Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

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Nevada Advice for Folks with Out of State Wills

Out of State Wills in Nevada: What Happens Next?

Transcript:

Hello, my name is Jonathan Barlow, I'm a wills and probate attorney in Nevada, at Clear Counsel Law Group. Questions often come up, Nevada's a melting-pot, especially Las Vegas, where it's a melting-pot of sorts.

A lot of people come here to retire from other states in the United States. With that, they bring with them estate planning documents, particularly their will, that they did in another state.

They move here to Nevada and they have done their will in Ohio, or Montana, or California, some other state, move to Nevada, and they don't do a new will in Nevada.

Questions often come up when mom or dad die as a Nevada resident with a California will, with a Texas will. "Is that out of state will still valid because mom was a Nevada resident and she doesn't have a Nevada will?"

What do we do? Is the out of state will still valid?"

The basic answer is that if that will was valid in the state in which it was created, at the time it was created, Nevada will treat it and accept it as valid, even if the requirements under Texas law for a valid will are different than the requirements of a Nevada law for a valid will.

Let me give you some examples regarding out of state wills to flush this out a little bit and to make sense of what we're talking about.

What is a Valid Will in Nevada?

Let me start with, what is a valid will in Nevada?

In Nevada, and we're going to talk about typewritten wills, we're not going to talk about handwritten wills, there's different blog posts about that on our website. I encourage you to take a look at that for handwritten wills.

A typical typewritten will in Nevada has a few simple requirements. Obviously, the person creating the will has to sign the document, and they have to sign it in the presence of 2 witnesses.

We have to have 2 witnesses who also sign their names to the will, and those witnesses would be able and willing to sign a statement, which is usually incorporated into the will, could be done later.

They have to be able to say and testify that they witnessed the person signing the will, that in their opinion the person appeared to be of sound-mind, and that the person appeared to be of age of not under any undue influence.

The person needs to sign it, we need to have 2 witnesses who will say that the person met those legal standards of what's called capacity, that they understood what they were doing, appeared to be of sound mind, and of age.

That's a valid will under Nevada law.

out of state will, Nevada, probate

The Standard for Wills Differs Between States

The question comes up because other states don't have the same requirements for a valid will.

Some states require a notary to sign the will, or to notarize the signatures on the will.

Nevada doesn't require a notary even though sometimes we see notaries on Nevada wills, not required. Some states require only 1 witness to sign on the will.

Nevada requires 2.¹⁾Please know that there can be serious risk if you do estate planning on your own. We have estate planning attorneys that can help you.

I often see wills done in Nevada, usually done by the person themselves, on a do-it-yourself type of document, where they get just 1 person to witness the will.

It's not going to be valid under Nevada law if it was done in Nevada.

Other states allow that 1 witness to witness the will and have it be valid.

You are not Permitted to be a Beneficiary and a Witness

Let me tell you one other important thing that also happens under Nevada law.

Say we have those 2 witnesses who sign the will.

Let's say that 1 of those witnesses is named as a beneficiary of the will, they're named in the will to receive something.

They're the son or the daughter of the person and they're going to receive something from mom's estate and they then also sign as a witness, or mom, or the person leaves, "$10,000 to my neighbor, Betty."

Betty then witnesses the will.

Nevada law says that if you sign as a witness on the will your gift in the will is invalid.

The will itself is still valid, you can witness the will and make it a valid will, but your gift in the will is invalidated.

I've seen it happen many times, it's very unfortunate when that happens. You have to be very careful about who you have as your witnesses.

One small caveat, if there are 3 witnesses and 1 of them has a gift, we're still going to be okay because we have 2 other witnesses.

That's rare when we see that.

How Nevada Courts Treat Out of State Wills

Okay, let's say a Montana will has come in. I don't know Montana law, but let's say Montana says you can have just 1 witness on a will to make it a valid will.

Under Nevada law, that would not be valid.

Again, we're going to examine Montana law and if, when mom signed that will in Montana 10 years ago, if it met the Montana requirements for a valid will, Nevada is going to treat it as a valid will and accept it as a valid will even though Nevada requires 2 witnesses.

