What to Do If You Need to Stop a Trustee

 

 

Transcript:

Good afternoon. My name is Jonathan Barlow. I’m a probate and trust attorney here at Clear Counsel Law Group. Over the course of my practice, I have done not only the regular administrations of trusts and probates, but I’ve dealt with countless disputes and litigated matters and trust and estate litigation.

One of the questions that often comes up is a concern about a trustee: if the trustee is acting inappropriately or if there is concern that the trustee is mishandling the money, spending the money, hiding the money, doing something like that.

 

You Need a Lawyer That Thinks About Legal Strategy, Not Just Lawsuits

My clients often ask me, “What can we do? What can we do to stop a trustee to prevent the trustee from continuing these bad actions? It appears to me that they’re at risk of losing the money of the trust, so I’m not going to receive what I’m entitled to receive? What do I do? Do I got into court? Can we try to resolve this?”

This is really important that you have an attorney who has handled these and has a feel for that. There’s no sheet of paper that we can go through, a questionnaire, and say, “Is this happening? Is that happening? Yes? No?” At the end of it, it tells us, “Go into court immediately,” or “You could probably try to resolve this informally.”

I can tell you this, from my experience, where there’s smoke, there’s usually fire. What I mean by that is if have an inclination or indication that the trustee is doing something inappropriate, you think that there’s transactions that shouldn’t be occurring, money going out that shouldn’t be going out, you’re probably right.

There’s usually something going on behind the scenes with that trustee that you should be concerned about. You need to know, “Do we go into court immediately?” That’s usually the best option.

Like I said, where there’s smoke, there’s fire.

The best chance you have to stop a trustee, to prevent that trustee from running away with the rest of the money, or losing the rest of the money is to get a court involved as soon as possible so that a court can put a freeze to those accounts, put a freeze to the trustee’s actions, potentially remove the trustee out of the picture altogether so that somebody else can handle this.

Of course, going into court is expensive. It can be very time consuming. You throw yourself into, essentially, a lawsuit situation, which can take a couple years to resolve. It can cost tens of thousands of dollars. Those are considerations you need to think about in determining whether to go into the court route.

 

When an Informal Approach Might Be More Appropriate to Stop a Trustee

Sometimes my clients will ask me, “Do you think we can informally resolve this? Do you think we can get them to settle this matter?”

Certainly, there are times where that’s the best approach, where you get a feel that based on the family relationship, we have a sense that the trustee is willing to cooperate, that the trustee would be likely to come in and sit down with us, or their attorney would come in and sit down with you, share information, share account documents, tell us what’s going on, and see if we can’t resolve the dispute.

They may have every indication of wanting to do that, too, and not running away. Certainly, we want to have a feel for that and know is that the best way to do that? Should we approach them informally through a letter, through a phone call, and say, ‘Can we try to resolve these questions that we have?'”

However, you just don’t want to wait too long.

stop a trustee

 

An Example That Proves the Rule

I have a colleague who tells this horror story. Early in their career, early in their practice, they were doing this. They were pursuing a trustee who they had every indication was not acting appropriately. There appeared to be money missing.

The trustee had, in fact, said, “I’m not going to give you what the trust says you’re supposed to get.” They tried to work this out with the trustee’s attorney. They asked the trustee’s attorney to give them account documents.

In fact, the trustee’s attorney did give them account documents, account statements from the bank account, that appeared to show that all the money was still there in the bank account.

Months later, almost a year later, they finally found out that those account statements were completely fraudulent. The trustee had gone into those account statements and made photocopies, actually cut out sections of transactions, large sections, pages of transactions, and put the document back together, changed the numbers.

It was fantastic and amazing what this trustee did to hide hundreds of thousands of dollars of transactions and make it appear that money was there when it wasn’t. She committed a blatant fraud on them. They didn’t know about it until far too late.

By the time that they realized the fraud, got a court judgment against the trustee for over $1,000,000, the trustee was literally gone, nowhere to be found.

My good friends out there, my good colleagues, would be interested to know if you know where Beverly is and you know Beverly owes over $1,000,000, let me know and we’ll put her in touch with my friends over here. They’ll be glad to hear about it.

 

An Experienced Probate Lawyer Can Help You Stop a Trustee

We want to avoid those situations. We want to act promptly, whether prompt means get into court as quick as possible or whether prompt is let’s get them into our office to talk about it because we think that has the best chance of success.

We need to do that. It’s not worth waiting.

If you have sense that there’s something going wrong, you’re probably right and your probably entitled and need to get the information to answer your questions. I personally have a lot of experience doing that here at Clear Counsel. It’s one of our specialties is proceeding with these disputed matters and getting resolution for you.

Give me a call. We do a free consultation to review the facts, to try to get a feel for what we think.

Do we got to go into court immediate?

Can we resolve this informally?

Give me a call for that free consultation. I’ll be glad to talk to you about this, answer your questions, and get you the resolution you need.

 

Can a Witness be Compelled to Appear in Probate Court?

 

 

 

How to Require a Witness to Appear in Probate Court

Transcript:

Hello, my name is Jonathan Barlow. I’m a probate and trust attorney in the Las Vegas, Nevada area. In particular over the course of my career I have handled many trust and estate disputes so disputed matters, litigation matters within the probate and trust context.

It often comes up that we become aware as we’re trying to resolve this dispute, as we’re trying to get the court to have a trial on it and determine what should happen, we often become aware that there is a person somewhere who has information, a witness, who has information that would be helpful for us in our disputed case.

If that’s your situation, you come to me and say, “We’ve got to get this testimony of Joe. Joe knows what happened in that situation. He could tell us what happened.”

There are two things that I could do to help you get that testimony and make sure that the court hears that testimony.

 

How I Compel A Witness to Testify

The question is, can we make Joe come to court and testify as a witness? Is there a legal process that we can force Joe to come into court as a witness?

First, if Joe is in the state of Nevada and our case is happening here in Nevada, yes. I can give a subpoena to him, have a subpoena served on him. It’s a legal document, a legal command to Joe that says, “Joe, you are commanded by the state of Nevada to appear at a certain place at a certain time to give testimony.”

