If one of your goals in estate planning is to avoid probate through a revocable living trust, you should also have a "pour over" will. Pour over wills allow certain property that passes through your will at your death to be poured into (or transferred) to a trust. At that point, the property is distributed to your trust beneficiaries.
A revocable living trust only governs the assets that have been transferred under the Trust Agreement. Any assets that are not funded into the trust during someone's life will have to go to probate and administered by the person's will. Most estate planning attorneys believe that handling all of your assets with one document, a trust agreement, is easier than trying to handling the estate through two processes (through both a probate administration and a private trust administration). There are, in fact, several advantages to creating a pour over will. When all of your assets are controlled by one document, there is less room for confusion. Also, a pour over will takes care of those assets that you may have neglected to transfer to the trust, before your death.
Another advantage is the privacy that you can maintain with the trust that a simply will does not provide. Wills become public record with the probate court, which means they are available to everyone who is interested in looking at them. Using a pour over will to transfer your assets to a trust keeps the details of your assets and your beneficiaries private.
The biggest disadvantage to using a pour over will is that the property must still pass through probate. Therefore, the distribution of any property headed toward the trust could be delayed in probate before it can be distributed to the trust. This could take months. On the other hand, if the property is passed on through a living trust directly, without first going through a pour over will, the property are likely to receive their inheritances within a few weeks. A pour over will should be a "backup" method of funding a trust; it is much more efficient to have the trustor(s) transfer assets into the trust while they are still living in order to avoid probate entirely.
Generally, most of your assets will not pass through the pour over will. Instead, if you have a proper estate plan, your most valuable assets will already be transferred to a living trust. Only the property that remains, minor assets and anything unintentionally omitted from the trust, will pass under the terms of the will. As such, the probate procedure will likely be simpler and less time consuming, based on the size of the probate estate.
Just like any other type of will, a pour over will must nominate an executor to wrap up the estate after your death. The duties of the executor often include collecting the assets, satisfying debts and paying taxes, then ultimately distributing the assets to the beneficiaries. These tasks are much simpler for the executor of a pour over will. The only duty is to take all of the assets identified in the pour over will and transfer them to the trust. Generally, the executor of a pour over will is the same person or entity that is the trustee of the trust to which the assets are transferred - that makes it extremely easy for the same person to administer the entire estate.
A trustee is a vital part of every trust. The trustee is the person who must ensure that the terms of your trust are followed. A common choice for trustee is an adult relative or a trusted friend. Selecting someone you know personally has its benefits, of course. You are likely to receive personal attention from someone you know, and they may not be inclined to charge a fee. However, acting as a Trustee is not necessarily a privilege! There is a lot of work in the administration of a trust, and a personal relative or friend might not have the time, energy, or know-how to effectively administer the trust.
Another option is a financial institution. Certainly, financial institutions and trust companies are qualified and capable of serving as trustees. Indeed, these institutions have the knowledge and expertise in managing funds which would provide a sense of comfort. However, financial institutions and trust companies are typically more expensive and charge their fees based upon a percentage of the trust estate. A licensed professional is another option, and their fees are typically lower.
Once the assets have been transferred to the trust, they become the responsibility of the successor trustee (the person you named in your living trust to take over at your death or incapacity). The duties of a successor trustee are similar to that of an executor, except that the trustee has control over the trust assets only and may administer those assets privately outside of court. The successor trustee has no control over property that is part of your probate estate.
If you have questions regarding a pour over will, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Nevada's probate statutes are a set of laws pertaining to issues relating to wills and estates. There is a Uniform Probate Code (UPC) which is meant to simply the probate process and standardize the laws regarding wills, trusts, and intestacy. The Uniform Probate Code also deals with gifts as well. Since the probate code is likely to impact your estate plan in some way here is an overview of several of its important aspects.
Why is a standardized set of laws necessary?
Both federal and state governments have the authority to enact their own law as long as those laws conform to the mandates of the U.S. Constitution. When the UPC was first drafted, the intent was that all states would adopt its requirements. However, since the original version was first enacted in 1969, only a few states have adopted it in its entirety. Nevada has not. Many states have adopted parts of the UPC. However, there remains substantial differences in those state's laws.
