contesting a will

How to Contest a Will in Nevada

In the state of Nevada, a Last Will and Testament is presumed valid – even if it was written by the deceased person themselves on the back of a napkin just days before their passing. In fact, a valid holographic will only requires 3 things to be valid: that it be hand written, hand dated, and signed.

This, of course, leads to potential problems. What if the deceased didn’t have the mental capacity to make a will? What if he or she was coerced or influenced by somebody to the point that the will doesn’t actually represent their true desires?  That’s when the will must be contested.

woman writing a will

The challenge of contesting a will in Nevada

Proving any of those things will be a fight.

Contesting a will in Nevada is basically just another form of litigation. The contestant is in the role of the plaintiff, and the petitioner for the probate of the will is filling the role of the defendant. The regular rules of civil litigation also apply to will contests. Each party can gather information about the other side’s claims in the “discovery” process using the usual litigation tools of “interrogatories” and through depositions. There is going to be an evidentiary hearing, which is a lot like a trial.

The contestant has to make their case very well. As described above, the judge is going to have the default view that whatever will exists is valid. Therefore to prove the will is invalid, your case must prove one of the following:

  1. the will was not properly signed and witnessed,
  2. the testator lacked mental capacity, or
  3. there was coercion or undue influence by somebody and therefore the will is not representative of the testator’s true desire.

 

The process of contesting a will in Nevada

First, you must have “standing” to contest a will, meaning you have the legal right to bring your challenge to the court. Nevada has strong rules about who qualifies as an “interested person” in these cases and is therefore qualified as to their standing. Basically you have to have some kind of claim to the estate.

Once a will is contested, the probate court will probably appoint somebody to act as “Special Administrator” to administer the estate until the contest reaches resolution. The special administrator is not to distribute the estate until after the case resolves. The special administrator must be a Nevada resident, or a bank, or a trust company (or be associated with one of those as co-Administrator).

The litigation will proceed along established rules for Nevada. It is important to have an experienced Nevada probate law firm help you. Litigation is complex, and probate only makes it more complicated. A will being “unfair” is not good enough to get it thrown out. You will need a team to build your case and present your evidence in a way that the probate court will accept.

If you need to contest a will in Nevada, please call us today.

What You Need to Know about a Special Needs Trust

 

 

How a Special Needs Trust Will Help You

Hi, I’m Jordan Flake with Clear Counsel Law Group. I do a lot of estate planning in my practice and one question that I see from clients is what do I do about my son or daughter who has special needs? When we think about a special needs beneficiary, we’re thinking about somebody who maybe is receiving government assistance or who can’t live on their own or maybe has some kind of incompetency that prevent them from being able to handle all of their own affairs. Often times, these individuals are receiving government assistance that we don’t want to disrupt. That’s the really big concern. If you leave your child maybe $100,000 under a life insurance policy, that money will just land in their lap and could threaten their ability to continue to receive government assistance or government benefits.

You don’t want to just list your special needs child on a bank account or list them in a life insurance policy because you might actually end up harming them to the extent that that gift would limit their ability to receive financial assistance from the government. What you may wish to consider instead is doing what’s called a special needs trust. The essence of a special needs trust is that the money, all the money set aside for the special needs child will go for their use, benefit, and enjoyment. However, all that money will go to them in a way that will not prevent them from receiving government assistance. It can go to them, but just not in an outright, direct kind of way that would prevent them from receiving government assistance.

So if you do know of anybody who has special needs and their parents or their loved ones are trying to set up a trust for their benefit, it’s absolutely necessary that you come see an attorney so that that special needs trust is set up properly so that it doesn’t end up hurting the special needs individual in the long run. Feel free to meet with us at Clear Counsel Law Group and we’ll do a free consultation and we’ll discuss your different options for dealing with giving gifts to special needs individuals.

Vintage key

Help! My Trustee has Gone Rogue

What is a rogue trustee and how can s/he be stopped? A rogue trustee is someone who stops following the instructions set forth in the trust documents1)Contrary to popular belief, a rogue trustee is not necessarily from Alaska. In legal terms, the failure to follow the trust is termed a “breach of fiduciary duties.” In such cases, the beneficiaries of the trust are responsible for holding the rogue trustee responsible. If the trustee refuses to admit and correct the breach, this process will require the Court’s intervention. The following brief article provides some background on trusts that I hope will protect you from the actions of a rogue trustee.