That’s usually in a trial. We can have a subpoena served on him. He is legally required to come to court to give his testimony. Now Joe can choose to ignore that and not show up and that’s a risk that could happen. However if he does that he’s going to be in contempt of court, he could face jail time and a civil penalty, so usually people don’t ignore those subpoenas.

 

What if the Witness Doesn’t Live in Nevada?

Now the second situation that often comes up though, which is a little bit sticker is, what if Joe is in New York? How can we get him from New York into Nevada?

We’ve got to have this information from Joe. In this situation, a lot of law firms get bogged down and they get tripped up on this and they say, “Well, we can’t do it. We can’t bring Joe into Nevada.”

That’s true, but we can’t stop there and we don’t stop there.

It’s true, there is no legal process to force Joe to come from New York to Nevada to give his testimony. However, there is a way to get his testimony, preserve it so that we can use it in trial, and to support your case.

What we do is we start again with that basic Nevada subpoena and the Nevada subpoena says, “Joe, you’ve got to give us testimony.”

We take that Nevada subpoena, we go to New York. We’d go open a case in New York actually and have the New York courts take the Nevada subpoena and out of that, create a New York based subpoena where the state of New York says, “Joe,” just the same thing as in Nevada, “Joe, you are commanded to appear at a certain place and a certain time within the state of New York to give testimony.”

 

witness

 

I as the attorney can either fly out there to be there in person which is most effective. It can be done over the phone if the parties agree.

I’ll go out there to New York. Joe arrives, he’s put under oath just as if he is in a court of law, sitting there at trial, he takes an oath to tell the truth.

We have a court reporter there who’s taking down every word that’s being said just as if we’re sitting in a court. I get the opportunity to ask him questions. He’s under oath to tell the truth and answer those questions. We get the opportunity to preserve his testimony through what’s called a deposition. That’s that deposition process.

Now we bring that deposition back to Nevada and we get to the point of having our trial. We call Joe and say, “Hey Joe. We’d really appreciate you coming out to Nevada to come to the trial and give your testimony.” Joe says, “Not going to do it. Not coming out there. Not going to take the time nor the expense to do that.”

 

The Value of a Witness Deposition

We’re not up a creek. In that situation, we can go in and ask the court to allow us to have permission to use Joe’s deposition, to use the video from that deposition or to simply have the transcript, the document read, the answers and questions read, into court at the trial. That’s treated just as if Joe was sitting there in court at trial giving his testimony.

That’s a way to preserve his testimony even though he’s all the way out on the other side of the country and even though we can’t legally command him to Nevada to give that testimony.

You’re not out of luck if we’ve got to get this testimony from other people and we here at Clear Counsel know how to do that process and we’ve gone through that process of going to other states to get those subpoenaed issued in the other states to get that testimony.

We’ve flown to other states to take that testimony and use it in trials successfully to preserve their testimony.

If you’re in that situation, where you’re wondering about getting this evidence or testimony or we need this information from a witness, we here at Clear Counsel would be glad to talk to you about that.

We do a free consultation to review your case, to review the disputes that you’re having and help you plan a way to resolve those disputes and preserve testimony from witnesses whether they’re in Nevada or out of New York.

I encourage you to give me a call and let’s have that free consultation today.

 

Your Nevada Estate Plan Deserves To Be Drafted by a Nevada Attorney

 

 

 

Transcript:

Hi. My name is Jordan Flake. I’m an attorney with Clear Counsel Law Group, and I specialize in estate planning. Today I want to address a question that we get about whether or not it’s important to have a Nevada attorney, who is at a law firm in Nevada, prepare your estate planning documents.

What we have, sometimes, is there are out of state law firms that will do legal services. Sometimes people will go to a different state to get their wills drafted, or the power of attorney, or their trust documents drafted.

There are a lot of reasons why it’s important to come see a Nevada attorney whose main office is here in Nevada and who is familiar with Nevada laws.

In the entire arena of estate planning there is a lot of overlap between the different states. There really is, and that’s fine.

A house in California or Iowa needs to have certain designations that would help it pass, upon your passing. Whether you’re in any state Iowa, California, Nevada there’s certain concepts that apply across the board.

Because of that we have a situation where sometimes residents of one state will obtain estate planning documents from a firm that may only have a small outpost here, or they may go to a different state and get those documents.

 

You Need a Nevada Attorney to Update Your Estate Plan

However, I think that by doing that you’d be missing out on a big opportunity. With estate planning it’s important to go with an estate planning attorney that is where you are.

I would encourage Nevada residents to come to an estate planning attorney here, locally.

Here’s why, estate planning often isn’t just a one-shot situation.

At least good estate planning is a situation where every three to five years your estate planning attorney should follow up with you and say, “Hey, has anything changed in your life?” Is there a different marriage, maybe a different job, maybe you’ve sold houses or purchased a house. Maybe one of your siblings had or one of the people you had designated as a personal representative had passed away.

You want somebody who’s close to you geographically, and who’s close to you from a professional standpoint, who will be able to ask these questions and get these answers from you. That’s one advantage of having someone local. It’s going to be easier to have the type of relationship where you have more constant contact.

 

nevada attorney

 

As a Nevada Attorney, I Understand the Nuances of Nevada Law

Second to that, also, is there are differences in the law. Even there aren’t big difference in the law, there easily can be differences in the law when the Nevada legislature changes the law.

You’re going to want somebody who is tied in enough to Nevada’s revised statutes, that when there is a big change in the law something triggers in our mind that says, “Hey we should reach out to all of our estate planning clientele and let them know that this thing has changed.”

That’s another reason why you wouldn’t want to go with an attorney who merely has a Nevada license, or has a license in another state but isn’t really tied into the state. They’re not going to be aware of changes in the law that might effect your estate planning situation.

 

The Clear Counsel Difference

Clear Counsel, in contrast, if there is a change in the law we’re equipped to determine which clientele are going to be affected by that. We’ll send out a newsletter, or a letter, to all of our clients saying, “Hey, these are some changes in the law. Please contact us if you feel like this might apply to you.” That’s just another advantage of going with someone here locally.

That actually can be extrapolated into a more general sense of, we’re tied into the community.