"Probate" is the legal process in which the assets and debts left behind after someone dies are handled by the court. Your estate is distributed to your heirs, after paying your creditors. The probate process is supervised by the probate court. The probate process involves the components of estate administration, including the following:
Each state has its own laws or statutes that deal with probate administration. In Nevada, there are basically four different procedures of probate administration in Nevada.
When it is time to settle your estate, typically the only assets that are involved are those that you own in your name only. Those are the assets that will pass to your heirs through the laws of intestate succession. If you own property in joint tenancy it will not be included, but will instead pass to the surviving joint tenant. There are also other types of property that are not affected by the laws of intestate succession in Reno:
In most states, including Nevada, if you decease without a will and there is no beneficiary designation attached to your assets upon your death then ownership of your property will transfer to your spouse, children, parents or siblings, pursuant to Nevada's intestacy statutes. For example, if your spouse and one child survive you, your spouse will inherit half of your property and the child will inherit the other half. If you are survived by a spouse and more than 1 child then 1/3 of your estate will be inherited by your spouse and your children will inherit the other two-thirds in equal shares.
In order to avoid the laws of intestate succession distributing your property for you, after your death, you must create an estate plan. A comprehensive estate plan will see that your debts are paid and designated how and to whom the remainder of your estate will be distributed. The most basic estate planning instrument is a last will and testament. A will is your written instructions as to how you want your estate to be handled when you die.
If you execute a will, all of your property must pass through probate, which is an expensive, time-consuming and public process. Contrary to what many people think, it is not difficult to avoid probate. Some simple methods of making sure your property passes to the heirs you choose, without going through probate, include establishing a revocable living trust, pay-on-death accounts and registrations and joint ownership of property and gifts. Consult with a Nevada estate planning attorney to explore which options are best for you.
If you have questions regarding probate court, or any other probate issues, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
The basic probate process is already time-consuming, taking years to complete in some cases. However, did you know that if you have property located in a state other than where you live, your estate will be subjected to another separate probate process? Probate attorneys have experience handling, what is referred to as, ancillary probate. The question is: can it be avoided?
The term “ancillary,” in the legal context, means a legal proceeding that is not primary, but which aids in the rendering an outcome in the main proceeding. In other words, if upon your death you are a resident of Nevada, the primary probate proceeding would take place in Nevada. If you own real estate in Florida, an ancillary proceeding in Florida would aid the probate court in Nevada in completing probate of the entire estate, including the property in Florida.
Basically, the rules require that real estate is probated in the state where the real estate is located. So, if you are a resident of Nevada, your real estate where your residence is located will be probated along with your other assets – in Nevada. But, if you have a summer home in Florida, then there would need to be an ancillary probate proceeding in Florida for that particular property. Why? Because only the Florida court would have jurisdiction over the Florida property.
Most personal representatives who are faced with ancillary probate contact probate attorneys in the state where the out-of-state property is located. Probate is always commenced in the deceased’s state of residence. The second probate proceeding is then opened in the other state. Once the will has been accepted by the probate court in the primary proceeding, it is typically accepted by the other court as a “foreign will.”
If you want to spare your family the stress and cost of an ancillary probate court proceeding after your death, you should definitely consider incorporating some common estate planning tools that can help them avoid ancillary probate. The most common methods include:
Probate attorneys in the state where your other property is located can provide you with other useful methods, so be sure to discuss this issue with them.
Living trusts are very helpful estate planning tools and they are quite similar to a will. Trusts have an added advantage, though, of keeping property from becoming part of your probate estate. How does this work? When you transfer property (including real estate) to a trust, then the trustee actually owns the property, not you. Since the property is owned by the trust and is not subject to disposition according to the terms of your will or the laws of intestate succession upon your death, it does not need to be probated.
Another way to avoid ancillary probate is by recording a transfer-on-death deed for the property. The process is simple. The deed will identify the person you choose to receive the property upon your death. At that time, the property is transferred directly to your named beneficiary without going through probate.
Joint ownership is another simple way of avoiding ancillary probate. When property is owned jointly and one owner dies, the surviving joint owner retains ownership of the property automatically. That way, there is no need to go through the probate process in order to transfer the property. There are several different types of joint ownership, so discuss your options with your probate attorney.
