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Power of Attorney For Mother

How Can I Get Power of Attorney For My Mother?

The question, “how can I get power of attorney” for a person is among the most frequent inquiries our estate planning department receives. Most people have a general idea of what a power of attorney is, however, relatively few understand how it is granted and when it can be granted. This article will discuss the two main types of power of attorney and what they cover, how someone can grant power of attorney to another person, and the importance of capacity during execution of the power of attorney.

What is Power of Attorney and What Authority Can it Grant?

Nevada law defines “Power of Attorney” as “a writing or other record that grants authority to acting the place of the principal.”[1] The principal is the “individual who grants authority to an agent in a power of attorney.”[2]

Nevada deals mainly with two types of power of attorney: Power of Attorney for Financial Matters and the Durable Power of Attorney for Health Care Decisions. Each power of attorney is important in its own sphere and a principal should ideally execute both.

The financial power of attorney allows the principal to appoint an agent to whom she can grant authority over several items including real property, personal property, bank accounts, and the personal maintenance of the principal. The principal can also elect whether to make the power of attorney effective immediately or upon the determination of doctor that the principal no longer has capacity.

The health care power of attorney allows the principal to appoint an agent she authorizes to make health care decisions on her behalf if she is otherwise unable to make those decisions herself. This power of attorney also allows the principal to declare her desires in regard to whether she wants life prolonging treatments commenced or continued.

Execution of Power of Attorney

Nevada law requires certain procedures to validly execute a power of attorney. The financial power of attorney and power of attorney for health care decisions both have their own set of requires for the actual execution of the power of attorney.

The financial power of attorney must be sign by the principal, or in the principal’s conscious presence by a person directed by the principal to sign the principal’s name. The signature is presumed to be valid if notarized.[3]

The health care power of attorney must be signed by the principal and the signature must either be notarized or witnessed by two adults who know the principal personally.[4] The witnesses also cannot be a health care provider or the appointed agent and the at least one witness must be a person who is not related to principal and has no interest in the principal’s estate.[5]

The Importance of Capacity

Besides proper execution, the statutes governing power of attorney also provide extra requirements for validity in certain situations to ensure that the principal is competent to execute the power of attorney. One of the most important aspects of establishing a power of attorney is that this is not an authority or position that a potential agent can actively seek out and obtain on their own; you cannot go and “get” power of attorney. Rather, this authority is granted to the agent by the principal of their own volition. A person lacking capacity cannot make this appointment.

Nevada law is careful to only allow competent persons with capacity to execute powers of attorney. The law is so concerned with a principal’s competency that it requires proof of competency in certain cases. The statutes for both the financial power of attorney and the health care power of attorney provide that, “if the principal resides in a hospital, residential facility for groups, facility for skilled nursing or home for individual residential care,” when the power of attorney is executed, the power of attorney must be accompanied by a certificate of competency from a physician, psychologist, or psychiatrist declaring that the principal has the requisite capacity to execute the power of attorney.[6]

The Importance of Power of Attorney

A valid power of attorney is a vital part of any person’s estate planning. Unlike other parts of an estate plan which contemplate what happens after a person dies, powers of attorney take into account a person’s needs during their lifetime. In many cases, a valid power of attorney can prevent the need for a court-appointed guardianship. The cost of having the power of attorney correctly executed is well worth any person’s time and can certainly simplify matters when caring for a loved one in need of assistance.

[1] NRS 162A.090.

[2] NRS 162A.110.

[3] NRS 162A.220(1).

[4] NRS 162A.790(2).

[5] NRS 162A.790(3)-(4).

[6] NRS 162A.220(2); NRS 162A.790(5).

Estate Planning - 07/15/2019
cost of estate plans

How Much Do Estate Plans Cost in Nevada?

Estate Plan costs vary depending on who does the work. A do-it-yourself solution may be quite cheap, but could easily be full of holes. For a good estate plan, you should use an estate planning attorney who has the experience to give you what you need, without the holes.

  • Basic Estate Planning Forms: $300 - $500
  • A Paralegal Prepared "Estate Plan" $500 - $800
  • An Attorney Prepared Estate Plan $1500 - $2000
  • A Complex Estate Plan by an Attorney $3000+

 

Transcript:

Hi, my name is Jordan Flake. I'm an estate planning attorney with Clear Counsel Law Group. One question that we get all the time - and it's a very legitimate question.

In fact, nearly every client asks this, and they should ask this ... Is, "What's your fee for preparing an estate plan?"

Now, for the purpose of estate plan, I'm going to use the idea of a living trust because that's what many people end up needing if you have the standard range of assets, where you own a house and a few bank accounts and maybe retirement accounts like insurance policies, things like that.

A lot of people will fall into the category of wanting a basic revocable living trust package which includes the trust, the will, power of attorney documents and possibly a deed transferring a house to the trust, so it's kind of your basic estate planning package that you would get.

When we talk about preparing this, the costs on the marketplace can range from maybe six or seven hundred dollars on the low end to thirty-five hundred dollars plus on the high end for this basic living trust package.

I just want to talk a little bit about why is there this big difference in cost and how can you as a potential consumer be savvy about the differences between a lower cost estate plan package and a higher cost estate plan package.

I Understand Your Perspective; Lawyers are Also Consumers

Let me first tell you that attorneys are consumers too. We go out in the world and we have to purchase things and I can tell you that when my car breaks down or if I ever have a mechanical issue, I'm not inclined, I'm not the kind of guy who can just pop open the trunk when the smoke is pouring out and then take the wrench and impress my wife by how quickly I get it all taken care of. That's not me. I have to take the car in and I have this kind of paranoia inducing moment where I'm talking to this mechanic and he or she seems like a really good person who's not going to overcharge me but I'm not really sure.

I feel pretty vulnerable in that situation because really I don't know if this fix is something that could be done for a hundred dollars or if the fix should be costing a thousand dollars and I'm worried because I don't have that knowledge and I feel pretty vulnerable.

I take that experience and I say, "Every day clients are going to come to me and they're going to feel some of that same vulnerability. They're not going to know whether or not the knowledge and skill set that I possess is worth several hundred dollars or thirty-five hundred plus dollars," so our goal at Clear Counsel Law Group is to provide you with complete transparency with respect to what the services are, what they're going to cost and very importantly what similar services are going to cost on the open marketplace.

Why There is a Range of Cost for an Estate Plan

Let's just take this basic estate planning package for example and you can get this basic estate planning package, you can find it out there for four, five, six, seven hundred dollars. You can find all those documents. You can also pay upwards of thirty-five hundred dollars for all those same documents.

There's a lot of room in between, but most law firms are going to charge somewhere in the fifteen hundred to twenty-five hundred dollars to prepare all these documents. Why is there so much variance? That can be attributable to the fact that on the lower end, some of these documents are being offered by paralegal services.

This kind of frustrates me as an attorney because that paralegal, I'm not so concerned that they're undercutting the marketplace. I'm not one to care if the marketplace gives you good product for less money. I say, "Great. If that's the place the market is headed, so be it."

I'm not going to try to change that.

I'm going to try to beat it in fact.

The reality is, is that a paralegal doesn't have the license to practice law and so yes, it might be a little big less expensive to hire a paralegal but there's no governing body like the state bar that's holding that paralegal strictly accountable for being competent and for being ethical and for managing client's money in the proper way.

Really that paralegal shouldn't be practicing any type of law in the first place. They should get shut down for the unauthorized practice of law.

What do estate plans cost?

Why a Licensed Attorney Should Draft Your Estate Plan

In contrast, as attorneys, the state bar is there to watch over us and make sure that we're always competent and always ethical and if you as the client have any type of issues with any of the attorneys then you can actually go to the state bar.