How do we prove that? How do we show the court that this is a valid, out of state will? The practice of the courts, here especially in the Clark County and Las Vegas area, the practice of the courts has been to accept a letter of opinion, written by a Montana, or whatever state, by a licensed attorney in the other state, that says that they have reviewed the will and that the will complies with the requirements of that state for a valid will.

We take that letter of opinion, we present it to the court, and the court can rely on that opinion of validity to allow that out of state will to be accepted to probate.

Which means to accept it as a valid will here in the state of Nevada.

More May Be Required If the Out of State Will is Disputed

In disputed situations, that may not be sufficient, that letter of opinion from another attorney. The court will then take a look at that closer and make its own determination at that point.

It greases the wheels a little bit to get that letter of opinion from another attorney.

As long as there's no disputes, Nevada will use that, rely on that letter, to accept that will done in another state with different requirements of validity, to accept it as a valid will in Nevada.

It's a concept called, under the US constitution, full faith and credit, where other states give full faith and credit to the laws of other states and allows transactions to happen across the country, and honors the laws of the sister states in the United States.

If you have a concern about that, where mom or dad has moved to Las Vegas, and you're wondering whether they need to re-do their will in Nevada, or mom or dad have passed away in Nevada and you know that they did a will in another state, give us a call here at Clear Counsel and we'll be able to help you understand whether that will be treated as a valid will here in Nevada, or whether we're going to be under a different situation.

We'll help you walk through that situation, as we have done many times in these exact situations.

Look forward to talking to you and answering these questions.

Give us a call here at Clear Counsel Law Group and we'll be glad to help you.

Footnotes[+]

Footnotes
↑1	Please know that there can be serious risk if you do estate planning on your own. We have estate planning attorneys that can help you.

Probate / Estate Planning / Probate Videos - 07/18/2016

In Nevada, You Can Keep Your Car in Chapter 7 Bankruptcy

Transcrpit:

Hi, Matt McArthur, attorney at Clear Counsel Law Group here. Today I want to address one of the most common questions we get, and it's can I keep my car and file for chapter 7 bankruptcy?

The answer is usually yes.

It depends upon the circumstances.

We have different tools at our disposal to be able to help you be able to keep your car.

Now in determining what the best course of action is for you, we're going to look at whether or not you're current on your vehicle, on your current monthly payments or whether you've fallen behind.

We'll then determine what the most appropriate tool that we have at our disposal is for helping you keep your car.

Now the most common type of issue in terms of keeping your car, or perhaps strategy of keeping your car, is what we call a retain and pay.

That's because in the state of Nevada we're no longer required to do reaffirmation agreements, which I'll touch on in just a minute.

Let Me Explain How You Can Keep Your Car

The retain and pay option is where you're current on your car and you just want to keep making payments to your lender. That is perfectly acceptable under Nevada law in most circumstances. If you want to keep your car, just keep making the payments and you shouldn't have any issues with your car lender.

Once the car is eventually paid off they'll release the title to you and you'll have your car as you normally would as though you had never filed for bankruptcy.

In some circumstances it might make sense to do a reaffirmation agreement and that's where you promise not to wipe out the car lender, the loan owed to the car lender, which would mean you'd still be responsible for the loan no matter what happens with your bankruptcy and you continue to make payments to the car lender just as you would under a simple retain and pay option.

Now if you've fallen behind on your car, we may be able to do a redemption, and we can sometimes do redemptions where you're current on your car as well.

keep your car

I Will Now Explain Redemption

Think of redemption kind of like a refinance on your car.

Under that circumstance we would get a new lender to pay off the old loan and you start a new loan with the new lender in order to bring you current on your vehicle and to be able to start moving forward with affordable monthly payments for your car.

Now if you're interested in any one of these options in a little bit more detail, we do have other videos on those specific subjects where we do dive into it a little deeper than this video.

For purposes of this video, the simple answer is there's a way to keep your car in a chapter 7 in many circumstances, we have many different ways. If you're concerned about keeping your car in a chapter 7, know that there's a way to keep it and come and speak with me and I'll give you the best advice for your particular financial situation.

Please come in and see me soon. Matt McArthur, bankruptcy attorney.

Our consultations are free.

I hope to hear from you soon.

Bankruptcy Videos / Bankruptcy - 07/16/2016

A Bankruptcy Guide to Nevada, Step-By-Step

A Bankruptcy Guide, Step-By-Step

Transcript:

Hi, Matt McArthur attorney at Clear Counsel Law Group.

