How Should You Own Your Property?



What Is the Best Way to Hold Your Property?


Jordan: I'm Jordan Flake with Clear Counsel Law Group. I'm an attorney who does estate planning primarily. Occasionally, questions will come up about how property ownership works and operations of law. What I mean by that is how do you hold property in such a way that it will accomplish some of your estate planning objectives? We call this non-attorney estate planning, usually because it doesn't necessarily require an attorney.

When you purchase a house, you can just tell your real estate agents and the title company how you want to take title to that property. Let's just use the example of a client who said, "My wife and I and a friend own this duplex together, the three of us. We want to make it so that the last of us to die, the survivor among the three of us, gets all the property?" They don't necessarily have to go see an attorney to make that happen. They can just tell the title company that they'd like to own the property in joint tenancy with rights of survivorship

What that means is that everybody just owns the property and then the survivors own the property and then the survivor of the survivors gets all the property. That's called joint tenancy with rights of survivorship. Now there are other ways to own it. There's something called tenancy in common, which means each would get one-third, one-third, one-third and their undivided one-third share would go to their estate when they passed away.


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That wouldn't accomplish the objectives of which they were requesting from me. Normally, a better way to do all of this is to put it all into a trust because then you can clearly delineate who gets what and when and under what circumstances. Brian, do you have any questions on this form of ownership?


Brian: Is it difficult to change the ownership from a joint tenancy to a tenancy in common?


Jordan: You can do that just by recording a deed. We can help you prepare the deed that would change the vesting status, it's called vesting status meaning what happens when a person passes away, but we can prepare a deed that will change the vesting status and we don't charge much to do that. In fact, we don't charge at all for the consultation. Any other follow-up questions on this though?


Brian: Of the options you described, you said that a trust is preferable to just having it recorded on the deed.


Jordan: When you prepare a trust, you also prepare a deed, generally transferring the property into the trust. A trust operates like a box, then you can put property inside that box. The house or the duplex in this case would be something that you'd likely want to deed into the trust. Then the trust gives specific instructions about what happens to that property. Say the husband and wife pass away, but their friend at that time is an elderly gentleman, who's incapacitated just because of old age.

The trust will prepare for that contingency, whereas merely creating a deed that puts the house into joint tenancy with rights of survivorship doesn't address that contingency. A trust is much more comprehensive and flexible in terms of addressing several different possible scenarios. That's what we do as estate planning attorneys. We look out and say, "How can we preemptively address all of these things that can and do happen to people?" That's why it's really important to set up a consultation with me. I don't charge for the initial consultation. I'd be happy to go over this or any other situation that you're looking at. Thank you.

How to Disown an Adult Child

Do you need to remove an adult child from your estate in Nevada? Please call our Nevada estate lawyers today for a free consultation. (702) 522-0696


Is It Possible to Disown an Adult Child?


Hi. I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I work in estate planning. One question that I sometimes get is, "Can I disown my adult child for various reasons?" You may have had falling out with your son or daughter and you just really don't want anything to do with them anymore. Reality is a lot of the disowning process just happens by operation of law. When someone turns 18, they essentially are considered an adult and have their own rights, responsibilities, and duties, and are really no longer your legal responsibility once they turn 18.

Aside from that though, one thing that a lot of clients will do if they have a child who they have disowned or the relationship cease to exist is disinheritance. What that means is you come into an attorney's office and whatever you were planning on giving to anyone, you need to explicitly state that you want to disinherit your child. It's really important that the disinheritance provisions are drafted correctly because if not, you could be facing a situation where your disinherited child comes back and says, "Whoa, it's very unclear that ... They didn't say anything. They didn't say the right things about disown me. He told me before he passed away that he wanted me to have something." They can make all kinds of claims in those circumstances.


