Q: What is Probate?
A: Probate is designed to create a “final accounting” upon death. It is the legal process of “proving up” a Will, or verifying that a Will is valid, takes place in one of two instances. First, if a person dies leaving behind a Will, or second, if the deceased has died intestate, that is, has not left behind a Will or estate plan of any type or the Will cannot be found.
Q: Does the Probate process take a long time?
A: Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time.
To summarize the process, probate can be broken into six basic steps:
Each of these steps involve legal documentation and validation, and more importantly, proper accounting each step of the way.
Q : What is Probate Court?
A: Probate begins and ends with the special Probate Court set up in each state to handle estate issues. (Sometimes known as the Orphan’s or Chancery Court in certain states.) All actions taken regarding the estate are accountable to this court, and must be noted and reported regularly. This court is staffed by special judges qualified to oversee estate resolution issues.
Q: Does the Trust Administration process take a long time?
A: To summarize the process, trust administration can be broken into five basic steps:
Although the trust administration process seems relatively straightforward, there are several reasons it can sometimes be drawn out over several months or even years. The first step, the inventory of assets, must be completed before the trust administration can begin, and this can be difficult to complete depending upon the prior organization and the size and complexity of the decedent’s assets. Next, the 706 estate tax return must be filed within 9 months, or 15 months if an extension is filed. Often, it is prudent to wait until the last minute to file this form. If the spouse of the decedent is in failing health and may pass away before the deadline, then both 706 forms can be used to maximize tax advantages to the estate. The final step, asset distribution, cannot take place until the 706 has been filed, and even then should not take place until the “Closing Letter” is received from the IRS certifying acceptance of the 706 return. This closing letter will take a minimum of 6 to 8 months, and as long as 3 years, to arrive after the 706 is filed. In addition, there may be a state estate or inheritance tax return required, even if a federal return is not required.
Q: I thought that a living trust avoids probate and attorney fees. Why do I have to pay more fees?
A: While having a living trust can significantly reduce costs compared to probate, there is still a considerable amount of work to be done in properly administering even a simple living trust. The services of an attorney are required, and that person or firm should be compensated fairly for their services. It is important to remember that the fees allowed for trust administration are usually much lower than those for probate, and there is generally less work involved, as there is less involvement of the courts and state bureaucracy.
Q: Can I pick and choose what assets go into the “B” trust?
A: The answer depends upon the language of the trust document. Certain trusts include “pick and choose” language that allows trustees to selectively place assets into the “B” trust.
Q: How do I transfer the car(s) into my name?A: If you are a relative of the deceased, this is simple in most states. To transfer the title of vehicles owned by the deceased, simply take the death certificate to the DMV, and perform the transfer, paying whatever fees they require. If not a relative, bringing along the will and or any trust documents indicating your status should be sufficient.
Q: What do I do about Social Security?
A: Social Security will continue to send out benefit checks until they are notified of an individual’s death. The executor/spouse/trustee should contact the local Social Security Administration office and notify them of the death, or if a benefit check is received, send it back with a letter notifying them. This is important. If checks continue to be deposited, the recipient can incur liability later when Social Security learns of the recipient’s death.
The idea of estate planning might be one of the scariest things you have to confront as an adult. After all, nobody wants to think about their death. Or incapacity. But estate planning does not have to make chills run down your spine. On the contrary! Estate planning is empowering for both you and your family and allows you to live confidently knowing that things will be taken care of in the event of your passing or incapacity. Remember, estate planning is not just for the ultra-rich. If you own anything or have young children, you should have an estate plan. Read below to find out reasons why.
Proper estate planning accomplishes many things. It puts your financial affairs in order. Parents should designate a guardian for their minor or disabled children, so the children are cared for by someone who shares your values and parenting style. Homeowners can make sure their property is transferred to the proper beneficiary in the event of untimely death. Business owners can ensure the enterprise they’ve worked so hard to build stays within the family.
Yet, according to WealthCounsel’s 2016 Estate Planning Literacy Survey, only 40% of Americans have a will and just 17% have a trust in place. This means a majority of American families not being adequately protected against the eventual certainty of death or the potential for legal incapacity.