Furthermore, a paralegal is not going to get malpractice insurance. They're not going to be qualified to have an insurance company come along and insure their practice of law because they're not licensed to practice law.

As an attorney, if we happen to make a mistake, any attorney, they'll have malpractice insurance in place to make sure that you don't have to pay for their mistake.

The attorney can pay for the mistake, not you. That's not something you get with a paralegal.

When you do pay a little bit more money for an attorney to prepare these documents as opposed to a paralegal, understand that what you're getting is you're getting the guarantee of having malpractice insurance in place.

You're getting the oversight provided by the state bar and then I'd say the very most important thing that you're getting is the experience and the knowledge to make sure that it's being done properly.

Don't Worry If Your Estate Plan Was Not Drafted by a Lawyer, I Can Fix It.

I see this all the time. I have individuals who come in and they say, "I don't think that the person who prepared this document was even an attorney."

They'll bring me a trust, this basic trust package that I'm talking about and they say, "Yeah, a financial advisor or a paralegal prepared this for me." I'll look through there and invariably I'll find something that just required a little bit of experience, a little bit of nuance and a little bit of our knowledge but they totally missed it in the underlying documents and it had the potential to cause them huge problems.

I'm going to give you a quick example.

I had a woman in here who has a child who has special needs. That child is currently receiving governmental assistance.

The trust that was prepared by the paralegal would have just given an outright distribution to this child who had special needs upon the passing of the client. If she passed away and an outright distribution went to this child, that child would have lost their government assistance and would have after a few years just been totally destitute.

That paralegal or that financial advisor didn't have the legal background that allowed them to say, "Aha. That child has special needs. That child needs what's called a special needs trust where we can control that money in a way that won't affect their ability to receive governmental assistance."

Proper Estate Planning Should Not Be Done With a Form

It's just little things like that. It's the nuances. Think about how important your family is to you and how important your assets are to you and then just think are you going to entrust that to an individual who doesn't have a license to practice law.

If you're being really honest with yourself I think you're going to say, "No. I don't want to take any risks with this. It's too important. It involves my loved ones, involves my hard-earned assets to which I gave my life taking care of my profession and my savings to make this happen."

You don't want to entrust that to somebody who doesn't have the skills necessary to make sure it's done properly.

That's the lower end of the spectrum. On the higher end of the spectrum, I have a very high opinion of the attorneys here in Nevada. I feel like most of the attorneys that I know are going to give you a fair shake. They're going to try to be forthright and honest with you.

I do think that there are some outliers on this end of the spectrum who may be somewhat relying on your lack of knowledge and experience, to charge you more for services that another attorney would charge you much less to provide the same services. I am concerned about that. I don't think that as an attorney I have the right to use your lack of knowledge unfairly to my economic advantage.

Obviously, to some extent I do have the knowledge and I should be compensated for that so that question of where does it become unfair is the real issue. That's where you're going to see most attorneys clumped into this same area where we're within five to eight hundred dollars of each other.

These outliers where it's way lower, that should raise a concern or these other outliers where it's a lot more expensive, that should raise some concerns too.

In any event, our goal at Clear Counsel Law Group is to provide complete transparency for why we're charging what we're charging. Our goal and ninety-nine percent of the time we're able to achieve this, is after the initial consultation we will tell you exactly what you're going to pay.

It will be a flat fee and it will be all-inclusive of everything that you have asked us to perform. There won't be any doubt as to whether or not you get slapped with additional fees or charges at the end of the day.

There won't be any concern that if I take a two hour nap and I dream about my client, that I hit him with a seven hundred dollar bill because, "Well, I technically was working on your case, Mrs. Jones." Nothing like that.

That's where we call ourselves Clear Counsel Law Group because we prize that kind of transparency with our clientele to where you have the peace of mind that you know exactly what you're paying for, you know exactly how it compares to the rest of the marketplace and you can rest assured that we will provide the services that we said we'd provide at the cost and with the fees that we agreed to.

Please feel free to give us a call. There is no charge for the consultation. That's when we come in and talk about the different options. Once you select an option, then we talk about the cost for providing that service.

Then we provide the service and you pay that amount and what we hope we get out of that transaction is a life-long client.

We want it to be a super-positive experience for you and for us so that you can come back to us in the future with any other legal needs or questions.

Feel free to give me a call. We'll meet for a consultation and then we'll discuss the options.

Thank you so much.

Estate Planning - 04/09/2018

ClearCast #14: In Response to the Rob Graham Matter

[Editor's note]

Welcome to today's ClearCast!

A quick word about today's video.

If you are unfamiliar with what is being alleged, you can read more here about one of the victims. This is a horrible story about a local probate lawyer allegedly misappropriating client funds; it could be for even more than 13 million dollars.

If you are a client (or prospective) of Clear Counsel Law Group, we understand that it's important that you trust us with your most valuable assets.

In turn, we produced this video to explain how your money is protected.

Of course, if you have specific inquiry (or just need a little reassurance, certainly understandable), please reach out to us at (702) 522-0696.

Thank you and Merry Christmas!

-Brian

[End Note]

 

ClearCast Episode 14: Answering Your Questions Regarding Rob Graham

Jordan Flake: Hi, I'm Jordan Flake and I'm here with my partners Jared Richards, Jonathan Barlow. The three of us are the managing partners are Clear Counsel Law Group, and welcome to another ClearCast. Today we're going to be talking about something that has kind of rocked the legal community. We've had friends and family who've asked us questions about this news story. Through this ClearCast and potentially others, we hope to respond to some of these questions we receive, but I'm referring to the Rob Graham issue. Rob Graham is an attorney here in town. He practices in the areas of guardianship, probate, trust administration. The allegations right now are that he stole money from his client's trust account, basically that he misused that money. A lot of my friends and family have asked me, "What's a trust account? How did this happen? Why can an attorney all of a sudden steal a lot of money?" The allegations are that he stole $13 million, potentially, of his client's money is missing.

First of all, before we even get into those questions, we just roundly wholly 100% condemn any type of misuse, any type of unethical illegal access to clients' funds. That should never, ever, ever happen and we'll talk a little bit more about that. We all feel horrible and we spend a lot of time talking about the clients who are victims in this situation, and our heart goes out to them and their families. We'll talk about that a little bit more too as well, that we feel really, really bad. It's the worst possible way to spend the holidays, knowing that there was money that was being held and entrusted in an individual and now that money has essentially been stolen.

First, Jonathan, you're the one who, in our firm, in the three of us, you take a little bit more of a lead role in managing the trust account. Can you talk to us and some of our viewers about what is a trust account and difference between a trust account and operating account, how that works. There's a chance that people viewing this may actually be our clients and have money in our trust account right now and they'll want to know what's going on.

Jonathan Barlow: What we're doing. In short, there's two types of accounts that a law firm generally holds. One is what we call the operating account. That's money that we've earned. It's our law firm's money. We've earned it through fees, through clients paying us money to perform our services. That's our money as a law firm. We use that to pay our employees, we use it to pay our rent, and all the other expenses of operating the law firm. That's our operating account.

The story about Rob Graham doesn't really have to do with his operating account as far as the missing funds. What the missing funds came from was that second type of account that's called a trust account. A client trust account. Attorneys in various types of practices will have a reason to be holding money in a bank account that is not our money. For instance, just like Mr. Graham did probate work, we do probate work. That's when a deceased individual leaves behind assets that need to go through a process before they're distributed to the heirs. In doing that probate work, we'll collect a bank account. We'll close a bank account that the deceased individual had and we'll bring that money and deposit it to our client trust account.

Though that account at the bank is held with our law firm's name on it, it'll say "Clear Counsel Law Group" on the account statement as a designation IOLTA interest on lawyers' trust account, it's not our money. It's not ours. We are responsible to ensure that it goes to the right places, that it's applied appropriately. We are strictly prohibited from reaching into that client trust account and using it to pay anything other than the client's expenses.