For example, I’m an appointee on the senior citizens advisory commission for City of Henderson’s senior citizens. I know a lot about different resources in the community that are intended to benefit seniors.

I’m sitting here with a senior citizen from Henderson. Of course we’re talking about estate planning. Other things come up to.

We have somebody maybe move here from Michigan and they wonder what service opportunities are available. I know those types of things because I am locally tied into the community.

I can tell you, “Hey, it just so happens that the senior community center down here offers all of these different programs. Here’s somebody who you can get in touch with.”

That’s the type of overall generalized advantage that you can get from dealing with a local Nevada attorney who’s plugged into the community. Who’s aware of the laws, and who’s geographically available to talk about any changes that might happen with your estate plan.

If you’re here in Nevada, please reach out to us, Clear Counsel Law Group. We’ll meet with you. For a consultation we don’t charge at all. In the future you’ll be happy that you had somebody here locally who can help you out with different changing situations. Whether in the law, or in your own life.

Give us a call. I’m attorney Jordan Flake. You can reach us at (702) 476-5900.

Thank you.

 

Big Changes in the Nevada Estate Planning Law

 

Are You Familiar with Nevada’s New Estate Planning Laws?

 

 

Transcript:

Hello, my name is Jonathan Barlow. I’m a probate and Nevada estate planning attorney here in the Las Vegas, Nevada area at Clear Counsel Law Group.

In the last legislative session, the Nevada legislature passed a significant change to the probate and wills laws in the State of Nevada, and something that has significant benefit for people in the State of Nevada, and what I’m here to talk to you about today.

What the legislature did was they added a provision in the statutes, in the laws that says that while you’re alive, before you die, you can go into court and ask the court to look at your will or even your trust but, particularly here, your will and have the court look at that, take your testimony about it, talk to you about it while you’re alive and well and have the court enter a court order that says that your will is valid.

If that happens while you’re alive, you get a court order that says your will is valid, after you die, nobody can contest it. Nobody can come along after you die and cost a whole bunch of money, cost a whole bunch of attorney’s fees to be incurred, a lot of litigation in a will contest after you die.

It’s a fascinating new law that could have significant benefit for most people in the State of Nevada, particularly those who have some nontraditional estate planning. We’ll talk about that in a second.

 

What is Declaratory Relief? Why Does it Apply to Nevada Estate Planning?

First, how does this happen? Let me tell you about the basic premise behind this. There’s always been a right under Nevada law to get what is called declaratory relief. It’s where you go into the court and ask the court to declare your rights or to declare the obligations of parties to an agreement or other situations. That’s called declaratory relief.

Let me give you a short example. If there are two businesses who’ve entered into a contract for business purpose, and they come to some dispute or disagreement about what this provision means in the contract, and one person or one business is alleging that the other has breached that provision, one of the parties could go into court and ask the court to declare the rights of the parties related to that contract.

What that means is the court could interpret that contract, interpret that provision and tell the businesses, “This is what you’re obligated to do. This is what your rights are under that contract.” That declaratory relief has always been here in Nevada law. Now it just applies to Nevada Estate Planning as well.

 

Nevada estate planning

 

The Changes Made to Nevada Estate Planning Law Last Legislative Session

Last legislative session, the Nevada legislature took this declaratory relief right, and they married it with the probate and will laws of the State of Nevada to provide this before death declaratory relief regarding the validity of a will. It’s a fascinating change to the law.

The reason this is really important is we’ve seen for as long as there has been wills, there have been will contests. Those have always happen after the person dies.

Mom creates a will. Say, she disinherits one of her sons. She’s mad at one of her sons and leaves nothing to her son.

After mom dies, that son is always mad and, almost always, they start what’s called a will contest, or they bring an action in court to say, “Hey, court. You need to look back in the past when mom did her will several years ago, and go back in the past, and determine that mom either didn’t know what she was doing, she wasn’t of sound mind. That somebody coerced her or there was undue influence. That there are some reason that will is invalid, and we’re going to rid of that will.”

That’s a will contest. It cost tens of thousands of dollars of attorney’s fees for the parties, let alone the difficulty it causes with families, obviously. That’s traditionally been the will contest paradigm is it’s all happening after death, after the person who created the will is gone.

 

What Declaratory Relief Means for Nevada Estate Planning

Well, with this new declaratory relief, we have this amazing ability to bring the person who wrote their will, who prepared their will, bring them in front of a judge and have that person sit there and tell a judge, “Judge, this is exactly what I’m doing. I know what I’m doing. I know why I’m doing it, and this is exactly why I want to disinherit my son.”

The person who knows the most about whether the will is valid can do that while they’re alive and not wait until after they’re dead, and gone, and buried in the ground to have their children fight about it.

What’s the process to do this? You have to file; it’s essentially like a civil lawsuit. You’re going to bring an action in the court to have the court and ask the court to take a look at your will, take your testimony and declare it to be valid while you’re alive.

Important thing about this though you need to know is that your children and anybody else that you name in your will, say, you’ve named a charity, or a friend, or somebody else like that to receive a gift, your children and anybody named in the will are going to be entitled to receive notice. They get to know that you filed this action.

What that means is that child that you may have disinherited has every right in the world to come into this case while you’re alive, and sit across the courtroom from you, and tell the judge why the judge should find you to be incapacitated, or of not sound mind, or some reason why your will should not be valid.

They have that right to come here and say while you’re alive why it shouldn’t be considered valid.

 

How the New Law Changes Nevada Estate Planning

The truth of the matter is I believe that there are going to be a strong disincentive to do that. How awkward will that be amongst other things to have a son come in, look across the courtroom, look across the table and tell you why you’re crazy while you’re sitting there, and the judge can look at you and talk to you, and explain why you’re not crazy and determine that you’re not crazy?

It changes the whole paradigm from this after death will contest where it’s a free for all. There’s so much angst, and dispute, and litigation after death when the person most important is already gone. It’s going to change that paradigm and cut way down on those cost of litigation to do it before death.

I think those people who are disinherited are going to have much less incentive, or it’s going to be much more difficult for them to come into court while you’re still alive and try to prove you to be incapacitated or some reason why the motion shouldn’t be valid.

