cause harm to another. For example, if the dog in the past has lunged at and tried to attack strangers.

Negligence

It is still possible, however, if the biting incident is your dog’s first, that you still may be negligent. Unincorporated Clark County and the municipalities of Las Vegas, Henderson, and North Las Vegas all have leash laws requiring dogs to be on a leash at all times outside of the household.

If your dog bites someone while off the leash, you may very well be subject to dog bite liability. The lesson here is to keep your dog on the leash while out and about to avoid unnecessary exposure to dog bite liability.

Statutory Law

NRS 202.500 is the only relevant law on the books, and it concerns so called “vicious dogs.” The statute states as follows:

NRS 202.500 Dangerous or vicious dogs: Unlawful acts; penalties.

1. For the purposes of this section, a dog is:

(a) “Dangerous” if:

(1) It is so declared pursuant to subsection 2; or

(2) Without provocation, on two separate occasions within 18 months, it behaved menacingly, to a degree that would lead a reasonable person to defend himself or herself against substantial bodily harm, when the dog was:

(I) Off the premises of its owner or keeper; or

(II) Not confined in a cage, pen or vehicle.

(b) “Provoked” when it is tormented or subjected to pain.

(c) “Vicious” if:

(1) Without being provoked, it killed or inflicted substantial bodily harm upon a human being; or

(2) After its owner or keeper had been notified by a law enforcement agency that the dog is dangerous, the dog continued the behavior described in paragraph (a).

2. A dog may be declared dangerous by a law enforcement agency if it is used in the commission of a crime by its owner or keeper.

3. A dog may not be found dangerous or vicious:

(a) Based solely on the breed of the dog; or

(b) Because of a defensive act against a person who was committing or attempting to commit a crime or who provoked the dog.

4. A person who knowingly:

(a) Owns or keeps a vicious dog, for more than 7 days after the person has actual notice that the dog is vicious; or

(b) Transfers ownership of a vicious dog after the person has actual notice that the dog is vicious, is guilty of a misdemeanor.

5. If substantial bodily harm results from an attack by a dog known to be vicious, its owner or keeper is guilty of a category D felony and shall be punished as provided in NRS 193.130. In lieu of, or in addition to, a penalty provided in this subsection, the judge may order the vicious dog to be humanely destroyed.

For legal mumbo-jumbo, that was not too painful. There are a couple of takeaways.

First, if your dog has two incidents within an eighteen month period of injuring another person, unprovoked, he or she will be declared “vicious.”

This might subject you to a felony charge if there was another incident after the "vicious" declaration, and perhaps worse, the state may opt to “humanely destroy” your dog.

If your dog is classified as vicious, please do all you can to prevent another incident.

This could include, but is not limited to, using a strong leach, using a muzzle, posting clear signs on your property, and keeping the dog in a secure area while you gone.

If you are the victim of the dog bite, please contact our personal injury department at (702) 522-0696 and schedule a free consultation.

Nevada Law / Personal Injury - 05/19/2015

parental responsibility, children, nevada

Parental Responsibility: How Your Child’s Actions Could Put You In the Poor House

Did you know that an act by your child could leave you liable for up to $10,000? Scary, right? Before you decide to lock up little Steven until he turns eighteen, a small, parental responsibility discussion may be in order so you will have a better idea if and how you might become liable for your child’s actions.

Parental Responsibility Law for Willful Acts of a Minor

The relevant statute is NRS 41.470, which states:

Except as otherwise provided in NRS 424.085 , any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.
The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.
The liability imposed by this section is in addition to any other liability imposed by law.

What does all that legalese mean? The key terms are “willful misconduct.” In this context, your child expresses “willful misconduct” when he or she is aware, or should have been aware that the action in question would cause harm to another person or property. Luckily, this means that if your child makes a mistake in good faith that is not willful misconduct.

However, if the harm done by your child is purposeful, or if he or she should have known better, you will be held “jointly and severally liable”; this means you, as the parent, will likely have to cover the cost of the damages up to $10,000 (unless your child also happens to have independent wealth).