Jordan Flake: Let me just stop you there and make sure that everybody's understanding. Grandpa John passes away and there's a bank account just in his name at Wells Fargo. There's $48,000 in that account. We get a probate started and we can go and we can liquidate that $48,000. We can't turn around and use that $48,000 to pay our employees, to buy Christmas presents for our family. We can't do anything like that because it's actually the family that Grandpa John left behind, that's their money we're just holding in trust. Can I shift over here to Jared? Jared does personal injury. Can he talk to us a little bit about the mechanics of a trust account in the personal injury context?

Jared Richards: Right. In a personal injury context, we go and we gather money for an injured person. When we gather the money, we put it into our trust account. Again, the moment it hits the trust account, it is somebody else's money. We then are responsible for making sure that that money goes to the right places. The money will often need to go to pay for medical providers. Sometimes it'll need to go to pay back, say if Medicare or Medicaid had paid medical bills. Sometimes that happens and we have to repay the government. Then we have to pay our clients. Out of that, we also get paid a fee.

At the end of a case, when we are going to distribute money, before we distribute money to ourselves for certain, we will send the client an accounting so the client knows where all the money went, where if we had to advance money for filing fees with the court or to pay to go depose another party's expert and we advance that money, we also account for that money when we get paid back for that amount. At the very end of the case, the client knows where every penny has gone and then gets the money that the client deserves.

Jordan Flake: There's a $50,000 vehicle insurance policy, $50,000 policy. You make a demand and say, "Hey, insurance company, your guy, your insured hit Tommy, our client." We give us the $50,000 and we hold that in trust because Tommy has medical bills that need to be paid out of that purse.

Jared Richards: Right. For example, as you said, let's say that Tommy got hurt and there's a $50,000 insurance policy. We make a demand on the insurance. The insurance company agrees and they pay $50,000. That $50,000 would go into our IOLTA trust account, the trust account we hold for clients. We then do an analysis of are there medical bills that need to be paid out of that account? Are there contractual obligations that our client has that we need to honor in that account?

Jordan Flake: If we just gave that money to the client ...

Jared Richards: Then it would be a problem because then we may be breaching the client's contractual obligations. We may be breaching our own contractual obligations, and we may actually be violating the law that require us to, say, pay back Medicaid.

Jordan Flake: Right, and if we use that $50,000 to run off and pay our own expenses ...

Jared Richards: Then we've got major problems. We've just stole the money.

Jonathan Barlow: Then a similar issue related to that is several law firms have several different actual trust accounts with different account numbers. We hold all ours in one account. We got Mr. Jones's money in there, we got Ms. Smith's money in there. It's all in there. Just like we can't use the trust account to pay our expenses, I can't use Mr. Jones's money to pay Ms. Smith's medical bills for her case.

Jordan Flake: Which is why from an accounting standpoint we have sub-accounts that we keep track of who has what share of that account.

Jonathan Barlow: What we do is we have every single case that we have, every single client that we have, we separately distinguish, this is their money, this is where it went, this is where it's going. Because I can't dip into this account or this person's money to pay the other person's money. That's essentially how a trust account works until it's determined, like Jared said in the personal injury context, this is where all the money's going. Similarly, we do that in the probate or trust context of determining where it's going to be distributed.

Jared Richards: We're all very careful to not make mistakes. However, if the attorney does make a mistake with that money, the attorney is personally responsible for that money. While that money is in the attorney's trust account, that attorney's on the hook for all of it.

Jordan Flake: Right, and that's been my experience since starting our law firm, is that when we have our trust account checks and I'm signing a check and that check's going out the door, I look at that and I say, "Am I sure that this money is money that is under the law ready to be legally paid out?" There's no other considerations here, because if I did send out a check that I shouldn't have sent out, then I personally am on the hook for that. I would go to Jonathan and I'd say, "From operating account you need to reimburse this client because we mismanaged some trust funds and we need to put it back immediately." If that ever happened.

Jared Richards: Not that that does happen because we're careful, but if it were to happen, that's exactly what would happen.

Jonathan Barlow: In the Rob Graham context, one of the big questions is it's $13 million, and that's a significant and sizable trust account.

Jordan Flake: Clear, I'm going to lawyer this one. To be clear, we don't know. We don't have any personal knowledge about what went on with Rob Graham. We just read the same newspapers everybody else does and we hear the same allegations. When people are hurting and they lost their money and it appears that an attorney abused a position of trust, we're all human first and we are rabid and we want justice, but Jared, I think what you're getting at is facts are going to come in and we need to be careful.

Jared Richards: The allegation is right now that he stole $13 million, and if that's true, then [crosstalk 00:09:56].

Jonathan Barlow: My only point is the price tag is shocking, the amount.

Jared Richards: It's a huge amount.

Jordan Flake: What is alleged to have happened here, if you guys want to go into that at all? Did Rob Graham one day open up his online trust account and see that there was $13 million and think, "Okay, this is my chance to write a check to myself?" What's the allegations say?

Jared Richards: I think that what happens in situations like this, you have two possibilities. Either the attorney makes a conscious decision to liquidate the entire trust account and run away with it, which I don't know of any actual incident where I've heard that happening, but I'm sure it has happened before. I think that the allegation here is that Rob Graham was not running as efficient and as successful as a business as he wanted to project, and that he was using client money to supplement his own business, his own money, which is just as illegal and just as wrong. It's just a slower and more slippery slope.

Jordan Flake: So there wasn't a $13 million check?

Jared Richards: Probably here. We don't know.

Jonathan Barlow: I don't think that's the allegation. I think the allegation right now is that over the course of time, he started dipping into some client funds and then continue to dip in to try to make that right. Sort of a Bernie Madoff type of a transaction.

Jordan Flake: Ponzi scheme.

Jonathan Barlow: Almost a Ponzi scheme.

Jordan Flake: Almost, where he's using the money that's there today to meet those obligations.

Jonathan Barlow: Exactly.

Jared Richards: And hoping that the money tomorrow will come in to pay yesterday's obligations.

Jordan Flake: The money that he's waiting to have come in through the door in this situation appears to have not been his money, and that's the major, major problem. If we're just running all of our expenses out of the operating account, that's business. That's just the way it's done. If an attorney were to ever dip into the trust account and say "I need to make payroll this month. Shoot. I only have $15,000 in my operating account and I have $4 million in my trust account. I could use some of the $4 million to pay my payroll since I don't have enough in my operating account." That's kind of what might have happened here.

Jonathan Barlow: Who knows if thinking, "I'll pay it back."

Jordan Flake: I'll make it back and I'll ...

Jared Richards: The only difference between the allegation of him stealing all $13 million in one fell swoop or him dipping in month after month for a number of years is the dipping month after month, we can more humanize it, but it doesn't make it any less wrong.

Jordan Flake: Right, because the end result is the same, which is a tragedy of thinking, "My Grandpa John died. He had $48,000 in his Wells Fargo account. We hired Rob Graham to go and liquidate that $48,000 account and we were going to split it up three ways."

Jared Richards: Exactly.

Jordan Flake: "We were hoping to be done around the holiday season so we could all have that extra money to go out and buy Christmas gifts or whatever for our family." Now that money's gone. That's horrible.

Jonathan Barlow: It's devastating.

Jordan Flake: It's devastating to the families.

Jonathan Barlow: There's a couple other allegations that raise points that are red flags in the way that a lawyer handles his trust account. Apparently, according to allegations, it appears that Mr. Graham was the only person at his office who really controlled the trust account, who had any access, knowledge of the trust account. That sure makes it easier to hide some things that you don't want other people to know about. One good protection, and particularly with the three of us here, is to have multiple people who have control of the trust account, who have eyes on the trust account, and who review that trust account and realize, "What's this payment coming out?" And can question those things if necessary. That's been a good thing for us, is that the three of us can have that equal access to it, equal control over it. Heaven forbid one of us try to do something wrong. You have two people who are going to watch over it.