It is quite common for people to transfer their primary residence to their trust, but forget to include their timeshare or a vacation home. In fact, this is one of the most common estate planning mistakes. If all of your property is not included in the trust, you cannot avoid probate.
If you have questions regarding ancillary probate, or any other probate administration needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
If you ask most people about the purpose of an estate plan, they will tell you avoiding probate is the primary goal. But how many people really understand what this means? There are a few misconceptions regarding what an estate plan does and how it can actually avoid the probate process.
Basically, probate is the process through which the assets of an estate are distributed to beneficiaries when there is no other way to do it. Assets or property that are transferred through a trust or other estate planning tool can be distributed to beneficiaries according to the terms of those documents without the need for a probate judge to oversee the process. Probate is the method of last resort, overseen by a court, for distributing an estate to its beneficiaries.
There are three primary reasons most people choose to avoid probate. First, the process is a public court proceeding, which means that anyone can have access to the contents of your will, your finances, your debts, and the identity of your beneficiaries. A second reason is that probate can be expensive, depending on the nature of your assets and property. Fees associated with probate include court fees, attorney fees, accounting fees, fees for appraisals, if necessary, and fees for the executor's services, to name a few. Some reports estimate the overall cost of the probate process between 4% and 10% of the value of the probate estate. Finally, the entire probate process usually takes a significant period of time – months or even years. Although having a will may shorten that time, it can still be a lengthy process. During that time, any decisions about the management of the probate estate (such as the decision to sell stock that is losing value) and any distributions (such as paying for a beneficiary's medical or educational costs) usually must first be approved by the court, which can cause significant problems for many people.
Leaving your property to your heirs basically requires transferring ownership of that property to those individuals. There are several ways this can be accomplished outside of probate. Some of the most common ways to transfer ownership outside of probate include (1) transferring your assets to a revocable living trust, the terms of which will direct a Trustee to distribute the estate according to your wishes, (2) joint ownership of property (such as joint tenancy), which will automatically transfer assets to the surviving co-owner upon your death, and (3) pay-on-death or transfer-on-death designations, which allow certain assets to be transferred directly to named beneficiaries - all of these without court involvement. If done correctly, using any or all of these methods will allow you to avoid the time, expense and publicity of the probate process.
One alternative to leaving your estate to probate is to convert your bank and investment accounts into payable-on-death accounts. The process is very simple. You need only list your beneficiaries on those accounts so that, when you die, the money will be automatically transferred to your named beneficiary without the need for probate.
Basically, the process is the same for securities, vehicle registrations, and real estate for transfer-on-death instruments in Nevada. These legal documents allow you to transfer assets, such as real estate, by identifying a beneficiary in the title itself, such as a deed. This beneficiary provision will not take effect until after your death and these documents can be revoked at any time during your life, and the property is not required to go through probate.
While these tools can be useful in avoiding probate, they may not accomplish your goals of protecting assets for your loved ones, and they may ultimately end up being given to an unintended beneficiary.
Joint ownership is another simple option for avoiding probate. Upon the death of the first owner, the surviving joint owner will retain ownership of that property without going through probate. There are different types of joint ownership available depending on your needs or the type of property you own. Joint Tenancy with Right of Survivorship will allow the property to transfer automatically to the surviving joint owner upon the death of the first owner. Similarly, Community Property with Right of Survivorship will accomplish the same goals, and may also add some tax benefits for your surviving spouse.
Giving a gift of property to your loved ones while you are still alive is another common way to avoid probate. This method words to avoid probate because, obviously, if you no longer own the property when you pass away there is no need for the property to go through probate. Accordingly, the cost of probate is decreased because the expense of probate is connected to the value of the assets passing through probate. Another benefit is that gifts may not be subject to federal gift tax.
Living trusts are a very common estate planning tool created to allow individuals to avoid probate while still maintaining control over that property during their lifetime. With a living trust, you transfer assets to your trust during your lifetime and maintain the same rights and responsibilities as to the trust property (i.e. no loss of control). This removes the property from your estate so that the property does not go through the probate process. The only catch is that the property is still considered part of your estate for the purposes of federal estate taxes. Like a will, the trust document allows you to determine how your property will be distributed, however the trust can allow you to add protections for your loved ones to avoid assets being lost to divorce, creditors, lawsuits, and other liabilities. After you death, your trustee has the authority to quickly and simply transfer the trust property to your intended beneficiaries, without the need for probate.