When it comes to estate planning, knowledge is vital. Less than 50 percent of those surveyed by WealthCounsel understood that an estate plan can be used to address several concerns - financial or non-financial matters - including health decisions and guardianship, avoiding court and preempting family conflicts, protecting an inheritance for your beneficiaries, as well as taking advantage of business and tax benefits.
Legal disputes over estate plans and wills - or, usually, the lack of having these in place at all - are common. These conflicts can cause harm to family relationships and be financially burdensome. Disputes among the rich-and-famous often made headlines, but disputes among everyday folk stay buried in courts for years.
Some scary outcomes of inadequate or non-existent estate planning include:
These horror stories are not limited to wealthy celebrities. WealthCounsel’s survey found that more than one-third of respondents know someone who has experienced, or have themselves suffered, family disputes due to the failure of an existing estate plan or inadequate will. Additionally, more than half of those who have established an estate plan did so to reduce family conflict. Preserving family harmony is for everyone - not only for the wealthy or celebrities.
Estate planning can be confusing as each circumstance is unique and requires different tools to achieve the best possible outcome. Nearly 75 percent of those surveyed by WealthCounsel said estate planning was a confusing topic and valued professional guidance in learning more - so you’re not alone if you aren’t sure where to begin.
We’re here to help. An estate planning attorney is essential in determining the best way to structure your will, trust, and estate plan to fit your needs. If you or someone you know has questions about where to begin - contact us today. Anderson, Dorn & Rader, Ltd. has been protecting families and their legacies for decades. We offer free, no-obligation Webinars every month around Northern Nevada to teach and guide people about how to plan appropriately for these inevitable issues.
A trust is meant to work as a part of your estate plan as a means to avoid probate, minimize estate tax liability, and protect the inheritance for your beneficiaries. To put it in simple terms, a trust is basically a fiduciary agreement between the Trustor (the person or persons that create the trust) and a Trustee. The nature of a trust agreement is to authorize the Trustee to hold and manage the trust assets on behalf of the named beneficiaries. The trust's terms will provide the necessary instructions for managing and distributing the assets upon the incapacity or death of the Trustor. There are several different types of trusts, each with its own specific purpose. Nevertheless, there are three essential steps in creating any trust.
The trust agreement is the document that provides the Trustee with instructions as to how you want the property held in trust to be handled for your beneficiaries. It is the "who, what, and when" of the trust. The trust agreement is a contract, which is binding on the Trustee that you have chosen to manage the trust property. There is a reason this agreement is called a "trust" - it is an agreement based on confidence and reliance. Some of the basic provisions that should be included in any trust are:
Once the trust agreement has been created, the next step is to "fund" the trust. Funding is the process of transferring ownership of the assets that you intend to include in the trust. This involves changing the title on bank accounts to the name of the trust, re-titling vehicles in the name of the trust, recording a deed transferring real property to the trust, and/or naming the trust as the beneficiary of life insurance policies.
Under Nevada law, a trust only exists to the extent it owns assets - thus a trust agreement isn't worth the paper it's printed on unless the trust has been properly funded. This is the also the key aspect of avoiding probate upon your death; if a trust is not properly funded, a probate judge is required to transfer legal title of assets to your beneficiaries.
There are generally four ways in a trust is funded:
Assets such as bank accounts, non-retirement investment and brokerage accounts, stocks and bonds held in certificate form, vehicles, and real estate can be funded into a trust by simply changing the owner of the asset from the name of the Trustor to the name of the trust itself.
When the trust assets include personal property of the type that does not require a certificate of legal title (e.g., jewelry, artwork, antiques), the assets can be funded by simply assigning ownership to the trust. This would also include things like personal loans, royalties, copyrights and patents, partnership interests, and membership interests in limited liability companies.
For those assets that require a beneficiary, you can fund your trust by naming the trust as the beneficiary of those accounts or policies. Note, however, that it might be recommended to leave certain outside outside of the trust and to name your beneficiaries directly. This is most common the case with qualified retirement accounts in order to minimize the income tax of your beneficiaries and to allow for greater flexibility in managing those assets. You should consult with an attorney as to whether it is better to name the trust as the beneficiary.