Jared Richards: Exactly. You have at least multiple partners that have oversight that can track it. Also, something that we do that I think more firms ought to do is we have a bookkeeper that is the employee of a separate accounting firm who helps us keep track of our books. If there are abnormalities that happen in the books, the bookkeeper would be alerted and the partners would be alerted. Those two things are safeguards: multiple partners with oversight, and somebody outside the firm that's connected to a separate accounting firm that has oversight as well.

Jordan Flake: To that point, you have the bookkeepers keeping their books and we're keeping our books and they have to match up every single time. That's all done internally. One of the problems with the Rob Graham case, the allegation is that his mother-in-law was the bookkeeper, and so those conversations and those huge red flags that needed to pop up in this context apparently never did.

Jonathan Barlow: Right. If our books that we keep here on my computer don't match with the accountant's books, then we make the correction as necessary.

Jordan Flake: Do either of you expect to see more regulation from the government or the state bar? State of Nevada, or the state bar?

Jared Richards: The problem is that from time to time, you will hear the Nevada bar reprimand somebody for overdrawing their trust account. Because any bank, the rule is the banks, if they hold attorney trust account money, if the check bounces, if the account is overdrawn, the bank is required to notify the state bar so the state bar can do an investigation as to why. The shocking part of Rob Graham is yes, it appears that he may have stolen some money. I know, I'm a lawyer, I'm being all cautious. That's why they're smiling. Because we don't know. The allegations may have some ...

Jonathan Barlow: It'll come out.

Jared Richards: Yeah, the allegations will come out and the facts will come out in their own due course. The two things that are utterly shocking about this case is the size of the alleged theft and the prominence of the attorney. In the probate estate planning community and those people that watch, I can't remember what news channel Rob advertised on, but Rob Graham's a known name. We all know the name. Between those two things of a large amount stolen by a noted, prominent attorney, it may jar the rule makers into making more rules.

Jonathan Barlow: I wouldn't be surprised, really, to see something else change. Really, the only time that the state bar, and this is why I think there probably will be some changes, the only time the state bar will come and look at your client trust account and make sure to get a truly outside from the government or state bar or whatever, is if there's a complaint made against one of our attorneys, that doesn't even necessarily have to do with a client trust account. Say one of our attorneys messed up a case. Client gets upset and they file a complaint with the state bar.

Jordan Flake: I'm going to lawyer that one too. We don't do that.

Jonathan Barlow: Right, it hasn't happened because we haven't ever been audited. Anyhow, in the context of the state bar coming in to investigate, "Why'd you mess up this guy's case?" They will audit the book at the same time.

Jordan Flake: Just as a matter of course.

Jonathan Barlow: As a matter of course, almost. That's about the only time that they independently come in to audit books. I wouldn't be surprised to see some audit requirements coming out of this.

Jared Richards: The problem you have with that is the sheer number of attorneys out there handling [crosstalk 00:18:06].

Jonathan Barlow: Trust accounts, yeah. It's a monumental task.

Jared Richards: It would be a monumental task to send in auditing standards for everybody.

Jordan Flake: Right, but if that task is necessary to restore the community's faith in our profession, which is one of the goals of the state bar, then they'll have to do it.

Jonathan Barlow: One of the good things to that point is what's happening with Rob Graham's client. As discouraging as it was to see a very prominent name like this happen, we have observed the rest of what we call the probate bar. The other probate attorneys have rallied around this issue, not to pour dirt on Mr. Graham's grave, but to try to get his clients back to where they need to be. That was primarily led initially by Jason and Brandy Cassidy, excellent probate attorneys here in town, who took the initial task of .. What the state bar's asking them, "Cassidies, would you do this?" They took those client files and they've been trying to sort through those files. They've done an excellent task of doing that. Now, I've seen multiple attorneys who have offered to help and who will be probably taking on some of those cases, including our law firm. We'll be taking on a large handful of these cases to help them move forward.

Jared Richards: With the understanding that the money for those cases already seems to have been embezzled.

Jonathan Barlow: Almost in every case, the attorneys will be doing that pro bono, including our firm. Meaning without payment.

Jordan Flake: Without payment. You're right. This is just a small silver lining on this sad story, but it is nice to see that the attorneys all recognize how wrong this is and what a tragedy it is for the clients involved, and to the extent possible we're trying to mobilize our resources, and especially good shout out to Jason and Brandy Cassidy, who are really taking on the bulk of that project, and we're all here to help. Any last closing thoughts on this from either of you? On this whole situation and what you would want to tell our viewers.

Jonathan Barlow: It's shocking to see a story like this. It shocked us to see a story like this about an attorney. It'll shake confidence. A lot of people don't have good opinions of attorneys in the first place, so it'll certainly shake some confidence of them. If there's any hope behind this, is the fact that this is such a rare occurrence. I've been practicing 10 years and nationwide, this is the first story that I've seen of this size or nature. Just happened to happen in our backyard with somebody we know. It's such a rarity to see something like this happen that you can take some comfort in knowing there's a lot, 99.9% of the attorneys out there are doing this the right way, including our firm trying to do the right way the best we can.

Jordan Flake: Great, any last thoughts?

Jared Richards: No, I think Jonathan covered it.

Jordan Flake: I think the only last thing I'd say is really with any regulations, the biggest and best regulation is just be extremely trustworthy. To know why we're doing this and to know that there are real people, our clients are real people and that they deserve trust, respect, and especially when it comes to valuable assets and things of that nature. Thanks so much for joining us for ClearCast. If you have any thoughts on this ClearCast, please link us, comment us, ask us any questions. If you would like to see us answer questions in a future ClearCast, please let us know. Jonathan, Jared, thanks so much for joining us today and we'll see you next time.

 

ClearCast / Estate Planning / General Interest / Las Vegas / Nevada Law / News / Probate / Probate Videos - 12/21/2016

ClearCast Episode 10: Parentage & The Prince Estate's Tricky Probate Matters

[Editor's Note]

Welcome to today's ClearCast!

I don't know about you, but thought the world of Prince and so saddened to see him pass away last April.

You may not believe this, but the man worth between $100-300 million dollars didn't even have a will, let alone an estate plan.

As you guess with an intestate estate of this size, there have been complications. Namely: two women have come forward purporting to be Prince's niece and grandniece, asking for their share of the estate.

The hearing in Minnesota is scheduled for today. We get you all prepared. Plus, we will give you a sense of how this would work out in Nevada.

Thanks for watching.

-Brian

[End Note]

 

[End Note]

The Prince Estate: When Parentage and Probate Laws Mix

Transcript:

Jordan Flake: Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. Welcome to another ClearCast. I'm here with my partner, Jonathan Barlow. He's also a expert in the field of probate and trust disputes and litigation. Back in the news this week is Prince, the musician who died of an overdose last April. Maybe you were a big fan. Basically there's some really sticky probate issues that they're dealing with off in Minnesota. He was a resident of Minnesota. Essentially, what I understand from the situation is that Prince didn't have any surviving children or parents.

Jonathan Barlow: Not married also.

Jordan Flake: Not married, and he passed away without a will, which means intestacy laws apply. Which in that case what would happen is it just goes equally to Prince's brothers and sisters. However, if Prince has a predeceased brother or sister then that share would pass down to that brother or sister's children. Basically we have a situation where two women, one claiming to Prince's niece and another claiming to be Prince's grandniece have come along and said, "Hey, our dad, Dwayne, was Prince's brother. Dwayne passed away five years ago in 2011, and therefore we're entitled to Dwayne's share of the estate because he was Prince's brother." By the way, the estate is a pretty big estate. Rounding out possibly as high as, this is speculation, but possibly as high as 30 million dollars or even more. It's not a small amount of money that we're talking about here.