Harm Caused by Firearm Use

NRS 41.472 controls for harms done by a minor with a firearm. It states that the parent, guardian, or any adult legally responsible for the minor will be held liable for the harm if he or she:

Know[s] the minor has been adjudicated delinquent or been convicted of a crime, or
Know[s] the minor has a propensity toward violence, or
Know[s], or ha[s] reason to know, the minor intends to use the firearm for unlawful purposes and
Allow[s] the minor to use or possess the firearm.

Similar to the willful acts statute, the parent, guardian, or legally responsible adult will be jointly and severally liable for the harm caused. However, NRS 41.472 does not cap the potential damages at $10,000; the adult held responsible will then have to pay for any damages (medical and all other costs).

Harm Caused by Driving

NRS 483.300 states that if a teenager under eighteen-years-old wants a driver’s license or permit, he or she must have the application signed by a parent or guardian. If, while driving, the teenager is then negligent or demonstrates willful misconduct, then the adult who signed the application will be held jointly and severally liable for the harm caused. Note that this is a lower standard than the “willful acts” of NRS 41.470. If there is one conclusion to be drawn from this parental responsibility discussion, it is that little Steven should not be permitted to get behind the wheel before he is mature enough to do so.

Nevada Law / Personal Injury - 05/18/2015

Online Comments and Defamation, Are You At Risk?

How safe is it to share your opinions online? Just because you see lots of other folks online stating things that look defamatory, does that mean you cannot be sued? First we will discuss what defamation is, how best to understand it in our online comment era, and finally, how Nevada law protects the rights of her citizens to express their opinions online.

What is Defamation?

Defamation is a false statement of fact that causes damage to another, usually financial or reputational damage. There are two types of defamation:

Slander: verbal defamation

Libel: written defamation

Written defamation, libel, includes what is written in print and online. Because we are concerned with online comments, this will be a discussion of libel.

Because libel must be a false statement of fact, if you can prove you were telling the truth, the libel case will not stand. This is an easy defense to a libel accusation. There is a second common defense to a libel suit, that the alleged statement was one of opinion, not fact. This is where things get tricky..

The Statement of Opinion Defense to Defamation

On its face, it seems that it would be easy to determine if a statement is one of fact or opinion.

For example, “Steven (not based on any real person!) is not nice to the people around him” is an opinion and therefore, not defamation.

“Steven stole $100 from a little old lady” is a factual statement, and if it were to cause damage to Steven’s life (like if you uttered this statement to Steven’s boss and he lost his job), then the statement could very well be libel.

Ok simple enough, right? But what if the statement is factual, but couched in the form of an opinion? “I think Steven stole $100 from a little old lady.” The law will not permit you to defame someone just by adding the “I think” qualifier; specific defamatory statements (expressed as an opinion) that caused harm for the subject of the statement could indeed be defamatory. It all depends on the circumstances (a la, you may need an attorney’s assistance at this juncture).

Now I ask you to consider our current age, where folks use many different internet forums (Facebook, Yelp, Twitter, just to name a few), to express their opinions not only about other people, but about the products and services of corporations. How do you think very wealthy corporations respond online comments they feel are defamatory?

Nevada’s anti-SLAPP Legislation

The Nevada legislature has passed a law to protect its citizens from Strategic Lawsuits to Prevent Public Participation (called SLAPP lawsuits). Nevada’s anti-SLAPP law is one of the most stringent anti-SLAPP laws in the country. A few highlights from the updated 2013 law:

The protected speech has been expanded to include “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum.” It still needs to be truthful, though.
The court must now respond to a motion claiming an individual is a victim of a SLAPP within seven business days (reduced from thirty).
The court has the discretion to award up to $10,000 (in addition to the cost of hiring an attorney) to a victim of a SLAPP.

A Potential Revision to the Anti-SLAPP law?

Before you close out this window and give a corporation a piece of your mind, know that there may be yet another change on the horizon. In late April of 2015, the Nevada Senate held hearing discussing Senate Bill 444, which would revise the current statute and possibly scale back the protections of the current law. The bill made it out of the Nevada Senate with an unanimous vote, and is currently being debated in the Assembly.

