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Clear Counsel Law Group / Probate

Estate Planning with a Car Title only in the Name of One Spouse

 

 

What to do with Your Estate Plan if Your Car Title is only in the Name of One Spouse

Transcript:

Jordan: Hi, I'm Jordan Flake. I'm an attorney at Clear Counsel Law Group. I have a question here: My husband's name is on the title of a vehicle that I have made all the payments for. If he dies before the title can be put in my name, will the vehicle go into his estate?

That's a good question. The general response to that is when we're trying to determine what assets go into someone's estate, what we look at is whose name is on the title. For this client here, if your husband's name is on the title of the car and he passes away, then automatically we're going to assume that that car is part of his estate. Now this is a tough situation because for this individual they made all the payments for this car. You have two response about a better way to handle this.

One is how do we handle this better in advance of this problem. That would be probably with the vehicle, just putting it in some kind of joint ownership. You can put either and/or on the title. You probably would have done well to put or on the title of the vehicle and say husband or wife owns this. That makes it as simple as possible. Obviously, in this case, maybe they didn't get a chance to do that. The vehicle's just sitting there in the husband's name and he's now passed away.

The next part of the analysis would be what else is in the husband's estate. Because if it's just the car, we may be able to do a small, simple DMV form affidavit of entitlement that basically gives the wife the title of the car without any problems. If there are properties and bank accounts and investment accounts in a larger estate, then basically dealing with that estate is going to have more procedure, more requirements. That becomes a very fact-intensive analysis.

In any event, though, if the spouse was the one that make all the payments, if the wife in this scenario was the one to make all the payments, we should be able to get those basically back in her pocket one way or another. Any other questions on this?

 

Brian: Back to the DMV affidavit. If the wife had not made all of the payments, but let's say three-quarters of the payments, is that still a possibility?

 

Jordan: Here we're assuming that maybe it's an intestate estate. Everything would go to the surviving spouse in this scenario if there is no will. If there is a will or if there's a trust, that can affect maybe the distribution, but here it wouldn't matter if the wife had made none of the payments. If there's no will, state law says everything goes to the surviving spouse. It really wouldn't matter if the spouse had made all or none of the payments in that case.

In any event, though, if you come across a situation like this, call me up. We can discuss it. We can meet for a free consultation. I'd be happy to walk you through this or any other type of estate-related question you might have.

Estate Planning / Probate / Probate Videos - 01/04/2016

The Rights of a Beneficiary of a Trust

 

 

Does a Trust Beneficiary have the Right to a Copy of the Document?

Transcript:

Jordan: Hi, my name is Jordan Flake. I'm an attorney at Clear Council Law Group, and one question that we get from some of our clients. Sometimes we'll get a phone call from somebody who's the beneficiary under their father and mother's or their parents trust, and they're sitting there saying, "I know my dad is going to leave me some property through his trust, but I don't really know what it is he's leaving me, how much, when I get it." Sometimes one question that we get a lot is can I demand a copy of that? Basically, am I entitled because I'm a beneficiary under this trust, am I entitled to receive a copy that I can then review?

The answer is while the grantors, or the creators of the trust, are still alive, then beneficiaries don't have a right to receive at that point any kind of copy or any kind of documentation. Basically the law protects a grantor's right to just go back and change documents in a revocable trust context. You can't while they're still alive. Now after they pass away, Nevada law does allow you to receive a copy of those provisions that directly address and affect your beneficial interest, your distribution. You can request a copy of that from the trustee. You can't often get the entire trust, but you can at least get those provisions that directly affect you. Again, here in this situation we're talking about after the grantors have passed away. Any follow up question on that?

 

Brian: The follow up question can a grantor put language in the trust where the beneficiary is allowed to see the language?

 

Jordan: Yes. In fact, grantors can always just ... If you're creating a trust for your kids and they say, "Hey, Mom, Dad, I want a copy of it." Then grantors can always just give a copy to whoever they want. It's their trust. They could also put language in there that says, "Under all circumstances, notwithstanding any of the foregoing language in this trust, I desire that my beneficiaries all have a copy of this trust." You can really customize that to your family circumstances. Sometimes you might think it would be best for all of my beneficiaries to have a copy of this and I want to make sure that that happens. In any event if you're listed as a beneficiary in your parents trust and you're wondering or maybe you're worried about whether or not ... what your beneficial interest is in that trust and you just want to know, that's a great question for us. Come to us, bring any documents that you might have, and whether they're alive or deceased we can reach out, make inquiries, and figure out what you're entitled to.