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The law requires that you specifically disown your own children, and so those provisions have to be drafted correctly. If you're worried about where your assets go after you pass away and possibly, you have a situation in your family where you don't want your assets to go to a certain child, then please give us a call, so I can meet with you for a no-charge consultation. We'll go over your options. Thanks.

What You Need to Know about Power of Attorney


Power of Attorney and Your Estate Plan


Hi, I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I work in estate planning. I got a question from a client about how to become a power of attorney. Can you just essentially declare yourself to be power of attorney of someone? Or, do you have to write it down? What's the process?

Power of attorney is a very important mechanism in estate planning because it essentially gives another person the right to make financial and healthcare decisions on your behalf. It's a right that you can give to someone else. Obviously it has to be somebody that you trust a lot, because you wouldn't want to let somebody else make financial and healthcare decisions for you unless you really knew that they were going to act in your best interest. Also, you can't simply just say it. It actually has to be written down. There's also a lot of formalities in the law that need to be met and fulfilled in order to give that document credence and validity.


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One important thing to remember about power of attorney documents is that the entity that will often be enforcing those or rejecting them, as the case may be, would be a bank or a hospital or doctor's office or an insurance carrier. It's not always going to be interpreted by a judge. That's why it's very important to make it very crystal clear, so that somebody without a law degree can actually understand what the power of attorney is intending to do and what it says and leave no doubt whatsoever as to the fact that you're giving someone else the right to make decisions on your behalf.

If you feel like you need to make a power of attorney document

When a Short Sale Might Be Your Best Option for Your Home


How a Short Sale Might Assist You


Hi, my name is Jordan Flake. I'm an attorney at Clear Counsel Law Group. We deal with a lot of real property issues, and there are times that we help people accomplish a short sale. Pretty much everyone I know has either seen a foreclosure, or a short sale, or a default at some point in the last several years, because so many people have gone through that, here in the Valley; but just so that you know exactly what your short sale options are:

The term short sale just means that you're selling the property out there in the world, and the proceeds from the sale are not sufficient to cover the loan balance. Let's use an example. Let's say you owe $80,000 on a house, but the house is only worth $60,000. The owner of that house basically can get a buyer for $60,000, and go to the bank and say, "Hey, listen, I don't have enough money to cover all $80,000 that I owe. However, I have this buyer, and rather than default on this and have it go into foreclosure for several years, why don't you accept this $60,000 buyer, and we'll basically allow that to wipe out the loan."


Short Sale Home, Las Vegas, Nevada Real Estate


It's very important when you do a short sale that you cross all your T’s and you dot all your I’s, because you don't want that $20,000 deficiency, in other words the amount of the mortgage that wasn't covered by the sale, to chase you down, and hunt you down, and follow you around for a long time. That's, depending on whether not you have a first and/or a second, there's different rules that apply; but if you're thinking about short selling your home, please reach out to Clear Counsel Law Group. I'm more than happy to do a no-charge consultation, just to discuss your short sale options, give me a call. Thank you.

How the Probate Process is Affected by an Underwater Home



What You Need to Know about an Underwater House and the Probate Process


Hi, my name is Jordan Flake. I'm an attorney in Henderson, Nevada. I do a lot of probate work which means when an individual passes away and there's property in that person's name still, there needs to be a court legal declaration as to where that property goes and how it's handled. One really common scenario especially since the economy went down a few years ago is that Jane Smith will pass away, she'll have a house in her own name, the house is worth $80,000; however, the mortgage is $94,000. A lot of times family members will just say, "Well, the house is underwater so we don't need to worry about it. We don't need to do anything with it. Nobody's going to take responsibility for it." The idea is that it can't be probated.

That's not correct. It is true that the liability won't come and haunt her heirs so the children of Jane Smith don't have to worry that the $14,000 that represents the underwater amount, that's not going to come back, chase them down, but what you should know is that you actually can do a probate for that property and short sell the property and oftentimes get paid out of the proceeds of the sale, at least an administrator's fees, the legal fees can be paid out of the proceeds of the sale, the realtor's fees can be paid out of the proceeds of the sale, and the property is, and this is maybe the best thing, is that the property is actually resolved rather than sitting there empty for years and years and years, you actually tie it up. It doesn't cost you anything and oftentimes we can get you paid an administrator's fee for the work of having dealt with an attorney and a real estate agent to sell that.