If a Trustor does not transfer assets to a trust during their lifetime,a trust may be funded through probate. In this situation, a Testator transfers assets to a trust through their Last Will and Testament (also called a "Pour Over Will") by instructing a probate judge to transfer those assets into the trust. This is generally not recommended since it requires both a probate proceeding and trust administration.
After the trust is created and funded, then the final step is to settle the trust. This only occurs after the death of the Trustor. Once you pass away, your Trustee has an obligation to follow the terms of the trust that pertain to handling your property after your death. Since a properly drafted trust does not require any court involvement, the administration of a trust can be kept completely confidential.
Many companies and advisers are more than willing to "sell" you a trust as a means to promote some other goal. There can be many complex issues involved in creating a trust, which an estate planning attorney would be much better equipped at handling. Depending on the complexity of the terms of the trust agreement, the extent and nature of the assets, and the potential complexities of the family, an attorney can address these concerns and can assist with all three essential steps of creating a trust. Here are some special considerations that you should make when creating your trust:
All of these issues can be addressed as a part of your trust agreement. Your trust can be created for your benefit immediately and for your beneficiaries to receive after you pass away.
If you have questions regarding creating a trust, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Performing the duties of a trustee after the death of a loved one is an important duty. The good news is, you aren’t expected to start working immediately, because the tasks required of you are not of an emergency nature. However, within a month or so, you will need to start performing some of the preliminary tasks. This article will provide some basic information so you can survive your first six months as a trustee.
How long will it take to distribute the property?
Depending on the complexity of the trust provisions and the nature of the assets, you may be able to get all of your work done in approximately six months. However, if you have been called upon to administer an ongoing trust (such as a trust for minor children), then there will be continuous tasks. Still, most of the preliminary work can be accomplished in about six months.
How to get started as a Trustee
You may or may not be serving as the executor of the estate, as well as the trustee. If someone else is the executor, then you should stay in contact with that person during the first few months of your service. Typically, the executor will initiate a probate proceeding if it is required to ultimately transfer the estate’s assets to the trust.
The first few steps
Whether you are dealing with a simple trust estate or a complex one, here are the first few steps to fulfill your duties.
Handling Social Security Payments
The first thing to know is that you are required to return any payment received from Social Security for the month of your loved one's death, regardless of when in the month the death occurred. If your loved one died on the last day of the month, you must still return the entire amount of the payment. However, the payments are typically made for the prior month. So, the check for April would arrive in early May. If the social security payments are deposited directly into your loved one’s bank account you should keep the account open for a few months in order to allow social security to deduct the payment.
Your success at completing your duties will depend on your ability to keep organized. After marshaling all trust assets you should pay debts and distribute the remaining assets to the beneficiaries after providing an accounting that is approved by all beneficiaries. You should track all income and expenses for the trust for the accounting period (typically from date of death to date of distribution). The accounting system you use does not need to be complicated but you may want to invest in basic accounting software. A fiduciary income tax return is generally required if the income generated by the trust exceeds $600.00. Your estate planning attorney can assist you with completing all of your duties and limiting your exposure to liability.
If you have questions regarding trustee responsibilities, or any other trust administration issues, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
The basic purpose of a trust in estate planning is to minimize estate taxes and avoid probate. What is a trust, exactly? It is a fiduciary agreement (one based on confidence and trust) between a trustee and the grantor (maker) of the trust.
The agreement authorizes the trustee to hold and manage the trust assets on behalf of the beneficiaries, and provides specific instructions on how to manage and distribute those assets. There are many different types of trusts, each with their own specific purposes or goals. So, how well do you know your trusts? Let’s find out.
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If you have recently been notified that you were named as a beneficiary in someone’s will, you may be curious about the probate process that will take place. Probate is a court process that can be lengthy, depending on the size and nature of the decedent’s estate. The court must first appoint a personal representative for the estate, and many other steps must be taken before the estate’s assets can be distributed to you and the other beneficiaries. Once all assets have been liquidated, how long does it take to distribute estate assets? There is no definitive answer to that question, but being familiar with some of the factors that affect the Nevada probate process can give you an idea of what to expect.