 

Estate Planning / Probate / Probate Videos - 12/29/2015

What Happens to Your Estate Plan if You get a Divorce?

How a Divorce Affects Your Estate Plan

Transcript:

Hi, I'm Jordan Flake. I'm an attorney at Clear Counsel Law Group.

One of the questions our law firm gets a lot is: What happens to my estate planning if I'm in a divorce?

You can imagine a situation where maybe a husband and a wife did their estate planning, maybe they got a trust or some wills or power of attorney documents, and then a few years later there's trouble in paradise and they have to go file for divorce.

Do they have to, in that situation, go through all of their estate planning and unwind and undo everything and reexecute new documents?

The answer is they probably should do that, but the reality is Nevada has a law that makes it so that after a divorce all of the provisions of your estate planning that include either your husband or your wife who is now your ex-husband or your ex-wife are considered invalidated by the divorce.

Those documents are largely invalidated by operation of law.

However, it also makes a lot of sense in that situation to come back and see your estate planning attorney or just bring it to us so that we can take a look at it and see what else might need to be done.

That's normally the process.

Brian, any follow-up questions on that?

Brian: Can you plan for a divorce in your estate plan?

Jordan: You could. You could say in the event of a divorce, this, this, and this.

It's an interesting question as to whether or not that would be invalidated under the law.

I think it wouldn't be because that would be like a prenup where it was basically, listen, this contemplated our divorce so you could put provisions that said, listen, this is how it's going to go, but in the event of a divorce, this is how we want it to go.

That language might be given the same legal validity as your basic pre-nuptial agreement. In any event.

If any of these situations are affecting you, come in and let us do a free consultation where we just sit down and review what you have and review what you want to accomplish.

We'll make sure we get it done.

 

Estate Planning / Probate / Probate Videos - 12/23/2015

Under What Circumstances Do You Need a Guardianship?

 

 

How Do You Know When You Need a Guardianship?

Transcript:

Jordan: Hi, my name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. Our law firm practices estate planning, probate. We also practice guardianship. One of the questions we get is: Under what circumstances do I need a guardianship? When can a guardianship be granted? When we're talking about guardianship, really that arises in two contexts: either guardianship of a minor or guardianship of an adult.

Guardianship of a minor oftentimes can be like a family law issue. Most of the time when we're talking about guardianship of a minor we're not talking about physical disabilities or incapacities, although that can be the case. We're talking about the fact that they need a guardianship because they're too young. Most of our practice focuses on this other scenario, adult guardianship, where the issue is, hey, we have this elderly individual who doesn't have the ability to care for themselves. How do we know who should make decisions on their behalf?

The answer to that question is first we try to find out whether or not they have estate planning documents, because normally if you have a full and robust estate plan, you will never have to worry about guardianship because you will have previously designated who will take care of you in the event of your incapacity. If you don't have an estate plan, then we need to make a decision for that elderly person, for that incapacitated individual. We need to essentially say we've got to go down and get somebody appointed to basically have full authority to say what medical treatment they receive. How do we use their finances for their benefit?

Really the first relevant question is capacity. Are they able to make decisions on their own? The guardianship court requires us to show a medical opinion regarding capacity before granting any type of guardianship. If we go and we say Ms. Jones is 82 years old, she can't take care of herself, she doesn't at this time in her life have her mental capacity, the court's not just going to take our word for it. They're going to require us to provide a doctor's note saying that Ms. Jones can't take care of herself. Those are some of the prerequisites and considerations when we're thinking about guardianship. Guardianship can be helpful or even necessary if you have an elderly person who needs care but we don't have a way to access their property or we don't have a way to establish who has the right to make decisions on their behalf. Bryan, does that cover it there or did you have other follow-up questions about guardianship?

 

Brian: You covered it very well. A couple follow-up questions. If a person is worried about her own capacity, can she acquire the guardian on her own?

 

Jordan: You can actually consent to a guardianship. If you want to say, "Listen, I have some concerns about my own capacity, and at this point maybe a power of attorney document or the right estate planning documents wouldn't be held valid if I were to execute them because I have some concerns about my own capacity," in that scenario you can consent to a guardianship and say, "Listen, I'm concerned. Therefore, I want to appoint Brian to be my guardian." No? No, you don't want to be my guardian?