If you have questions regarding avoiding probate, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
In Nevada, if the deceased person's assets exceed $20,000, or if there is real estate involved, probate is normally required.
Topics covered in this whitepaper include:
Click here to read the whole article or download the PDF.
When you have no plan, the probate court will determine how to handle your assets, based on the laws of intestate succession. Based on those laws, to whom your property will be distributed depends on which of your relatives survived you.
Topics covered in this whitepaper include:
Click here to read the whole article or download the PDF.
Probate is a court proceeding required for most estates in order to transfer property and settle the affairs of the deceased. Learn more about probate process in Nevada in this presentation
So, you just set up a revocable living trust. The next step is funding your trust. How the trust is funded depends on the type of assets you want to transfer to the trust. There are different methods for different types of assets. Understanding the most common methods will make the process less complex. Funding a trust is just as important as establishing the trust. Your estate planning attorney can help.
The goal of funding a Revocable Living Trust is to make sure your property is subsequently governed by the terms of the trust agreement. Once that is accomplished, the trustee will be able to manage those accounts, in the event you become mentally incapacitated, or upon your death. In order for a Revocable Living Trust to function as it should, you, as the trustor, must do more than simply sign the trust agreement.
After the trust agreement is signed and executed, you must then “fund” your assets into the trust. There are three general ways this is done, in order to properly fund a Revocable Living Trust. Which method is required depends on the type of asset being funded. The three methods are:
None of these methods are especially complicated. However, the procedures must be followed in order to properly fund the trust.
Assets such as bank accounts, investment and brokerage accounts (other than retirement accounts such as IRA or 401(k)); stocks and bonds held in certificate form or street form, and real estate, are funded into a Revocable Living Trust by simply changing the owner of the asset from your name into the name of the trust itself. Some institutions may require only that the name on your account be changed; while others may require you to close the original account and open a new one in the name of your trust.
If you have personal property that requires no certificate of legal title (e.g., Jewelry, artwork, antiques); personal loans, partnership and membership interests in limited liability companies, these types of assets are funded into a Revocable Living Trust by assigning ownership rights from your name into the name of the trust. This is done by creating a document called an assignment that the owner simply signs. Royalties, copyrights and patents can be assigned, but should also be changed in the office or agency that issued the certification.
Any asset that requires the naming of a beneficiary, like life insurance, certificates of deposit that will charge a fee for re-titling, and other such accounts, is not re-titled into the name of the Revocable Living Trust. Instead, the primary beneficiary of these accounts or policies is changed to the trust.
Retirement plans such as IRAs, 401(k)s and the like are trusts in and of themselves. Under limited circumstances, a Revocable Living Trust may be designated as a beneficiary, but often there are adverse tax consequences. You will want to discuss the pros and cons with qualified counsel before naming a beneficiary on those assets. Simply put, any property that is titled in your personal name must be probated when you die. If you overlook the importance of funding your Revocable Living Trust, your estate plan will not be as effective as you or your family anticipated when the trust was created, and the trust will not serve its purpose.
If you have questions regarding funding a trust, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
When you die, your assets pass to your heirs by way of the probate process, regardless of whether you have a will or not. Probate in Reno can be a lengthy process. The administrator is required to make an inventory of all of your assets. Real estate must be appraised to determine its value. Creditors and beneficiaries or heirs must be notified. If there is no will, these steps will likely take longer, because the court has to determine, based on the law in your state, which relatives are entitled to inherit from your estate.
However, this process is not necessarily required depending on how you plan your estate and how you situate your assets. There are various estate planning tools through which you can ensure your property passes to your heirs without having to go through probate in Reno. Some of the most common tools are joint ownership, living trusts, gifts and various pay-on-death accounts. Consult with a Reno estate planning attorney to establish the right plan for you.
Joint ownership is one method of transferring property without going through probate, if title is held as joint tenants rather than tenants-in-common. This method works because, when one joint owner dies, the surviving owner automatically obtains ownership of the property by operation of law. Therefore, transfer of full ownership does not require going through probate. There are many different types of joint ownership, with different purposes. Discuss your options with a Nevada estate planning attorney.
