Nevada Revised Statutes 164 was amended last year to allow for a trustee of an income trust to convert such a trust into a unitrust. A unitrust is a type of trust that allows for a trustee to distribute a percentage of total trust assets as opposed to all of the income. The advantage of a unitrust is that occasionally current income beneficiaries and remainder principal beneficiaries will be different individuals or entities. As such, the dichotomy of beneficiary classes can result in competing interests over how the assets should be invested: current income versus long-term growth. For instance, it is not far fetched to assume that each class would prefer that the assets be invested in a manner that will maximize their return, which isn’t always possible.

For example, income beneficiaries likely want the trustee to invest in more aggressive assets that may maximize income but put underlying principal at risk. On the other hand, the remainder principal beneficiaries will typically prefer a more conservative asset mix invested for growth to maximize their return; but, this form of investment typically results in a lower income yield. By allowing the trustee to distribute a share of the total assets regardless of income earned or principal growth, the trustee can invest the assets in a way that benefits both classes. Moreover, a unitrust arrangement provides for a reduced degree of scrutiny from the previously competing interest beneficiaries, thus, making it easier for a trustee to make investment decisions.

Special attention should be paid to NRS 164.797-799 to ensure that the proper legal formalities are adhered to in converting an income trust to a unitrust. For instance, if trust agreement strictly prohibits such a conversion, it is not allowed. On the other hand, if the trust instrument is silent on the matter, conversion is allowed. Both beneficiaries and trustees are able to initiate the process of conversion. Thus, given the new language codified in NRS 164, it may be appropriate to review your or your clients’ trust documents to determine whether conversion to a unitrust is appropriate. However, keep in mind that if a conversion is done that doesn’t resolve beneficiary discord, NRS 164 also allows for a unitrust to be reconverted back into a non-unitrust trust (NRS 164.799).

LLCs are currently a very popular form of legal entity largely due to its flow-through partnership taxation feature coupled with its corporation-like limited liability protections. As most LLC owners know, LLCs provide significant liability protection from the threat of “inside liabilities” provided the proper formalities are adhered to and the separate entity status of the LLC is maintained . Inside liabilities are the types of debts and obligations that arise during the course of the LLC’s business and operations.

What many LLCs owners may not know is that LLCs can also provide significant liability protection from “outside liabilities.” Outside liabilities are any other type of liability an LLC owner may incur as a result of non-LLC related activities. For example, if an LLC owner is sued as part of a personal injury claim that has nothing to do with the LLC’s operations, the owner could potentially face a liability that has originated outside the scope of the LLC if a judgment is awarded against him. However, such an award may be of little use to a judgment creditor if the LLC owner established his LLC in a state with favorable LLC laws.

In general, a state with favorable LLC laws is one that provides the charging order as the exclusive remedy available to judgment creditors attempting to attach an LLC owner’s interest in his LLC. A charging order is a judicial remedy that allows a judgment creditor to act as an assignee of the LLC interest he is attempting to attach. As such, the judgment creditor does not receive any ownership or managerial rights in the LLC, thus, rendering him incapable of forcing distributions from the LLC or seeking judicial liquidation in an effort to satisfy the award. Consequently, the judgment creditor is essentially forced to wait for distributions to be made from the LLC which he can then try to intercept as payment in satisfaction of the award.

As can be seen, the LLC is capable of providing powerful asset protection features especially if formed in a jurisdiction that limits the available remedies against an LLC for outside liabilities to a charging order. However, not all jurisdictions provide for such exclusivity. Nevada is an example of a state that does provide the charging order as the exclusive remedy. Nevada’s LLC statutes contain sole remedy charging order language in NRS 86.401(2)(a) (This section [p]provides the exclusive remedy by which a judgment creditor of a member or an assignee of a member may satisfy a judgment out of the member’s interest of the judgment debtor).