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Real estate tip of the day is if you come across a house where it's underwater and it's owned by a deceased individual, reach out to Clear Counsel Law Group, contact me, we'll do a free consultation, and we'll discuss our options for doing a short sale on that property by opening up a probate. Reach out to me if you'd like to discuss this more. Jordan Flake at Clear Counsel Law Group. Thank you.

Filing for Divorce with Your Assets in a Revocable Living Trust


How to Handle Your Assets in a Revocable Living Trust if You Get Divorced



Jonathan: Hello. My name is Jonathan Barlow. I'm a probate and estate planning attorney here at Clear Counsel Law Group. One question that we often get asked in connection with our estate planning practice is: If I'm going through a divorce and my assets are held in a revocable living trust with my spouse, what should I do?

The short answer to that is that first you should make sure you talk to your divorce attorney about that so that that can properly be divided through the divorce process. I'm not a divorce attorney so I don't know how that part works, but if you're wanting to make plans because you know you're going through divorce and you want to make sure those assets are protected, you can make lists and create some separate interest in those assets by going through and designating your interest in those assets and separating out what's called the community property interest in that property. You can create documents, either a will or another trust, to hold your interest in the community property.


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In short, it's best to come in and probably create wholly new documents for yourself, whether a wholly new will or a new trust, to hold your interest in those marital assets. Now again, those are all still going to be subject to what happens through the divorce process and the property settlement agreements, the divorce decrees, things of that nature. The judge is going to able to allocate those, but you want to be able to protect your interests, make sure that if something happened to you in the interim before the divorce was finalized should you pass away that your interest in the assets go where you want them to go.

It's not really that much different than traditional estate planning even if you're not going through a divorce, because you still have these same questions you need to answer, which is: If I die, where would I want my property to go, whatever that property might be? Whatever that property might be will be determined by the divorce court, but you get to determine where that goes should something happen to you in the interim while you're going through the divorce process. Brian has a question about this.


Brian: Sorry, just to clarify, you're recommending creating an additional trust to hold your interest in the first trust? Is that correct?


Jonathan: That is an option to do that. As one of the co-owners of that trust, you have an equal interest, as does your spouse that you're divorcing, in those assets in the trust. It's a community interest, but you have the right to say what happens to your part of that interest. I would probably do it through a wholly new document. Like I said, through a new trust or a new will, just to create separation from the one that you're currently working with that's going to be split up anyways when you divorce. You don't have to do it that way. You certainly could do it through some form of an amendment to the current trust. You could take assets out of the trust, for that matter, and put them into your own individual name.

There are various techniques. The main thing is you want to make sure that you have written down and made very clear your instructions of what you want done with your interests, your property interests, should something happen to you when you pass away, or should you pass away. That's the best case scenario, best thing to do if you're going through a divorce, to make it very clear what you want done in that situation. If you have any questions about estate planning, if you're going through a divorce and don't know want to do about your assets, certainly give us a call here at ClearCounsel Law Group and we can walk you through this process. We'll help you review your current trust and make determinations about what you do need to put down in writing to make it very clear what should happen with your assets in the event of your death.


How is a Corporation a Nonprofit?



How the Government Determines is a Corporation is a Nonprofit


Hi my name is Jonathan Barlow. I'm an attorney here at Clear Council Law Group. I often have business clients ask me, "What makes a corporation a not for profit corporation or  nonprofit corporation?" The short answer to that is that you elect to be treated as a nonprofit corporation when you create the corporation with the state. The longer answer to that question is this: what makes a not for profit is simply as it says in it's name. You operate the business without the intent to generate profit that is paid out to the owners of the business. In other words, if the business does make profit, that profit has to stay within the business. It can't be passed out as distributions to the owners of the business. The owners are not profiting on the business of the corporation.


