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Clear Counsel Law Group / probate

How a Personal Representative is Assigned to Your Estate

 

Who is the Personal Representative of My Estate?

Transcript:

Hi, my name is Jordan Flake. I'm a managing partner at Clear Counsel Law Group. One question we get a lot in out estate planning practice is, how do I know who's going to take care of my stuff, after I pass away? To put the question in more legal terms, how do I know who is going to be the personal representative, at the time of my passing? You really have 2 choices. First choice is, you decide, second choice is, the state decides.

Under the first choice, you can decide whoever you want. You can list them in your will, to be your executor, or if you use a trust, you would appoint them as your trustee, in your trust. That can be anyone, and the court will honor your wishes. Sometimes, there could be limitations on that, in terms of, whether or not this person is maybe in jail, or a felon, or whether or not the appointment was obtained through their undue influence. By and large, you can make that decision, and you should make that decision, because the alternative is number 2, which is the state decides.

That's not as horrible as it might seem, because there are laws in place that tend to try to replicate our desires. For example, I'm married, and if I passed away without creating an estate plan, my wife would have authority to serve. Well, even with my estate plan, my wife has authority to serve. You can see how the state laws try to do what's reasonable under the circumstances, and appoint people close to you.

However, we deal with a lot of situations where there's a mother who passes away, who has been estranged from, for example, her daughter, for years, and wants her daughter to have nothing to do with her. The daughter has basically abandoned the mother, and yet, because the mother didn't do valid and proper estate planning, the daughter, actually, can be appointed to serve, under the statutes, because the mother didn't take that initiative.

When you think about this question, who's going to be appointed, who's going to be responsible for your estate after you pass away? I'd really encourage you to come see us for a consultation, so that we can make sure that the person you want serves in that capacity, rather than just what the statutes have happened in that situation. Come see us at Clear Counsel Law Group, and we'll help you out with this issue.

Estate Planning / Probate / Probate Videos - 10/12/2015

How Far Must Alzheimer's Progress before Testamentary Capacity is Lost?

 

When you may no longer have the Testamentary Capacity to amend your will

Transcript:

Hi. My name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. One of the questions that we field from time-to-time, we'll get calls from individuals who say, "Hey, my mom," or my dad, "has started exhibiting some of the symptoms of Alzheimer's," or maybe is starting to show some signs of dementia, "can we still go back and amend their estate planning documents?" Maybe, you know, one of the sons comes along and says, "Hey, mom said she wanted to do this change or that change and we never got around to it and now she's starting to maybe lose a little bit of her capacity."

That's a tough issue, can you actually go and change the estate planning documents in these situations? The one obvious very lawyerly answer is, "It's much better not to. The best time to do estate planning is when the skies are sunny and blue, everybody's clear in the head." If you think this may be an issue, obviously, get in here and see us as soon as possible.

The next somewhat lawyerly answer also is, "Maybe," or "Depends." One of the the things that it could depend on is the difference between what they call testamentary capacity and contractual capacity. Contractual capacity means that you have like a savvy business mind and you can really understand all of the implications of your decision making and where you sign your name. That's a pretty high standard, contractual capacity. Testamentary capacity could mean you may not understand enough to go into business for yourself, but at very least you understand, "I want this to go to this person." We call that testamentary capacity.

Now, both of those, whether contractual or testamentary capacity, are kind of subject to the analysis of ... There are medical issues at play here. We're just lawyers. You're just a son or a daughter. We really don't understand all the time what the implications of these different symptoms are, and their impact on your parent's decision-making abilities. What we like to do at Clear Counsel Law Group is if there is any doubt as to your parent's capacity at the time that they want to change their estate-planning documents, we will go to their physician and basically get a signed certificate of physician, or some kind of a statement from their doctor that says, "Listen, you know, I understand that mom and dad might not be as clear as they used to be, but in the opinion of this doctor they still have the capacity to be able to make these changes that they envision."