States that do not have exclusive remedy language can potentially result in forced judicial liquidations of LLC assets or forced partnerships that were clearly never intended to be. Therefore, it is advisable to seek out a jurisdiction that expressly limits a creditor’s remedy for an outside liability to a charging order. As an example, in Florida, the state’s Supreme Court recently decided (Shaun Olmstead, et. al., v. The Federal Trade Commission) that charging order protection did not apply to an LLC because the LLC statute regarding charging orders did not expressly state that the charging order was the exclusive remedy available. Consequently, the LLC owners did not receive the degree of asset protection they thought they were receiving when establishing their LLC in Florida. Thus, the importance of “sole remedy” language is apparent in this situation which indicates that one must be very selective in deciding which jurisdiction to use in establishing limited liability entities so as to achieve maximum asset protection.

In conjunction with the exercise of putting in place a prenuptial, postnuptial, or cohabitation agreement, (collectively “personal relationship contracts”) an additional measure that would be recommended by savvy legal advisors would be the use of asset protection strategies to shore up the contract. In most, if not all cases, the personal relationship contract is put in place for the main purpose of preserving certain assets of one or both parties as items of “separate property.” This intent as provided in the contract should generally be honored and would withstand the scrutiny of a court or judge so long as the contract was not unconscionable, provided for adequate disclosure of both parties’ assets, and each party had an opportunity for separate legal counsel to review the agreement.

However, what better way to shore up such an agreement than to definitively segregate items of separate property into a trust? And what better trust is available for residents of Nevada (and others) than a Nevada On-Shore Trust ? (Self settled spendthrift trust or domestic asset protection trust - NRS 166).

A spouse, partner, ex-spouse or ex-partner has the ability to become a creditor when a disagreement arises regarding a personal relationship contract. If, however, the separate property assets in question have been properly funded into a Nevada On-Shore Trust, and the statutory period of two years time has elapsed (and such funding is not deemed to be a fraudulent transfer), the assets in the trust should be adequately protected from the spouse or partner creditor. At the very least, this additional step would give the spouse- or partner-creditor a reason to second-guess any dispute or lawsuit attempting to collect against the assets intended to be held as the sole and separate property of the party that established and funded the trust.

If you are getting married, already married, or just living with your significant other, you might consider making an agreement with your partner to clearly define your rights with respect to your separate and jointly-held property. Each of these personal relationship contracts can be briefly explained as follows:

The Prenup. A prenuptial agreement, or premarital agreement as it is sometimes called, is a contract entered into prior to marriage by those people intending to marry each other. The provisions of this contract may vary widely, but commonly include terms for how property will be divided and how spousal support will be handled in the event of divorce or separation. Prenups should be completed and signed by both parties with ample time before the wedding. If signed at the last minute, one party could later make the argument that they entered into the agreement because of undue influence or in a state of duress. Moreover, each party should be represented by his or her own separate attorney to avoid the later argument that unbalanced or unfair bargaining took place. In every case, a prenup must fully disclose the assets, liabilities, and incomes of each party. Leaving such financial information out could potentially invalidate the entire agreement. Full disclosure is the best policy.

The Postnup. Postnuptial agreements, or separate property agreements, are written contracts entered into by and between husband and wife after they are married. Like a prenup, a postnup establishes how a married couple’s assets and affairs will be settled in the event of a separation or divorce. Without a prenup or a postnup, state statues will determine the nature of a couple’s property: whether it is community property, jointly-owned, or separate property. As with a prenup, both spouses should be represented by their own attorney when entering into a postnup.

The Cohab. A cohabitation agreement is a legal agreement between partners who are unmarried and have chosen to live together and desire to protect themselves from the needless cost of litigation should their relationship break down. Although such parties do not develop community or marital property rights as a married couple would, a cohab can assist in sorting out complex contractual rights which may develop as related to jointly purchased property, debts, etc. Such an agreement is intended to bind both parties such that when the relationship ends, the procedure for splitting-up is understood. Again, it is highly recommended that each party have their own separate legal counsel.