If you have already done a will or a trust, or if you’re considering doing a will or a trust where you do something that we call nontraditional, meaning that you’re not just giving it in equal shares to your children or something like that, maybe you’re disinheriting one of your children or you’re giving one of your children a much larger share than the other kids, something that I promise you causes will contest after you die, if you’re considering that, I strongly encourage you to get specific advice about this declaratory relief action.

Here at the Clear Counsel Law Group, we are trained to do that. We’ve gone over this. We have a firm understanding of Nevada Estate Planning.

We’re prepared to provide this advice. Whereas I know that most other firms are not providing this advice out there, and it’s something you need to know if you’re going to be doing nontraditional estate planning.

Give us a call.

We’ll walk you through, not only the process of creating that will with the nontraditional gifts in it, but also advising you about whether it makes sense or not to take this into court and get declaratory relief before you die that your will is valid.

I look forward to talking to you about this. It’s a super fascinating change in Nevada estate planning law and we look forward on being on the forefront of this as we implement this in the State of Nevada.

 

Will Nevada Appoint an Administrator to Your Estate?

 

Transcript:

Hi, good afternoon, my name is Jonathan Barlow. I’m a probate attorney at Clear Counsel Law Group. There was a recent very famous case that has just recently come up due to the death of Prince in Minnesota, the famous musician Prince.

When he died, it turns out that no one could find a will which was a pretty shocking result for somebody who was extremely wealthy and extremely well-to-do that he had not apparently done any estate planning, not even a basic and simple will.

The question’s been asked of me, what happens in that situation? What happens in the Valley in that situation?

 

What Happened in Minnesota

First let’s take a look at what happened in Minnesota. The sister of Prince filed a petition or a request with the probate court there asking that she’d be appointed as what is called the special administrator, somebody with court authority to handle Prince’s estate, gather his assets, start getting their arms around what’s happening with the estate.

It turns out that for whatever reason though, the Minnesota court appointed a third party independent trust company to fulfill that role, to act as the special administrator rather than the family member.

The question is, can that also happen in Nevada? Could a third party administrator or a third party company be appointed and inserted into the estate to handle the estate in place of the family member?

 

Will Nevada Appoint a Special Administrator?

The short answer to that is yes, that can happen. However, it’s important to note that family in Nevada, the family members of the deceased have the priority or the highest entitlement to serve as that administrator after somebody dies.

The Nevada Statutes are drafted to give the closest next of kin the highest and first right to request to be named as the administrator of the estate with authority to take care of the estate. There’s a preference and priority for the family.

However, there are certain times when either the family doesn’t come forward to do that or the situation is simply not appropriate to have a family member fulfill that role and that position as the administrator.

 

administrator

 

Those situations could be where there’s a conflict of interest between the administrator and the estate, or the family member and the estate, excuse me, or there’s allegations that that family member has participated in some form of wrongdoing against the estate or the decedent or that they would not be able to fulfill the job appropriately or that they wouldn’t know what they’re doing basically.

Basically some reason that it would not be appropriate to have that family member who otherwise has the highest priority to be in that position to serve.

When that happens, yes, it is possible that a Nevada court, the probate judge here can appoint a third party neutral company or individual to serve as the administrator of the estate.

 

The Two Types of Nevada Administrator

That could be usually one of two people or one of two options. There are professional companies, usually they’re called trust companies, that can be appointed to serve as the administrator of the estate.

There doesn’t necessarily have to be a trust involved in order to serve that position. These are companies, it’s their job and profession to handle estates and deal with those matters.

Uniquely in Nevada, we have an elected official called the public administrator and it’s his job as a publicly elected official to serve as the administrator of estates when there’s not a family member or when there’s otherwise a reason to throw it out to a third party independent party to serve in that position.

Those are usually the two ways that we see that go out to a third party to handle the administration either to a private trust company or to the public administrator in his office. Now, that begs the question of course, how does the third party become inserted into this situation?

Usually, it’s very rare that the third party itself would come forward and say, “Hey, here we are. We want to insert ourselves here into this situation.”

Usually that comes one of two ways where the third party gets appointed.

 

How a Special Administrator is Appointed

One of the other family members could come forward and say, “Hey listen, my sister has requested appointment, but I don’t think it’s appropriate for her to serve for whatever reason.

She doesn’t know what she’s doing. It would be a conflict of interest,” one of those things that we talked about earlier, “and so, court, would you please appoint a third party neutral administrator? That’s really what we need.” Somebody in the family could request the appointment of a third party.

Also, interestingly though, and we see this frequently especially here in Clark County with the probate judge here in Clark County, the judge on his own, acting on his own accord could look at the situation and say, “You know what? There’s nobody in the family appropriate to do this. They’re fighting. It’s a disaster.

It would be inappropriate for this situation of the estate to have them, so I on my own accord am going to appoint a third party,” whether that’s the third party trust company or the public administrator’s office. The judge on his own could throw that out and have it be appointed to a third party to do that situation.

 

Will a Special Administrator Only Be Appointed for Large Estates?

Now the question is, does this only happen when it’s a really large estate like Prince in Minnesota? Prince is obviously very wealthy, has a lot of intellectual property rights, a lot of things that need to be protected.

The answer is no.

I’ve seen this happen with estates of all sizes, from very, very small estates, less than a hundred thousand dollars where the family members can’t agree, where there’s disputes, and the public administrator usually with those smaller ones will become involved through the court appointing the public administrator.

Of course, it can go all the way up to very, very large estates.

The answer is no, it could happen with any size of estate, any amount of assets that we’re dealing with, any time that there’s a dispute or otherwise non-appropriate situation to appoint a family member, we’re going to usually see a third party become appointed as the administrator of the estate.

If you have concerns about this and you think that it might be appropriate in your situation to have a third party become involved and want to know how that happens or you’ve had a third party appointed and you’re not happy with that situation, these are questions that I have a lot of experience with.

Our attorneys here in the office can help you walk through those questions, those issues, and try to find a resolution to it, so give us a call here at Clear Counsel. For more information about these issues, I encourage you to check out our blog at clearcounsel.com, and we’ll be happy to answer any questions you might have.

