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Holographic Wills: You May Write Out a Will on Almost Anything

What is Necessary to Complete a Holographic Will?

Transcript:

(Editor's note: Brian is Clear Counsel's Communications Director. His prompts represent a conglomeration of inquiries submitted. If you have you have a question you would like answered in an upcoming video, email the inquiry to brian@clearcounsel.com)

Jonathan: Hello. My name is Jonathan Barlow, I'm a partner attorney at Clear Counsel Law Group. I was recently talking in the office with some of our assistants here in the office about how you can actually write a will on anything. You can write it on the back of your receipt in the grocery store aisle. You could write it on a letter. That could be a valid will depending on if you follow the requirements in Nevada.

Brian, my assistant, didn't believe me. In fact, Brian, what was your question about this?

Brian: You can't be serious, Mr. Barlow. You're saying if I write out a will on the back of a cocktail napkin, then, ... I leave assets to my children that the court can uphold it? That can't possibly be real. Come on.

Jonathan: It actual is, Brian. It actually is. Believe me. It's called a "holographic will," a hand-written will. In Nevada, there're only three requirements to make that a valid will. Again, if you write it on the back of a napkin, and you date it in your handwriting ... Let's try. Let me be clear. One is, it's in your handwriting. Number two, you date it. Number three, you sign it. That's a will. That's all Nevada says you have to have in order to have a valid holographic, or handwritten, will.

Let me tell you an interesting example, Brian. It wasn't the back of a cocktail napkin, but a few years ago I was involved in a case where a gentleman had gone back to Oklahoma to attend his mother's funeral. While there in Oklahoma, he was sitting in the hotel room, and he pulled out a piece of hotel stationary. You can actually see at the top of it, the name of the hotel. It's just hotel stationary. On this he writes a letter to his long-time girlfriend. Not married. Long-time girlfriend. In that he says, "Dear Susie. I want to make sure that you get everything that I have, and that my children and my other relatives get nothing", basically. "I intend to create a will at some point in the future. Love Bill." The girlfriend was actually able to get that one-page letter written on hotel stationary admitted as a valid will. The kicker is, the estate was worth over two million dollars. The children were cut out of two million dollars due to a hotel stationary letter.

Yes. You can do it on a hotel ... Excuse me, on a napkin. You can do it on a hotel piece of stationary as long as you meet those three requirements of, "in your handwriting," "date it," and "sign it."

Brian: You're saying that we don't need a witness?

Jonathan: Not for a holographic will. That's an excellent question. You don't need a witness. You don't need to have it notarized. All it needs to do is meet those requirements, as long as it's in your handwriting. A common problem that we sometimes see with this is that somebody will go on the computer and type out the will, and they'll sign it. If you do that without a witness, or without two witnesses in Nevada, then that will not be a valid will.

Again, the whole thing ... At least what's called the "Material Provisions" of the will have to be in your handwriting. Yes, it doesn't need a witness at all. It's really an interesting technique. Obviously, as an estate planning attorney, we don't advise doing this technique of a holographic will because, inevitably, it causes problems, which I'm grateful to have the work for the disputed part, the litigation, but I would prefer not to do that. Yes, you can do a holographic will on any piece of paper you want, but the best practice is always to go in and visit with a good estate planning attorney and get it done formally. Yes. Meet those three requirements, and you can have a holographic will on the back of a napkin.

What Estate Planning Documents Will Help You Avoid Probate?

Transcript:

Hi, I'm Jordan Flake. I am a managing partner at Clear Counsel Law Group. A lot of times we get the question: what kind of estate planning documents can help me avoid the probate process? In order to tackle that question, it's important to understand that probate is the court supervised process of determining where assets go after an individual's death. When a person passes away, with assets in their own name, we're in a place of insecurity where we really don't who gets those assets and under what conditions they get those assets.

That's when the state law steps in and says, "Okay, if Molly, 87 year old woman, Molly," I'm thinking of a client of ours, "passes away, and there's assets just in here name. A house, a bank account. The bank is not just going to give that money to her kids just because they can produce a birth certificate. They need more assurance in order to release Molly's account to the children.

What do they need? They need a court order saying that these individuals are entitled to this bank account. The process of obtaining that court order is known as the probate process. It is not as simple as it may seem. You have to prove to the court, the word probate actually comes from the same word "to prove," you have to prove to the court where these assets go and why they should go there. In order to do that, you have to hire an attorney and go through a very long and costly process. A lot of what we do as estate planning attorneys is to ensure that your loved ones are not left, at the time of your passing, in a probate situation.