 

Brian:  No.

 

Jordan: The better situation and the more ideal way of handling this is while the skies are sunny and clear, while you have your capacity, you should be executing power of attorney documents that say, "In the event of my incapacity, here are the individuals who I want to serve as my agent, my power of attorney agents." You can think of that the same way as you think of a guardian. This person, one, two, three, maybe list three people. Put their address, phone number, email address. That's a much better way to go than guardianship. Other questions?

 

Brian: With the robust estate planning described, how is guardianship triggered? What needs to occur before power of attorney is taken from the individual and given to the third party?

 

Jordan: Let me see if I understand your question correctly. When we do estate planning, we prepare these power of attorney documents, and we recommend to our clients, "Listen, give a copy of the power of attorney documents to your agents. If you've designated Brian to serve as your agent for power of attorney, give Brian a copy. That way Brian knows if you have something happen here, you're in an accident and you become incapacitated, he needs to step up and make medical decisions on your behalf."

It should be people who are close to you, people who you trust, people who you know will act in your best interest, and people who generally will be aware of what's going on in your life. That's why we always say estate planning is for everyone. You may not be rich. You may not have a lot of kids or be married. All of us have to worry about the possibility of incapacity at some point in our life. If you want us to address this with you, please come sit down with me for a complementary consultation. We'll go over your different options for your power of attorney documents so that you can avoid that guardianship scenario. Thank you so much.

Estate Planning / Probate / Probate Videos - 12/14/2015

What is the Better Estate Planning Document, Will or Trust?

 

Will or Trust? What is the Best Estate Planning Instrument for Your Situation?

Transcript:

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

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

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

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

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

 

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

 

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

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

 

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

 

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

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

Estate Planning / Probate / Probate Videos - 12/08/2015

Should You Own Your Home in a Trust?

 

Is It Best to Own Your Home in a Trust?

Transcript:

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

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

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

 

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

 

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

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

 

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

 

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

 

Estate Planning / Probate / Probate Videos - 12/01/2015

A Short Conversation Explaining Community Property and Ademption

 

What You Need to Know about Community Property and Ademption

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, a Partner Attorney at Clear Counsel Law Group. Here at our law firm, we do quite a bit of estate planning, we create wills and trusts for people. Important concept to understand with doing this is called community property. Nevada is one of a fairly large handful of states that applies this principle of community property.

What is community property? Essentially what it is, the law presumes that after a couple is married, any assets they acquire after marriage are treated as community property, meaning that both spouses have an equal interest, ownership interest in that asset. This would apply even if after the spouses are married, a house is purchased in just the husband's name. Even if the deed says this house belongs to Bob as his sole and separate property, the law would still presume, because the house was acquired after marriage, that the wife also has an equal interest in that property. It's important principle to understand when you're helping somebody prepare a will or a trust, or when you're thinking about a will or trust. What intent do you have as far as community property? Do you intend to be treated as community property? It's a common question that comes up as we're sitting down with our clients, and I think my assistant, Brian, had some questions about community property.

 

Brian: Is there a way for a spouses to have property that's not community that's purchased after the marriage? Are they able to make an agreement similar to a prenuptial agreement?

 

Jonathan: That's a good question. A prenup, as you commonly hear, is something that people sign before they're married that deals with hey, this is how we're going to own our property. If you have the presumption in the law of community property, meaning that both spouses have an interest, how do we get around that, so to speak, or if the spouse's intent to not have an equal interest for using the example where they purchase the house in just the husband's name, how do we get around that to make sure that they agree that yes, absolutely, after the marriage, the spouses can sign a written agreement that says we intend to have this asset be held in Bob's own name as his sole and separate property.

Yes, it does usually require a written agreement where both spouses sign it and agree to own one property or some asset as separate property, and that would change the nature of community property. There are also some other interesting exceptions to the community property rule. For instance, after marriage, let's say, Brian, you inherited something from your father's estate. An inheritance, even though received after marriage, would be treated as your separate property. It's an interesting exception to the community property role. Any other questions about community property that I can answer for you?

 

Brian: Often, when I hear about community property, I hear the term ademption. If you could clarify it, it would be helpful.