Those are some of the ways that we analyze this big issue. I would not just leave it up to fate, or leave it up to chance. If you think that you or your parents may fall into this category, or have this situation on their hands, please come see us as soon as possible and we'll definitely help you out.

Probate / Probate Videos - 10/10/2015

Be Careful Using Online Forms for Your Estate Planning

 

Why using online forms for your estate plan makes very little sense

Transcript:

Hi. I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I do a lot of estate planning, and one really popular question that we get is, "Mr. Flake, we could do this a lot cheaper by going online, and downloading legal forms, and just using those instead of hiring an attorney." Oftentimes when I confront this issue, I will jokingly respond that the online forms for estate planning are actually really good, because if you're lost in the wilderness you can use them to start a fire, you can use them for making paper airplanes. They're not entirely without their use. That being said, I would still say as an estate planning attorney that online forms are better than nothing. If that's all you want to do, and that's all the whole level of estate planning that you want, more power to you.

In our estate planning practice we help people estate plan, but we also resolve what I would call estate planning disputes after people pass away. We look at wills, and trusts that are heavily contested. Of the wills, and trusts, and estate planning documents that are heavily contested I can tell you that the majority of those have been because they were not lawyer drafted. In other words, I would say seven or eight times out of ten, the estate plan documents that are in dispute were drafted by maybe a financial advisor, maybe by the deceased individual themselves, maybe they were pulled offline, or purchased at a bookstore and filled out. The real question that you need to ask yourself is, "Are my assets enough, and is everything I've accumulated enough, and is my interest in making sure things happen smoothly enough to warrant the expense of hiring an attorney to correctly prepare my estate planning documents?" Most of the time I feel if you sincerely ask yourself that question you'll realize, "Yeah, absolutely. This is worth getting right."

Now the online forms are not always going to be wrong. There's a lot of times that I'm sure it works out just fine. You shouldn't gamble with something as big as all of the assets that you've accumulated. You shouldn't gamble with what your wishes are. You shouldn't gamble with whether or not these documents are actually valid and enforceable. Especially when Clear Counsel Law Group has ... We've really tried to be optimized to the point that we can be very inexpensive, and make estate planning very affordable for everyone. We offer a high quality product at the lower end of the marketplace in terms of cost. Under all circumstances I'm more than happy to sit down with you for a complimentary consultation, so that we can just give you our take on your estate planning options, and really then put the ball in your court just to decide what's best for you. Love to have you give me a call, so we can help you out.

Estate Planning / Probate / Probate Videos - 10/06/2015

Why should my Estate Plan include a Pet Trust?

 

Why is a pet trust a good option for my estate plan?

Transcript:

Hi, my name is Jordan Flake. I'm an Attorney, I'm also a managing partner at Clear Counsel Law Group. A few weeks ago I was invited to be on a radio program, and the host of the radio program pulled out an article about a wealthy family who had left millions of dollars to just like two or three dogs, and maybe one or two horses that they had. The host was kind of baffled by this and said, "Is this a real thing? Do people actually do this and leave money to their pets?" He asked that question and my response to him and my response to you is, absolutely. When you think about your assets, anything that you want to spend your money on, it is your money, during your life and when you pass away.

What these individuals probably set up is colloquially known as a Pet Trust. A Pet Trust really isn't a Pet Trust, there's nothing really pet about it besides the beneficiaries are normally the clients pets. I guess they can differ a little bit from regular Trusts because the Trustee may not be responsible for the care of the pets. Often times the clients will list an individual who's actually going to take care of the pets themselves. Then the Trustee will compensate this individual who's taking care of the pets. It is totally possible, and it's reasonable, and it doesn't even register with me anymore as to whether it's weird or strange or inappropriate or anything like that.

To be honest with you, we just consider it our job to take whatever you're estate planning wishes are. If they are legally enforceable, if they don't run a foul of any kind of laws, or ethics, then we simply put those into motion, and make sure that you have the documents, to make sure it happens exactly the way you want. So feel free to come see us and we'll set your pets up with something great.