A living trust is an estate planning tool that holds certain assets during your lifetime and provides continuing management of those assets. Like a will, a trust can also provide instructions for the disposition of your property after your death. The difference between a living trust and a will is that the property placed in the trust does not become part of your estate after your death. Instead, the trust owns the property. Despite that fact, you maintain the ability to determine how the property will be distributed after your death. The trustee will have the ability to quickly and easily transfer your trust property to the heirs you intended, without going through the probate process. Of course, the trust must be administered, but the process is accomplished outside the courtroom.
Another common way to avoid probate is to give your property to others as gifts during your lifetime. The reason is, if you no longer own the property, it does not need to go through the probate process. Also, the cost of probate is often directly related to the value of your assets when you die. So, even if you do have to go through probate, the process will be less expensive because your gifts will have decreased the value of your estate.
You can also pass along some of your financial assets by converting certain accounts, such as your bank account or retirement account, into payable-on-death accounts. You need only complete a form that lists one or more beneficiaries of that account. At your death, the money is then transferred automatically to your named beneficiary without the need for probate.
While there are many methods to avoid probate, they may not be wise. Many protections can be included in a revocable living trust, that are not available with outright distribution with other methods. See your northern Nevada estate planning attorney to discuss which method is best for you.
In the case In re Estate of Karter Wu (Supreme Court of Queensland, Australia), Mr. Wu created and stored his Last Will and Testament on an iPhone, along with a series of other documents, most of them final farewells.
Wu’s iPhone Will named an executor and successor, set forth how he wished to dispose of his assets at death, dealt with his entire estate, and authorized the executor to deal with his financial affairs. The Will began with the words “This is the Last Will and Testament of Karter Wu.” At the end of the document, Wu typed his name where the testator would normally sign his name, followed by the date and his address. The Australian court admitted the Will to probate.
The law for the execution of a valid Will in Queensland, Australia, is set forth in the Succession Act of 1981. The Act provides the requirements for execution, however, it provides that, if the court is satisfied that a person intended a document to form his Will, then the document shall be considered a Will as long as it purports to state his testamentary intentions. Australian law defines a “document” to include any disc, tape, article, or any materials from which writings are able to be produced or reproduced. Citing a New South Wales, Australia, case that held a Word document stored on a laptop computer to be a document, the court held the electronic record on the iPhone was a document for purposes of the statute. Since the record contained on the iPhone named an executor, authorized the executor to deal with his financial affairs, and provided for the distribution of Wu’s entire estate at a time he was contemplating his imminent death, the court held that it met the requirements of the Succession Act 1981.
California Probate Code § 6110 provides that a Will shall be in writing and signed by the testator, or signed in the testator’s name by some other person in the testator’s presence and at the testator’s direction, or by a conservator pursuant to court order. The Will must have the signatures of two witnesses. If the Will does not meet these requirements, it shall be treated as if it did meet the requirements if the proponent of the Will establishes by clear and convincing evidence that, at the time the testator executed the Will, he or she intended the document to be his or her Will.
Similarly, New Jersey law provides at N.J.S. 3B:3-2 that a document or writing is treated as complying with the normal rules for executing a Will if the proponent of the writing establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s Will.
The California and New Jersey statutes are based on § 2-503 of the Uniform Probate Code. The impetus for the enactment of this section of the Uniform Probate Code may have been a case where an attorney attempted to probate the unsigned draft of a Will of a decedent who was killed in the World Trade Center attack on September 11, 2001.
California Probate Code § 6130 further provides: “a writing in existence when a Will is executed may be incorporated by reference if the language of the Will manifests this intent and describes the writing sufficiently to permit its identification. California Probate Code § 6131 states: “a Will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the Will, whether the acts or events occur before or after the execution of the Will or before or after the testator’s death. . . .”
Recently, a Will was admitted to probate in California where the Will referred to the disposition of assets in accordance with recordings that the decedent had left, both prior to the execution of the Will and would leave after the execution of the Will, on his answering machine at his residence. The judge found that the recordings constituted a writing within the meaning of the California Probate Code and were to be incorporated by reference and were to be considered to be acts of independent significance. Therefore, the recordings were given effect with regard to the disposition of property as governed by the Will.