 

Fund Your Trust: The Best Option for Life Insurance Proceeds

 

 

Transcript:

Hi, my name is Jordan Flake. I’m an attorney with Clear Counsel Law Group and I specialize in estate planning.

Our office provides a free consultation.

What that means is you can sit down with me, bring your old documents if you have any, bring your current documents, any questions you might have, just give us a call and put a time on my calendar with our receptionist and we’ll sit down and discuss whatever it is that is on your mind with respect to your estate planning questions.

Please take us up on the free consultation.

 

Make Sure You Fund Your Trust

One question that I often deal with is this. People will go an attorney, they’ll feel like they’re being super responsible and they’ll go to an attorney and they’ll set up a trust.

They’ll have all the provisions about where the assets go, who’s in charge of the assets, all the contingencies planned out and then when they pass away, tragically, we discover that the trust was never funded.

Now what do I mean by funded? What I mean is that a trust kind of operates like a box. What you’ll want to do is make sure that your different assets either are placed in the box during your lifetime or that they are set to fund into the box upon your passing.

Something that might be within the box during your lifetime would be a house or a parcel of real property.

Something that you might want to have go pay on death or beneficiary to a trust, the box, would be a financial account, bank, checking, savings and perhaps also a life insurance policy.

This whole process is called funding the trust.

Even if you think you have your estate plan all done, I would love to get an opportunity to review it so that I can determine whether or not it’s properly funded with all of the assets that you have.

Please give us a call and we’ll sit down and I don’t charge to do that. We can have a conversation about it.

 

life insurance, fund the trust, estate planning, las vegas, nevada

 

A ‘Fund Your Trust’ Example with Life Insurance Proceeds

Let me talk about why that’s a good idea. I often get a question about life insurance proceeds for example.

You might be sitting here thinking, “Jordan, if I have my son … My wife passed away a few years ago. I have my son Joey and he’s already listed on the life insurance policy. Why should I have them go into a trust?”

That’s actually a really good question and the reason is because oftentimes the trust will provide more protection. If you are just listing Joey as the beneficiary, that’s what I call the look-out-down-below philosophy of estate planning.

You’re essentially saying, “Hey, when I die, Joey, look out down below,” because that life insurance company is just going to send that money immediately down his direction, regardless of his situation in life.

Instead of that, if you have it go into a trust, you can actually have provisions that can hold back that money and protect it for Joey’s benefit in this example. Let me kind of flesh that out a little bit.

 

Why a Trust is a Good Option for Life Insurance Proceeds

In the first scenario, let’s say when I pass away and my son Joey gets my $200,000 life insurance policy, let’s say that tragically, Joey has caused an accident and there’s an injured party who’s coming after him for some money. Let’s say that Joey has stopped paying his taxes four years previously.

Also, he’s been going through a divorce situation and as a result of all this stress, Joey has started abusing substances, possibly alcohol. We see that Joey might not be in the best condition or the best state to receive $200,000 just landing in his lap, because of all these other situations that are going on in his life.

Now there aren’t laws that demand for example that all that money be turned over to his soon to be ex-wife. There’s some protections in place for that, but we can all agree that if he’s going through these things, it’s not a good time to say, “Hey, look out down below. Here comes $200,000 landing in your lap.”

 

How to Use a Spendthrift Provision in a Trust

What you’ll want to do instead is list the trust as the beneficiary of that life insurance policy and then have the trust say, “I desire that the proceeds of the life insurance policy go to my son Joey.” Because what the trust will also allow in Nevada is a very robust spendthrift provision.

A spendthrift provision comes from this idea that you don’t want your property to go towards somebody who’s going to be wasteful.

What the provision says is that if Joey is involved in any type of event in his life or any circumstances that would deprive him of his ability to use these assets, this distribution, this gift for his own purposes, for his own health care, enjoyment , maintenance, whatever he wants to use it for.

If he’s in any situation that would deprive him of that opportunity, then the trust actually requires that that money be held back until he’s then in a good situation to move forward.

He’s resolved the tax disputes, he’s gotten rid of the lawsuit, the divorce is all settled and tied up, and he’s got his life back together and he can stop abusing the substances and say, “Okay, I’m ready to receive this money.”

 

There’s a Reason I Say I am in the ‘Peace of Mind’ Business

I always say that I’m in the peace of mind business. What I really like to see is Day 1, when a client comes into my office, they say, “Jordan, we don’t know what to do. We love our children.

They’re not all super responsible. We’ve spent our whole lives accumulating this property and we want to gift it to them, but we want to make sure that it goes in a way that they’re actually going to receive and enjoy it.”

What we do often is we’ll set up a trust and we’ll have a nice, robust spendthrift provision that says, “Hey look, if any of your beneficiaries are in some kind of life circumstances that are preventing them from using this money, the trustee can actually hold that back and wait until the skies are sunny and clear.”

Once we’ve signed that document, that’s when I get the big payoff from being an attorney because I get to see their peace of mind, they let out this sigh, and they say, “It just feels so good to know that that’s taken care of.”

That’s really what I want to be able to help you with is achieving this peace of mind with respect to your estate planning.

Please give us a call (702)476-5900. Set up a consultation.

I don’t charge at all just to meet with you, go over your questions and issues, give you an education about your different options and then you essentially decide and you tell me what you want to do.

Again, that’s a no-charge consultation, (702)476-5900.

Thank you.

 

 

Will Your Estate Be Subject to a Second Probate?

 

 

 

Transcript:

Hello, I’m Jonathan Barlow, a probate attorney here at Clear Counsel Law Group. We have a question today about a second probate.

Is there a time when a probate has to be reopened and a second probate occur for the same estate of a deceased person?

 

Your First Call is Free. Seriously, No Obligation.

If you have questions about this, we offer free consultations, whether on the phone or in person, and we do that for a free 30 minute consultation with no obligation to you.

We’ll answer any questions that we can during that time, and you may not have any further questions beyond that.

You may not have to hire us. If you do have to hire us, we’re glad to give you an estimate of our fees at that time, and you can decide whether to retain us to help you finish up your legal matter.