 

Make sure to subscribe to our YouTube channel! Thanks for watching.

Estate Planning / Probate / Probate Videos - 10/03/2015
Timeshare Rentals, probate, estate planning

Your Timeshare Trouble Will Not Die with You

Timeshares can be a source of endless fun and excitement. However, there is another side1)perhaps a bit nefarious of timeshares that cause significant anger and frustration. This can be said for timeshares while the owner is alive and even more so after s/he is deceased.

The complexity and frustration of transferring ownership in a timeshare after death depends on one simple factor, type of ownership.

Timeshares come in two different forms. A significant portion of the first category of timeshares are deeds. This would be similar to a home or condo. When the timeshare was purchased, a portion of the real property where the timeshare sits is deeded to the purchaser.

A smaller percentage of timeshares are in the second category, contractual right to use. For this type, there is not a deed or real property transfer. The owner of the timeshare has a contractual right to use the facility where the timeshare is located according to the time and dates specified in the contract.

Both types present different issues in transferring the interest in the property or the right to the property at the time of the owner’s life. I will first tell you a little more about each type of timeshare, then more importantly, how to avoid the costly probate process with timeshares.

 

Deeded Timeshares

In Nevada, if the timeshare is a deeded interest, then there must be a probate in Nevada in order to transfer the interest to the beneficiaries or heirs of the decedent. For example, if a Decedent was a resident of Ohio and passed away in Ohio, but held interest in a timeshare in Nevada by deed, then the Decedent would have a probate proceeding in Ohio and a separate probate in Nevada. A probate administration established for the sole purpose of transferring an interest in a timeshare is extremely time consuming and expensive, and most importantly, can be avoided.

 

Contract Timeshares

If the timeshare is a contractual “right to use” and the value of the timeshare is less than $20,000, then in Nevada the beneficiary or heirs of the Decedent can possibly transfer the interest by use of an Affidavit of Entitlement without any court proceedings, with the assumption that there are no other assets in Nevada. If the value is more than $20,000, then it may be necessary for a probate administration to be established. Similar to deeded timeshares, the need for probate can be avoided with contract timeshares.

 

Avoiding Probate

If you own a timeshare in another state or own more than one parcel of real property in different states, the easiest way to avoid costly probate is to create a revocable living trust. A trust, if funded properly, removes the assets from the jurisdiction of the courts and, upon death, the trust will pass ownership interest to the listed beneficiaries of the trust without court involvement. A trust will alleviate the necessity of creating numerous probates in different states.

If you own a timeshare, it is important to contact an estate planning attorney and put the timeshare in a living trust so you do not inadvertently burden your loved ones.  If you have inherited a timeshare, it is important to contact an attorney in the jurisdiction where the timeshare is located to determine your options.

Footnotes

Footnotes
↑1 perhaps a bit nefarious
Estate Planning / Probate / Real Estate - 09/30/2015

Is a Will Invalid with an Incorrect Middle Initial?

 

Will a court deem a will invalid if it contains the wrong middle initial?

Transcript:

I'm Jordan Flake, Managing Partner of Clare Counsel Law Group. One of the questions we get is, "I had a lawyer file probate for my mother and they didn't include the middle initial in her name. Does that matter?" Basically, when you file a probate, the question is ... You get authority from the court to perform certain tasks on behalf of the estate. The reality is, if the bank ... let's say your mother passed away and she had a bank account or she had a home ... If the bank or the county, where the property is located, recognizes the individual who's listed in the order, then you're not going to have a problem if there's a minor typo.

Oftentimes we will list out an individual's name, other names that they go by, initials, different titles, that go along with them because we find that individuals have assets titled in many different ways. That's the safest way possible to make sure that you don't run into a problem with the bank or with the county, in terms of making sure the property gets transferred properly.