Today I'm going to give you a step-by-step process of moving forward with a bankruptcy with our office.

Step 1: Make an Appointment

The first step is to call the number that you're going to see scrolling across the bottom of the screen there and schedule a consultation with our office.

Once you schedule that consultation, which is free, you will come in and meet with me and we will review your financial information together.

I'll have you fill out a little packet that tells me about what type of assets, what property you own.

Maybe you own a car, maybe a house, maybe you have a bank account is all.

nevada bankruptcy guide

We'll go over that information, we'll go over what debts you owe.

I don't need exact numbers and values for this initial consultation, this is just to kind of give us a rough bankruptcy guide on how to proceed.

Step 2: Bring the Necessary Documents

Once we've determined the rough guideline we will then chart a course for moving forward and actually filing your bankruptcy.

In order to file your bankruptcy I'm going to have to prepare a lot of paperwork for you.

These are detailed forms that are submitted to the bankruptcy court. In order to fill all these out I need some documents from you.

Typical documents that we need would be:

1. Six months of bank statements,

2. Six months of proof of income (like pay stubs),

3. The last couple years of tax returns, and

4. We'll need you to take a credit counseling course before you are able to file your bankruptcy.

I can give you all that information on exactly what you need.

I'll have a document checklist for you to go through and work on provided by my office.

Once I have those documents from you, I'll prepare the paperwork, we'll review it together to make sure that all the bankruptcy forms accurately list everything you own, everyone you owe money to, and all the details regarding your financial situation.

Step 3: I Will File Your Case and Assist You at Your Creditor Hearing

Once I file your case, about thirty days into the case, there'll be a meeting of creditors or a court hearing date that we'll need to attend.

I will attend this hearing with you. It's typically a pretty easy meeting.

There's no need to be nervous about this and I'll be there to guide you through every step of it.

From there, how long the bankruptcy takes or what course we go depends on what chapter you've filed.

If you filed a chapter seven bankruptcy, we typically just wait a couple months until a deadline passes for creditors in which a discharge would be entered soon thereafter.

For a chapter thirteen, you'll begin making your planned payments and you'll be in the chapter thirteen for about three to five years.

Once we get to the discharge the bankruptcy's basically over.

That's bankruptcy in a nutshell.

I hope to hear from you soon, and we can talk about getting your case started.

Bankruptcy / Bankruptcy Videos - 07/14/2016

Do You Need to Be Delinquent to Declare Bankruptcy?

Transcript:

Hi. Matt McArthur, attorney at Clear Counsel Law Group.

Today, I want to talk a little bit about whether or not it's necessary to become delinquent or to default on your monthly payments, on your debts, in order to be able to file for bankruptcy.

The simple answer is no, delinquency is not necessary.

We meet with people on a regular basis here and one of the common comments that we come across is:

"You know, I'm up-to-date on all my payments. I haven't missed anything yet. I'm barely squeaking by...I'm making minimum payments on my credit cards or other bills but I just can't keep it up. Do I have to miss payments before I can start the bankruptcy or can I be proactive and just move forward with filing the bankruptcy now since I know I'm not going to be able to keep it up for very long?"

It's simply not necessary and I'm not sure where the idea came from because it's quite common question that we come across.

delinquent debt bankruptcy nevada

Delinquent Payments, Bankruptcy, and Short Sales

I think it may have some roots in the fact that many people considering a short sale won't be considered for short sale by their mortgage lender unless they have become delinquent on their mortgage payments first but that does not apply a bankruptcy.

You are able to file bankruptcy even if you are up-to-date on all of your payments and you have a perfect credit record.

The advantage of filing for bankruptcy when you are actually current on your bills is that you're not going to create a long period of time of delinquency that's going to still show on your credit report after the bankruptcy has been completed.

When we look at your credit report, one of the factors that determines what your current score is going to be is based upon your payment history.

By intentionally defaulting on bills prior to filing bankruptcy for really no need at all, that's only going to drag down your credit score in a post-bankruptcy setting.

I wouldn't recommend defaulting solely for the purpose of filing bankruptcy.

If you have any further questions related to this matter, please come in and visit with me, Matt McArthur, bankruptcy attorney here at Clear Counsel Law Group.