 

Jonathan: Sure. Ademption is an interesting concept in estate planning. Ademption means if you put into a will or a trust or you say, for example, I give my house at 123 Anywhere Street to Brian, and then after you die, you no longer own Anywhere Street. Sometime in between the signing of the will and your death, you've actually sold Anywhere Street and you don't own Anywhere Street anymore, but in your own, you had specifically given 123 Anywhere Street to Brian. What happens to that gift? The general rule of ademption means because that specific gift no longer is in existence, you don't own Anywhere Street, that gift is deemed adeemed or it goes away, in other words. You no longer get that gift.

There are some exceptions to ademption where Brian might still get 456 Elsewhere Street that you currently own at the time of your death, but that gets a little bit dicier and you have to be careful when you're doing estate planning to say what you mean and mean what you say when you're giving specific gifts. Otherwise, worst case scenario, you would have a situation like ademption apply where somebody's not getting a gift that you really intended for them to get.

When spouses sit down and they're doing this analysis of what's community property, what's separate property, we want to make sure that ademption doesn't apply. We want to make sure that when we give this gift, it goes to the person we intended it to go to. You want to make sure that you're very careful about how you write that in your will or your trust so that you mean what you say and say what you mean in your will. I encourage you to talk to a good estate planning attorney, we have several of them here at law firm at Clear Counsel Law Group, but they will always be able to understand these principles and these issues in helping you with your estate planning.

Probate / Probate Videos - 11/28/2015

Why Estate Planning is for Everyone

 

Why Everyone Needs Estate Planning, Not Just the Very Wealthy

Transcript:

Jordan: I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group, and I do a lot of estate planning in my legal practice, and one thing that people are starting to catch on to is that estate planning isn't just for the elderly or the rich. It's really for everyone because we all have an interest in protecting, for example, what happens to us if we become incapacitated, and so as we start to cater our services to a younger generation who see the need for estate planning, we're getting a lot more questions about why does this costs so much or how much is this going to cost, or am I going to get additional bills?

Let me tell me you a little bit about how the marketplace generally charges for estate planning services. On the extreme low end of the spectrum, there are non-attorney solutions to estate planning, and those non-attorney solutions can include, for example, drafting your own legal documents, and that's something where oftentimes you can go online and purchase the form for maybe a few hundred dollars. I would caution against putting too much confidence in that situation. Obviously, I'm an attorney, so I'm the one who sees a lot of the times that those documents don't work out, but at the same time, I'm willing to say that that's better than nothing. In that scenario, you'd be looking at a few hundred dollars and working on it on your own. You wouldn't really have the backing of a law firm with respect to those documents, and so that's something you have to consider.

Kind of moving up the line, you have what are considered the simple estate planning documents, which often just include a will and power of attorney documents, and power of attorney documents are those documents that say what happens to me if I'm incapacitated. Who's going to make medical decisions on my behalf. Who's going to make financial decisions on my behalf, and if you're just doing those, you might be in the $200 to $300, possibly $400 range just to prepare those documents.

If you really want to do a comprehensive estate plan, then if you own property, it may likely include a revocable living trust, and once you do that, then you probably in the marketplace are looking more along the range of $1,000 to $2,000, and in terms of how attorneys actually bill for this, most firms know what preparing a trust entails because they've possibly done a lot of them like our law firm has, and so we know that we can simply prepare these documents on a flat fee basis because we understand what work will be involved in preparing the documents. That's how most lawyers are going to charge, is just on a flat fee basis.

That being said, you do have to be cautious because there is a tendency in advertising to want to bait and switch and say $499 for a trust, and then you go in and find out it didn't include other documents, such as a power of attorney document. That's just a brief overview. Different marketplaces can be different. If you want obviously the most accurate quote, please reach out to our law firm, so we can let you know exactly what it is that will work for you and how much we would charge you on a flat fee basis. Brian, do you have any questions on this at all?

 

Brian: Is there an age which would be too young to form an estate plan?

 

Jordan: Obviously, you'd have to be an adult to be able to sign those with any type of legal authority, but every estate plan that most lawyers are going to recommend will include a statement that says this is what I want to have happen to me if I'm incapacitated, if I pass away, and so there's no age at which there's no risk of incapacity or death, and so the answer is 18. If you're 18, you can use an estate plan. Now, whether or not that actually happens in practice, I would say certain life events would more determine the real need to come in and get an estate plan done. These life events could include, for example, marriage. It could include having a child, owning your first home. Those are some types of things that I would say definitely should trigger more urgency in your mind in terms of getting an estate plan done. Any other questions on that, Brian?