Estate Planning / Probate / Probate Videos - 09/27/2015

How Long Do I Have to Wait to Sell Assets of an Estate that has no Will?

 

How much time does it take to sell assets from an estate with no will?

Transcript:

Hi, I'm Jonathan Barlow, probate attorney at Clear Council Law Group. One of our readers recently asked a question. He said, "I'm the administrator of my father's estate, and my father left no will." The reader was wondering when he's free to sell his house during the probate process. Once you're appointed as the administrator of the estate, then you are actually free at that point to begin the process of selling the house. You can hire a real estate agent to list the house for sale, and begin to immediately market the house for sale. At any time after the appointment of the administrator, you're given that power and authority by the court.

The process goes pretty much like the normal sale of a house, where you will look for someone that's interested to purchase the house. They will eventually make an offer to you, you as the administrator of the estate would either accept the offer, make a counter-offer, whatever you want to do to reach terms on the sale of the house.

Once you've agreed with a potential buyer on the sale of the house and how much they're going to pay for it, there are generally, there are 2 ways that you can have that sale finished or closed. The first way is the traditional way in probate process, which requires that the sale or the contract to sell the house be approved by the probate court. And actually when it goes into the probate court for the hearing, it begins a bid process, where other people in the audience there at court or those people that watch these listings, will come to court and can actually bid up the sale price there in open court. That's of benefit to the estate because it could raise the amount of money that comes into the estate from the sale. It's also kind of an administrative hassle, though, because then the sale could be delayed because of a new buyer coming into the picture.

More recently the Nevada legislature passed a legislation about 5 years ago that allows for sales of houses in probate to occur outside of the hearing process. So it no longer requires a hearing. And this is a process that not many people are familiar with, but it's a great benefit to the estate. Essentially you'd do the same process where you'd get a contract that's agreed upon, and a sale price that's agreed upon between you the administrator of the estate and the buyer. And you then just give notice to all the interested parties, to your siblings, to whoever else has an interest in the estate. And this is called independent administration of the estate. And assuming none of the interested persons object to the sale or to the sale price, you're then free within 2 weeks to close on the sale of the house. It doesn't require a court hearing, there are no bids taken. And this is a benefit to the state because the attorney's time can be decreased, plus less attorney's fees. And it's also administratively easier to sell a house through an independent administration of an estate sale.

So, in conclusion, as the administrator of the estate, you're fully authorized to sell a house immediately upon your appointment, and you can do it either one of 2 ways. Under the old process of having it confirmed by the probate court, doing a bid process. Or the newer way of under independent administration of the estate where it can be done without the bid process.

Probate / Probate Videos - 09/19/2015
power of attorney, undue influence, probate, estate planning, A mother and her grown son

How Can Power of Attorney & Guardianship Help Me Care for My Elderly Parent?

 

What is the difference between Power of Attorney and Guardianship?

Transcript:

A client approached me today regarding issues he's having with his mother who was recently admitted to the hospital. She had mounting medical bills that needed to be paid. He was wondering if there was a way that he could get access to her bank account, her brokerage account, in order to pay those bills. There's 2 different ways that you can do it. One is by power of attorney.

Now fortunately this individual did have a power of attorney document prepared prior to her going into the hospital, being admitted to the hospital, and that's essentially mentally incapacitated. The power of attorney document allows the individual to access her account, allows them to use that money for her best interest, to pay those medical bills.

Now power of attorney documents need to be prepared prior to an individual becoming mentally incapacitated. Usually they'll be done when an individual knows who they want designated as their potential power of attorney, who they want designated as the agent, as well as potentially who they want designated as their guardian.

The documents are very simple and straightforward. Some people get a little intimidated by them because they are a legal document. However they're very simple and straightforward to prepare. If you were to come into our office we would be able to do them fairly quickly at a minimal expense for you.

They're great to set up now while you have your mental capacity, in order to have them valid when you do become mentally incapacitated. However, if this individual, if he didn't have the power of attorney document set up prior to his mother going to the hospital and becoming mentally incapacitated, he would have had to go through a longer and relatively more expensive process in guardianship.