What documents can bypass the need for probate? The main one that you want to look for, in an estate planning attorney, is a revocable living trust. It sort of operates like a box. You can think of it as a box. You can also think of it as a living legal entity, not a human, but a legal human entity of sorts. Once you place assets into that box, then for purposes of the law, that's kind of set aside outside of your own name.

Let's just go back to the example of Molly, whereas she passed away with a bank account in her name, the bank had this confusion about where to send this asset and basically told the loved ones, "Go get a court order saying where this goes." Let's take that exact scenario with Molly had seen an estate planning attorney in advance.

Molly puts the assets into a box, into a revocable living trust. The bank account, instead of listing Molly on it, lists her trust. When the survivors go in, at that point, then the bank says, "Oh, this is a trust account. It's not owned by an individual. What does the trust say to do with this account?" At that point, the bank doesn't need any kind of court guidance to determine what to do with the assets in the bank account. Instead, they look to the trust, which was signed previously by Molly, and they follow the instructions contained in the trust.

If you think about estate planning and how to avoid probate, it's just the preemptively declaring in a very formal and official legal sense, declaring to the whole world, what you want done with your assets at the time of your passing. Normally, by putting them into this separate legal entity or box, if you want to think of it like that, that will persist in its validity even after you pass away.

Please come see us at Clear Counsel Law Group if we can either review an existing trust or give you a consultation about your different options in terms of putting your assets into a revocable living trust. Thank you.

Estate Planning / Probate / Probate Videos - 11/14/2015

What is Survivorship?

What to Know about Survivorship before You Purchase a Home

Transcript:

Jordan: Hi, I'm Jordan Flake with Clear Counsel Law Group. One of the questions that we get a lot is what is survivorship. You hear this word survivorship. For example, in the context of owning a home you'll hear the words joint tenancy with the right of survivorship. Basically, survivorship refers to the fact that after one of the owners passes away, the asset goes directly to the other owner without the need for probate. If you own a house in joint tenancy with rights of survivorship, say you own that house with your spouse, and your spouse passes away, that house becomes yours exclusively by operation of law. The principle of law that causes that transfer to occur automatically, we refer to that as survivorship.

It's important to know about survivorship because those assets that are held jointly, with survivorship essentially, do not need to go through any type of probate process because after an individual passes away, there's really no doubt as to who owns that property. Did you have any question, Brian, or follow up on ...

Brian: Sure, could you explain how a house becomes owned in joint tenancy?

Jordan: When you purchase a home, the real estate agents will likely ask you how you want to take title to the property. What that really means is how is it that you as a purchaser want to hold that property under the eyes of the law. There are several different options. There's something called tenants in common, which means that you own 50% and the other owner owns the other 50%. Even though you own the same property, it's as if you own two separate assets because the property is split into two shares, 50% shares. That's tenants in common.

What happens in that situation, incidentally, is that if one of the tenants passes away, that 50% share just stays there until there's a court order determining what happens to it. In a way, to understand survivorship it's helpful to understand tenancy in common because basically they're just totally different in the sense that with joint tenancy with rights of survivorship, it's automatically transferred to the other person whose name is on the title.

When you purchase a property is when the titling of the property will happen. Now if you purchased a property and you're not sure exactly how you hold title to it, our law firm will do a free consultation where we will review any estate planning documents you have. We will review all of your assets, how those assets are held. We go through and say, if heaven forbid you were to pass away, this is what would happen with this asset. That's what we're getting at when we're talking about taking title, and survivorship, and tenancy, and things of that nature. Other questions on that?

Brian: Is there a type of ownership that is the default or can you opt into all of them?

Jordan: You can opt into all of them. That's the point of the realtor or the title company asking you how ... if they sit down with you and your spouse for example, how do you want to own this property. If you do not make a selection on that front and there are two owners to the property, it is presumed under the law to be a tenancy in common, meaning that one spouse owns 50%, the other spouse owns a divided 50%. Now this is where you could potentially face a probate issue because if one of the spouses passed away, that 50% is just sitting there hanging out in that deceased spouse's name. All of a sudden, the surviving spouse might run to Clark County and say, "Well that was my husband and he wanted me to have everything." Clark County says, "That may be true but in order to actually give you the entirety of the house, we need a court order." The process for obtaining that court order is a probate proceeding, which can be time consuming or expensive and fraught with some difficulty.