I recently co-authored an article on the state of Nevada being one of the most favorable jurisdictions for establishing a trust in the May issue of the Nevada Lawyer (Nevada Laws Provide Top Trust Situs). The article focuses on the recent attention Nevada has been receiving on a national level as a top tier situs for estate planning and asset protection. Nevada has always been a pioneer in the areas of progressive trust jurisprudence and asset protection, but recent legislative amendments to its trust laws have solidified Nevada’s place as a jurisdiction of choice in these areas.

While I strongly encourage you to visit the link above and read our article, the following is a high-level summary of the items it touches on:

• Nevada’s lengthy time period applicable to its Rule Against Perpetuities law (365 years). The duration of this time period allows inpiduals and families to dramatically increase their wealth over successive generations by shielding it from estate and generation skipping transfer tax.

• Virtual Representation laws that make it easier for unascertainable beneficiaries (e.g., unborn children) to have their interests represented in the context of trust administration.

• Codification of a Trust Protector Statute, Trust Protectors are sometimes called Trust Consultants.

• Statutes that now allow Decanting Provisions in Nevada trusts. Decanting provisions make it possible to transfer assets of one irrevocable trust to another provided there is no substantial change in beneficial interests.

• Updates to Nevada’s Domestic Asset Protection Trust statute which indicate further validation by the state of this instrument. Updates include provisions allowing settlors to serve as trustees and adviser protection language.

• No state income, estate, gift or inheritance taxes.

• A summary of Nevada’s favorable Charging Order laws and State Exemptions (e.g., $550,000 homestead exemption).

The article provides a good overview of these areas without going into too much detail. As practitioners in the area of estate planning, we felt it important to point out the many favorable aspects of forming a trust in Nevada and the efforts the state legislature is making to keep Nevada competitive with other trust-friendly states like Alaska and Delaware. The comprehensiveness of the most recent legislative changes make it seem likely that Nevada will continue to be a pioneer with respect to trust law and asset protection and remain at the forefront of these areas.

Many times people will tell me they don’t need to prepare estate planning documents because they don’t have an “estate.” My response is simply, “you don’t have to have a significant amount of assets to need an estate plan.” Take a moment to ask yourself the questions below to see if you need to consider putting together an estate plan or updating an outdated estate plan:

Do you have current estate planning documents?

1. A Revocable trust that properly addresses changes in familial relationships, financial status, and changes in the law, e.g. the recent appeal of the estate tax.

2. A properly executed pour over will if you have a trust or a simple will if you don’t have sufficient assets to justify a trust. Even if you don’t own a significant amount of assets, having a properly executed will in place can assure that what assets you do have are distributed according to your wishes.

3. Medical directives and powers of attorney specific to your jurisdiction. These documents are especially important and really have nothing to do with the amount of assets you own.

4. Nomination of a guardian for self, estate, and minor children. Again, these nominations have nothing to do with the size of your estate, but have everything to do with properly providing the appropriate individuals to take care of you or your children in the event you are unable to do so yourself.

Are you a business owner?

5. Are you operating as a sole proprietorship? If so, are you properly insured (life and disability) and protected from frivolous liability? Are you performing the legal formalities necessary to achieve limited liability in the event you are operating via a limited liability company (LLC) or limited partnership (LP)? Do you have a contingency plan in place that provides for the management or distribution of business assets in the event of your death or incapacitation? Operating a business through a legal entity has tremendous advantages; however, one must make sure that the entity is maintained properly or such an entity may not provide the expected benefits when the time comes (i.e. do not comingle personal and business assets, have an operating agreement in place, maintain adequate insurance).

6. Do you have partners? If you have partners, it is highly recommended that an operating agreement be in place and that a properly funded buy‐sell agreement accompany the operating agreement. These documents should address liquidation rights, rights to first refusal in the event one partner sells his/her interest in the entity, succession planning, etc.

Are you concerned about asset protection and special needs planning?