Let’s assume that you’ve called and asked me a question about this where you’ve taken care of mom’s estate, or at least you thought you’d taken care of mom’s estate, you’ve already gone through probate, and all of the sudden you have another asset that pops up that you didn’t know about.

This is what the question is about. Is there a second probate? Do I have to do probate a second time?

 

A Common Example of a Second Probate

Often this can occur when you’re cleaning out mom’s garage, you come across some old stock certificates from this Apple Inc. from 1981 that you never knew about, or in cleaning out the old boxes in the garage, you find this dusty old deed for five acres out in the middle of nowhere in Nevada and you investigate that a little bit and go to the county seat and determine, “Wow, mom actually still owns five acres out here in the middle of nowhere.”

You’ve discovered some other asset that is in mom’s name, and that asset, in order for it to be transferred, has to go through probate, just like all of the other assets in mom’s estate, but the problem is you thought you’d already taken care of probate.

You already got a final order from the judge.

The judge said, “Go ahead and distribute everything out. We think we’re done and closed,” and the estate’s closed. This situation has come up.

You’ve got two things you need to worry about or two things that have to happen.

second probate, las vegas, nevadaCopyright: ginasanders / 123RF Stock Photo

 

Now What Do You Do?

First, you’re going to have to reopen the estate. You’re going to have to go through a process to get the estate opened again.

The second thing you have to worry about is that discovering that asset may push you into a different level of probate than you followed previously.

Let’s talk about those two things.

First, reopening the estate. In order to take care of that asset, somebody has to be appointed and court authorized to handle and administer that asset.

That’s that appointment of an executor or a personal representative that’s done only by the probate court.

You have to file a petition, a request with the probate court that handled the case originally, inform the court that you’ve discovered an additional asset and that you need somebody to be appointed by the court as executor or administrator, the personal representative of the estate, to be able to handle and administer that asset.

It may entail selling the asset, it may entail just dividing it up and distributing it amongst the heirs, as the case may be, but we need somebody with court authority to do that. Again, that can only be done by reopening the probate case.

Thanks for watching. See you next time.

 

 

A Comprehensive Discussion of Power of Attorney Agent Documents

 

 

 

Transcript:

Hi, my name is Jordan Flake. I’m an Attorney with Clear Counsel Law Group and I specialize in estate planning. One of the things that I confront a lot in my consultations is questions about Power of Attorney Agent documents.

Our office does a free consultation, we don’t charge at all to have you just come in, meet with us, bring documents if you have any.

If you don’t have documents, bring questions, and we’ll look over your documents and just make sure that they say and do what you want them to say and do. Feel free to give us a call for a no charge consultation.

One of the documents and one of the things that we’ll talk about is whether or not you have your Power of Attorney Agent documents set up properly.

 

power of attorney, las vegas, nevada, estate planning Copyright: iodrakon / 123RF Stock Photo

 

In order to really understand that, we need to consider a scenario where, heaven forbid, you become incapacitated. You’re incapacitated, you can’t make these decisions, that you take it for granted, you can’t really make them for yourself.

You can’t make financial decisions about how to spend your money.

You can’t make medical decisions about what treatment to receive, what treatment not to receive, what medications to take, which doctor’s advice you need to follow when you have different medical options. You can’t pay your taxes or pay your bills or apply for insurance or government programs or whatever the case may be.

You’re totally incapacitated.

In that setting, Nevada law actually steps in and says, “Hey, we want to protect the rights of incapacitated individuals,” so we have something called Guardianship Court, where if we have an incapacitated individual and they have legal or medical issues that need to be resolved, that person can essentially have a guardian come in on their behalf and go to the court and say,

“Hey, my wife is incapacitated. I am running into some roadblocks, I need to commence a guardianship proceeding” and then the Court will allow whoever is going to be the guardian to have all these legal rights overview.

 

Why You May Want to Avoid Guardianship

The problem with guardianship is that it’s expensive, it’s time consuming, it’s a Court process, generally requires hiring an attorney and probably the worst thing about it is if you don’t have somebody pre-selected, then you may end up with somebody who you really don’t want or you really don’t trust making legal and medical decisions for you.

In Clark County there has been in the very recent past in Clark County there has been some scandal and some drama around the Guardianship Court because there were private guardians who are being accused of using their opportunity as private guardians to enrich themselves, among various other allegations.

No matter where you stand on those allegations and those news stories, I think we can all agree that if we could just avoid the process entirely, we’d be in much better shape.

 

How Valid Power of Attorney Agent Documents Will Help You

That is where Power of Attorney Agent documents step in. If you have properly executed, valid and enforceable Power of Attorney Agent documents that contain all of the information, then you really should, I’d say 99.5 times out of 100, avoid the Guardianship Court process entirely and just have it done privately via your own pre-determined pre-drafted wishes.

That’s what I like to see as an estate planning attorney.

That’s the kind of certainty that I want to pass along to you as a client.

What we do is, there’s essentially three different Power of Attorney documents that I’ll just run through here really quickly.

 

Power of Attorney Agent over Financial Care

The first is Power of Attorney over financial care and what this means is that if you become incapacitated, you can designate an Agent who will assume responsibility for your financial care and for your financial decisions and making sure that your assets and that your money is safe.

Normally, you’ll want that to be your spouse, most people will, but you also have to take into consideration what if you’re in an accident and the accident that claims your spouse’s life leaves you incapacitated, so it’s really important to get somebody else back up in there as an alternate Power of Attorney Agent for financial purposes.

Because of what’s happened in Clark County, we also are very, very cognizant of making sure that we have all of the best contact information for the Power of Attorney Agents, so we have name, phone number, address, email if they have it, alternate phone number if they have it, we can include their work phone.

We want to make sure that if you’re in an accident, we can reach out to those people as quickly as possible. By we, I don’t just mean us as Attorneys if we become aware of it, I also mean medical professionals, banks, whoever might be making that call, but various ways to get a hold of you so there’s really no lag in time or potential confusion.

That’s the first one is the Financial Power of Attorney Agent document that grants those authorities.