If you're in that situation where either you have a loved one pass away and you're not sure how the property was titled, or you own a house yourself and you don't remember going through this conversation about how to title the property, please come see us so that we can go over those assets and help you understand what you're facing.

Probate / Probate Videos - 11/09/2015

Why Do You Need an Attorney for Probate Matters?

How Will an Attorney Assist You With Probate?

Transcript:

Hi, I'm Jordan with Clear Counsel Law Group. I'm an attorney who practices a lot in probate. One of the questions that we get, when a person passes away, their family comes to us and says, "Why should I have to hire an attorney in this situation?" The answer is because it's actually pretty difficult to interface with the court. Here in Nevada we have a little bit more of a complicated probate statutory structure. The process is a little bit more difficult. I assume, in a lot of ways, that's because we're a retirement destination. I think there's a lot of exploitation in our state. When a person goes to the court saying, "My loved one has passed away and I want to get their property," there's really a lot of hoops that that individual has to jump through.

There's getting all the right notices put out there, noticing everybody who's entitled to notice that you are seeking to become the personal representative of the estate. There's notifying creditors. There's doing orders and notices of entry of order, and just a lot of different documents. There's letters of administration or letters testamentary that need to be filed. I'm all for do-it-yourself legal solutions; however, in the probate context I'm very, very confident that it's going to be much more economically advantageous to hire an attorney. Not just because it simplifies things and the attorney has the expertise to do that, but also because if the personal representative were to try to go it on their own and make a huge error, that can come back to them in the form of liability. I would strongly, strongly recommend that if you have to administer the estate of a deceased love one, that you contact Clear Counsel Law Group so that we can give you an idea about what to expect and how we might be able to help you.

At Clear Counsel Law Group, our goal, and our motto when it comes to representing individuals who have had loved ones pass away, is maximize your inheritance, not your attorney's fees. That's why we charge on a flat fee basis rather than some kind of hourly basis that can get way out of control. Come talk to us about how we can maximize your inheritance and minimize your attorney's fees by charging on a flat fee basis. We'd love to talk to you about it.

Estate Planning / Probate / Probate Videos - 11/07/2015

Are Children Liable for the Debts of Their Parents?

Will Children Have to Pay the Debts of Their Parents?

Transcript:

Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. One of the questions we get a lot in our probate practice is are the children going to be liable for the taxes or the creditors of the deceased individual? Obviously, think about it. If your mom and dad were to rack up a lot of debt, or taxes, or maybe have a judgment against them, you would legitimately be concerned whether or not those debts were going to come after you when they pass away. The answer is Nevada does not hold children responsible for the debts of their parents; however, you must understand also at the same time that the assets left behind by the deceased individual are responsible for the debts.

Let's say that there's a creditor. Let's just take VISA, a VISA card for $10,000.00, and your mom passes away, and she has a bank account that has $100,000.00, then that $100,000.00 bank account, if it goes into probate, would be liable for the $10,000.00 debt; however, that mom's actual children wouldn't themselves be expected to take money out of their pocket to pay off that debt. Just kind of a simplified answer is an estate is responsible for the decedents' deaths; however, the children are not. If you have a loved one who's passed away and left debts, Clear Counsel Law Group can help you resolve those debts and handle the probate so that, hopefully, we can maximize your inheritance and not the money that goes to the creditors. Feel free to give Clear Counsel Law Group a call.

Probate / Probate Videos - 11/02/2015

How to Learn the Status on Your Probate Case

How do you check on the status of your probate case?

Transcript:

Hi. I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group.

I do a lot of probate work. One of the questions that we get from time to time is, "I have a will that is being probated for a deceased loved one, but I really want to check on the status of that."

There are different websites in Nevada court systems that basically will tell us what the status of the case is. We can go on those websites and look up the case and see where they are in the probate process.

This is really important sometimes, especially if you have a personal representative named under the will who maybe isn't doing all the things they need to be doing or who is not maybe doing them as quickly as they need to be done.

If you're in a situation where maybe you're not the executor of the will, or maybe you're not the personal representative of the estate, and you want an opinion about whether or not the personal representative is actually doing their job, that would be a great reason to give us a call.

We will happily look up the case, let you know what has been done, what hasn't been done, the time frame that you're looking at, and the different elements that should be there.

That's something that we'd be happy to help you out with. Give us a call.

