Today is a good day to start thinking about your estate planning. Who should have a will or trust in place? Do I need this now or can I put it off? Do I need some kind of health care document? What about powers of attorney? There are lots of questions to consider.
- No Estate Planning. If you have never done any estate planning, you should consider at least creating a will and putting in place a health care power of attorney and a regular power of attorney. A will allows you to name a relative or friend you trust to handle your affairs after your death. It also gives you the opportunity to direct how your estate will pass at your death; you can omit disfavored relatives, or include relatives or friends who would not otherwise inherit from you if you died without a will. You can also direct that beneficiaries receive a different share than what the law would otherwise provide, or that certain persons receive particular assets.
If your assets are more significant (neighborhood of $200,000 or more), you should also consider creating a trust in which to hold your property. This can minimize taxes, and if properly funded, will avoid the expense of a court supervised probate proceeding—which is generally required when only a will is in place.
You should have a health care power of attorney in place to nominate the person(s) you want to make decisions for you if you become unable to do so, and to express your wishes as to what kind of medical treatment you want and whether or not you desire food and water even after medical treatment has ceased. A power of attorney for financial matters is also helpful and can avoid the necessity of a guardianship should you become incapacitated.
- Minor Children. If you have minor children, you should definitely have a will in place. Even if your assets are not significant, a will can (and should) contain a clause that appoints a guardian for your children should you die. This allows you to plan for your children so that there will be a smooth transition at your death. Under Nevada law, the only place to nominate a guardian for minor children is a will. You should, of course, ask the persons you wish to nominate in advance to make sure they are willing.
- Outdated Estate Planning. If your estate planning was done a long time ago, you should review it to see whether there are any changes you would like to make to those you have designated to take care of trust or estate business after your death, and to those who will receive your property. Also, tax, real estate and other laws affecting trusts and estates change over time, sometimes quite dramatically. Even if you have no changes to the substantive provisions of your estate planning documents, you should have a lawyer review your documents every couple of years or so to recommend any updates.
- Major Life Change. If you have recently been through a major life event such as marriage or divorce, or if there has been a death or a birth in your immediate family, you should get your estate planning in place or have it updated. A new spouse should either be included in your estate planning as receiving something, or should be mentioned in a way that makes it clear the spouse is not intended to be included. In Nevada, there are statutory provisions that revoke a will or beneficiary designation made in favor of a spouse upon divorce from that spouse; but it is best to re-do your estate planning after divorce rather than to rely upon the statutory revocation. Similarly, the law makes certain provisions for what happens to gifts when the intended beneficiary has died before the person making the will, and for additional family members who are later born; but the law may or may not express your preference.
In sum, seize the day! You do not know how long you will live or when you will die. You will buy yourself peace of mind and you will save your relatives and loved ones a lot of trouble by doing proper estate planning now. To begin the process, contact a qualified estate planning attorney today.
In my previous blog regarding lost wills, I discussed a client whose husband’s original will was lost. One discerning reader asked what happened to the client—wouldn’t she inherit everything from her husband anyway? In that case, I wish it had been so. Unfortunately for the client, that was not the case, even though it had been her husband’s intention.
Since the later will could not be offered for probate, we had to go back to his previous will, which was made before his marriage and left everything to his siblings. All was not lost, however. Where a person marries after making a will and his spouse survives him, Nevada law provides that the will is “revoked as to the spouse,” provided that the deceased spouse did not make provision for the surviving spouse by marriage contract or otherwise make it clear in the will that he intentionally omitted her. The technical term for the inadvertently omitted spouse is a “pretermitted spouse”, from the verb “pretermit” which means to leave undone or to neglect. The law also provides for pretermitted children, i.e., children born after the deceased makes his or her last will.
The term “revoked as to the spouse” does not mean that the wife received all of the deceased’s property. The rule about a pretermitted spouse has to be read together with Nevada’s laws regarding persons who die without wills. In my client’s case, her husband owned the property in question before their marriage; it was his separate property. Since he died without surviving parents or children, one half of his separate property was allocated to her as his pretermitted spouse, and the other one half was allocated as provided in the will he made before their marriage.
That was not the end of the story. We contacted the relatives, explained the situation to them and requested that they disclaim their interest to our client, since that was her husband’s intent per his later, lost will. One of the deceased’s siblings was willing to do so. The rest refused; they thought they were going to get a big windfall. Since our client had maintained the property for twenty years, paid all taxes and maintenance, and born all losses, we obtained court approval to shift their share of the proceeds of the sale of the property to her in compensation for her labor and out of pocket costs. All’s well that ends well, I suppose; but the loss of the husband’s true last will and testament caused a huge legal mess that could have been avoided if the original had been maintained.