Now obviously, you’ll want to appoint somebody you trust, who you trust not to just go liquidate your account and go on an around the world trip.

You’ll also want to appoint somebody who understands that they have a fiduciary duty towards you.

What that means is it’s just a fancy way of saying their stepping into your shoes, but their responsible for using that money in a way that will benefit you and in a way that you would approve of if you were able to give those types of instructions.

That’s kind of what we consider the fiduciary duty standard there. Aside from that, you have two Power of Attorney Agent documents that kind of speak to medical and healthcare concerns.

 

Healthcare Power of Attorney Agent

The first one is just a straight up Healthcare Power of Attorney Agent document.

This is where you say, “If I become incapacitated, I want this individual to make medical decisions on my behalf.”

Interestingly, this document also has you initial next to your wishes that in order to provide clarity for big questions like, “If you’re in a coma and there’s no hope for your recovery, do you wish to be kept alive?”

There are five different options, five different paragraphs.

What you need to do is you’ll need to, and we’ll help you with this, walk through and initial the paragraphs that correspond most closely with your wishes.

Beneath that, there’s also an opportunity for us to do customized wishes.

I have had several clients say, for example, that they want three different medical opinions about whether or not their coma is irreversible. That’s fine, we can write that into the Power of Attorney Agent documents.

There’s no problem there.

This is really great estate planning tool for your friends and family because you don’t want to leave them in a decision where they are the ones making your end of life decisions.

Just imagine the pressure of having to decide that for somebody you love. You don’t want to be in that spot.

What you want, instead, is a document that contains their signature and their initials so that you know that you’re doing what that person who you love very much really wanted and that you’re not making a decision to “pull the plug.”

I always say that as an estate planning attorney, I am in the peace of mind business and I can tell you these Power of Attorney Agent documents are a way to really increase the peace of mind.

Now if you go into a hospital and you say, “Okay, this is my dad. He’s incapacitated. I’m allowed to take care of him. Here’s the documents that prove it. Here’s my Healthcare Power of Attorney.”

The doctors with good reason might be a little concerned or suspicious in that situation because they’re looking at an incapacitated individual who can’t confirm or deny that you’re actually the Power of Attorney agent and they’re looking at signatures and they may not have a signature to match it up with, and the doctors don’t want to sit around being judges of whether or not this is a valid legal document.

 

A Living Will or Advanced Directive

Nevada law provides for what’s called a Living Will or an Advanced Directive. What we do with that is we have you give a copy to your physician, your general physician.

It’s supposed to go into your normal regular medical file.

Let’s run back through that scenario where you’re taking your dad into the medical office. You bring him in and you say, “Hey, he’s incapacitated, but here I am. Here’s the Healthcare Power of Attorney Agent documents that state that I’m allowed to take care of him and make medical decisions on his behalf.”

The medical staff then will access his medical records and they’ll see that previously he had brought in this other document, this Advanced Directive, this Living Will and that that had become part of his regular medical file, that document will validate the document that you bring into the office at that time.

It’s a system of checks and balances to make sure that the medical office doesn’t have any concerns about whether or not this person purporting to have authority actually has authority.

It’s really good, it’s really important to do that. We talk with clients all the time who have six or seven of these ten or so elements that I went over in place, or six or seven of the ten, fifteen things that you look for all in place.

However, maybe they don’t have all of the right contact information.

Well, that puts you in a scary situation. Maybe they never actually gave it to their doctor.

Well, that puts you in a scary situation. Maybe their Power of Attorney Agent is somebody who is in the military and gets put in different bases throughout the world at different times.

 

I Will Happily Take a Look at Your Estate Planning Documents

That’s something that we need to think about. I guess what I’m trying to say is even if you have Power of Attorney Agent documents, I’d strongly encourage you to pick up the phone and give Clear Counsel a call and just a consultation with me.

I don’t charge to just review the documents and run them through a checklist in my mind to say whether or not they accomplish precisely what you’re hoping that they accomplish.

A lot of times in these meetings, we just go through them and we say, “Hey, looks like they’re good.”

Sometimes there’s reason to make a change here or there or bring them up to date, but in any event, I don’t charge for the meeting.

I’m more than happy to sit down with you, so please free to call our law firm so that we can go over the different types of Power of Attorney documents and I can answer any other questions you may have.

Thank you.

 

How Timeshares Overcome the Probate Process

 

 

 

Transcript:

Hello. My name is Jonathan Barlow, I’m a probate attorney here at Clear Counsel Law Group. I often get asked questions about timeshares interests and how those are transferred after somebody dies through the probate process.

 

With the First Conversation Free, There is No Reason Not to Call

If you have questions about a timeshare interest, we offer a free 30 minute consultation to answer any questions you might have about a timeshare, or any other assets that you’re dealing with in a probate situation.

We do that with no obligation to you. Oftentimes, during that 30 minute consultation, we can answer all of your questions.

You don’t have to pay us anything for that. Or, if we haven’t been able to answer all of your questions, we’ll give you a road map of how to resolve them and give you an estimate of the fees that it would cost to get there.

If you have any questions after watching this video, please feel free to give me a call and I’ll do the best I can to answer that during the consultation.

Let’s imagine that you had called me and explained to me that your mother had passed away, and she had a timeshare interest, and you wondered how you’d get that transferred to you through probate.

Typically, timeshares are one of two types. There’s personal property timeshares, and there’s real property timeshare interests. Let me explain to you what a personal property is, because those are a little bit easier to deal with.

 

How to Probate Personal Property Timeshares

A personal property timeshare interest is when mom purchases what we call a membership interest in a timeshare company.

Let’s call them Timeshares R Us.

Timeshares R Us convinces mom that if she purchases this membership interest, she can stay at any of their properties throughout the world for one or two weeks, whatever the case may be. She might stay in Las Vegas, she might stay in Florida, Hawaii, Europe, something like that.

 

Timeshares, timeshare, probate, Welcome to Fabulous Las Vegas sign, Nevada

 

It entitles her to a one week time at any of their units throughout the world. That’s a personal property interest. Those personal property timeshare interests are transferred through probate in the state where mom died.

If mom died here in Nevada, the Nevada court would handle the transference of that timeshare interest.