 

A rogue trustee: what to do next

After reviewing their options, the majority of my estate planning clients choose to prepare a revocable living trust as a means of distributing their property upon their passing. A trust is the best estate planning vehicle for many folks because it does not require probate for the estate to be distributed, and because it is more flexible than other estate planning options. Trusts are flexible, in part, because they allow for the appointment of a successor trustee; an individual who will administer the trust upon the passing of the clients if the primary is unable or unwilling to do so. A trust empowers a trustee to exercise his or her discretion to achieve the objectives of the trust. However, generally, a trustee may not simply decide what s/he would like to do and disregard the instructions of the trust entirely. A trustee who has substituted his or her own wishes in place of the instructions of the trust is a rogue trustee.

Our firm once represented a beneficiary of a trust who was the victim of a rogue trustee. Shortly after our client’s mother passed away, the trustee sent out a letter stating that she was in charge and that she could decide who got how much money and the conditions from which the listed beneficiaries would receive the gifts. The trustee withheld money from our client and our client’s daughter because the trustee felt like the beneficiaries were ungrateful, and because they refused to do exactly what was demanded of them. The problem was, of course, the trustee’s actions were contrary to the language contained in the trust2)The trust contained no language requiring our client-beneficiaries to make the trustee feel appreciated. As to if this type of condition is legally legitimate is another matter. To make matters worse, the rogue trustee took money from the trust and purchased a property for herself. Immediately upon recognizing the problem, we filed a petition to the Court asking that she be removed as trustee and otherwise held accountable for her actions. The Court forced her to provide an accounting showing how she had managed the money. Once the Court saw the extent of her breaches of fiduciary duties, the Court also removed her as trustee and appointed our client in her place.

If you or anyone you know is the beneficiary of a trust, and you are concerned that the trustee is not doing as instructed by the trust’s terms, please let us review the situation to ensure that a trustee has not gone rogue.

Footnotes   [ + ]

1. Contrary to popular belief, a rogue trustee is not necessarily from Alaska
2. The trust contained no language requiring our client-beneficiaries to make the trustee feel appreciated. As to if this type of condition is legally legitimate is another matter
Pet trust, estate planning, dog trust

Is a Pet Trust Right for You?

 

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

 

Elements of a Pet Trust

A pet trust requires these four elements:

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

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

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

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

 

How Much Money Needs to Be Allocated?

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

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

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

 

A Pet Trust Creates a Binding Obligation

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

 

Should You Create a Living Trust?

Yes! And here are five good reasons why:

 

  1. Control

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

 

  1. Saving Money

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

 

  1. No Delays

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

 

  1. Investment Flexibility

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

 

  1. Easily Make Changes

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

quiet trust

What is a Quiet Trust, and How Will It Help Your Estate Plan?

 

A lot of parents with substantial assets worry about how those assets will be distributed and used by their children. That is one of the reasons why many choose to establish trusts. Another large concern is how the assets or the existence of a trust may affect the way a child acts or behaves financially.

For this reason, more and more people are establishing a quiet trust. Though some states require that you inform beneficiaries about their trusts, there are also many states where parents can establish quiet trusts that do not have to be reported to the beneficiaries.

A quiet trust functions the same way a normal trust does. The only difference is that the language in the trust document specifically states that the beneficiary will not be notified about the trust or its assets.

Like other trusts, the trustee will be responsible for managing and administering the trust.

It is also possible to create a trust wherein some beneficiaries are notified of the trust’s existence and others are not. By including quiet trust provisions into a discretionary trust, you will have total control over which beneficiaries are notified about the trust and when they will be notified.

 

Why Create a Quiet Trust?

There is actually a number of reasons to keep trust information away from the beneficiaries.

One of the main reasons is that many people do not believe their children are financially responsible and are worried that knowing they have a trust will actually make them even less responsible.

In fact, only one-third of wealthy parents have fully disclosed their wealth to their children.

That is because they want to make sure their children learn financial responsibility. If a child or teenager knows that there is a large trust in his name, it may cause him to develop the wrong types of character traits.

 

Safety is an Important Consideration

Another reason is concern for privacy and safety. If a beneficiary has a large trust in his name and others find out about it, he may become a target for financial exploitation and fraud.

By keeping the trust quiet, you will reduce the risk that others will try to take advantage of your child beneficiary.

This can also reduce the risk of your beneficiary becoming involved in frivolous lawsuits or identity theft. You can structure the trust so that your children are notified once they have reached an age where they can better protect the assets from others.

Some people also choose to create quiet trusts if they are giving non-voting interests in the family business to the beneficiary. If the trust wasn’t quiet, the beneficiary may start requesting input and information regarding the business.

Keeping the trust quiet will keep your beneficiary’s involvement limited until you pass away.