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Now, a lot of people use not for profit corporations or nonprofit corporations in connection with a charitable entity or a charitable organization under the federal tax laws. These are sometimes called 501CS organizations. They are usually created for a charitable purpose. You create the not for profit corporation at the state level. You then obtain the 501CS status from the IRS. Together you're able to operate a charitable entity. That's basically the nuts and bolts of how you become a not for profit corporation and how that could be an advantage to people in that situation. If you have any questions about not for profit corporations feel free to give me a call here at Clear Council Law Group and I'll do my best to answer those questions for you.


How Understanding a Series LLC Will Improve Your Real Estate Business



How Understanding a Series LLC is Necessary for a Real Estate Agent


Hi, my name is Jordan Flake, I'm an attorney with Clear Counsel Law Group. We do estate planning. We do a lot of work with realtors, and just one very, very specific tip for real estate agents that they may wish to consider is understanding what a series LLC is, and what it does. When I use the word series LLC, you may know a little bit about it, but what I really want is for that to trigger in your mind the following scenario. You may have an investor who owns various properties, and the way that those properties are titled are in his or her own name. Sit here and just imagine that person for a second, that client of yours who has Jane Smith, she has five properties that are all in the name of Jane Smith. That's the client who needs to learn from you first, and then from us second as the attorney about what's called a series LLC.


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Essentially this type of LLC says that Jane Smith can take those properties and put them each in a separate, compartmentalized liability protected box similar to as if she created five LLC's. Because it's a series LLC, it's really only one LLC, with five separate compartments. Think about who your investor client is, or who your friend or neighbor is who owns various properties in their own name, and then think about learning and telling them about the option of a series LLC. Hopefully, if their interested, they can meet with us, and we'll do a free consultation to discuss the process for getting a series LLC set up properly. Reach out to me if this interests you, Jordan Flake, Clear Counsel Law Group, I look forward to hearing from you, thank you.

What to do if You Want to Disinherit an Heir


How to Disinherit an Heir


Jordan: Hi, I'm Jordan Flake. I'm an attorney at Clear Counsel Law Group. I do estate planning. Sometimes we have clients who want to disinherit one of their family members. That's perfectly fine. We understand that sometimes that's necessary. We get this question: Under what circumstances can I disinherit an heir?

I think first and foremost is really important to reinforce the idea that when we're talking about your estate planning it truly is your estate planning. The same way that during your life no one can tell you how you should or shouldn't spend your money, it's yours, you can do whatever you want with it, that same principle applies in estate planning. It's your estate. You can plan it however you want. Our job as attorneys is to simply facilitate that and also to let you know if there are some considerations that you might want to think about when making your estate planning.


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In terms of disinheritance, you can just disinherit anyone at any time. Now, there might be certain circumstances where the disinheritance might not stand up. If you try to disinherit completely your spouse, you might run into a situation where community property laws in Nevada prevent you from really accomplishing all of that. You could disinherit perhaps as to much of your separate property, but there's going to be community property issues. That's one of the many things you have to take into consideration.

Another thing is simply that if you don't specifically disinherit, you can run into problems. Say for example you have three kids. Let's say instead of disinheriting the third you simply just say, "I want number one and number two to have 50% each." The implementation is that number three doesn't get anything. If you do that and you leave out the specific disinheritance of number three, number three can come into court after you pass away and say, "Oh, mom made a mistake. She really just intended for all three of us kids to have it equally. She's just forgot to list me down there."

That number three child has a chance of blowing up the distribution scheme. It's a much better practice to actually use the correct language to specifically disinherit those people who you don't want to have in there any longer. That's a good reason to come see an attorney about it. Any follow-up questions on this one?