In the same way you do not evaluate the quality of a sausage until it has a casing, we will have to wait and see what becomes of Senate bill 444 before drawing any conclusions. Regardless, use prudence as you make your online comments; once submitted, you will not be able to prevent the consequences.

General Interest / Nevada Law - 05/18/2015

Legal Rights of Bikes and Cars, What to Know

With the growing popularity of the biking, there have been more and more accidents involving automobiles and bicycles. The following is a simple discussion of the legal rules and regulations that apply to bicyclists and motorists.

Rules Regulating Motorists/Legal Rights of Bikes

The Nevada Revised Statute below explains the duties and responsibilities motorists have with respect to cyclists.

NRS 484B.270 Vehicles, bicycles and electric bicycles: Driver’s duty of due care; additional penalty if driver is proximate cause of collision with person riding bicycle.

1. The driver of a motor vehicle shall not intentionally interfere with the movement of a person lawfully riding a bicycle or an electric bicycle.

2. When overtaking or passing a bicycle or electric bicycle proceeding in the same direction, the driver of a motor vehicle shall exercise due care and:

(a) If there is more than one lane for traffic proceeding in the same direction, move the vehicle to the lane to the immediate left, if the lane is available and moving into the lane is reasonably safe; or

(b) If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle or electric bicycle at a safe distance, which must be not less than 3 feet between any portion of the vehicle and the bicycle or electric bicycle, and shall not move again to the right side of the highway until the vehicle is safely clear of the overtaken bicycle or electric bicycle.

3. The driver of a motor vehicle shall yield the right-of-way to any person riding a bicycle or an electric bicycle on the pathway or lane. The driver of a motor vehicle shall not enter, stop, stand, park or drive within a pathway or lane provided for bicycles or electric bicycles except:

(a) When entering or exiting an alley or driveway;

(b) When operating or parking a disabled vehicle;

(c) To avoid conflict with other traffic;

(d) In the performance of official duties;

(e) In compliance with the directions of a police officer; or

(f) In an emergency.

4. Except as otherwise provided in subsection 3, the driver of a motor vehicle shall not enter or proceed through an intersection while driving within a pathway or lane provided for bicycles or electric bicycles.

5. The driver of a motor vehicle shall:

(a) Exercise due care to avoid a collision with a person riding a bicycle or an electric bicycle; and

(b) Give an audible warning with the horn of the vehicle if appropriate and when necessary to avoid such a collision.

6. If, while violating any provision of subsections 1 to 5, inclusive, the driver of a motor vehicle is the proximate cause of a collision with a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653

7. The operator of a bicycle or an electric bicycle shall not:

(a) Intentionally interfere with the movement of a motor vehicle; or

(b) Overtake and pass a motor vehicle unless the operator can do so safely without endangering himself or herself or the occupants of the motor vehicle.

Sorry to subject you to all that legalese. Yet the statute provides some good information! Automobile drivers have a responsibility to “exercise due care” in their interactions with bicyclists. This means that drivers not only may not force bikes off the road at their pleasure, but in fact, do everything possible within reason, to protect bicyclists as fellow motorists. For example, when a motorist wants to pass a bicyclist, he or she must (if possible) move into the left lane of the road, or pass with at least three feet of clearance.

Rules Regulating Cyclists

Because Nevada law considers bicycles to be vehicles, cyclists are subject to rules of the road in a similar way. The Nevada DMV advises cyclists to:

Ride on the right side of the road. Although riding two abreast is permitted, it is advised that you ride single-file in high traffic areas.
Obey the traffics laws as if you were driving a car.
Ensure they have functioning brakes.
Not cling to vehicles.
Use hand signals when appropriate.
Ride at least three feet away from parked cars.
At night,
1. Have a white lamp in front of the bike visible from five hundred feet.
2. Have a red tail reflector visible from three hundred feet.
3. Have reflective material on the side of the bike visible from 600 feet.

In addition, Nevada law does not require cyclists to wear a helmet, although the National Highway Traffic Safety Administration says wearing a helmet may reduce head injury by up to 85%. Anyone living in Las Vegas has to like those kind of odds.