Jonathan Barlow: It's worth fighting about.

Jordan Flake: It's definitely worth fighting over. The niece and grandniece have come along and said, "Hey, listen. We're entitled to this because Dwayne was Prince's brother, and he's predeceased Prince, and this is the share." What are the complications here?

Jonathan Barlow: Well, it all sounds very reasonable.

Jordan Flake: It sounds great.

Jonathan Barlow: All things being equal the niece and grandniece would be exactly right. They would be entitled to that one share. The complication comes in because Prince's other siblings are saying that Dwayne, who you mentioned, the father of this niece and grandniece ... That Dwayne was not Prince's biological sibling, nor he was Prince's adopted sibling. Meaning, Prince's parents did not legally adopt Duane, and Duane was not their biological child.

Jordan Flake: Duane could've just been a guy.

Jonathan Barlow: Duane was just some guy.

Jordan Flake: Just some guy ...

Jonathan Barlow: Sorry, Duane.

Jordan Flake: ... who as young, little bundle of joy just showed up in Prince's family's household. Is that what happened?

Jonathan Barlow: Something like that. I wish we had known. Maybe Prince wrote a song about this. I don't know.

Jordan Flake: "Raspberry Beret", that's what it was referring to.

Jonathan Barlow: Dwayne's daughter and his then granddaughter, the niece and grandniece of Prince, are saying, "Hold on a minute aunts and uncles. We think you're aunts and uncles even though you don't think we're nieces of yours." They're saying, "Hey, wait a minute. Dwayne's and Prince's father brought Dwayne into his house," essentially that's what they're saying. Brought him into his house, treated him like his child, raised him as his child, always treated him as a child, and for all purposes he was never treated as if he wasn't. In fact, even Prince himself later in life and more recent years had acknowledged Dwayne as a half-brother or brother of some sort.

Jordan Flake: Prince's dad was saying, "Hey, these are my kids. This is Prince over here. He's really famous. This is my son, Dwayne. He's okay." I'm kind of the Dwayne of the family, by the way, in my own family, but anyway ...

Jonathan Barlow: We all have one of those.

Jordan Flake: We all have a Dwayne in our family. Basically Prince's dad was saying, "Yeah, Dwayne is my son." To what extent is that a legal hook?

Jonathan Barlow: It's interesting. Most states have adopted this law called the Uniform Parentage Act, and we have that here in Nevada, which gives us an interesting interplay in what's going on in Minnesota and Prince's estate right now. The Uniform Parentage Act basically says, in a very short way to say, just as Prince's father had done with Dwayne, if you bring a child into your house and treat that child as your child, even if you don't adopt them, even if it's not your biological child, and you hold them out to the whole world as your child, and for all purposes treat them as you child the law will say that person is that person's legal child for all purposes. Including for inheritance. Including for child support. Any purpose of establishing parentage it will establish that, so what's the niece and grandniece are saying is that parentage has already been established.

There was actually any interesting case in Nevada just last year in 2015 that dealt with the Uniform Parentage Act in a probate proceeding. Similar to this situation occurred a woman named Joyce was raised by her parents. Robert was her dad, but it sounds like it was never really clear whether Joyce was his biological child. On Joyce's birth certificate did list Robert as her father, but apparently it was not clear. When Robert died Joyce's, same thing, her aunts and uncles, came along and said, "No. Everyone knows Joyce is not Robert's biological child. Everyone knows that Robert did not adopt her, and so if we want Joyce wants to claim something she's got to have a DNA test." Essentially they wanted to exhume Robert and force a DNA test, which is horrible in itself to think that they would do something like that.

Anyway, the Nevada Supreme Court came along and said, "No, no, no. Sorry, under the Uniform Parentage Act," that law, the Uniform Parentage Act, "it says that if you're going to challenge somebody's paternity that is established in this way you have to do it within three years after that person turns 18 years old."

Jordan Flake: In application to the Prince case, they would've had to challenge Dwayne's being Prince's father's son, and also Prince's brother by the time he was 21?

Jonathan Barlow: Essentially. That's correct.

Jordan Flake: That would've been back in the '60s, or '70s, or whenever it was.

Jonathan Barlow: Sometime a long time ago, and so the law says-

Jordan Flake: Otherwise it's conclusively established?

Jonathan Barlow: It's done. In fact, those third parties, the aunts and uncles, the brothers and sisters, whoever it is they are legally prohibited, they're barred from contesting that paternity that has been established under the Uniform Parentage Act.

Jordan Flake: Is the niece and grandniece going to win in Minnesota then?

Jonathan Barlow: That's a good question. We never predict, right?

Jordan Flake: Right. Yeah, we don't.

Jonathan Barlow: Minnesota's going to do what Minnesota does, but interestingly the Nevada case, the Nevada Supreme Court case last year cited to a case that happened in Minnesota several years ago.

Jordan Flake: I'm sure there's not a lot of case law anywhere in the country on this type of topic.

Jonathan Barlow: Really unique interplay of parentage in probate. If they follow what the Nevada Supreme Court said they're going to have a very hard time disproving that this niece and grandniece are not entitled to inheritance.

Jordan Flake: Wow.

Jonathan Barlow: They're likely going to ... Without knowing Minnesota law really closely myself, if I was to guess they're going to receive a share Prince's estate.

Jordan Flake: I would love it if we could get ahold of one of the attorneys in this matter to come and smack us down, and tell us why we're wrong. We may be. If anybody out there knows. This is kind of interesting-

Jonathan Barlow: Which reminds me, I have a greeting card that I got from Prince a couple years ago. It said, "Hey, brother." I think I need to show up at hearing on Friday and see.

Jordan Flake: He probably has a song where he says, "You're all my brothers and sisters," or something like that.

Jonathan Barlow: He was talking about us.

Jordan Flake: He was talking about us, exactly. This is also interesting because if you're out there in the world right now and you suspect that your parents are holding out a non-biological sibling/child as an actual child then you have to get on top of that business before that individual turns 21.

Jonathan Barlow: It really sets up a really strange circumstance where essentially essential siblings that have been raised together-

Jordan Flake: "We're the real siblings."

Jonathan Barlow: That's right.

Jordan Flake: They get together and they say, "You're a fake sibling. We're going to get a court order," or what? How do they ...

Jonathan Barlow: That's theoretically what would happen. When that child turns 18 or 19 you can throw them into court to disprove that they have parents.

Jordan Flake: Do you see what a weird law this is? Because who is going to actually come along and challenge that unless there's a death in the interim.

Jonathan Barlow: Right, which is very rare.

Jordan Flake: Which would be very, very rare, so it's a very bizarre law, but this is why we enjoy being probate attorneys. We enjoy being estate planning attorneys. We love it when stories like Prince hit the national media because as always it highlights the need very good estate planning.

Prince was worth 30 million dollars, speculatively. He could've afforded an attorney to prepare a simple estate plan.

Jonathan Barlow: Even a simple will.

Jordan Flake: Even a simple will would've clarified.

Jonathan Barlow: A $99.00 will could've solved this whole thing. For all we know Prince would've wanted Dwayne's children to receive.

Jordan Flake: Right. Absolutely.

He may have wanted that. In any event, as we always do, we invite you to leave any thoughts, or comments, or additional information in the comments section, or on our Facebook, wherever we post this video.

Thank you so much for joining us.

 

ClearCast / News / Probate / Probate Videos - 10/21/2016

Watch This Before Adding a 'Pay on Death' Provision to Your Estate Plan

Transcript:

Hello, my name is Jonathan Barlow. I’m an estate planning and Las Vegas probate attorney here at Clear Counsel Law Group. Thank you for tuning for yet another riveting video about probate and estate planning tips and practices that you can use to help you in your life and probably actually your elderly parents who actually most need this advice.