If you are interested in arranging a trust, our firm can help. Give us a call today and we can schedule an appointment. Our attorneys specialize in helping individuals safeguard their assets and arrange how their assets will be distributed to their loved ones.

power-of-attorney

What Is Power of Attorney?

When you make the decision to start planning your estate, there is much more that will go into this process than just creating a will. People don’t realize all of the many different layers of estate planning. By hiring a quality attorney to handle the process, that lawyer will be able to walk you through the details. However, it certainly helps if you already have an idea of what to expect and what the different aspects will entail.

For example, one thing that you will need to do is assign a power of attorney. However, that will be very hard to do if you don’t know what this person is or what they do. There are actually two different types of power of attorney: financial and healthcare.

Financial power of attorney puts decision making power in someone else’s hands when it comes to your finances.
Healthcare power of attorney or healthcare proxy will allow someone else to make your healthcare decisions for you if you are incapacitated.

In either case, what this person is able to do depends solely on you. You have the right to go through all of the different types of decisions they may need to make and determine if you want to give that power to someone else.

When It Works

For the most part, the power of attorney will start the moment you sign the documents with a lawyer. Usually, they are set up to stop working if you are incapacitated, however. This may defeat the purpose, though, so you will need to discuss this with your attorney and find out how to name someone responsible if you are no longer able to make decisions for yourself.

Choosing Power of Attorney

In most cases, you will want to name someone you know and trust to have power of attorney for you. That often means a loved one. However, that doesn’t have to be the case depending on your own situation. You have the right to choose anyone you like. No matter what, you need to make sure that you trust them. Whether you are naming a financial or healthcare power of attorney, this person will have a great deal of power in your life and you will want to make the right choices.

Once you have decided who you would like to have power of attorney, you will need to talk with them first. This is a big responsibility and you certainly don’t want to just spring it on them. So, discuss this with them and ensure they are open to working in this capacity for you. If they are, then you can have the documents drawn up.

There are many parts to estate planning that you may not fully understand. However, knowing more about them will certainly help before you meet with an attorney. It will ensure you aren’t surprised by anything that comes up. You will need to appoint power of attorney, so this is definitely something you should take the time and better understand before you see your attorney for estate planning.

Potential Problems With Domestic Asset Protection Trusts

Potential Problems With Domestic Asset Protection Trusts

Nevada happens to be one of only a few states in the union that permits the creation of domestic asset protection trusts. While this is an obvious advantage to those who are concerned with estate planning within the state, there are some disadvantages that should be taken into account when setting up such a trust. In order to better educate the public about the potential disadvantages of a domestic asset protection trust, we thought that we’d share a few.

State-by-State Laws

As we’ve already mentioned, domestic asset protection trusts do not exist in every state. Because of this, it’s possible to run into problems when the parties that might be challenging the trust are from different states. In these instances, certain state courts may not be willing to honor the terms of the domestic asset protection trust, which rather obviously negates its purpose. For this reason, any litigation concerning a domestic asset protection trust will begin with an evaluation of which state’s laws should apply to the trust.

The Constitution’s Full Faith and Credit Clause

Even if a ruling is made in the favor of the domestic asset protection trust’s home state, there are more issues. While the “full faith and credit clause” of the constitution may provide protection for the domestic asset protection trust, that’s not a sure bet. In fact, the case law surrounding these kinds of conflicts is scant at best, so it’s impossible to say for certain what the outcome of such a circumstance might be.

Potential Exceptions

The ability of a domestic asset protection trust to protect the assets contained within it is not ironclad. In fact, there are more than a few exceptions that might allow creditors to get at the assets contained within the trust. Most importantly, if a court determines that assets placed into the trust were moved with the intent to avoid paying those creditors, it will be considered ‘fraudulent conveyance’. This means that the creditor will be permitted to take the money they’re seeking from the domestic asset protection trust, which negates the trust’s purpose.

The Federal Government

Even though the state of Nevada provides for these kinds of trusts, that doesn’t mean that they’re not subject to the laws of the federal government. In fact, the laws of the federal government trump those at the state level. For this reason, if litigation surrounding a domestic asset protection trust makes it into the federal court system, the trust could become quite vulnerable.

Even So…
Despite these potential problems with a domestic asset protection trust in Nevada, they still remain a strong way for protecting assets from creditors. If you believe that you’re in a position where this could be a concern, then it simply makes sense to consult with an experienced estate planning lawyer in Nevada, one who can help you craft a domestic asset protection trust that will hold up should the worst come to pass.

Clear Counsel Law group

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