I hope to hear from you soon.

Bankruptcy / Bankruptcy Videos - 07/11/2016

Podcast Preview: Why Are Class Action Lawsuits Permitted?

Earlier this week, Greg Hamblin hosted two of our partners, Jordan Flake and Jared Richards on his new podcast, On The Docket.

We had a great time! The whole episode will be a treat.

..The fun part about recording a podcast with one, Jared Richards, Esq., is that in the midsts of a irreverent conversation about law in the news, there will be a two minutes window where he explains, clearly and succinctly, why the legal system permits class action lawsuits:

Why Are There Class Action Lawsuits?

Transcript:

Greg Hamblin: First question, in the Federal Appeals Court on Thursday, throughout a 7.25 billion antitrust settlement reached by Visa and MasterCard with millions of retailers that had accused the card networks of doing what?

Jared Richards: Overbilling of some sort. Charging too large of transactions fees?

Greg Hamblin: Yes, that's it exactly. More specifically that they had fixed their fees in a monopolistic way. The Appeals Court said that the accord was unfair to retailers that stood to receive little or no benefit at all and decertified the case as a case action. I don't know what that means.

Jared Richards: Wow.

Greg Hamblin: What's wow? What does it mean when it's decertified as a class action?

class action

Jared Richards: It's problematic because the idea of the class action is that the individual cases are too small to ever make it economically viable to bring it to court because any given lawsuit, even like the extreme low end lawsuits, are going to cost $10,000.

A big one like this would cost millions and so you bring everybody together and sue them together. You sue with everybody together it's a class.

What you do is, because it's infeasible, where it's very difficult to go out and actually get everybody to sign up, you just have the court declare that everybody who falls in this class, meaning all merchants, will already be parties, will already be plaintiffs and they have to opt out, which is generally the way it goes.

It can go the other way but generally this way and that you have to write a letter saying that I don't want to be part of it or maybe you'll get mail saying I do want to be part of it.

If he's decertified in class, what he's saying is that every merchant, their damages are so different that they don't really fit well as a class. While that may be true that Walmart's damages are going to be significantly different than the florist that we talked about earlier, ...

Greg Hamblin: Jack Benny's Florist.

Jared Richards: ... Jack Benny's Florist, the problem is that Jack Benny's Florist is never going to be able to hire a lawyer to make this make economic sense. That's why you want it to be a class.

Greg Hamblin: I see.

Jared Richards: That's really difficult for the smaller guys. Even if they wouldn't get a whole lot of benefit that's probably also because they didn't get a whole lot of damage.

Podcast / News / Personal Injury / Personal Injury Videos - 07/09/2016

A Clear Explanation of Ancillary Probate in Nevada

Transcript:

Hello. My name is Jonathan Barlow. I am a probate attorney at Clear Counsel Law Group.

Today we're going to talk about what's called ancillary probate. Ancillary is kind of another word for a secondary probate.

Let me explain what it means in more practical terms.

If you have someone who dies and they were a resident of the state of Nevada, and they have assets that require it to go through the probate process in Nevada, Nevada will be what's called the home probate or the main probate.

Ancillary probate is a probate that would have to take place in another state.

Again, if the person died in Nevada as a Nevada resident but they owned land or real property of some sort in another state, say Texas or Arizona, Ohio, some other state where they owned real property, in addition to the Nevada probate process that you may have to go through, in order to take care of that land in the other state, you will have to do the ancillary probate process in those other states.

Now, I'm not licensed to practice law in any of those other states. I can't advise you about what would happen in those other states.

Needless-to-say, if mom or dad die as a Nevada resident and they own property in another state, you're going to need to talk to another attorney in another state to help you with the ancillary probate process in those other states.

It's unfortunate because you'll have to have possibly two attorneys, never-the-less, necessary in order to take care of that property in that other state.

How Ancillary Probate Works in Nevada

Now let's flip that on the head for a little more detail. Let's say somebody died in another state. They died as a resident of Ohio, or they died as a resident of Texas, and they had real property interests in Nevada.

Real property is land, such as vacant land, a house, commercial building.

Importantly, and often what we see is a timeshare interest in Nevada with a lot of timeshares here in the Las Vegas area. Ohio resident dies owning real property, such as a timeshare, in Las Vegas.