7. Do you have a developmentally disabled spouse, parent, child, grandchild or has there been a recent death in the family? It may be important to form a Special Needs Trust to allow a disabled loved one to be able to receive an inheritance from you without hindering his/her chances of receiving governmental assistance. It may also be important to protect yourself from potential creditors of your loved one by putting the proper legal entities in place to hold assets.

8. Do you have any of the following: Children from a prior marriage; a spouse with children from a prior marriage; step children; concerns about children’s spouses; plans of marriage on the horizon.

All of these issues may affect the current estate plan you have and place and should be examined on a case-by-case basis. As you can see, some of these issues have nothing to do with the amount of assets you own or the size of your estate. Everyone should take the time to at least ask themselves: Who will take care of my kids or me, and how, in the event I am not able to care for myself? Asking such a questions may help you realize the importance of putting in place an estate plan that is specifically tailored just for your needs.

For more than ten years, we at Jeffrey Burr have been advocating the use of the Nevada trust statutes for asset protection. Unfortunately, although we are pleased with the number of people who have taken this important step in their planning, most of our clients have not taken advantage of the protection offered with this trust which we affectionately call the “Nevada On-Shore Trust” or “NOST”, with the result that when a client comes to us with the prospect of being sued or incurring a large debt due to foreclosure on a property, we are limited in our ability to provide legitimate asset protection beyond a homestead and some other minor exemptions allowed under the law. Some people mistakenly believe that they can implement asset protection strategies after the events have occurred which may result in loss or liability, and we generally explain that although it is possible that some strategies will work, it is also possible that any post-loss strategies may be set aside by a judgment creditor. It is always best to have bought the fire insurance before the house is discovered to be on fire.

By guest writer Bill E. Wilson, ChFC, of Waddell & Reed, Las Vegas
With the lure of tax-free distributions, Roth IRAs have become popular retirement savings vehicles since their introduction in 1998. But if you're a high-income taxpayer, chances are you haven't been able to participate in the Roth revolution. Well, that's about to change.

What are the rules?

There are currently three ways to fund a Roth IRA--you can contribute directly, you can convert all or part of a traditional IRA to a Roth IRA, or you can roll funds over from an eligible employer retirement plan (more on this third method later). Before 2010, you could contribute up to $5,000 to an IRA (traditional, Roth, or a combination of both). If you were age 50 or older, you could contribute up to $6,000.

Regardless of whether you contributed directly to a Roth IRA, if your income level ("modified adjusted gross income," or MAGI) was $100,000 or less, and you were single or married filing jointly, you could convert an existing traditional IRA to a Roth IRA. But if you were married filing separately, or your MAGI exceeded $100,000, you were not allowed to convert a traditional IRA to a Roth IRA.

What's changed?
In 2006, President Bush signed the Tax Increase Prevention and Reconciliation Act (TIPRA) into law. TIPRA repeals the $100,000 income limit for conversions, and also allows conversions by taxpayers who are married filing separately. What this means is that, regardless of your filing status or how much you earn, you'll now be able to convert a traditional IRA to a Roth IRA.

Your ability to make deductible contributions to a traditional IRA may be limited if you (or your spouse) is covered by an employer retirement plan and your income exceeds certain limits. But any taxpayer, regardless of income level or retirement plan participation, can make nondeductible contributions to a traditional IRA until age 70½. And because nondeductible contributions aren't subject to income tax when you convert your traditional IRA to a Roth IRA, they make sense for taxpayers contemplating a 2010 conversion even if they're eligible to make deductible contributions.

And don't forget that SEP IRAs and SIMPLE IRAs (after two years of participation) can also be converted to Roth IRAs. You may want to consider maximizing your contributions to these IRAs now, and then converting them to Roth IRAs in 2010. (You'll need to set up a new IRA to receive any additional SEP or SIMPLE contributions after you convert.)