If you have a question about your rights under a will as a pretermitted spouse or child, contact a qualified probate attorney.
It happens all the time: People go to the trouble of setting up a trust, hoping to avoid the time and expense of a probate—but they either neglect to move all their assets into the trust, or they buy new assets and forget to take title in the name of the trust. Why is this a problem? If your assets are not in the trust, then the trust does not govern what happens to them at your death. Instead, they will be governed by your last will and testament, or by intestate succession if you don’t have a will, or your will cannot be located.
Depending on the value of the assets omitted from the trust, it may be necessary to open a probate proceeding with the court in order to get the assets to the intended beneficiaries. This involves spending time and money that could have been avoided if all assets had been titled in the trust.
Most estate planning attorneys have their clients execute a will “pouring over” any such assets into the trust—in other words, the trust is made the beneficiary of the will. In this case, the assets you left out of the trust will eventually get back into the trust, but only after an appropriate court proceeding. However, if your will cannot be found, or is invalid for some reason, the assets will go to your heirs according to the law, who may or may not be the beneficiaries of your trust.
What’s the best way to ensure your assets are properly titled in your trust? When you first set up a trust, make sure that the trust includes a schedule of assets intended to be transferred into the trust, and make sure that all of your assets are on that schedule. Next, you need to do some legwork: all real property should be transferred into the trust by means of a signed and recorded deed; and all titled personal property (cars, bank and brokerage accounts, etc.) should be transferred as well. Any time you purchase a new asset, make sure you take title in the name of the trust. If you refinance an asset, make sure the asset does not get bumped out of the trust in the process, and take steps to transfer it back in if this occurs. Finally, periodically review your assets to make sure they are titled in the name of the trust.
If you need assistance with this issue, you should contact a qualified Nevada estate planning and probate attorney.
Some married couples enjoy living together while keeping their financial assets separate. Separate ownership of assets can be advantageous in some instances, but oftentimes loving couples misunderstand the results of holding separate assets. The Wall Street Journal recently highlighted four potential pitfalls for couples maintaining separate accounts:
- The assets are not necessarily separate under Nevada law.
Simply having your name on an account does not mean the account is yours alone. Under Nevada law, pursuant to community property principles, all of your earnings and wages after marriage are the property of both parties. This is true even if you have your paycheck deposited into a separate account.
Nevada inheritance laws can surprise couples. If you die without a will and leave a surviving spouse, no children and surviving parents, your parents are entitled to a portion of your estate. Many spouses intend for their entire estate to go to a surviving spouse. However, unless that desire is set forth in a will or trust, the state may direct otherwise.
- Separate accounts most often mean lack of communication.
Communication between spouses is critical. Many spouses have separate retirement accounts and manage those accounts in isolation. This isolated planning can undermine the couple’s financial objectives and their combined risk tolerance. Regularly, I meet with clients where both spouses are unaware of accounts or policies that one spouse possesses. These omissions could cause the account proceeds to go missing or remain unclaimed for long periods of time.
In addition, holding similar investments in two separate accounts can be more costly. Combining the separate holdings may result in lower advisory fees.
- Separately-owned property may be at greater risk in bankruptcy or a lawsuit.
Nevada has very liberal exemptions for bankruptcy purposes. These protections can be utilized best by conferring with an attorney who focuses on asset protection planning.
Joint ownership can make your assets less appealing to creditors. Creditors loathe joint assets in which they will hold only a one-half interest. Separately-owned property is less-protected from creditors. The home is the primary asset to hold jointly or through a trust.
- Separate accounts are more difficult to administer.
The death of a loved one causes plenty of heartache. Maintaining separate account causes needless headaches too. The time delay in accessing separately-owned accounts can lead to draining financial stress. Many financial institutions demand formal court orders before allowing access to financial accounts, even when such orders are not necessary. At a minimum, couples should maintain a joint checking or savings account to make sure the day-to-day expenses can be satisfied.
Posted in Asset Protection, Community Property, Probate
Tagged Asset Protection, Bankruptcy, Community Property, Estate, Finances, Inheritance, Probate, Trusts, Wills
Jason C. Morris, Esq. will present a three-hour continuing legal education seminar on asset protection planning. The seminar, “Nevada: the Premier Asset Protection Jurisdiction,” will be held at the Bruce Thompson Federal Courthouse, 400 S. Virginia Street, Reno, NV 89501 on Thursday, March 21, 2013 from 1:00 p.m. to 4:15 p.m. The seminar is sponsored by the Washoe County Bar Association and qualifies for 3 hours of continuing legal education credit.