The only way to transfer that real property in Nevada is to open a probate proceeding here in Nevada. In essence we're doing an ancillary probate proceeding in Nevada.

ancillary probate in Nevada

I say in essence because Nevada law actually for the ancillary process is no different than it is for a regular Nevada resident.

Whereas, some states other states have different probate laws, such as there's the probate laws for their home probate when the home resident dies and has to go through the process there and when a nonresident has to go through.

They have different sets of laws and different procedures, and they actually kind of make the ancillary proceeding a little more streamlined. Nevada, for whatever reason, hasn't chosen to do that. If you have a need for an ancillary proceeding in Nevada, you're going to have to file the exact same things as would a person for a Nevada resident who had died here as a Nevada resident.

What that means is we'll have to do the same analysis of, what is the property worth? That's going to tell us what level of probate proceeding we have to go through in Nevada.

From there, again, we file the exact same filings as you would for other probate proceedings in Nevada.

Clear Counsel Will Help You With the Stress of an Ancillary Probate

The good thing about that is that we've done hundreds and hundreds of these probate proceedings. We're very well versed in those different levels of probate and can make it very easy for you to deal with those ancillary probate issues in Nevada.

We'll be able to get you that real property transferred, or get you to a position that you can sell it as part of the probate process quickly, easily, and expertly. It's what we do every day, all day.

If you're in a situation where mom or dad have died in Florida, or New York and they had bought some retirement property here in Nevada, or they bought that vacation timeshare interest that they wish they had never bought, but you want to get the money out of it and you got to go through the probate process in Nevada, give us a call.

We'll help you walk through all the steps to take care of the ancillary proceeding here in Nevada, that secondary proceeding that you need to go through in Nevada, and get you through that process as quickly and easily as possible using our expert advice in that regard.

Give us a call here at Clear Counsel Law Group and we'll be glad to help you with any probate issues you might have, including ancillary proceedings in the state of Nevada.

Probate / Probate Videos - 07/07/2016

How Long Does Bankruptcy Take in Nevada?

Transcript:

Hi Matt McArthur, attorney at Clear Counsel Law Group.

Today I want to address a common question that we get on a regular basis which is:

How long is the bankruptcy going to take? How long until I can get relief from my creditors?

How Long It Takes to Get Relief From Creditors

First you should know that relief is going to go into effect immediately upon the filing of your case.

There's something called the automatic stay, which is like a collection freeze that will stop wage garnishment, collection calls, vehicle repossessions, and home foreclosures.

In most cases we can get a case file of almost immediately, so that protection will go into place very quickly.

Once you have filed your case, it depends which kind of bankruptcy you have filed, to determine how long it's going to take to get to the end until you're done.

how long nevada bankruptcy

For a Chapter 7 bankruptcy, which is the most common type of bankruptcy, it typically takes about three months.

At the end of the three month time period, we would expect you to receive a discharge which is essentially the final order that wiped out the debt and in most cases, that signals the end of the bankruptcy case.

How Long a Bankruptcy Takes Will Depend Upon Which Chapter You File Under

For a Chapter 13 bankruptcy, it can take anywhere from 3-5 years and as you may know, Chapter 13 bankruptcy is a payment plan involving monthly payments made to the bankruptcy court.

Exactly how long the Chapter 13 is going to last in your particular situation, I would need to sit down and meet with you and review your financial information and I would love to give you that advice in person so please if you're at all concerned about how long a bankruptcy is going to last, what type of bankruptcy is best for you, and if you're considering a Chapter 13 how long that would last, please come in and meet with me, Matt McArthur.

I'm an experienced bankruptcy attorney here at Clear Counsel Law Group and I look forward to hearing from you soon.

Bankruptcy / Bankruptcy Videos - 07/06/2016

Podcast Preview: Mass Tort vs. Class Action

Podcast Preview: The Difference Between a Mass Tort and a Class Action

Transcript:

Jordan Flake: Seriously, will you get into that for just one quick second? If a state, or a city, has an engineer, and a water company that knows, or should have known … ?

Jared Richards: Sure. Listen, unless there's some other law, a state law or federal law that I'm not aware of, that would block the person, just under general principles of tort, yes, absolutely. If somebody is poisoning you, you could go sue them.