While the existence of these statutes in many states have broadened what may be admitted as a Will for probate, it is not a good idea to rely on these statutes to assure that one’s Will will be accepted by the local probate court. Having a Will drafted by an attorney experienced in estate planning and drafting is always the best course of action to assure there will be no problems with the disposition of one’s estate at death.
Furthermore, there are many reasons why one may not wish to subject his or her estate to probate upon death, including potential additional costs, delays in administration, and the publicity of both the extent of the decedent’s wealth and the identification of the beneficiaries of the estate. There are many ways to avoid a probate administration at death, including the execution and funding of a revocable or irrevocable trust during the individual’s lifetime.
For more information about the ways to avoid probate, contact our law office. Our office focuses on estate planning, probate administration, and methods to avoid probate for those who have a desire to do so. We work with clients of all wealth levels and ages. As a member of the American Academy of Estate Planning Attorneys, our firm is kept up-to-date with information regarding estate planning and estate and trust administration strategies. You can get more information about scheduling a complimentary estate planning appointment and our planning and administration services by calling Gerald M. Dorn, Esq. at (775) 823-9455
Most people know they should avoid probate, but may be unclear why or how to do so. One reason to avoid probate is that it can be time-consuming. The heirs to an estate do not receive their inheritances until the estate has been probated and closed.
For some people, waiting to receive an inheritance is really not a big deal. However, the sooner you get the bequest in your own hands, the sooner you can start to build upon your inheritance.
On the other hand, there are some people who really need their inheritances in a timely manner. This may be because an interested party was relying on the decedent for support. Perhaps they are hoping to relieve some financial issues with their share of the inheritance.
The exact duration of the probate process in Reno, Nevada is going to vary on a case-by-case basis. Under Nevada law it may be possible to avoid probate if the assets in question do not exceed $20,000 through the execution of an Small Estate Affidavit. This process can be initiated 40 days after the passing of the decedent.
If the value of the estate exceeds $20,000, or if real property is involved, the estate must go through probate.
In a general sense, the more complicated the case, the longer the process is going to take. If someone is contesting the validity of the last will, the process is going to be drawn out. If both sides make valid points, it can take an extraordinary amount of time.
The infamous case involving Anna Nicole Smith and the Marshall family was undecided for some 15 years.
During the probate process property must be liquidated in many cases, and any outstanding debts must be paid. It can take time to liquidate property, determine who is entitled to what, and ultimately finalize all of these transactions.
Property is not always going to sell overnight, and all interested parties may not agree with regard to every detail.
According to the State Bar of Nevada, the average amount of time that it is going to take for an estate to pass through probate is 120 to 180 days. Remember, this is an average. Problems with clearing title, will contests and other problems may cause untold delays.
When you consider the time involved you may want to find a way to arrange for the eventual transfer of assets outside of the probate process.
Probate avoidance strategies do exist. In fact, they are routinely implemented by estate planning attorneys.
If you are interested in discussing your options in detail with a licensed professional whose practice consists solely of estate planning, contact our firm to request a free consultation.
Probate stands in the way of your heirs and their inheritances when your assets are in your name at the time of your death. Nevada probate can take a significant amount of time (often a year or more), and most people would like their heirs to receive their inheritances in a more timely manner. For some, this wait is not a problem. For other families, however, there may be an immediate need for liquidity.
The waiting period is only one of the problems with the Nevada probate process. Expenses can accumulate during this process , and they can ultimately consume a noticeable percentage of the estate (often 4% - 8% or more if there is a contest). This is all money that could have gone to the heirs if probate was avoided.
It is possible to avoid probate in Nevada. There are a number of ways to go about it, and one of the most popular probate avoidance solutions is the revocable living trust.
Once you convey assets into the name you have given to your revocable living trust you name a trustee that is empowered to manage the assets that are titled in the trust. You also name a beneficiary or beneficiaries who would receive distributions out of the trust. The nature of these distributions would be decided by you when you create the trust agreement.
Initially you may serve as both the trustee and the beneficiary. By doing so, you do not surrender control or beneficial use of the assets. You can distribute assets to yourself, manage your own investments, and change the terms of the trust agreement if you want to do so. Since the trust is revocable, you can even revoke it entirely if you ever choose to do so. Since the point is to facilitate the transfer of your financial assets after you pass away you name a successor trustee, and you name beneficiaries who will receive distributions out of the trust after you die.
