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Las Vegas Estate Planning Law Blog

Estate planning beyond the will

Nevada residents who are creating an estate plan may think that they only need to create a will. However, addressing other details may help reduce family conflict and can help ensure that other important elements are not forgotten.

One of those issues is beneficiary designations. Certain assets are passed down using these forms, and they do not have to go through probate like the will does. This means beneficiaries get them more quickly. People should also make sure there are not old accounts they have forgotten about with outdated beneficiary information. Making a list of all assets can be helpful to heirs. Another consideration is sentimental items such as family engagement rings or photos. Heirs often fight over these. A codicil is an addition to a will, and if the will is already complete, it can be used to add these types of assets.

How and when is it possible to avoid the probate process?

When Nevada families are dealing with the loss of a loved one, they know there are several steps they will have to take in order to settle his or her estate. One of the main concerns of families going through this process is the issue of probate. In some cases, it may be possible to avoid the probate process altogether.

Whether you are making decisions about your own estate plan and the future interests of your family or you are navigating estate matters after the death of a loved one, you need to know about probate. Because of the nature of this specific process, many people find it beneficial to have experienced legal guidance. A smart first step can be to simply seek a complete evaluation of your case. 

How to manage estate plans in a blended family

Parents in Nevada who are about to get married again may have a challenging estate planning dilemma to solve. If an estate plan is not created properly, the children from the previous marriage could get nothing. Meanwhile, the new spouse could receive all of an individual's property when he or she passes. While assets could be transferred from the surviving spouse to the children, there is no guarantee that this would happen.

The new spouse may still have the ability to obtain a share of a husband or wife's assets even if that person is not in a will. However, this may only be true if an individual can show that there is a need for a portion of a deceased spouse's net worth. Another possibility is that a spousal trust is created that benefits a partner and an individual's children from a previous marriage.

Millennials largely don't have wills yet

A recent survey published by Caring.com says 78 percent of Millennials don't have wills. Talking about death can make people uncomfortable, but people in Nevada who die without a will can cause problems for their loved ones. A simple will sets forth how a person, called the testator, wants his or her assets distributed after death. It names an executor to oversee the process and make sure the transfers are done. Having a will can simplify the process even for people who would leave everything to their parents at this point.

Beyond a will, the other two estate planning documents Millennials should have, generally speaking, are an advance medical directive and a durable power of attorney. Durable powers of attorney name someone to step in on behalf of the testator to handle financial matters. This would come into play if someone becomes incapacitated or is otherwise unavailable to make important financial decisions. An advance medical directive defines an individual's end-of-life wishes regarding matters such as comfort measures and life support.

Clergy procrastinates estate planning decisions

Most residents of Nevada understand that estate planning is key to providing loved ones the easiest possible path to navigating the death of a family member. One might assume that those in professions regularly dealing with death and the sometimes messy aftermath would be especially conscientious with regard to making sure their end of life affairs are in order, but that is not necessarily true.

A recent study commissioned by Lifeway Research, an arm of the Southern Baptist Convention, reveals that roughly half of all pastors do not have essential estate planning documents in place to protect their loved ones and their own wishes for disposition of their estate. The surprising numbers show that half of those surveyed also do not have a living will or healthcare directive illustrating their end-of-life wishes and appointing a representative to carry them out. Unsurprisingly, 74 percent of pastors surveyed believe that it is poor stewardship to disregard estate planning. In spite of those high awareness numbers, the study reveals that clergy are not immune to procrastination regarding essential estate planning. Basic estate planning is known to provide guidance and relief for survivors in addition to the financial incentives from tax relief and potential avoidance of a lengthy probate process.

Selling a home during the probate process

After a loved one's death, heirs, beneficiaries and the executor often have to handle much property that the deceased left behind. Commonly, a will -- if one exists -- can help address the distribution of those remaining assets. Of course, you may not want to keep a major asset, like a home, if you inherited one, or if you are the executor, you may need to sell the home and distribute the proceeds.

When it comes to selling a deceased person's property, difficulties can arise as the estate moves through probate. However, in Nevada, you can sell a home during the probate process as long as you follow certain steps in accordance with state law.

The importance of estate planning for small business owners

Every adult needs an estate plan, but for business owners in Nevada, an estate plan is particularly important. A will and other documents can help ensure that an owner's wishes for the business are carried out.

The first step is to create a will. The will needs to name an executor and include information about who will run the business or take over the person's share. Experts also say that a list should be kept of important files and accounts and how to access them. This information may be shared with the executor, business partners or others, and it may be stored online or on paper in a safe deposit box or safe.

Why individuals should consider a DAPT

Nevada residents and others who are creating their estate plans may want to consider including a domestic asset protection trust, or DAPT. These trusts offer a variety of benefits such as protection from creditors as well as privacy from those who may want to know the details of an estate plan. It can also be helpful for those who plan on transferring money to minors or to those who are immigrating to the United States.

Of course, it is important that the transfer of an asset into a DAPT isn't seen as fraudulent. If that is the case, the transfer could be reversed. A transfer may be considered fraudulent if it is done with the intent of hindering a creditor. This applies to both current creditors and those who may become creditors in the future. However, it doesn't apply to creditors that are deemed to be unforeseen.

Aretha Franklin's heirs will likely face estate taxes

The death of Aretha Franklin at the age of 76 saddened music fans throughout Nevada and the rest of America. Her passing also revealed that she did not prepare a will or any kind of estate plan. With an estimated fortune of $80 million, which includes illiquid assets like song copyrights and future royalties, her heirs will very likely owe the federal government 40 percent estate taxes on the portion of the fortune that exceeds the exemption of $11.18 million. The Internal Revenue Service will expect this tax payment within nine months.

Franklin's four children have put themselves forward as potential heirs. Because the singer left no estate plan, all decisions about the distribution of the state fall into the hands of the local probate court. The attorney who represented Franklin said that he urged her many times to set up a trust, but she never followed the advice.

Issues to consider when amending a trust

Nevada residents and others may want to amend their trust or amend one on behalf of a parent. The first step is to ensure that a trust's terms can be changed. In many cases, the terms can be amended assuming that the proper procedures are followed. Depending on the trust's language, it may be possible for an attorney-in-fact (AIF) to make changes if the creator of the trust doesn't have the mental capacity to do so.

The AIF provision is usually a part of a power of attorney. However, it is important to check to be sure that this power is granted before proceeding with making amendments to a trust. Successor trustees may be able to go to court to get an order that makes it possible to alter its terms or otherwise go against the language already contained within the trust. This may be beneficial in cases where an amendment by an AIF could be seen as self-serving.