If she died in Wisconsin, Wisconsin laws will apply and you’d go through Wisconsin probate process to accomplish that transfer.

 

How to Probate Real Property Timeshares

The second type of timeshare interest is that real property interest. It’s just a house, it’s like vacant land, it’s an office building. That’s real property or real estate.

When mom was approached by Timeshares R Us at the casino here in Las Vegas, and they convinced her to purchase the timeshare, they actually signed a deed, just like you get when you purchase your house, signed a deed over to her that said, “We are hereby deeding to you, mom, a .001468% interest in Unit #3468 at Timeshare Village R Us in Las Vegas, Nevada.”

She actually owns this minute fraction of an interest in the actual property itself through a deed that’s given to her by Timeshares R Us. That real property interest in that unit here in Las Vegas can only be transferred through the probate process in Nevada.

Again, if mom was a resident of Wisconsin or California or some other state, in order to transfer that real property timeshare interest, you’ve got to come here to Nevada to do that, and we’re glad to help you work through that situation.

We’ve done that with timeshares many different times.

 

The Timeshares’ Analysis Can Be Tough

Let’s assume that you’ve determined it has to go through the probate process here in Nevada, whether it’s personal property, because she was a resident here in Nevada, or because it’s real property here in Nevada.

It may be really simple to transfer that property, or it may be more complex.

To answer that, we have to look at all the other assets that mom left behind, whether those are very small in nature, whether they’re $25,000 and under, whether they’re up to several hundred thousand dollars or more.

There’s different processes that you have to go through in order to transfer that timeshare interest. The main thing to remember is that timeshare interest is treated just like any other asset, whether it’s a house or a car or a bank account.

If it was in mom’s name only when she passed away, it’s going to require some form of a probate process where the probate court gets involved and determines and says where that interest goes now that mom has passed away.

Again, if you have questions about timeshares, we’re glad to answer those questions in that free consultation. We actually do most of these consultations by phone, particularly when we have family members who are from out of state.

You’re calling from Wisconsin because that’s where you live, where mom was as well, we’re glad to do those consultations over the phone, answer those questions over the phone, and give you the advice that you might need to get that timeshare interest resolved.

If you have questions about timeshares, transferring those through probate, or any other issue that you’re facing now that mom or dad or another loved one have passed away, give us a call here at Clear Counsel Law Group.

We’ll be glad to answer any questions you might have.

 

Estate Planning with Your Genetic Material

 

 

Transcript:

Hi, my name is Jordan Flake. I’m estate planning attorney for Clear Counsel Law Group. Today I’m going to cover a, I guess it’s a little strange, but emerging area of the law, which is what happens if the client has eggs or sperm that are frozen and that result in a, what we would call a posthumous conception.

In other words, they have a child after they’re dead. In Nevada at least, the law necessarily treats that individual as though it were a child born during the life of the deceased individual. If there’s no will expressing anything otherwise that later born child will actually receive a share of their parents’ inheritance in that case.

If you fall into this category it is a situation that requires a very, very state specific detail, fact-intensive analysis in order to make sure that you get the right solution.

 

An Example of Poor Estate Planning with Genetic Material

Let’s just sit back and imagine all the fun problems that we could have here. Let’s just think about I don’t know, Bill Gates or some other computer magnate who have two or three kids and then they have also some of their sperm frozen.

They have their children and they pass away and they give everything to their kids. Three years later somebody has stolen this frozen genetic material, takes it to Nevada and, boom, they posthumously create a baby for The Gates or this computer magnate that we’re thinking about.

Then they go to the court and they say, “Hey look, you have a baby and this was supposed to be included in the estate. How dare you distribute it just to the two or three existing kids.” You can see how this could go, be really a very bizarre situation.

A lot of things happened in that story that shouldn’t have, which is the basically misuse of the genetic material happening after the fact without the knowledge of the people who are the donors in this situation.

That’s just one of many different scenarios. I’m just trying to illustrate some of the problems with this that could happen if there’s not clarity on how to deal with these situations.

 

Use of an Agent, Genetic Material, and Estate Planning

It’s important that we develop clarity because more and more this is becoming a reality for fertility treatments.

There’s a lot of different reasons why people are having their genetic material frozen and possibly used at a later time. In order to protect and to provide some clarity, some states have adopted some procedures and regulations.

One of those would be that the donors would need to specify who can ever access and use this genetic material. These would be called the actual agents. Then the agents are intended to provide notice.

 

estate planning, frozen genetic material, eggs and sperm

 

Let’s say that I decide hey, I’m going to have some genetic material out there and I want it to be used to have a child even if I’ve passed away. I would need, in certain states, to appoint an agent who’s going to be able to either push the green light on that situation or push the red light on that situation.

That agent then, even if I pass away, they’re the ones in charge of making sure whether this genetic material is ever going to become a human child.

If they do, first of all that needs to happen. There needs to be an agent appointed.

Second of all, if they do decide to have a baby with this material, then they would need to send a notification to the personal representative of my estate saying, “Hey, just so you know, you think there’s only two or three kids. Aha. There’s actually going to be another one coming to this situation. Here’s official certified letter providing notice that there’s going to be another baby.”

Here’s the kicker though, in the states that have adopted actual statutes it has to be within two years of a judicial determination of death or issuance of a death certificate. Usually there’s not going to be a huge difference between those two things, in most scenarios.

 

Discuss Your Plan with Me Just to Make Sure

If we just had a totally unregulated situation where there’s just frozen genetic material crossing state lines, changing hands between different people and providers and carriers, people just randomly creating into life children of people who are deceased fifteen years ago, we’d have a real mess on our hands.

These states that have adopted statutes that basically said listen, there needs to be an agent. There needs to be notification of the personal representative and let’s be reasonable, it all has to be done within two years.

In any event, like I said at the beginning, if this is something that you’re considering and you want to make sure and know that you’re not going to be causing any problems in the event of your passing with the genetic material that you may have left behind, come in and meet with us so that we can do the fact-intensive analysis to make sure that exactly what you want to have happens is what ends up happening.

Thank you so much.

 

Clear Counsel Law group

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