Jordan Flake: This would probably … An attorney actually pursuing this would probably want to create a class, and try to certify a class, and have it be done as a class action, because we have various injured parties here …

Jared Richards: Yes, various injured parties. The difficulty of a class is trying to show that all of the parties were hurt in the same way; maybe you can, maybe you can’t. If you can’t show that they were all hurt in the same way, you would bring them individually as a mass tort, as opposed to class.

Jordan Flake: Oh, okay … A mass tort is different from a class because …

mass tort

Jared Richards: A mass tort is different from a class because, in a class …

Greg Hamblin: The damages were the same?

Jared Richards: In the class you’re going to have, the damages are going to be similar through all of the members of the class, and you’re going to have one or two class representatives that are going to speak for the class, and make decisions for the class, where in a mass tort, you have a whole bunch of plaintiffs that are thrown in.

Jordan Flake: Where some people are like, “I’ve got ingrown toenails!” and somebody else is like, “I got cancer!” and they each get according to their damages in a mass tort…

Jared Richards: That’s why, in most of the drug product defect cases, you’re going to find that they’re not class actions, they are mass torts … But when a company screws over all of their people by five dollars, based on subscriptions - That is going to be a class action.

Jordan Flake: Unity or similarity of damages across all the injured parties.

Personal Injury / Personal Injury Videos / Podcast - 07/03/2016

Will a Chapter 7 Bankruptcy Help You With Tax Debt?

Bankruptcy May Help You with Tax Debt

Transcript:

Hi, Matt McArthur, attorney at Clear Counsel Law Group. Today we're going to be discussing whether or not chapter 7 is a useful mechanism for helping you get rid of IRS tax debt.

The simple answer is that yes, chapter 7 can get rid of tax debt.

It's generally thought that tax debt is untouchable but in some circumstances bankruptcy can actually help you eliminate that type of debt.

Now, there are several requirements that must be met in order for that debt to be considered dischargeable, meaning that the debt can be wiped out in your bankruptcy.

The first requirement is that it must be for a tax debt that was due and owing more than 3 years ago.

A Tax Debt Example

For example, if you owe for the tax of your 2012 and you filed your taxes April 15, 2013 the following year you would have to count forward 3 years from April 15, 2013 to determine whether or not you satisfy that 3 year requirement.

tax debt

The next requirement is that you have to have filed a tax return, the IRS cannot file a substitute return for you and you still be able to meet this requirement.

And you have to have filed at least 2 years before you filed bankruptcy.

The next requirement that you must meet is that there cannot have been any reassessments of the tax debts within the last 240 days.

An example of this would be where the IRS discovers some piece of information or some modified piece of information related to your income or your tax obligations for that particular tax year.

If they go in and recalculate the numbers that's considered a reassessment.

If you meet all of those requirements though, older than 3 years, filed your tax return more than 2 years before you filed bankruptcy and there's been no reassessments regarding that tax debt for that tax year in the last 240 days you may be eligible to discharge this tax debt in a chapter 7 bankruptcy.

Now this is a very complicated issue, you're probably going to want the help of a professional to help you navigate these issues.

Please come in and do a consultation with me, I'll be happy to discuss your particular situation and I look forward to hearing from you soon.

Bankruptcy / Bankruptcy Videos - 07/01/2016

Pet Trusts in Nevada: What You Need to Know

The Answers to Common Inquiries Concerning Pet Trusts

Transcript:

Hello, my name is Jonathan Barlow and I'm a probate attorney here at Clear Counsel Law Group. You may have seen in the news different times different people who leave money to a pet after they die and questions come up about these so-called pet trusts; whether they're valid, whether they're inevitably going to lead to litigation and disputes after the person dies.

We're going to discuss a little bit today about pet trusts and how those might work in Nevada and how you might be able to use them to take care of a pet, or if you're the person who's being disinherited in favor of a pet, what you might be able to do about it.

But Will They Have Pet Trusts After the #Brexit?

There is a recent story, actually in London of a woman who is still alive who is leaving quite a large amount to her dog. The interesting part about this particular story that just came out is that she, actually ahead of time, went and talked to her sons and said, hey sons I'm leaving my money to the dog.

And the two sons, according to the news story, were totally okay with it. Good for them. A lot of times though, the children are not so happy about millions of dollars being left behind for Fluffy, the dog.