You may not have even considered that the location of the court handling the probate proceedings would have an impact on the length of the process. But, depending on how busy the court’s docket or calendar is, closing probate could take a long time. For example, courts located in crowded metropolitan areas will typically have a larger docket, which means it make take longer to get your probate matter scheduled. The opposite may be true for courts that serve smaller populations. The law requires that an estate must be probated in the jurisdiction of the decedent’s last primary residence.
One primary factor that affects the length of the probate process is the size and complexity of the estate. A large estate that has a variety of assets, such as real property, investment accounts, businesses and residences, will typically take much longer to complete the probate process. Also, the claims of all creditors against the estate must be heard by the court. Each has a right to a hearing, as well as to filing motions, as necessary. If there are any disputes regarding claims, the probate process will be extended.
In addition to the possibility of creditor hearings, if there are any disputes among the beneficiaries, the probate process will take longer. Estate law requires that all named beneficiaries be notified of the will, either by mail or personal service. Each beneficiary has a legal right to representation in probate court, as well as the right to have the court hear any motions to challenge or change the terms of the will. This means that beneficiaries will hire attorneys, who will collect evidence and bring it before the court to decide the disputes. If any beneficiaries live out of state, the process may take even longer.
Now, if you are the beneficiary of a trust, as opposed to a will, then it is very likely that there will be no need to go through the probate process to receive your inheritance. In that situation, you should be able to claim your inheritance quickly. The most common types of non-probated assets are those created by contracts and trusts, such as life insurance policies and annuities.
If you have questions regarding the probate process, 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:
Possibly one of the most important decisions you make concerning your trust is who will serve as your trustee. The trustee has a duty to comply with the terms of your trust. These duties include distributions of income and principal, making prudent investment decisions, managing real property and exercising discretionary authority. While it is common for parents to name a child or trusted friend, there are other choices, such corporate trustees. The benefits of a corporate trustee should not be overlooked.
Why should I choose a corporate trustee?
A corporate trustee is a highly trained professional that can offer experience, stability, objectivity, and confidentiality. Most are insured and bonded. Also, many corporate trustees belong to a team of professionals from various disciplines that can assist and advise the corporate trustee on issues that might arise concerning the administration of your trust.
The trustee you select will be responsible for the financial well-being of the trust estate. This includes investment of trust assets. Your trustee must feel comfortable making investment decisions or choosing and supervising an investment manager, weighing and evaluating requests for distributions, which sometimes means making hard decisions. If your trustee is a relative or friend they may not possess the investment know-how or backbone to say no to a beneficiary's request for a distribution.
Your trustee must also be capable of maintaining adequate records, including accounting for the receipt and disbursement of income and principal from the trust. The trustee must also prepare and file all tax returns to the appropriate taxing authorities. A corporate trustee will keep abreast of the ever-changing tax laws and trust reporting and administration standards.
A primary purposes of stablishing a trust is to prepare for the future. So, it is important to remember that, over time, age or illness could potentially prevent your trustee from performing his or her duties. Although a successor trustee could also be named in your trust agreement, having the stability and continuity that a corporate trustee will provide, may be a preferred option.
The reality is, even in the perfect family, relationships can sometimes become strained. While your trust might be carefully written to explain your intentions and provide clear instructions, it may be difficult for a child or friend to avoid disputes and act objectively. With a corporate trustee, on the other hand, an objective third person will make decisions free from bias or influence from family or friends.
Estate planning is inherently a delicate topic. Family relationships, financial status and other private matters are commonly involved. For most clients confidentiality is very important. The temptation of a trustee that is a relative or friend to discuss your private affairs may be too great. Inadvertent disclosures are also common with inexperienced trustees. You can be sure that a corporate trustee with keep your private matters confidential.
If you have questions regarding corporate trustees, or any other estate planning issues, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.