Guardianship is where you petition the court to have the court appoint you or whoever it may be, another family member, as the guardian of the individual's estate and person. To be appointed as a guardian of the individual's estate means that you are now responsible for her finances, for her bank accounts, her home, making all her payments, whether it be for house payment or medical payments, medical bills that are due at the time.

To go through that process it takes considerable amount of time as well. It could take between 3 to 6 months in order to get yourself appointed to get that appointment from the court, the order allowing you to go into her accounts to do that. To become the guardian of her person means that you are now able to make her medical decisions, what type of treatment, or whether to essentially end her life if for some reason she was on life-sustaining support at the time.

Now all these decisions can be done prior in a power of attorney document. You get a durable power of attorney for financial decisions, as well as a power of attorney for health care decisions. These will all lay out exactly what the individual wants if they fall into that state, if they become mentally incapacitated, or if the health care, if they are on life support and need decisions of what they like to do if they want to essentially pull the plug.

Those are issues that are dealt with prior to them getting into that situation, so you know exactly what the person wants and there's no guessing. These are all items that we do here, whether it be power of attorney documents which can be done fairly quickly and inexpensively, or in the case if someone wasn't able to plan ahead and it was essentially an unforeseen event, they become incapacitated, they'd have the power of attorney documents and we need to set up a guardianship. That's also something we can take care of here.

 

Probate / Probate Videos - 09/16/2015
mental capacity, undue influence, ernie banks, Baseball Field

Mr. Cub’s Legacy, Mental Capacity, and Undue Influence

Hall of Famer Ernie Banks, “Mr. Cub,” played 19 seasons with the Chicago Cubs, averaging more than 30 home runs and 100 RBI per season. He played from 1953 to 1971 with the Chicago Cubs. Banks captured the National League MVP in 1958 and 1959. He was inducted into the National Baseball Hall of Fame in 1977 and named to Major League Baseball All-Century Team in 1999.

Ernie Banks was a world class athlete and regarded by many as one of the greatest baseball players of all time. A statue of Ernie Banks currently stands at the entrance of Wrigley Field.

His physical and mental strength is obvious from his many accomplishments. Unfortunately, his health deteriorated quickly at the end of his life. He was diagnosed with moderate to severe dementia and later died by a heart attack in January 2015. Yet his death was not accompanied by mourning and celebration of his lifelong accomplishments, but was entangled with a potential legal battle regarding his testamentary wishes.

Court records show that in 2008, Mr. Banks prepared a will and trust to distribute his assets or estate to his wife and three children. He also requested that his ashes to be scattered at Wrigley Field “when the wind is blowing out.” However, the source of controversy is predicated on a second will and trust that was prepared in 2014 that disinherits his wife and children and bequeaths the entire estate to his then caretaker, Regina Rice. According to Ms. Rice, Mr. Banks entrusted her to carry out his wishes and wanted to make sure his estranged wife did not share in his estate after he passed.

An individual has the right to bequeath his or her legally owned property to anyone he or she wishes. However, each state in the US has certain requirements that must be met in order for any testamentary document, such as a Last Will and Testament or a Trust, to validly transfer property from the decedent to the beneficiaries or heirs after passing. There are two issues that highlight the disputes between Ms. Rice and Mr. Bank’s family:

  1.  Did Mr. Banks have the mental capacity to change or alter his Testamentary documents in 2014?
  2.  Was Mr. Banks unduly influenced by his caregiver to change his documents for her benefit?

 

Mental Capacity

An individual must have his or her legal mental capacity in order for the testamentary documents to be valid after his or her passing. In Nevada, courts have held that for a person to be of sound mind while executing a will, a person must:

  1. Know what a will does;
  2. Know generally who are his heirs;
  3. Have a general understanding of his assets; and
  4. Decide how he wishes to distribute those assets after his death.