Today we’re going to about what are called “pay on death designations” or “transfer on death designations,” sometimes called “beneficiary designations” also. You might typically think of these in the context of life insurance policies.

That’s what people most think about. If I have a life insurance policy, I get to name somebody. When I die the money goes to little Jimmy or little Sally or whoever you want it to go to.

You can do these same type of beneficiary designations on a host of other type of assets, and not just life insurance. For example, you could put they’re called “POD” or “TOD”, for short, you can put POD designations on your personal bank accounts.

You could put a POD designation on a vehicle title. You can put them on stock certificates. In fact in Nevada and some other states, not all states, but Nevada in particular, allows you to do a form of a deed called a “beneficiary deed” or “transfer on death deed” for your house.

What the effect of these are POD or TOD designations is, is that when you die the ownership of that asset transfers automatically simply by virtue of your death to the person you designated. Let’s think about the house.

 

Potential Problems with 'Pay on Death' Provisions with Real Property

If you’ve done a beneficiary deed for your house, and you say, “When I die,” basically in this deed, “When I die this house shall be transferred to Brian, Jim and John, my three sons, as joint owners. They essentially, after you pass away, they go down to the County Recorder, take your death certificate with a form of an affidavit and say, “Hey, dad’s died and now we own the house.”

That’s essentially in layman’s terms how that would work. That transfers the title automatically to them. They’re then the current owners. It’s quick, it’s easy and it gets those assets transferred really quickly.

Now, we want to contrast that to what happens if you don’t use these type of designations. Typically these type of assets would go through probate, which is something that we do here at Clear Counsel Law Group quite a bit.pay on death, nevada, las vegas, probate

Probate’s a core process that oversees the transfer of those assets to whomever they’re supposed to go to. Whether they go to your closest next of kin or whether you’ve done a will that says you want them to go somewhere. Probate can be expensive in the attorneys’ fees that are paid.

In Nevada, typically, and of course it depends a lot of factors, but attorneys’ fees are going to be somewhere between five to ten to fifteen thousand dollar or more to get that estate through probate. A lot of people are concerned about that cost and that’s why they look for these other vehicles to … or ways to transfer assets without incurring that cost after they pass away.

Again, it’s a quick and easy way to do it. However, I want also point out some important pitfalls and reasons why you might not want to do that. That’s really the main reason why we’re talking about these today.

Let’s think about this. Let’s think about, again, that house. You’ve got Brian, Jim and John, your three sons, and you want to make it easy for them to get your assets after you pas
s away. After you pass away, and if you make Brian, Jim and John the co-owners of the house, that is in almost every situation I’ve ever seen becomes a disaster scenario for those three sons.

Suppose Brian no longer wants to pay for his share of the house mortgage, or Jim says, “I’m not going to pay for the property taxes. I don’t got that kind of money to do that.” John says, “Well, I want to rent the house out and I want to get some rental income.” The other two are like, “Well, I don’t want to be landlords for some period of time.”

It’s a disaster waiting to happen because all three of them essentially have to agree on how they’re going to hold the property, how they’re going to use the property, who’s going to pay the expenses, when are we going to sell, how much are we going to sell for.

It’s a very, very difficult situation to put people in to be able to be on same page with that.

 

Potential Issues with 'Pay on Death' Provisions with Bank Accounts

Now, with financial accounts it’s not as big of a concern. If you have, again, let’s say your savings account has got fifty thousand dollars in it, and you go into the bank and you designate Brian, Jim and John as the pay on death beneficiaries of the savings account it is really easy for them because the bank is just going to cut three checks in equal amounts to the three of them.

We’re not going to have problems with co-ownership. Let’s think about a couple of things that could go wrong with that situation.

Let’s say John is actually sixteen years old when you pass away. He’s a minor child. The bank is not going to give him that money.

If you have a minor child, and even if it’s life insurance, if it’s a bank account, if it’s any asset those assets will not be transferred to that child unless somebody sets up a court appointed guardianship for that person.

You’re throwing them into a guardianship proceedings in order for that person to get access to the account or benefit from the account. Even if that happens, when John turns eighteen in a couple years he’s going to get all that money straight out, straight into his hands at eighteen years old.

There’s not very many eighteen year olds that can handle a substantial amount of money very well. That’s something you’d probably want to avoid.

Other problems that could come up; let’s Jim, he’s an adult, however Jim’s receiving government benefits. I had this situation just last week actually with somebody whose father has passed away.

We’re not into taking care of his estate, and one of the children was receiving a government benefit. If he receives a large inheritance, he’s going to lose that government benefit for a period of time, and becomes ineligible for that. It kicks him off of the government benefit because he’s received a large inheritance.

That would happen if a person is designated as the pay on death beneficiary of a bank account. They receive twenty thousand dollars, the Government’s going to want to know about that, and he’s probably going to lose a benefit that is conditioned upon his level of income and assets and things like that.

These are considerations you really have to think about. Sorry, one more consideration. Let’s say you designated Brian, Jim and John five years ago, and two years ago Brian died. Brian has children. You love those grandchildren very much, and you’d otherwise want to take care of them.

Guess what, when you pass away, and you have forgotten to go and update that, so when you pass away the only surviving beneficiaries are Jim and John. That bank account is going to go fifty percent to Jim, fifty percent to John, and zero percent to Brian’s kids who are your grandkids that you love.

They get nothing.

You effectively have disinherited that line of your family. Also, an unintended consequence that happens frequently with these pay on death beneficiary designations.

There are a lot of good things about these pay on death designations. They do make it easy to transfer the assets. They’re very inexpensive because there should be no need for an attorney to be involved at all. There’s going to be no court costs to transfer them.

However, there’s all kinds of pitfalls to using these in certain situations.

If you’re thinking about using a pay on death beneficiary designation on your bank account, on your car title, on your house deed, you’re still well worth talking to an estate attorney who can advise you about the benefits of using a trust, benefits of doing a will, benefits of doing the pay on death designations, which a good estate planning attorney will go through that and say, “Yeah, you know what, that will work for you the pay on death designation. That makes sense in this situation. Why don’t you go ahead and do that.”

They’re not always going to have to try to sell you on the trust or the will or anything like that if you get a good one.

Sit down with a good estate planning attorney, somebody that you trust to give you the best advice to go through your situation with all your kids or whoever you want to benefit.

Are they minors? Will they be able to handle co-ownership after you die? Are they receiving benefits that would be affected by this?

Those are all considerations that you should take into account when deciding whether to use a pay on death beneficiary designation.

I hope this has been helpful for you. If you have any more questions about pay on death designations certainly give us a call here at Clear Counsel Law Group.

We’d be very glad to answer your questions, to give you a free consultation about your estate planning situation, to give you the advice about what tools you should use or not use.

If you end up doing some planning with us then we’ll charge you for that, but the consultation is free.

Give us a call here at Clear Counsel Law Group.

Take care.

 

Probate Videos / Estate Planning / Probate - 09/29/2016

By Addressing Tough Estate Planning Questions, You Will Feel So Much Better

 

 

Transcript:

Hi. I'm Jordan Flake. I'm an estate planning attorney with Clear Counsel Law Group.

One of the biggest barriers to getting people to actually come in and see me and meet me for a complimentary estate planning consultation, is just the fact that estate planning inherently deals with questions that we sometimes don't want to answer at all.

Sometimes it's really unpleasant to think about our own mortality or our own potential incapacity.

Sometimes it's really hard to think about who would raise our children if we have minor children. It's hard to think about how you want your assets to be distributed because it brings up questions or fairness and what's right with respect to different children who may have either been extremely nice to you or wrong to you.