Pet Trusts Under Nevada Law

Let's start with the beginning point of Nevada law. Nevada law actually specifically allows a person to leave money in trust for a pet, to take care of a pet. It is specifically allowed that you can do this. It's not absurd on its face or just to think about it. To think that somebody would leave money for an animal. It happens all the time from horses to dogs, to cats. All kinds of animals.

The key thing there is that the person leaving the money designates what is called a trustee, that is an individual, a human being that's actually in charge of the money. Obviously, the dog can't own property. You can't title a house in the name of Fluffy the dog, so it has to be titled in the name of a trustee of the such and such trust.

We have a human being in charge of the money, using it to take care of the dog under the standards that the person sets out in their trust.

Are they going to get filet mignon, are they going to have a country club membership?

Are they going to have to live off of the little cans of dog meat from the store?

The person gets to decide how the money is used to take care of the animal, and again, it is specifically allows under Nevada law.

pet trusts

Pet Trusts and Disinheritance

Now what are you going to do if you're the child of this person and you're not happy after mom has died.

You've read the trust document and you've realized that mom has either completely disinherited you or reduced your amount so far low in favor of the dog, that it's clear that you're not going to get what you expected to get from mom's estate.

What can you do?

Obviously, if you didn't know about this, you're going to be pretty upset. Typically that will weed into the litigation situation where you're going to bring a dispute or a contest of that trust document trying to overturn it in some way.

If you have been completely disinherited, meaning you're getting zero dollars from the trust, there is actually a pretty high incentive or I should say actually, there is not a disincentive for you not to contest the trust. You can come along and try to show that mom was not of sound mind, that she didn't understand what she was doing.

That she didn't meet the legal standards for setting up a trust of this nature.

Challenging Pet Trusts in Court Can Be Difficult

It's the same thing you would argue in other situation with a trust when you're trying to disprove the trust or contest it in some way.

You have to prove the same things, which is lack of capacity, lack of understanding of those who are your errs, what your property is.

There may undue influence.

That might be a little bit weird in a pet situation, but somebody could unduly influence a person to leave that for Fluffy, I suppose. You have the same standards you're going to have to prove.

Again, if you're getting zero dollars from the trust anyways, what does it hurt to give it a try, as long as you have a good faith basis, meaning as along as it's not frivolous to contest the trust.

You're likely going to do that. It may lead to a settlement coming out to you to resolve it. Fluffy gets a big share, you get a little share, whatever it is you come to an agreement on.

Is There a Way to Avoid Pet Trusts Probate Litigation?

That brings us to the point of as if now you're the person who wants to create the pet trust, have in mind that again your children are probably not going to be happy after you die, and they find out that you've left it for the animals.

What can you do knowing that they're probably going to contest this?

Like this woman in England did, you may want to talk to your family about it ahead of time. Make it very clear to them what you're doing, why you're doing it. Transparency often is a great policy in these situations to let them know, "this is why I'm doing this."

You may also want to consider not disinheriting your children completely. Again, if you leave some gift them in the trust, they have some disincentive to not contest it.

If they did contest it they would lose that what you did give them. Say if you gave them a $100,000.00 and they contested it, their risk is to lose that $100,000.00 or whatever the case may be.

We also talked about it on a different video on our blog about a process in Nevada that allows you before you die to go into court and ask the court to declare your trust or find your trust to be valid.

And if you do that before you die, then after you die, no one can contest it. The right to contest the trust is gone because you've got a court order before you die that it is valid.

Pet trusts are super fascinating. I've certainly done some where people love their pets very much, just like they love their children, and they want to leave money for them.

It's allowed, you can do it, but if you're going to do it, you want to make sure you do it in a way that is going to prevent the inevitable concerns, inevitable disputes that will arise after you die when the children find out that they're cut out.

If you want to set up a pet trust, give me a call. If you're concerned that your mom set up a pet trust and you're cut out, give me a call. We do the disputed work and we can advise you about whether you can do something about it.

For more information about pet trusts and other things related to trusts and disputed trusts matters, you can read our blog on clearcounsel.com.

Again, I'm Jonathan Barlow, I'll be glad to talk with on any questions you have.

Probate / Estate Planning / Probate Videos - 06/29/2016

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