Estate Planning / Probate / Probate Videos - 10/31/2015

How Much is a Personal Representative Paid to Administer an Estate?

How is the compensation of the personal representative determined?

Transcript:

Hi, I'm Jordan Flake with Clear Counsel Law Group and I practice a lot in probate. One of the questions we get is, what kind of compensation can a personal representative expect to receive for acting in that capacity? Basically, the question here is, when someone passes away the court often has to appoint a personal representative to deal with that individual's assets. Of course that can be a difficult job sometimes. It can require ... It could be as easy as maybe liquidating a few bank accounts, but it could also be as difficult as cleaning out a house or notifying a bunch of creditors. There can be a lot that goes into that. The question is, what does that person get paid for all of their work?

In Nevada there's two ways that a personal representative gets paid. There's something called ordinary kind of statutory type fees. These are determined as a percentage of the overall estate. You could expect on maybe a $100,000, $200,000 estate to get paid $2,000 or $3,000 for your work as a personal representative. However, if you think you've done more than that, and you've had to do what's called extraordinary work such as cleaning out various storage sheds or a house. That would be covered under extraordinary work and the court basically just looks at what's fair and reasonable under those circumstances.

In any event, if you're listed as the personal representative on a trust or on a will, then feel free to give Clear Counsel Law Group a call so that we can help you with those responsibilities. Definitely if you've gone above and beyond just the statutory bare minimum for the kind of work you put in, then absolutely we're going to make sure that you're compensated fairly. If you're listed as the personal representative under a trust or a will, feel free to give us a call and we can help you out with this.

Estate Planning / Probate / Probate Videos - 10/29/2015

Does a Trustee Have the Option to Exclude Beneficiaries?

May a Trustee Unilaterally Exclude You as a Beneficiary?

Transcript:

I'm Jordan Flake with Clear Counsel Law Group. One question we get a lot in our probate practice is, can an executor of a will or a trustee of a trust unilaterally exclude a beneficiary from receiving their share. This is obviously a big concern if you're a beneficiary and you feel like the personal representative of an estate or the trustee of a trust is just kind of arbitrarily saying, "Yeah. I know you're listed in the will, but I don't like you and I don't want to give you anything."

The answer is that's not allowed. If the individual who left the last will and testament or the individual who wrote the trust leaves a beneficiary something through that document, then the executor or the trustee has to actually comply with those wishes. They can't just decide on their own not to give that gift. If you are the beneficiary of a trust or a will, and you are concerned that maybe you're not receiving everything that you're entitled to, then feel free to give us a call at Clear Counsel Law Group. We'll sit down with you and review the documents, and review your options.

Estate Planning / Probate / Probate Videos - 10/27/2015

Do Verbal Instructions Create a Valid Will?

Are verbal instructions sufficient to create a valid will?

Transcript:

Hi, I'm Jordan Blake. I'm an attorney with Clear Counsel Law Group. I do probate and I also do estate planning. I have this question that comes up from time to time as to whether or not verbal instructions can be valid for disposing of someone's property after you pass away. The question is, sometimes I meet with an elderly individual who says, "I told my kids what I want done and they know. They know what needs to be done." That may be the case. The kids may cooperate. The question is, is that verbal instructions actually enforceable and legally valid. The answer is, no, it's not.

That's why we have. That's why we have trusts. It's because merely verbal instructions are not actually legal and enforceable. They're certainly better than nothing in terms of letting your loved ones know what your wishes are, but if there's any kind of dispute as to those verbal instructions, it's gonna be a situation where it's very much he said, she said. There's not gonna be any kind of legal guidance as to what happens. If you merely leave verbal instructions, what's likely to happen is the court will divide the property via what's called intestacy, which just means they will consider you to have passed away without a will. Usually that goes first to the surviving spouse, then to the kids, then to brothers and sisters, kind of in that order.

In any event, we would strongly, as attorneys, as estate planning attorneys, we would strongly, strongly advise against just trying to leave assets via verbal instructions. Very important to get into CS so that we can talk about the different options for making valid, enforceable, written instructions. Feel free to give us a call, Clear Counsel Law Group. We'll gladly sit down with you and do a free estate planning view.

Estate Planning / Probate / Probate Videos - 10/26/2015

A Short Conversation Explaining Undue Influence in Estate Planning

Some Good Information on Undue Influence

Transcript:

Hello. I'm Jonathan Barlow. I'm a probate attorney here at Clear Counsel Law Group. An important question that I'm often asked about is undue influence. It frequently comes up both in when we're preparing wills and trusts for people, but also often comes up after a person passes away.