 

Estate Planning for Difficult Questions

One of the questions is how do we deal with these uncomfortable questions and these uncomfortable situations? I think the very, very first thing that you want to know when you do this is don't avoid estate planning because you don't feel like you have all the answers. That's the first thing.

Sometimes I get people who say Jordan, we got your card last September. We know we need to do an estate plan, but my wife and I have been talking and talking. And we just can't figure out what we want to do.

We can't figure out which of our kids we can trust? who gets this stuff? Who would take care of us if we were both incapacitated? We're going to think about it for a little while longer and see what we can come up with and then we're going to schedule a consultation.

Please do not do this precisely because a lot of what we're going to discuss in the complimentary consultation is basically some of the different answers to these questions that you might consider.

I regard my job as an estate planning attorney, somebody who can help guide you through some of these uncomfortable and ambiguous situations. I've seen it all in the last 10 years of practicing law. I'm very familiar with a lot of the different situations that can cause this to be hesitant or confused about estate planning. Please don't let those hold you up.

I'll talk about that a little bit more in a moment. The other thing that we sometimes need to worry about is just getting in here at all to do your estate planning. Never mind the fact that you have questions that are hard to answer. Let's just focus on your need to come in and see me in the first place.

 

The Importance of Starting Your Estate Planning

Please understand that as an estate planning attorney I also look at my position as one that confers peace of mind. I feel like I'm somebody who, my job is to give you peace of mind.

What that means is that before you meet with me and before you have your estate plan set up, you're sitting here thinking, "Oh geez, this is tough to think about. This is tough to do. It's confusing. It's complicated and I don't want to answer these questions."

What do I do if I pass away? I'm just not comfortable with that.

After you meet with me and after we sign the documents that through your wishes I have prepared to become legally and forcible and valid, I can immediately see it's almost like clockwork, a big sigh of relief from my clients who say, "You know, I just feel so, so much better. Thank you so, so much."

 

Estate planning, Las Vegas, Nevada

 

Please don't look at what I do as something scary that makes you have to ask all these difficult questions.

Instead, do what I do which is look at the finish line, that moment where you say, "Hey, I'm so glad I got that taken care of. It's one less huge thing that I have to worry about and I just don't have to worry about that anymore."

Of course we'll look at it every 3 to 5 years to make sure it's still says and does what you want it to say and do. Other than that you're in a place where you now have peace of mind. Specifically though, what are some of the tough questions that come up?

 

Tough Estate Planning Questions for Parents with Minor Children

For those of us who have minor children, I happen to have minor children.

One big question that my wife and I had is how do we decide who will take care of our children? Here's just one example of what I was talking about. I have seen couples refuse to come meet with me as an estate planning attorney because they say, "Jordan I'd love to but my wife and I can't agree on who's going to watch our kids so I don't want to come to an estate plan yet."

Please don't do this. Come meet with me and we can talk about it.

That's one of the touch questions that we get is who's going to watch the kids? One of the reasons this is a tough question is because a lot of parents look at the person whom they're appointing as a potential guardian as a replacement for mom and dad.

This can be too daunting if you think about it. If heaven forbid, something happens to a husband and a wife, a mother and a father, realistically there's not going to be any really great 100% replacement for the love and the care and the attention and maybe the physical environment, the emotional environment. It's going to be very, very difficult, if not impossible, to replicate all of those things.

If you're sitting here saying I don't want to do my estate planning until I figure out who can totally replicate the same life for my kids that my wife and I would've given them, then you're never going to be able to really do your estate planning.

That's a big hangup. It's really, really difficult, if not impossible, to figure that out.

That's something that we can talk through so that you say so you're saying I should do my estate planning because having something is better than having nothing?

Good, okay. You're saying I should be doing my estate planning because listing a guardian who has good fiduciary sense is 9/10 of the battle. You're saying Jordan that I can go ahead and do my estate planning because I don't need to worry about who has an extra room where we can fit bunk beds.

 

What to Look for in a Guardian

What I'm getting at is that people look at these concerns without the benefit of experience of knowing really what you're looking for in a guardian. If you just come in and see me you'll find out for example, what you should be worried about it fiduciary sense.

That's the number one thing that you can be concerned about. Morals, you can't force somebody to have morals that go onto your kids. We do worry about finances because you actually can hold them accountable for that.

What about physical accommodation? Your guardian doesn't necessarily have to be the person where your kids actually reside with that person.

Your guardian might say I'm going to be the guardian of your minor children. I'm going to make sure they're provided for financially because I have good fiduciary sense.

I happen to know that sister Becky and her husband have a really big house because he's done great at his dental career. They have room to take the kids and a good setup in the basement there.

 

We Will Help Through Difficult Questions

Thinking through these things with the benefit of practical experience will make it so these big scary confusing questions actually become a lot more manageable. I just picked one out of the air.

I picked the idea of this guardian of minor children as a potential barrier. For every barrier that you're facing in your mind right now with respect to estate planning, I can promise you that we've seen it, we've been there, and we can ask the questions to help you discover what the best solution is for you.

In no case are we going to recommend a solution that's uncomfortable to you or try to force your hand.

Estate planning always has been and always will be about putting your wishes down into legally and forcible documents.

Helping you understand what you really want and what's going to be best for your loved ones, absolutely that's something that we can help you out with and we will help you out with. We really want to. Please pick up the phone, schedule a complimentary consultation and I'd be happy to walk through some of these things.

I look forward to seeing you. Thank you. Bye.

 

Probate Videos / Estate Planning - 04/01/2016

Estate Plan Advice for Snowbirds & People with Assets in Multiple States

 

 

An Estate Plan for Snowbirds

Transcript:

Hi, I'm Jordan Flake. I am an attorney with Clear Counsel Law Group. I focus primarily in estate planning, and today we have a question here from one of our clients. It says, what if you have an estate plan that is out of state, but then you buy a condominium in Nevada to retire and make Nevada your long-term residence? Do you need a new estate plan? Could Nevada estate plan cover out of state assets, such as those that you may have left in Illinois?

I'm going to try to answer this question. Basically the idea is that when you move to a new state, you probably should as a good practice meet with an estate planning attorney in that state. I'm going to talk about why that might be a good idea.

Also, I'm going to talk about how assets work in a revocable estate plan and why it's okay owning assets in different states, and how to make that function.

 

Updating Your Estate Plan After Moving to Nevada

As you can imagine, I practice here in Nevada, and I get a lot of retirees who move here from other states around the country. Often times, they'll buy a property here, such as in the question that was asked, and yet often times, they'll leave property in their former state as well.

In fact, a really common scenario is these self-described snowbirds. What a snowbird is, it's someone who lives off in Wisconsin during the summer months, when it's nice and temperate, and then when it gets freezing cold in Wisconsin, the snowbirds move here to Las Vegas, and they spend maybe roughly from November to March where it's temperate here in Las Vegas, living at their condo here.

 

estate plan, snowbirds, estate planning, probate, Las Vegas, Nevada

 

I meet with these individuals and they say, "Hey, Jordan, we have changed our long term residence. We really intend to retire in Las Vegas, but we still have our house back in Wisconsin that we go to every summer. Where should we do our estate planning and why?"

My recommendation is to first answer the question, which is really going to be your state of residence? As soon as you answer that question, if it's Nevada, then you should probably do your estate planning in Nevada. If it's Wisconsin, then possibly do your estate planning in Wisconsin.

 

Why Nevada?

The reason why a lot of people will opt to have Nevada be their estate planning destination is because Nevada has really good robust estate planning laws that are very highly developed, to the point that different provisions have been tested here in the court setting, which means that as an estate planning attorney, we can have the confidence to implement various provisions that have undergone robust testing at the court level, so that we know they're highly enforceable.