Once the assets have been conveyed into the revocable living trust they are no longer considered to be probate assets under the laws of the state of Nevada. As a result, when the trustee distributes monetary resources to the beneficiaries of the trust these asset transfers are not subject to the process of probate.
The creation of a revocable living trust is one way to avoid the probate process, but there are others as well. If you would like to discuss all of your options with a licensed professional please feel free to contact Anderson, Dorn & Rader, Ltd. to request a no obligation consultation.
We will listen carefully as you explain your objectives, gain an understanding of your unique personal situation, and make the appropriate recommendations. You can then go forward with a tailor-made estate plan that will facilitate a fast, efficient, and cost-effective transfer of assets to your loved ones when the time comes. To learn more, please download Anderson, Dorn & Rader, Ltd.'s free probate process report.
You should be aware of the process of probate in Nevada when you are making preparations for the distribution of assets to your loved ones after your passing. When you hear some of the details you may decide that you would like to take steps to avoid probate.
If you have a will, it is filed by the executor and is reviewed by the court to determine its validity. If there is no will, the probate court will follow the "will" found in the statutes of the state where you reside. These are call the laws of intestate succession. During the probate process final debts of the deceased must be reviewed, allowed or challenged and, after approval by the court, paid by the executor out of estate funds.
This can include the payment of taxes, so services of an accountant are often necessary. Certain assets may need appraisals, and this can require the engagement of an appraiser or appraisers.
Because probate is a legal process the executor is also going to need the assistance of a probate lawyer in many cases.
When you add up the fees that will be charged by all these professionals they can be considerable. Further, the executor who is administering the estate is entitled to payment for his or her time and trouble.
One reason to avoid probate is to avoid these costs. Another is to reduce the time spent in administration that increases the wait for distribution to the beneficiaries.
Some people decide they want to avoid probate and they do it by adding a co-owner to property and financial accounts. This is called joint tenancy with right of survivorship.
The idea is that the surviving joint tenant inherits the property in question after the death of the other co-owner, without the need for probate.
There are a number of risks you take if you were to go this route.
Let's say that you make your brother the co-owner of your property. Someone sues your brother. The property you have worked for all of your life is suddenly fair game for the litigant seeking redress.
Another risk you take is that the person you add to your bank account has total access to the funds. Clearly you are going to select someone that you trust, but their creditors also have total access.
These are a couple of things to think about, but there are many other unintended consequences that can result if you use joint tenancy as an estate planning solution.
The creation of a revocable living trust would be a better way to avoid probate. You as the creator of the trust are called the "trustor" or "settlor." While you're living you can act as the trustee and the beneficiary so you have sole control of the assets.
Because the trust is revocable you can dissolve it if you wish, or amend and change the terms at any time. After your passing the trustee you choose to succeed you when you create the trust becomes the trustee. He or she then administers the estate outside of the courtroom and distributes the assets to the beneficiary or beneficiaries in accordance with your expressed wishes.
The process of estate planning involves some very measured and informed decision-making. If you make certain assumptions as a layperson you may be making errors of commission and omission.
Because of the fact that there are websites on the Internet selling do-it-yourself generic, fill-in-the-blanks last wills, more and more people are getting the idea that they can go it alone. Unfortunately, this is increasing the numbers of people who are not properly prepared.
With a will, you need to consider the fact that your estate must be probated before the heirs receive their inheritances. The probate laws in the state of Nevada require rigid formalities that may cause delay and expense if they are not followed precisely.
When you work with a qualified estate planning attorney who is licensed in Nevada you can be certain that your will is properly constructed.
If you use a boilerplate document that you picked up on the Internet or at the book store you have no way of knowing if the will is truly up to par.
And then there is the simple fact that a last will may not be your best choice.
Last Will Alternatives
The probate process that we mentioned above is time-consuming, and, when all the costs, fees and expenses are considered, quite expensive.
There are effective ways to arrange for asset transfers to your heirs directly, outside of probate. One of them would be through the creation of a revocable living trust.
With these trusts you can retain control of the assets while you are alive and well. If you were to become incapacitated, your successor trustee would be empowered to handle your financial affairs, usually avoiding the need for a guardianship.