In this case, court filings indicated that Mr. Banks meet with a neuropsychologist at the University of Illinois Medical Center on October 14, 2014 and the evaluation “specified that Ernie exhibited significant cognitive impairment that indicated a presence of dementia of moderate to severe degree.” In the petition to contest the validity of Mr. Bank’s 2014 will, his family presented evidence that Mr. Banks' health, both physically and mentally, was deteriorating rapidly. In October, just prior to his visit to the University of Illinois, he fell at his home and was lying on the floor for several hours. He was taken to the hospital and later released to Ms. Rice under orders that he be constantly supervised.

However, the two witnesses to the will, employees of the attorney’s office that prepared the will, have indicated that Mr. Banks was lucid and was able to communicate his desires without assistance.

If Mr. Banks family can convince the court that the mental examination only weeks before the execution of the will is valid and performed under normal circumstances, Mr. Banks family will have a strong case to have the 2014 will deemed invalid.

 

Undue Influence

A will can likewise be declared invalid if the individual was influenced by someone who occupies a position of trust1)Caregiver or housekeeper for example that manipulates the vulnerable person to change his testamentary documents to benefit the caregiver or housekeeper.  In Nevada, when a will devises property to a person’s caregiver those transfers are presumed void. The basis is that a vulnerable person, elderly or mental incapacitated, relied on the caregiver and the caregiver used her position to coerce the vulnerable person into naming her as the beneficiary contrary to his true wishes. The caregiver must rebut this presumption with clear and convincing evidence that the gift of the property through the will was truly the wishes of the vulnerable person and not the product of undue influence.

Mr. Banks’ family has evidence to show that Mr. Banks was vulnerable to his then caregiver and that through her influence and position, she was able to coerce him into changing his will for her benefit. As the case stands, the caregiver has not presented any evidence to show anything to the contrary.

Mental diseases can occur at any time, regardless of age. If you believe your loved one has been unduly influenced or you simply want to ensure your estate planning is handled before it is too late, please do not hesitate to contact Clear Counsel Law Group for a free consultation.

Footnotes

Footnotes
↑1 Caregiver or housekeeper for example
Estate Planning / Probate - 09/15/2015

How Long Does It Take an Inherited Home to Go Through Probate?

 

How much time will my inherited home be in probate?

Transcript:

I recently had a client come to my office and ask if they were able to take possession of the property right after their friend had passed away. In their will, he was giving them the property. There's a few little tricks that need to be completed prior to an individual being able to take possession of a property of which their family or a friend wills them or gives them a property after their death. In order to receive a property and actually transfer the title from the person that passed away, the [deceased 00:38], to the now beneficiary, you have to go through the probate process. In order to begin a probate process, an executor or a personal representative needs to be appointed by the court. That allows the executor or the personal representative, it gives them the authority to collect the assets and be able to speak and get the authorization from the court. In order to do this, you have to begin a probate process. During the probate process, there's a few steps you're going to have to go through in order to actually have that transferred over to you.

During that time, there's not a whole lot that a beneficiary is entitled to do or needs to do, unless they are the executor or the personal representative. It's essentially just a waiting game. It usually takes between 4 and 6 months to actually have that property transferred over from the deceased to you now as the beneficiary. During that time, unless you're living in the property or have the authority from the executor or the personal representative to live and reside in that property, you don't have the authority to go in and request that from them. You don't have the authority to go to the court and say, "Look, I'm supposed to get this property. I need to live in it. Allow me to live in it right now," because there might be other people out there that might have issues with it. They may feel like they're entitled to it. The court needs to work that out prior to you actually moving in to the house. Once the probate process has been completed, the court has authorized the executor or the personal representative to distribute that property or to transfer that deed from the deceased now to you as the beneficiary or heir of the estate. Once that happens then the property comes into your possession. You're now the legal owner and have the right to actually live in the property.

 

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Probate / Probate Videos - 09/04/2015
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