Nevada Law / Personal Injury - 05/17/2015

Nursing Home Abuse: The Facts

There are federal and state laws regulating nursing home abuse and neglect. The most relevant federal law is the Nursing Home Reform Act of 1987.

Nursing Home Abuse and the Nursing Home Reform Act

Under the Nursing Home Reform Act, nursing homes are not eligible to receive funds from Medicaid and Medicare unless they are certified by the state to be in compliance with the act. The act includes a Residents’ Bill of Rights which states residents have:

The right to freedom from abuse, mistreatment, and neglect
The right to freedom from physical restraints
The right to privacy
The right to accommodation of medical, physical, psychological, and social needs
The right to participate in resident and family groups
The right to be treated with dignity
The right to exercise self-determination
The right to communicate freely
The right to participate in the review of one's care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility
The right to voice grievances without discrimination or reprisal.

Although the Nursing Home Reform Act is federal law, enforcement of the provisions is done by the state of Nevada’s Bureau of Health Care Quality and Compliance (HCQC). The complaints are prioritized by determining the potential harm to the resident in question. The three classifications of harm are:

Substantial harm: when the senior is in immediate jeopardy, the investigation will begin within 48 hours of receiving the complaint.
Minimal harm: This type of complaint is given “medium priority” by the HCQC and will be investigated within 45 days.
No harm: This classification is given the lowest priority and is investigated by the HCQC as their resources become available.

The HCQC classifies the type of harm based upon an evaluation of the abuse described in the complaint.

Nevada law defines abuse as “the willful and unjustified infliction of pain, injury or mental anguish or deprivation of food, shelter, clothing, or services necessary to maintain the physical or mental health of an older (60+) person.” NRS 200.5092

Nevada law classifies four types of nursing home abuse: Abuse (physical and mental), neglect, exploitation, and isolation.
- Abuse
  - Physical abuse is defined as
    - Serious or unexplained injury
    - Sexual assault
    - Inappropriate physical or chemical restraint
    - Over or under medicating a resident
  - Psychological abuse is defined as verbal
    - Assaults
    - Threats
    - Harassment
    - Humiliation
    - Intimidation
- Neglect is an intentional or unintentional failure to provide necessities such as
  - Food
  - Clothing
  - Shelter
  - Necessary services like medical care and personal hygiene
- Exploitation is a violation of trust in the relationship between a resident and a person responsible to care for his or her financial well-being.
  - Where a guardian may use deception, intimidation, or undue influence to obtain control of assets illegitimately.
- Isolation is intentionally preventing, without justification, of residents from
  - Receiving phone calls
  - Receiving mail
  - Receiving visitors

Employees of nursing homes are required by law to report any of the violations listed above. If you need to file a complaint to the HCQC, you can do so online at this link: HCQC Complaint Form

If you have any other questions or concerns, please contact us at Clear Counsel Law Group at (702) 522-0696.

Nevada Law / Personal Injury - 05/16/2015

What Is a Personal Injury Case?

Unfortunately, accidents can happen just about anywhere. Who has not slipped on their own kitchen floor when it was wet? However, when those accidents happen with someone else at fault, and you suffer an injury or harm, there may be a personal injury case. In addition, harm may not necessarily be physical, it can be emotional or mental. What constitutes such a case, and what should you know?

Grounds

First and foremost, there must be grounds for the case. That is, the injury or harm you sustained was the fault of another party, whether another individual, a business, an organization or a government agency. Generally, the fault comes from something like negligent actions – not clearly marking a wet floor, for instance. However, there are other possibilities, including intentionally causing harm through threat or violence, for example.

Establishing Negligence

Many, not all, personal injury cases are negligence actions. In this situation, you must prove that the other party was negligent, which requires that all four specific elements of a negligence case be present. These are duty, breach, causation and damages. Duty is the legal obligation of an individual or company to provide a standard of reasonable care. Breach is the act of failing in that duty. Causation is proof of harm stemming from the breach of duty. Damages refer to the extent of harm caused.