 

Brian: You're saying that if someone calls Clear Counsel Law Group, you'll be able to tell them up front what the cost will be for the trust.

 

Jordan: We will with a lot of accuracy be able to tell you after the first phone call because really it's just a question of what you're trying to accomplish, and if you have property, a house, life insurance policy, children, we're going to know pretty well. We've seen situations that we can let you know with a high degree of certainty exactly how it's going to come out. Now, in terms of exactly what it'll cost, we would like to do a free consultation, sit down with you, complimentary consultation. The reason we do that is because that'll allow us to get to know you better and get to know all the different circumstances. At the end of that free consultation, we will tell you exactly what we're facing.

 

Estate Planning / Probate / Probate Videos - 11/27/2015

A Conversation about the Guardianship Process

 

What You Need to Know about the Guardianship Process

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, a partner attorney at Clear Counsel Law Group. In 2015, there was a lot of review in the media here, especially in the local newspaper, Las Vegas Review Journal, and other media outlets about problems with the Guardianship Court and guardianship process in Southern Nevada. A lot of this concern came with what was happening with our elderly population here? Were they being taken advantage of by guardians? Was the court properly overseeing this process? It led to a lot of concern from people who had an elderly parent living here in Nevada, who may have been subject to the Guardianship Court process. A lot of things have been happening to fix these problems.

We've received a lot of calls, and a lot questions, a lot of concern about guardianship. What it is? Why is my parent involved in Guardianship Court? Really quickly, let me tell me shortly. What is Guardianship? Guardianship occurs when an individual, usually an elderly person, but it can be anybody of any age. When an elderly person has lost capacity to the point that it's no longer safe for them to make decisions for themselves. That can be a decision related to finances, or related to their person meaning healthcare choices, living choices, things of that nature. If that person has gotten to the point where they're no longer able to take care of themselves, the Guardianship Court can appoint somebody called a guardian, to essentially step in that person's shoes, and be a guardian for them. Be able to make all decisions related to finances, health care, and so on. That's what Guardianship Court is like. Our assistant, Brian, here in the office that has heard some of this discussion and had a question for me.

 

Brian: Are you saying because the guardian can make all the financial decisions that he will be able to set his own rate of pay?

 

Jonathan: That's a good question about the guardian's pay. Everything that happens in Guardianship Court is overseen by the Guardianship Judge. That's part of the problem that occurred earlier this year. There was some question about what kind of oversight is occurring? It's been a lot better now, but yes. The Guardianship Court sets the rate of the pay. The Guardianship Court will examine that and determine whether the guardian is charged a reasonable amount for their services. A good answer to your question on that one?

 

Brian:  You did. I have another question, if that's okay?

 

Jonathan: Yes, anytime.

 

Brian: Can a guardian amend an estate plan? If you worked with your parent, and you guys set up an estate plan, and you went back to Ohio where you live. Can a guardian take over and amend it?

 

Jonathan: That's a great question. The guardianship statutes in Nevada actually do allow a guardian to do something related to estate planning. Typically, for example, the guardian statutes could allow the guardian to create a will, or even a irrevocable living trust for the person under guardianship called the ward. That all requires court approval, and that would only be approved if the plan that was putting it to place any will or a trust, essentially does what would happen if they didn't have a will, which means, if they are leaving the assets to all children in equal shares.

Yes, the guardian could actually petition the court and receive approval to create a will, or a trust for the ward. Your question was about amending. They would typically not be able to amend what was been done previously by the person or guardianship.

 

Brian:  You are saying that they would be able to make a will if there was not one previously?

 

Jonathan: Correct. Typically, we see that happening in Guardianship Court because the guardian recognizes that they can set up some documents that would make it easier to administer that person's estate after they pass away. They can even set it up to avoid probate, and that's why you would set up a trust to help that person's estate of with probate process. It's flexible, and guardianship can definitely do some things to help the ward be more comfortable, make sure their plans are put into place the way that they would have otherwise wanted to do.

Any other questions about guardianship, Brian?

 

Brian:  There is a concern from a client who lived out of state that his parent would be assigned a guardian by court, and the child would never be told as such. Is that true?

