What you need to know about Estate Planning

Estate Planning FAQs

Estate Planning: What you need to know

When it comes to estate planning, do not wait until it is too late. So many people delay in creating an estate plan because they don’t think they own enough, are not old enough, or they just don’t want to think about it.   It does not matter how large or small your estate is, in either case, there is plenty of unfinished business for your loved ones to take care of upon your incapacity or untimely death. This is why you should take action now to plan your estate.

To help you better understand of what you need to know about estate planning, our Estate Planning Department has prepared a list of the most common questions they have encountered from their clients. Please remember, every person’s situation is unique. For direct answers to your specific personal questions, please contact our Estate Planning Chair for assistance.

What happens if I become unable to make my own decisions?

If you become unable to manage your own affairs and make your own decisions due to mental illness, incapacity or an accident, most often the appointment of a Guardian will be necessary.

What is guardianship?

A guardianship is a Court supervised process where an individual will ask the Court to be appointed as guardian over your person (personal care and decisions), estate (financial management and decisions), or both.  If you have not executed a document nominating a ‘preferred guardian’, Nevada Statute sets forth the priority for those eligible to serve.  Therefore, it is important to document who you would like to take care of you in the event of your incapacity.

How do I avoid guardianship?

With the proper estate plan in place, the appointment of a Guardian should not be necessary.  The recommended documents are addressed below.

What happens if I die and do not have a will?

If you die without a Will, you have died ‘intestate’.  If the value of the assets in your estate meet the statutory limits, it is most likely your estate will be subject to Probate.  Further, Nevada Statutes dictate who can administer your estate, and who your beneficiaries are.

What happens if I die with a will?

Again, if the value of your estate meets the statutory limits, your estate will be subject to Probate; however, the person(s) you have named in your Will are generally appointed as your Executor, and the beneficiaries you have named in your Will, inherit your estate.

Can I update my estate plan as I please?

Yes! If major personal or financial events or changes occur (like marriage, the birth of tour child, divorce, selling or buying a business) we recommend you review your plan with an experienced state planning to ensure those changes are incorporated.

What is probate?

Probate is a Court supervised process of transferring ownership of property from a deceased person to his or her heirs.  In Nevada, there are different procedures for administering estates, depending upon the value of the assets.  A Petition is filed with the Court, and a copy of that Petition is served on your heirs.   Your Administrator/Executor files tax returns, notices creditors and protects and/or liquidates the assets of your estate, however any assets are held until the Court approves the final distribution.

How do I avoid probate?

You can avoid Probate by executing a Revocable Living Trust and transferring your assets into that Trust.  You retain ownership and control of those assets.  Ownership of a limited number of assets cannot be transferred into your Trust, however there are ways to ensure those assets are not subject to Probate.

What is a Revocable Living Trust?

The RLT is established by written agreement and records the arrangement wherein you transfer ownership of your property into the Trust during your lifetime.  There are 4 main components to a Trust:

  1. Trustor:                     The creator of the Trust;
  2. Trustee:                    The person/entity who accepts the property into the Trust, and who

manages and distributes the property in accordance with the Trustor’s directions;

  1. Trust Assets: The property transferred into the Trust by the Trustor;
  2. Beneficiary: Those who receive the Trust assets.

Upon your incapacity and/or death, your nominated Successor Trustee steps in to manage Trust assets.  This avoids a guardianship of your estate, and/or a Probate action.  Your Successor Trustee will ultimately distribute your assets to your named beneficiaries following your death.

What are Power of Attorneys?

Healthcare Power of Attorney:  Your HPOA names the individual(s) you have chosen to make medical decisions on your behalf, and to carry out your stated desires regarding life sustaining measures.  By nominating an agent and making your desires known, you remove the burden from family/friends of having to make those decisions on your behalf.

Durable Financial Power of Attorney:  This FPOA allows your nominated agent(s) to make financial decisions on your behalf, and to manage your assets, except those assets that are in your RLT.  You can make your FPOA effective immediately, or have it effective only upon your incapacity.  You can also limit your agent’s powers, or grant them broad powers.

 

If you are considering creating an estate plan, or would like to update your existing estate plan, we would be happy to discuss your needs. Contact our Estate Planning Chair for assistance. 702-869-8801


Delwyn E. Webber, Esq.
Estate Planning Chair
dwebber@blacklobello.law

Nevada Foreclosure Mediation Program Enrollment Deadline

The last day to file for the Nevada Foreclosure Mediation program is December 31, 2016.

In 2009, the Nevada Legislature passed Assembly Bill 149 creating the Nevada Foreclosure Mediation Program. Since inception, the program has assisted many Nevada homeowners avoid foreclosure by providing a platform for the homeowner and lender to discuss options to foreclosure.

As the economy, has improved, the number of enrollments in the Program have steeply declined and as a result the Nevada Legislature voted to end the program. The Program will not accept any enrollments after December 31, 2016. The Program officially ends on June 30, 2017.

Why You Want your Transactional Lawyer to Understand Bankruptcy….& Vice Versa

When a company is on the verge of closing a major transaction, bankruptcy is the farthest issue from everyone’s mind. The excitement of launching an entrepreneurial or financial endeavor can make it seem unnecessary to worry about worst-case scenarios. Many companies rely on their regular transactional attorney to structure, negotiate and draft documents and only think of hiring bankruptcy counsel when a bankruptcy is imminent or unavoidable (and sometimes not even then).[ But what if your counsel could do both, at no extra cost. Your lawyer could add real value to any transaction.]

The recent downturn provided many examples of unintended consequences and risks related to transactions scrutinized in bankruptcy that could have been avoided. From guarantor liability to loss of mechanics’ liens – from issues relating to perfection of security interests to expensive litigation, all can be dealt with or mitigated as part of the original structure. negotiation and documentation of a transaction.

For any company that ends up in bankruptcy court, whether as a debtor or creditor, the consequences of not understanding and preparing for those risks up front can be truly be devastating. Not to mention expensive.

In addition to mitigating risk, understanding the rules in bankruptcy can add strategic alternatives to a transaction from the beginning. Potential avenues of flexibility can be built into the transaction documents up front to provide companies with advantages in the event of any later bankruptcy, whether they are the debtor or the creditor. The identification of these opportunities may also help add leverage to any pre-bankruptcy negotiation. This is especially true since the number of those kinds of attorneys is very limited – and likely the attorney on the other side will not have that same knowledge.

When hiring an attorney who understand bankruptcy as well as transactional work — both boom and bust — to do a company’s transactional work and to help a company structure a transaction properly is the smartest way to ensure that the company’s interests will be protected from the outset, no matter what the ultimate consequences prove to be.

Make sure that your company has taken advantage of every opportunity and strategy in its favor and understands all of the lessons that the recent downturn has taught. The truth is that it takes years and years of transactional experience and deep involvement in bankruptcy to become both proficient and efficient in issue spotting and resolution. Moreover, being able to assess bankruptcy risks and advantages in a manner that is useful to a company at the earliest stage is akin to an art form. Hiring an attorney who has been through multiple transactions from the cradle to the grave gives your company a tactical advantage from the beginning, superior knowledge and negotiating leverage as well as mitigation of risk.

 

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