Leaving an estate plan can provide peace of mind that a person's wishes will be respected and carried out when they are no longer around to care for and provide for their loved ones. Indeed, many estate plans are implemented just as flawlessly as the person who created it intended. There are, however, no shortage of estate plans that become tied up in lengthy and costly litigation as a result of will or trust contest actions alleging that the testator either did not have capacity to execute the estate plan or was unduly influenced by another person in making the estate plan. In these instances, the challenges have historically been made after the testator has already passed away. This is due to the fact that the laws of most states employ purely post-death probate procedures, which only allow the testator's mental capacity to be considered after death. The inherent flaw then becomes that the person best suited to confirm his or her testamentary wishes is no longer alive to consult about it.
North Dakota, Ohio, Arkansas and Alaska have enacted pre-death or “ante-mortem” probate laws that authorize some form of lifetime will validation. These laws permit testators to proactively seek a court declaration as to the validity of their wills during their lifetimes, thereby reducing the likelihood of a will contest after their death. With the exception of Alaska these laws have been in existence for some time, having had the most frequent use in Ohio while getting little to no use in North Dakota and Arkansas. Alaska sparked a reemergence of interest in pre-death probate legislation in 2010 when it adopted a broader version of the ante-mortem probate statute. In addition to wills, the Alaska statute authorizes the court to declare the validity of trusts during the lifetime of the trustor. The validation proceedings may either be initiated by the testator or any interested person with the testator’s consent. Incidentally, Alaska will entertain pre-death probate proceedings even when the testator resides in another state or has no connection to Alaska. In 2011, the Nevada legislature considered similar ante-mortem probate legislature, but it failed to pass.
Whether Nevada and the other currently “post-mortem” probate states will ultimately enact pre-death probate legislation remains to be seen. In such states, there continue to be a range of methods that may be invoked when setting up the estate plan to lessen the potential for a will or trust contest later. Included in these methods are: self-proving wills, no-contest or "in terrorem" clauses, and videotaped execution ceremonies, to name a few. Individuals who are concerned that a will or trust contest might interfere with his or her carefully crafted estate plan should speak candidly to the attorney about the options available to safeguard it from unwanted attacks.
-Attorney Kari L. Stephens
Something a little different for our readers this week, but a great lesson to be had! Read the following article from msn.com. Make sure your family is really taken care of.
In this age of do-it-yourself frugality, many surviving spouses and family members are unfortunately experiencing the hidden cost of a loved one’s use of internet and other legal forms for estate planning. Oftentimes the Trust or Will form used by the decedent is improperly completed, does not meet the needs and desires of the person and family, and is contradictory and/or ambiguous. In the latter situation, a court must try and interpret what the decedent intended after the death of the loved one. This is expensive and time-consuming, and the Court may or may not be correct in its attempt to decipher the true intent of the decedent.
Everyone’s estate plan is unique to his or her specific desires and needs. Some of the many considerations for your Trust and Will are:
One of the best analogies to this situation is a medical prescription pad: just because you have a valid medical prescription pad, that does not mean you should be writing prescriptions. The same is true in the legal profession: just because you have a standard, generic legal Trust or Will form, that does not mean you should complete it in an attempt to meet your individual estate planning needs.
Probate is a court-supervised estate proceeding under which the probate assets of the decedent are controlled by the terms of the last will and testament of the decedent. Probate is a lengthy, complicated and expensive procedure that is a matter of public record. Probate should be avoided if possible. The most common way to avoid probate is for the decedent during his or her lifetime to establish a revocable living trust and transfer his or her assets that would trigger a probate proceeding into the trust. When the decedent dies, probate is avoided. Administration of the trust is not court supervised, and is much quicker, simpler, far less expensive and confidential. In such a case, the trust agreement, not the last will and testament of the decedent, is the key document that controls the ultimate disposition of the trust assets. The last will and testament of an individual who has created a revocable living trust is merely a “pour over will” that bequeaths (“pours over”) any probate asset into the trust and is administered pursuant to the terms of the trust. Nonetheless, there is a law in Nevada that requires any person having possession of the last will and testament of a person they know is deceased to deliver it to the Clerk of the District Court which would have jurisdiction of the matter within thirty (30) days after learning of the death of the decedent. The Clerk of the District Court currently charges an eighteen dollar ($18.00) last will and testament filing fee.