Statute of Limitations

All personal injury lawsuits are subject to the statute of limitations. There is a time limit after which you will no longer be permitted to bring a personal injury lawsuit. Each state sets its own statute of limitations; Nevada, for example, requires the lawsuit to be filed within two years of most injuries, (this does not apply to all personal injury cases, consult an attorney with your specific facts and questions). It is always best to contact legal counsel soon after your incident to ensure any necessary legal action is taken in a timely manner.

How Do These Cases Move Forward?

In personal injury cases, the injured party will consult an attorney, after which the attorney will determine the best course of action to make the injured party whole again. The attorney will contact the legal counsel of the person who caused the harm, and they will try to reach a settlement. A majority of cases are resolved through this type of negotiated settlement. However, if an agreement cannot be reached, the attorneys will go to court to argue the case before a judge.

Have You Been Injured?

If you have been injured through little, or no fault of your own, you may have a personal injury case. A qualified personal injury attorney can evaluate your case and help you determine if legal action is the right decision for your specific situation. Make sure you choose the right attorney, though. Consider their history, experience, expertise and the results they have obtained for past clients before making your final choice.

Nevada Law / Personal Injury - 05/15/2015

Is a Pet Trust Right for You?

According to news reports, hundreds of thousands of pets each year are left homeless after their owner dies without specifying how the pet should be cared for. Certainly, this omission is not a product of pet owners not loving their little, fury family members. Often, it is because pet owners overlooked the matter during estate planning. Do not let this happen to you! More than forty-five states permit pet trusts (including Nevada), making this a great option for you and your family.

Elements of a Pet Trust

A pet trust requires these four elements:

The trustee: The person responsible for the trust. It is best to select a trustee that will be vigilant in ensuring that the money is being spent responsibly.

The caretaker: The person assigned by the trust to care for your animal(s). The trustee and the caretaker can be the same person; however, it is advisable for each position to be separate person (for increased accountability, see below). It is best to designate a second caregiver just in case the first person is unable to care for your pet. To be even more thorough, you may want to designate an organization, like the SPCA, to care for your pet in case the caretakers selected are unable to carry out their functions.

The pet(s): You will want to be specific in stating if the trust applies to one or all of your animals. If you want more than one animal included, it is best to describe each and not use broad phrases like “all my pets.”

The remainder beneficiary: The person that will inherit the remaining amount of money once the pet has passed away. A pet trust may not be extended to cover the living expenses of the offspring of your pet, so this is an important element.

How Much Money Needs to Be Allocated?

To determine how much money needs to left in the trust, you will need two estimates:

The approximate life-span of your pet.
The amount of money it costs each year to care for your pet.

An animal healthcare provider can assist you in estimating these amounts, although it is fairly probable that you know better than anyone exactly what your pet’s dietary needs are. Once you have an estimate of each of these amounts, just multiply to determine the total. It is best to be conservative in your estimates as you do not want your pet’s living expenses to be underfunded.

A Pet Trust Creates a Binding Obligation

If you were to leave instructions with a family member or friend stating how to care for your pet, there would be no legal recourse to ensure that your pet receives the care you desire. However, with a pet trust, you are creating a legal obligation for the caretaker to follow the terms dictated by the trust. If the caretaker does not abide by these terms, he or she may be taken to court, where a judge might enforce the terms of the trust, or transfer responsibility of your pet to the other caretaker listed in the trust.

Estate Planning / Nevada Law / Probate / Trusts - 05/15/2015

Should You Create a Living Trust?

Yes! And here are five good reasons why:

Control

With a revocable living trust, you will retain control over your assets while alive and after you are deceased. Other estate-planning documents, such as wills, only come into effect once you are deceased. With a living trust, you control your assets now and in the future. If, unfortunately, something were to happen to you that left you in a state where you could no longer control your own affairs (sickness for example), the living trust would direct a trustee (of your choosing) to speak and act on your behalf. Without the living trust, there may be complicated court proceedings to determine who will be in control of your livelihood and affairs. Worse, a court may appoint a person you do not want to control your health, assets, and affairs.

Saving Money

Less of your hard-earned money will go toward paying court and attorney fees. The state charges a fee for having to settle estates through the probate courts (there are additional fees as well). You can avoid paying these higher fees by planning ahead and working with a trusted attorney to establish a living trust for a fraction of the cost.