Brian: Does it make sense to put language in the disinheritance as to why you may have taken someone out?


Jordan: It may or may not make sense. Estate planning is just about peace of mind. If you don't want to address it, that's fine. I have some clients who the reason they disinherit is because they bought that kid a house. It's not because they dislike them. It's because they already did a big huge financial favor and they think that everything else needs to go to the other two kids. In that situation, it might make sense to say, "I have previously provided for child number three. Therefore I'm giving my estate to children number one and two." That might make sense. If the situation is a big traumatic family thing that was the subject of many years of turmoil and dispute, it might not make sense to include all of that in the estate plan. Just keep it simple and disinherit the party that needs to be disinherited. Any other follow-up on this?


Jordan: All right. If you are thinking about doing your estate planning and you want to disinherit someone, it needs to be done currently, and that's a good reason to come see us for a free consultation. We'll help make sure that you accomplish that.

Who is Permitted to be Your Personal Representative of Your Estate?



Who Should You Select to be the Personal Representative of Your Estate?


Jordan: Hi, my name is Jordan. I'm an attorney with Clear Counsel Law Group. I do a lot of estate planning. Invariably people who are my clients want to know who can I list as my executor or my personal representative, or trustee. I use all of those terms interchangeably, but really when you do estate planning there's a lot of situations where you have to say, "Who can I trust? Who do I trust? Who can I put down? Who's going to be responsible for everything when I pass away."

Again, when we're talking about personal representative we're not necessarily talking about to whom the assets are going to go ultimately in terms of distribution. We're talking about initially after I pass away or if I become incapacitated, who's going to be there to assume responsibility. Sometimes I'll have clients say, "I don't really have anyone. Could I have attorney, could you do it? Could I have my CPA serve in that capacity?"

The answer is you can have anybody serve in that capacity as long as they are an adult and as long as they have their competence and ability to do that. Who should you have is a very, very personal type question and you have to go through and see what factors are relevant in your life. Some people don't have anyone. They could list a CPA or a financial planner. You could under certain circumstances list your estate planning attorney. Oftentimes if we are asked to do it, we'll say Clear Counsel Law Group or an individual pointed by them just so that potentially we don't actually assume that responsibility. We might find somebody to actually do it for you.


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Really oftentimes it makes sense to look at those people who are closest to you, who you trust, who are most familiar with your preferences and your personal circumstances. It's very, very fact-intensive. Any follow up question on this, Brian?


Brian: You said sometimes Clear Counsel Law Group will find a trustee for you. Could you talk a little bit more about who those folks are?


Jordan: Sure, one of the reasons why you might not want to have an attorney serve as a personal representative is that sometimes our time is billed at a higher rate than a private professional who would do these types of services. Some people aren't aware that there's an entire industry of basically private professional fiduciaries. By that, I mean individuals who basically say, "Look, I will serve as a trustee of a trust or the executor of a will. I will be paid out of the proceeds of the estate. I'm a disinterested third party. I am very good at keeping books and accounting. I'm going to do a really good job of this. You're going to have to pay somebody to do it, whether it's a family member or a private professional fiduciary. Might as well pay me. I'm not going to get caught up in any of the family drama. I'm just going to do exactly what the documents say."

There are really good private professional fiduciaries out there in your local marketplace. We can help you find those people and get them onboard with serving in those personal representative-type capacities. When I say some of our clients list Clear Counsel Law Group or an individual appointed by them, what I mean is we reserve the right to not serve in that capacity but to find a capable, disinterested third party personal private professional representative, some kind of professional fiduciary to fill that capacity.

In any event, if you're in this situation where you aren't sure who you can trust with the decision-making aspects of your estate, that would be a really good reason to give us a call so that we can walk you through some of the different options that you have. Give us a call. We'll do a free consultation. Come in and meet with us and we'll see what we can figure out. Thank you.

Clear Counsel Law group

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