Most of our clients understand the benefits of the living, revocable trust. One obvious benefit is that at the trust creator’s death, the named successor trustee can step in very easily and administer the estate generally without the involvement of the court system. When the trust creator dies, a death certificate is provided and our office prepares a document called the “Affidavit of Successor Trustee” which gets filed in the counties where real property is located; this document is also provided to banks, investment companies, etc. and allows the successor trustee to gain control of these accounts for ultimate distribution.
We advise our clients with trusts to be aware that they don’t have to wait until death to bring in the successor trustee. If the trust creator is getting to the point where they want to slow down and let their successor trustee assist in taking care of the trust assets, paying bills, collecting rents, etc., then the trust creator can execute a document naming the successor trustee as a current trustee. That successor trustee can take the document to the bank and thereby have power to write checks to pay bills, handle investments and so forth. Then at the trust creator’s death, the successor trustee is already on the accounts and so can begin immediately to carry out the trust creator’s wishes. If you feel like you could use the help of your named successor trustee, you might want to consider naming them as a current trustee with you. Just be sure that the person you name is “trustworthy”.
My general and limited observation is that more and more people are selecting cremation for their end-of-life plans. As one might imagine, estate planning attorneys hear some interesting requests regarding cremation and the ultimate disposal of one’s ashes. Our office is no exception. Most requests are dignified and tasteful. Some are also very entertaining.
On a serious note: Nevada Revised Statutes (NRS 451.655) provide that a person may order his or her own cremation and instructions for disposition by signing an order and having it signed by two additional witnesses. One can avoid delay by providing this order directly to a funeral home that is to provide the mortuary services. Our office incorporates this statutory requirement directly into the Last Will, but we have also provided, on occasion, a separate order for the funeral home in coordination with the statute referenced above.
In an effort to be tastefully entertaining, and divert my attention from the 2010 Federal estate tax repeal which recently is a frequent topic on our blog, I thought I would share some cremation myth and lore. Several years ago I remember reading on a blog that Disneyland was having frequent issue with people disposing of cremated loved ones on the “Pirates of the Caribbean” ride. (Keep your hands inside the ride at all times). Clients have instructed that we write up many specific instructions regarding scattering: mountain tops; beaches; rain forests; backyards; oceans; you name it, we have probably written it up in a Will. One particular client that I can recall instructed that his ashes be inserted into a number of helium balloons and that the balloons should be released into the wind. We usually make it clear that public scattering might technically be illegal and that permission should be obtained.
Just this week I read a Wall Street Journal article and discovered that the scattering of ashes without pre-permission has a name. It is known in the funeral industry as a “wildcat scattering.” I found the above article interesting and it had some good stories regarding some verified wildcat scatterings. Feel free to comment and share any stories or wishes you might have regarding the distribution of your cremains.
In Nevada’s most recent legislative session, significant changes were made to NRS 166,Nevada’s statute governing asset protection trusts. We believe these changes, which became effective on October 1, 2009, further validate Nevada’s asset protection trusts, or Nevada On-shore Trusts (NOSTs), as legitimate and effective asset protection and wealth preservation tools.
Some highlights of the recent changes to the statute are as follows:
As a reminder, Nevada’s asset protection trust statute has been in place for nearly ten years. Nevada is commonly recognized as not only a pioneer in the area of asset protection, but one of the most favorable asset protection jurisdictions in the country. Other states are now joining Nevada and a handful of other jurisdictions to provide the same asset protection techniques Nevada offers to its residents. Fortunately, as a front runner in the industry, Nevada is a seasoned veteran in the field of asset protection and wealth preservation. Consequently, those who formed Asset Protection Trusts early on are now reaping the benefits of increased protection. We remain confident that Nevada’s Asset Protection Trusts are one of the most effective asset protection tools available.
Last night, attorney, Jeremy Cooper, attended a Las Vegas Chamber of Commerce seminar hosted by the Human Rights Campaign addressing Smart Financial and Estate Planning for LGBT individuals and families. Half of the presentation focused on the new Domestic Partnership law of Nevada and the current state of this evolving area of law. The other half focused on estate planning for LGBT individuals and families. The following is a brief overview of the recently enacted Domestic Partnership legislation followed by some estate planning recommendations for those in the LGBT community:
Domestic Partnerships
During 2009, the Nevada legislature enacted legislation recognizing Domestic Partnerships between individuals who have properly registered with the state. A Domestic Partnership is a social contract between two persons that grants each partner different rights not available to non-married couples. To establish a legal Domestic Partnership, partners must furnish proof to the Secretary of State that both persons share a common residence, neither partner is married or part of another domestic partnership, the individuals are not related by blood, both individuals are at least 18 years of age, and both individuals are competent to consent to the domestic partnership.
Upon establishing a valid Domestic Partnership, domestic partners have the same rights, protections, and benefits granted to married spouses. Domestic partners are also subject to the same responsibilities, obligations, and duties under law as imposed upon married spouses. These rights and obligations include, but are not limited to, child support, alimony, community property rights, mutual responsibility for debts to third parties, etc. Deciding whether a couple should register as a Domestic Partnership is a very intimate and personal decision that should not be made without understanding the legal ramifications of doing so. Jeffrey Burr recommends consulting with a family law attorney who is experienced in dealing with the LGBT community.
Estate Planning Tips
Because of the unique legal challenges facing the LGBT community, it is vital that valid and comprehensive estate planning be put into place regardless of whether a committed LGBT couple decides to register as a Domestic Partnership in Nevada. First and foremost, proper estate planning by LGBT individuals should ensure that the right people are making the right decisions regarding one’s health care and asset management when the time comes, as well as distributing property to the intended beneficiaries at death. LGBT individuals and couples should strongly consider obtaining the following documents:
1. Powers of Attorney for Health Care and Financial Matters and Directives: These documents are extremely important for LGBT couples who decide not to register as Domestic Partners and for Domestic Partners when traveling outside of the state of Nevada or other states that do not recognize Domestic Partnerships. These are the documents that will allow your partner to make health care and asset management decisions for you if that is what is desired.
2. Wills and/or Trusts: These documents are also very important because they will determine to whom your property will be distributed at your death. Without a will or a trust, property will pass to ones heirs as determined by the state laws of intestacy which does not provide for property to pass to an LGBT partner unless the partnership has registered as a Domestic Partnership. These documents will also nominate guardians for one’s estate, person and minor children.
3. Partnership Alliance Agreement or Property Agreement: This document is essentially the same type of agreement as a Premarital, or Prenuptial, Agreement in that it establishes property brought into the partnership, how new property and income will be treated during the partnership, and how property will be distributed upon dissolution of the partnership. These documents can be prepared for LBGT couples whether or not they have registered as domestic partners.
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