No Delays

Distribution of the estate assets to your beneficiaries (those heirs you have left the assets to) will occur upon your death without delay. If you decide to use a will, (or worse, allow the state probate system to settle your estate), to distribute your assets, it could take as long as two years for the beneficiaries to receive their assets. Again, by using a living trust, you can avoid the wait-time that usually occurs while the courts settle your affairs. If you have a will, for example, that is disputed, there is no telling how long the court proceedings may take to settle the estate; those whom you care about most will have to wait in limbo without access to any of the assets until the courts have worked through the matter.

Investment Flexibility

The trustee (the person you designate to take care of your affairs) will have the maximum flexibility to take the necessary action with your assets. If there are potential investment opportunities that will increase the value of your portfolio, the trustee will have the necessary authority to buy or sell assets to get the most out of your money. Other estate documents do not provide the same flexibility and you may lose potential money-making opportunities just because your estate document will not permit the trustee to make a timely investment.

Easily Make Changes

A living trust provides you with the maximum flexibility to make desired changes to your estate plan. If you decide you want to add or remove assets, or determine that you no longer desire your assets to be held in the trust, this can easily be done. To amend or revoke a will, (or other estate instruments), is a more complicated process. There is no telling what challenges life may throw your way next, the living trust will be your best tool to meet those challenges and secure what matters most.

Estate Planning / Nevada Law / Probate / Trusts - 05/14/2015

Estate Planning for Same-Sex Married Couples in Nevada

Estate-Planning-for-Same-Sex-Married-Couples-in-Nevada In October, same-sex marriage officially became legal across the state of Nevada. This will now change the way same-sex couples in Nevada conduct their estate planning. It is important that these married couples take the necessary steps to take advantage of their new legal rights and adjust their estate plans accordingly.

The Supreme Court case United States v. Windsor changed federal policy, so that the federal government will recognize same-sex marriages in states where same-sex marriages are legal. On August 29, 2013, the IRS issued new guidelines on how that decision would affect IRS processes. Windsor does not affect states that do not have same-sex marriage, but states like Nevada are affected and couples in these states will now receive the same federal benefits and obligations as other married couples.

How Will This Affect Estate Planning?

Firstly, same-sex married couples can now take advantage of the unlimited marital deduction when transferring property between the spouses. Because of the deduction, these couples that already have estate plans must review them immediately. Estate plans are often written with formula clauses. For instance, estate plans may have a provision that transfers the maximum tax-free amount to the partner and then transfers the rest to a charity. Because these couples now benefit from the deduction, these formula clauses may now transfer more to the spouse than originally intended and it’s even possible that all would be transferred to the spouse and nothing would be left for charity. The American Bar Association recommends that same-sex couples review their estate plans and make sure they understand how much will be transferred to their spouse and how much will go to charity. They can then make changes to the plan if it’s appropriate.

Some estate plans might have created trusts because the deduction was not available. With legal same-sex marriage in the state of Nevada and the repeal of DOMA through Windsor, these couples may decide to terminate these trusts and take advantage of the marital deduction instead.

Section 2 of DOMA

Despite all of these changes that came with the United States v. Windsor, the Supreme Court decision did not strike down Section 2 of DOMA which ensures that states without same-sex marriage don’t have to recognize the marriages of other states. Because of this, same-sex couples should still take extra precautions to protect their estate and their interests in other states. According to Nolo.com, spouses should carry power of attorney regarding health care decisions, so that they can still make health care decisions for one another when they are traveling in states without same-sex marriage. In addition, spouses should always obtain adoptions for their children if they are not the birth parent. Without adoption orders, they may not be recognized as the parent when traveling through states without same-sex marriage.

All couples throughout Nevada may now enjoy many benefits that were not available to them a few months ago. The legalization of gay marriages will affect financial planning and estate planning for same-sex couples. Now with these changes underway and slowly being implemented, it is the time for couples to review their estate plans and make sure they are structured as intended to satisfy their obligations to their spouses as well as to charities.

Estate Planning / Nevada Law - 02/23/2015

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