But there's a taxing problem-
If you've made only nondeductible contributions to your traditional IRA, then only the earnings, and not your own contributions, will be subject to tax at the time you convert the IRA to a Roth. But if you've made both deductible and nondeductible IRA contributions to your traditional IRA, and you don't plan on converting the entire amount, things can get complicated. That's because under IRS rules, you can't just convert the nondeductible contributions to a Roth and avoid paying tax at conversion. Instead, the amount you convert is deemed to consist of a pro-rata portion of the taxable and nontaxable dollars in the IRA.

For example, assume that in 2010 your traditional IRA contains $350,000 of taxable (deductible) contributions, $100,000 of taxable earnings, and $50,000 of nontaxable (nondeductible) contributions. You can't convert only the $50,000 nondeductible (nontaxable) contributions to a Roth. Instead, you'll need to prorate the taxable and nontaxable portions of the account. So in the example above, 90% ($450,000/ $500,000) of each distribution from the IRA in 2010 (including any conversion) will be taxable, and 10% will be nontaxable.

You can't escape this result by using separate IRAs. The IRS makes you aggregate all your traditional IRAs (including SEPs and SIMPLEs) when calculating the taxes due whenever you take a distribution from (or convert) any of the IRAs. But for every glitch, there's a potential workaround. In this case, one way to avoid the prorating requirement, and to ensure you convert only nontaxable dollars, is to first roll over all of your taxable IRA money (that is, your deductible contributions and earnings) to an employer retirement plan like a 401(k) (assuming you have access to an employer plan that accepts rollovers). This will leave only the nontaxable money in your traditional IRA, which you can then convert to a Roth IRA tax free. (You can leave the taxable IRA money in the employer plan, or roll it back over to an IRA at a later date.)

But even if you have to pay tax at conversion, TIPRA contains more good news--if you make a conversion in 2010, you'll be able to report half the income from the conversion on your 2011 tax return and the other half on your 2012 return. For example, if your only traditional IRA contains $250,000 of taxable dollars (your deductible contributions and earnings) and $175,000 of nontaxable dollars (your nondeductible contributions), and you convert the entire amount to a Roth IRA in 2010, you'll report half of the income ($125,000) in 2011, and the other half ($125,000) in 2012.

And speaking of employer retirement plans...
Before 2008, you couldn't roll funds over from a 401(k) or other eligible employer plan directly to a Roth IRA unless the dollars came from a Roth 401(k) account or a Roth 403(b) account. In order to get a distribution of non-Roth dollars from your employer plan into a Roth IRA you needed to first roll the funds over to a traditional IRA and then (if you met the income limits and other requirements) convert the traditional IRA to a Roth IRA. And, as described earlier, you needed to aggregate all your traditional IRAs to determine how much income tax you owed when you converted the traditional IRA.

The Pension Protection Act of 2006 streamlined this process. Now, you can simply roll over a distribution of non-Roth dollars from a 401(k) or other eligible plan directly (or indirectly in a 60-day rollover) to a Roth IRA. And you'll still need to pay income tax on any taxable dollars rolled over.

One benefit of this new procedure is that you can avoid the proration rule, since you're not converting a traditional IRA to a Roth IRA. This can be helpful if you have nontaxable money in the employer plan and your goal is to minimize the taxes you'll pay when you convert.

For example, assume you receive a $100,000 distribution from your 401(k) plan, and $40,000 is nontaxable because you've made after-tax contributions. You can roll the $60,000 over tax free to a traditional IRA, and then roll the after-tax balance ($40,000) over to a Roth IRA. Since only after-tax dollars are contributed to the Roth IRA, this rollover is also tax free. (Both your plan's terms and the order in which you make the rollovers may be important, so be sure to consult a qualified professional.)

Is a Roth conversion right for you?