 

Jonathan: That's not entirely true. It's partially true. Let me explain. A lot of times we have elderly individuals here in Nevada, who don't have family close by. If a concern arises with that person's well being, it's possible for somebody called a private professional guardian, or somebody else, to ask the court through a petition to be appointed as that person's guardian, without a hearing, and without notice to anybody. It's called an ex parte petition for temporary guardianship. Yes, they could be appointed.

The part that is not entirely true is that after that appointment occurs, they had to then give notice to everybody else. Everybody has to receive notice that the temporary guardianship has been put in place. At that point, it would be important for the family members to come forward and say, "Hold on. Wait a minute. We want to be involved. We want to be here taking care of Mom. We want to be the guardian." It would be important for them to come forward to do that.

Yes, and technically, they could be appointed guardian without that. Guardianship is not necessarily a bad thing. It can help elderly individuals that take care of themselves and make sure they're not subject to exploitation, or undue influence from other people. It's important for family to be involved to make sure the process goes smoothly for their parent here, who lives here in Southern Nevada. For more information about guardianships and issues that arose earlier this year with guardianship, and what you can do protect yourself against issues that might arise in guardianship, I encourage you to read our blog at Clearcounsel.com, where you can receive more information from myself and other attorneys who blog about this.

Probate / Probate Videos - 11/23/2015

How Does Legal Capacity Affect the Ability to Bequeath a Home?

 

 

What to Know about Legal Capacity in Order to Bequeath a Home

Transcript:

Jordan Flake:  I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I have a question here. My sister has agreed to care for my mother and her home. Is there a legal way of ensuring that the home will be given to her after mother passes so that she'll not have to sell it before then? I think the idea here is they want to be able to keep the mother in the home during the course of the mother’s life.

Whenever a client comes to us and says, "I'm caring for my mother, or I'm caring for my father and we want to do this." The very first thing that pops into our head is the highly relevant question of does your mother still have her capacity. What I mean by capacity is the ability to make decisions by herself and for her own benefit. When we talk about capacity, we're not necessarily at her prime, can she solve all the math problems that she would have been able to solve in her 20's or 30's.

We're more asking the question of does she know, if she says I want this property to go this way, or to this person. I want this person to take care of me. Does she understand the implications of those questions. Is there consistency. That's the first question that I would ask in response to this. Basically, if the mother still has her capacity and is pretty sharp then there are a lot of options for making sure that the mother can stay in the home and make a designation as to who the property will pass after she passes away. She could do a reverse mortgage, she could do a simple will, she could do a revocable living trust. There's just a lot of different options in that scenario.

If the mother does not have her capacity anymore, and again, just settling quickly on capacity, this can often be a medical question and it would fall outside the expertise either the sister in this scenario or a special interest lawyers. Often times we may wish to consult a physician in order to determine whether or not an individual, elderly individual has the capacity. But if we're on a case where the mother has lost her capacity, then yes, we're a lot more restricted in what we can do. If we want to take some serious action like selling a property, it may be necessary to obtain a guardianship order from the court to that effect.

I know I'm jumping all over the place, but the other thing you have to consider is whether or not the mother has valid power of attorney documents, because if she does then a guardianship wouldn't be necessary. There's kind kind of an analysis that we go through whenever we get these types of questions to determine whether or not there's capacity. Whether or not there are or not estate planning documents that will help out, and if not we might be looking at a guardianship scenario.

Brian, I kind of jumped all over the place during that answer. Did you have any follow up questions on that?

 

Brian:  Just one follow up. If a person has been determined to have lost capacity, can a person regain capacity?

 

Jordan Flake: Absolutely, yes. I use the term elderly when we're talking about capacity, because it is often the case. I've had a few cases where there was a severe liver disorder, for example, on one client that I'm thinking about. He was a 52 year old man, otherwise fully had his capacity, but his liver disorder affected his ability to make decisions. We had to go out and get a guardianship for him. Fortunately a few months down the road, the liver issue was solved and we watched as his capacity came back fully and we were able to close out the guardianship. Guardianship is by no means a permanent situation. It's often times, though, when we're talking about adult guardianship, we are talking about elderly people who might be toward the end of their life, and that's why they have lost their capacity.

In any event, if you are trying to provide for the care of a parent, and you have questions about how the assets are supposed to be distributed, please reach out to Clear Counsel Law Group. Talk with me. We can go over the scenario on the phone or I'm happy to meet with the elderly parent and basically we'll go through this analysis and make sure we take all the right steps. Thank you.

Estate Planning / Probate / Probate Videos - 11/19/2015
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