Upon your passing the trustee administers the estate outside the probate court and then distributes assets to the beneficiaries in accordance with your wishes.
Specialized Concerns
There is no one-size-fits-all estate plan because different families have different concerns. For instance, if you have estate tax exposure you must take steps to position your assets in a tax efficient manner to avoid a 40% hit.
If asset protection is a concern you would implement certain strategies that would not be important if you were not concerned about shielding assets from creditors and litigants.
Special needs planning is a factor for some people. You have to be careful about the way you set aside money for a person with a disability who is relying on government benefits like Medicaid and Supplemental Security Income.
People who are owners of small businesses are going to have estate planning concerns that differ from those who work for someone other than themselves.
These are just a few examples of the unique circumstances that require varied approaches.
Decision Makers
It is also important to include an incapacity component within your estate plan. The courts could, at considerable expense to your estate, appoint a guardian to manage your affairs if you don't take the appropriate action. This guardian may not be someone that you would have chosen.
You can select potential future decision-makers using an appropriate revocable living trust combined with a durable power of attorney.
All these solutions are best handled with a qualified estate planning law firm.
The role of Life insurance is extremely important when considering your estate plan. We would like to highlight three commonly asked questions about the tax implications, and provide the answers to them here.
I have been made aware of the fact that I am the beneficiary of a life insurance policy, and I'm concerned about the tax implications. Will I be required to report the receipt of the proceeds when I file my income tax return?
This is a frequently asked question, and the answer is probably going to be a welcome one. In general proceeds received from a life insurance policy are not going to be looked at as taxable income by the Internal Revenue Service.
I own a number of insurance policies, and my estate is quite valuable. Will the value of the insurance policy proceeds count as part of my taxable estate for estate tax purposes?
Unfortunately the answer to this question is yes. At the present time the estate tax exclusion is $5.25 million, and the maximum rate is 40%. If the sum total of your assets is in excess of $5.25 million, including your life insurance policy proceeds, the estate tax may indeed be a factor.
Can anything be done to remove these policies from my taxable estate?
Yes, it would be possible to place the policies into an irrevocable life insurance trust. However, to satisfy IRS regulations you must live for at least three years after transferring the policies into the trust for the assets to be effectively removed from your estate. There are ways to avoid the three-year wait, but they must be addressed by a qualified estate planning lawyer.
The last will is the most commonly utilized asset transfer vehicle in estate planning. Many individuals assume that this is their only logical option because they are under the impression that trusts only serve the interests of the very wealthy.
In fact, this is not true at all. There are indeed trusts that are created to serve the interests of high net worth individuals. However, some trusts, such as revocable living trusts, don't provide the asset protection and estate tax efficiency that many wealthy people would be seeking.
Revocable living trusts enable asset transfers outside of the probate process. This is the primary reason why people create them.
Probate is a time-consuming process that comes along with some considerable expenses. With a living trust you may save your heirs a considerable amount of time as you avoid probate expenses.
Another one of the pitfalls of probate is the fact that you and your family's personal matters are no longer private. The probate court will be supervising the administration of the estate, and the things that go on are a matter of public record. Anyone could access the probate court records to probe into the business that was conducted during probate.
For various reasons many people would prefer that their final affairs remain private and confidential.
If you'd like to learn more about the value of revocable living trusts we invite you to download our free report on the subject. You can gain access by clicking this link: Free Nevada Living Trust Report.
People who use a last will for their estate plan should be aware of the process of probate and the role of the executor. Probate is a court supervised process to ensure that creditors of an estate are paid and to facilitate the distribution of an estate to the decedent's designated beneficiaries or heirs. During this legal process the court will determine the validity of the will, hear any challenges that may be presented and supervise the administration of the estate.
When you work with an estate planning lawyer to prepare your last will you must choose an executor or executrix. This individual will be charged with the various responsibilities that must be undertaken to administer your estate. The executor, or Personal Representative, should have an ability to manage the administration of assets. Also, the executor will require the assistance of a qualified probate attorney.
We have prepared a report that will serve as a good overview of this process. To access the report we ask you to simply click the link that follows and fill in the form so that you will see on the page:
An Executors Role & Responsibilities