The answer to this question depends on many factors, including your income tax rate, the length of time you can leave the funds in the Roth IRA without taking withdrawals, your state's tax laws, and how you'll pay the income taxes due at the time of the conversion. And don't forget--if you make a Roth conversion and it turns out not to be advantageous, IRS rules allow you to "undo" the conversion (within certain time limits). A financial professional can help you decide whether a Roth conversion is right for you, and help you plan for this exciting new retirement savings opportunity.

Our loyal blog readers probably realize that there are several purposes for our blog: an outlet to provide general estate planning updates; marketing and web presence; and acquisition of new clients. Today’s post hopes to reel in new clients that have been hesitant to begin planning their estate. (And we are confident that there are thousands of potential clients anxiously following our blog).

During my teenage years I would frequent my local reservoir for an outing of “early-morning water skiing” with friends and family. When it was my turn I would often stand on the back of the boat for several minutes working up the courage to jump into the cold and glassy water. Just like ping into a frigid pool or lake, thinking and worrying about estate planning only makes the task more difficult. Sometimes you have to “Just Do It.” We do not have knowledge of any client that has ever passed away any sooner (or later) by virtue of having an estate plan in place. In fact, the process for the surviving loved ones is much easier with an existing estate plan.

A recent joint article in the Washington Post and Entreprenuer.com brings attention to this fact. The article discusses parents’ responsibility to put their estate planning in order for the sake of their loved ones. This task is an investment of significant time and effort. And it is most successful when a team approach is used and includes a client’s trusted advisors such as the CPA, Financial Planner, or other general advisors. The attorneys at Jeffrey Burr strive to associate with this city’s best CPA’s, Financial Planners, Investment Managers, and Insurance professionals. We welcome the team approach and we seek the input of other advisors on a plan that works for all aspects of a client’s personal, business, and family goals.

All things being equal, today is a prime time to engage in estate planning for those clients who have a potentially taxable estate. As the article mentions, removing assets from the estate and transferring wealth to the next generation are key principles of estate planning for high net worth individuals. Today’s economy has caused asset values and business valuations to be rock-bottom; the interest rate mandated by the IRS for inter-family transfers is also at a very low level, and both of these facts make today an ideal time to transfer assets and engage in planning for estate tax reduction. Furthermore, the current absence of a generation-skipping transfer tax and low 35% gift tax rates make 2010 a great time to put an estate plan in place.

For those readers who are still standing on the back of the boat, it’s time to jump into the lake.

Having volunteered at a pet fair recently, I realized how important people’s pets can be to them. I noticed that many people treat their pets as though they were their children and even refer to them as such in many instances. As estate planners, we typically assist clients in establishing estate plans to provide for the clients’ children after death. Occasionally, clients are also interested in providing for their pets after death. It is no wonder then that many states, including Nevada, recognize the validity of Pet Trusts and, thus, allow pet owners to legally provide for their “children” after death via testamentary trusts.

NRS 163.0075 allows for a trust to be created for the care of one or more animals that are alive at the time of the settlor’s (the person creating the trust) death. Pet Trusts terminate upon the death of all the animals covered by the terms of the trust. Pet Trusts are legal and enforceable instruments in Nevada. Some helpful hints to keep in mind when establishing a pet trust are as follows:

1. Be sure to name a trustee of the trust and if the caregiver of the pet is someone other than the trustee, be sure to name this individual or entity, as well.

2. Clearly identify the pet for whom the trust is being established. For instance, identify pet’s microchip if there is one or any DNA information to prevent identity fraud by a trustee/caregiver in the future. Include provisions requiring a periodic verification of the pet’s identity, as well.

3. Describe assets to be used to fund the trust and how those assets are to be used, including the standard of living that is to be maintained. These provisions can be as detailed and as specific as needed.

4. Name a remainder beneficiary to receive any property remaining in the trust once the pet for whom the trust was established dies and directions regarding the burial/cremation of the pet’s remains.

It is important to consider all of the items listed above to establish a thorough pet trust. However, if a pet trust is not right for you, you can always leave your pet to someone or leave assets to someone to care for your pet.