Most individuals are not aware of this law. An individual such as a surviving spouse or child who has possession of the decedent’s last will and testament and has failed to file the will within the thirty (30) day period usually becomes very concerned when they learn of the law. What are the consequences? The good news is there are no criminal or civil penalties or fines for failure to timely file the last will and testament with the Clerk of the District Court, and there are no “last will and testament filing police” actively enforcing the law and pursuing a person who violates the law. Also the Clerk of the District Court will not inquire as to when the person filing the last will and testament learned of the death of the decedent. The law states that any person who fails to comply with the law without reasonable cause is liable to any person interested in the will for damages the interested person may sustain by reason of the failure to file the will. Accordingly, a person having possession of the last will and testament of a person they know is deceased should always deliver it to the Clerk of the District Court even if it is past the thirty (30) day period.
Often times, the public is under the misconception that if a person dies without a will, their assets will go to the state of Nevada. However, this is only a rumor. In reality, if a person dies without a will, the state of Nevada has a set of default rules (intestacy laws) under NRS Chapter 134 that directs who receives an inheritance in the absence of a will. The beneficiaries are different depending on whether the person is married or single or has separate property or community property.
In general, the deceased person’s interest in all community property passes to the surviving spouse, if any. Separate property is more complicated. Details regarding the default distribution of separate property assets can be found in NRS Chapter 134. The basic default rules for a surviving spouse or children are as follows:
Unfortunately, many times the default rules do not distribute the assets as the decedent intended (or as the surviving family members expected). A surviving spouse may end up sharing the estate with the children or the assets may be distributed to unintended beneficiaries. In addition, accounts with designated beneficiaries may trump the default (intestacy) rules. In my experience, clients are generally unhappy with the default rules and as such, a person should always have at least a basic estate plan to make sure their assets go to the beneficiaries of their choice.
Should you have any questions about avoiding or interpreting the Nevada default rules, please contact our office at (702) 433-4455 or email us via our Contact Us portion of our website.
It is well established that an individual is entitled to direct the disposition of his or her property upon death in accordance with that individual’s own desires. With a few exceptions, there is no legal requirement that a person’s property be left to his or her heirs at law. Perhaps a person chooses to leave a portion of his or her estate to a friend or confidant, or even to a favorite charity. Often times, when a person determines to leave property to someone other than a family member, the estate planning attorney will take care to properly document the file to make clear that the person was making a conscious decision to leave his or her property in the manner set forth in the documents.
Generally speaking, estate planning documents such as trusts and wills are designed to reflect the wishes of the person or persons creating the documents. There are times, however, when we are contacted by a deceased person’s legal heir based upon concerns by the heir that the documents presented do not in fact represent the wishes of the person who has passed away. In these cases, it is important for the attorney to work with the concerned family members to gather all of the available information surrounding the preparation and execution of the estate planning documents by the deceased person.
In Nevada, there are basically two grounds to contest a trust or will. The first basis is lack of testamentary capacity; and the second one is undue influence. There are legal guidelines to help determine if a person had legal capacity to execute a trust or will. As a threshold matter, an individual must be of “sound mind” at the moment he or she signs the will. In addition, the person would need to know the extent of his or her property, as well as to whom such property would normally be expected to pass absent any estate planning. The person would also need to understand the legal implications of executing the trust or will. The test for undue influence, on the other hand, focuses on whether or not the person was acting freely or, rather, pursuant to the influence of one or more other persons. Undue influence occurs when the will of another person overrides the will of the person making the trust or will based upon factors such as coercion, duress and/or fraud.