What is undue influence? Undue influence is when a person who is in a position of authority over another person, who's called the vulnerable person, exerts influence or control over that other person to the point that the vulnerable person acts against his free will, or he does something that he otherwise normally wouldn't have done. Frequently we see that in the context of the vulnerable person creating a will or a trust where he leaves an unnatural gift to that other person who had been exerting influence over him. It's a question that often comes up from people who call in or write to our law firm.

In fact, I think Brian has some questions about undue influence right now.

Brian: You just mentioned an unnatural gift. Will you explain what that means?

Jonathan: Yes. An unnatural gift would be something that you wouldn't expect to see. For example, if we have Mom; Mom has three kids; a natural disposition of Mom's estate would be to give each child one-third. A third, a third, a third. If Mom's passed away, and suddenly a will pops up where 50% or 100% of her estate goes to the caretaker who had been coming in to help her with her medications, and her finances, and things like that, and the kids are cut out, or the kids' amounts are shrunk down to some degree, that would be unnatural. That's something that we wouldn't normally see happen. It certainly can happen, if Mom wants to, but it raises questions of why did Mom do that. Did she do that because she was exercising her own free will for the caretaker, or did the caretaker exert some type of influence, or undue influence, over Mom in creating that will? Did that kind of answer that question a little bit?

Brian: It did, but I am curious if it is possible at all to give an unnatural gift.

Jonathan: Good question. Yes, that's a good question. Let's say the will did pop up after Mom's passed away, and we have that situation where the caretaker gets 50%, and the other three kids, now instead of splitting the full, they're splitting the other 50% so they get a sixth each.

Yes. Mom absolutely can do that, an sometimes Mom wants to do that because she's grateful for what the caretaker did for her. Maybe all three kids abandoned her; they haven't been out to visit Mom for years, and Mom felt bad about that; she was grateful for what the caretaker did, and so she left a gift for the caretaker. Mom can do that, no doubt.

It's just a question of why did Mom do that. Did Mom do that because she was exercising her own free will in doing so, or did she do so because the caretaker had been giving her subtle suggestions? "Hey, Mom, let's go take you over to the attorney's office; I want you to sign a will. Don't you think it would be a good idea to decide what you're doing with your house? You know I'm living on my own, and I don't have a house." Suggestions like this could indicate some type of improper influence by the caretaker.

It's just a question of why did Mom do that: Did Mom do that of her own free will, or because the caretaker was influencing her to do so?

Anything else, Brian, you think about this question that's important?

Brian: I'm confused. Can just a caretaker exert undue influence, or can someone else, as well?

Jonathan: That's actually an excellent question, and it often comes up. The type of relationships that we watch for to see whether an undue influence is occurring, it's not confined only to a caretaker situation. That's a common situation because that's someone usually outside of the family. However, it's really any person who is in a position of authority or control over that other individual. Less frequently, it could possibly even be a spouse. That would be pretty unusual, but you could see a spouse improperly influencing their spouse to do something. More common, though, would be a child situation where a child may exert some type of improper influence over their mother or their father. For instance, a lot of times we see here in Las Vegas where one child lives here, Mom lives here, and the other kids live in the other parts of the country; so that one child has a lot more access to Mom. If we see Mom making larger gifts through the will, or otherwise, to this one child, we certainly question why is she doing that. Is that because that one child has access, and is exerting undue influence?

We typically would see someone like a healthcare provider, like a nurse or someone like that, helping in the house; it could be a friend down the street who is fulfilling the role of caretaker. It could be a spouse. That would be pretty unusual, but it could be a spouse, and it could often be a child who has access and control over her parent.

The most important thing in this analysis, and thinking about undue influence, is simply to determine did the vulnerable person act of his own free will, or did he do this thing, giving a gift to somebody else, because that person exerted improper, undue influence, or control over him, suggesting to him in ways that essentially destroyed his free will. That's the big question in undue influence, whether that person acted under his own free will, or not.

We have some excellent blog entries about this on our website, ClearCounsel.com.

Myself and other attorneys here have blogged about undue influence, a very informative blog post. We encourage you to go read those blog posts at ClearCounsel.com for more information.

Estate Planning / Probate / Probate Videos - 10/22/2015

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