We actually have a lot of clients who live out of state who opt to do their estate planning here, precisely because Nevada's estate planning laws are so favorable and so protective of the clients and the grantors in these situations.

I would say that if you intend to make Nevada your long-term residence, then the answer is very easy. You should do a Nevada estate plan. Even if you don't, you may still wish to consider it because Nevada has better laws.

That of course raises the question, let's say I'm intending to make Wisconsin my long-term residence. How can I do a Nevada estate plan? Are estate plans enforceable across state lines? The answer is generally yes. Generally, states will give effect to legal documents created in other states. The mere passage from one state to another does not automatically nullify estate planning documents. I know that's true of Nevada, and I'm pretty sure it's true of every single state in the United States.

Basically, if you want to think of it another way, imagine you and your buddy both lived in California at the time, had an agreement that he would paint all your houses for $50,000, and you basically have this agreement for the next 3 years, your buddy's going to paint all your houses, any houses that you own, for $50,000, and you both live in California at the time of that agreement.

Both of you decide to move to Nevada, and the question is, is the agreement that you made in California still enforceable in Nevada? The answer is yes, that contract will go from one state across state lines and still be legally enforceable. That's true of your estate planning as well. The things that you put in place in one state are generally going to be enforceable in the next state.

It is a little bit different because each state has different laws with how little tiny particulars will arise, or with how probate is handled for example, so that's why you'll definitely want to have your estate plan reviewed by an attorney in the state where you intend to make that state your personal long-term residence.

 

Developing an Estate Plan with Property in Multiple Jurisdictions

Come see us. If you have property in Nevada, we can get you set up with a Nevada estate plan. The second part of this question, let's say you do have a property in Nevada and you do make Nevada your long term residence, and you do have a condo here, and you have transferred that into your estate planning, and that condo now becomes part of your estate plan. What do we do with the summer house in Wisconsin? The answer is very simple. If we create a Nevada estate plan, you can think of it like a box. We create that box and we transfer some of your assets into that box. There's nothing about the fact that that house is owned in Wisconsin that prevents us from taking that house and transferring it into the Nevada trust. There's really nothing about that that prevents it.

Regularly, as estate planning attorneys, we'll sit down and meet with clients who have assets in various states and properties and various states. What we'll do is we'll go request a deed from that state and we'll copy down the legal description and we'll prepare a deed for that state. We'll send it out saying, my Wisconsin summer house now is to be transferred into the Johnson family trust, or the Johnson estate planning. You definitely can have a Nevada trust that owns property in various states.

If you're in either of these situations, if you're maybe mixing residence between 2 states like Wisconsin and Nevada, and you're not sure where to do your estate planning, please come talk to me. If you're a Nevada resident and you have property that's outside of the state, and you want to make sure it passes according to your wishes, please come see me. Those are both questions that we handle very often. They're both things for which we can do a complimentary consultation, and please give us a call, set up a consultation, and we'll be happy to help you out with this. Thanks so much.

Probate / Estate Planning / Probate Videos - 03/23/2016

Three Essential Estate Planning Tools You Must Know

 

The Three Estate Planning Tools Everyone Needs to Know

Transcript:

Jonathan: Hello. My name is Jonathan Barlow. I'm a estate planning attorney at Clear Counsel Law Group. Today, we are talking about people who have relatively few assets and what estate planning tools they might use in order to transfer those assets after they pass away. I want to talk about three tools that they might use today. The first is a will. The second is joint ownership. The third is beneficiary designations.

In order to illustrate how these three tools might work, let me introduce you to one of my hypothetical clients. Her name is Helen. Helen lives here in the Las Vegas area. She has two children, Bob and Suzy.

 

An Estate Planning Hypothetical

Helen's estate basically has three assets. She has a condo, has about sixty thousand dollars in equity in the condo. She has her bank account and the bank account has three, or four, five thousand dollars in it. She has a car that she's paid of. The car is worth five or six thousand dollars. Now, Helen, can use all three of these tools to help transfer her assets after her death.

The first thing that she really should do is to prepare a will. A will is a document where Helen can say who she wants to receive her assets after she passes away, in what percentages, in what amounts, under what conditions. Helen can also say in her will who she wants to be in-charge of that process. Who is going to be the executor, the person responsible to make that happen.

Helen can use the will to say, "I want to split my assets equally between my two children." She could also say, "I want to give Bob seventy percent and Suzy thirty percent." Whatever the case maybe, she can say that in her will.

The second thing that Helen can also do is to use joint ownership as a way to transfer her assets after she passes away. What joint ownership means is that say she goes into her bank and explains to them, "Hey. I want to add Suzy on to my bank account." The bank make designations and changes on bank account to add Suzy as a joint owner and she owns it as the same time as Helen.

When Helen dies, the joint owner, in this situation, Suzy, becomes the one hundred percent owner of that bank account, simply by virtue of Helen passing away. Suzy would just have to take a death certificate into the bank, say, "Hey. Mom has passed away." The bank would essentially just give that money in that account to her without any other work necessary.

 

Estate planning, las vegas, nevada

 

The third tool that Helen might use to make it easier to transfer assets in a smaller size to say is beneficiary designations. The most common example of beneficiary designations that we think about would be a life insurance policy. Generally, if we have life insurance on our life, we name somebody as the beneficiary to receive that money after we pass away.

We can do the same thing with other assets. For example, in Nevada, there's a special form of deed that somebody can sign to name beneficiaries on their house. Helen could sign this beneficiary deed and say, "Upon my death, the house shall be transferred to Bob and Suzy."

After Helen passes away, Bob and Suzy prepare a document with her death certificate that notes that she's passed away and the ownership of that house transfers automatically to them without any other work. No probate work or other work required. It becomes a very easy way to transfer that condo that only had sixty thousand dollars in equity in it to her children after she passes away.

Those are three simple tools that can be used to transfer that and there's a frequent questions that Brian has right now that the people often ask me.

 

Brian: What if there's a will that has two beneficiaries, but the asset is being held in joint tenancy?

 

Jonathan: That's a great question. Again, same example. Helen has two kids, Bob and Suzy. Yet, she did just what I described earlier, she went in to the bank and she said, "I just want Suzy to get one..." She added Suzy as the joint owner of the bank account.

The effect of that is that even though she said in the will that she wanted Bob and Suzy to share whatever she had, the joint ownership designation, the joint account designation is going to trump the will. Meaning, Suzy is going to get that account one hundred percent with no legal obligation to share with her brother Bob. Even though the will says that were supposed to share it fifty-fifty.

Again, we want to be careful about how we use those joint designations to make sure that they do actually match up to what you want to do. You may say in the will, "I want to share it with him equally," but if you make a joint beneficiary designation or a joint account ownership for a beneficiary designation, there's contrary to that, those will apply and be enforced rather than what you say in the will.

With all three of these tools, the will, joint ownership, and beneficiary designations, there are pros and cons to how they're used. You want to be careful that that matched up with what you want to accomplished and that they do what you've said they want to do.

If you have any questions about this and want help with discussing these three tools and how they work for people with smaller estates, it's time to give us a call here at Clear Counsel Law Group.

Estate Planning / Probate / Probate Videos - 03/02/2016

How Should You Own Your Property?

 

 

What Is the Best Way to Hold Your Property?

Transcript:

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

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

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

 

property, estate planning, Las Vegas, Nevada

 

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

 

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

 

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

 

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

 

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

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

Estate Planning / Probate / Probate Videos - 03/01/2016

Filing for Divorce with Your Assets in a Revocable Living Trust

 

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

 

Transcript:

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

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

 

Assets, divorce, Nevada, Las Vegas, revocable living trust

 

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

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

 

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

 

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

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

 

Estate Planning / Probate / Probate Videos - 02/03/2016
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