When it appears that there are sufficient grounds to contest the making of a trust or will, an interested person has the option to file a trust or will contest with the court. Such contest proceedings are typically conducted similar to most civil cases, in that all parties will be given an opportunity to tell their side of the story and present evidence in support of their position. Witness testimony is common, and medical evidence often plays an important role in these types of proceedings.
Trust and will contest actions should not be taken lightly. It is important to thoroughly discuss the risks and benefits of bringing such an action with an attorney who is knowledgeable in handling these unique types of cases. There may be certain limitations on the time in which an action may be filed. Additionally, there are costs and expenses associated with any court proceeding. Moreover, there often exist “no contest” clauses in trusts and wills that will need to be carefully reviewed and considered prior to bringing a contest.
For the most part, the estate planning documents that a person leaves behind are truly reflective of his or her desires. There are, however, a handful of instances in which a trust or will contest is clearly warranted. When there do exist concerns regarding the validity of any estate planning document, we encourage you to review any such concerns with one of our qualified attorneys without delay to preserve and protect your rights going forward.
Under Nevada law, if an individual marries and has a Last Will and Testament that predates the marriage, a revocation of a Will as to the surviving spouse may take place when the individual dies in certain circumstances. For example, under Nevada Revised Statute 133.110 if a person marries after making a Last Will and Testament and the spouse survives the maker, the Last Will and Testament is revoked as to the spouse unless:
When a Last Will and Testament is revoked as to the spouse, the spouse is entitled to the same share in the estate of the deceased spouse as if the deceased spouse had died without a Will. This will result in the community property interest of the decent to pass to the surviving spouse, and all, one-half or one-third of the sole and separate property of the decedent to pass to the surviving spouse depending on if the decedent was survived by issue, parents or siblings. This may not be what the decedent intended. The remaining provisions of the Last Will and Testament remain intact to the extent those provisions are not inconsistent with the rights of the surviving spouse.
Accordingly, when one is contemplating marriage, he or she should consult with an experienced estate planning attorney regarding the ramifications a marriage may have on his or her estate plan.
Not infrequently our office receives telephone calls from a distraught spouse or an adult child that there has been a recent death in the family. Invariably, the caller is overwhelmed with grief and has little idea or direction as to what needs be done.
Our advice to the caller is always the same - take care of the family and most of the legalities can wait. However, there are some matters that are more urgent and do require attention quickly:
While this is a difficult time for families, most of the remaining determinations following a death can wait until decisions concerning the decedent’s final affairs might be better made. After these are accomplished, please feel free to contact any one of our attorneys so that they may further assist you.
During a person’s lifetime, assets are generally owned in a person’s individual name. After a death, title must be transferred from the decedent to his or her beneficiaries. Probate is the legal process of paying all debts and taxes and transferring title from a decedent’s estate to the beneficiaries. This legal process includes:
Although probate sounds simple, it can be a long and difficult process. There are several steps in the probate process and each step is supervised by the court. These steps make probate both time-consuming and costly. Beneficiaries can generally expect that the probate process take from 6 months to over a year. Extremely complex cases may take even longer. Should you or anyone you know need help with the probate process, or if you are interested in discussing how you can avoid probate, feel free to contact our office.
There is a common misconception that estate planning is only for individuals or families with significant wealth. Estate planning is a necessity for families with minor children. There are several important objectives in creating an estate plan for young families:
It is important to consider each of these issues and discuss them with an estate planning attorney. The failure of parents to prepare an estate plan can be devastating to the children and extended family members upon the death or incapacity of the parents. Without written direction from the parents in properly created estate planning documents, minor children can get caught in the middle of expensive and time consuming court proceedings. If you have any questions regarding your estate planning documents or have not yet created an estate plan to protect your family, please call our office today for a free consultation. Once you have a plan in place, you will have the peace of mind that your family will be protected.
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