ClickCease

Probate Videos

Clear Counsel Law Group / Probate Videos
power of attorney, guardianship

Power of Attorney vs. Guardianship: What's the Difference?

 

Transcript:

Hello. My name is Jonathan Barlow. I'm an attorney here at Clear Counsel Law Group. A large part of my practice is in estate planning and guardianship.

In doing estate planning we often do what's called a power of attorney for people and sometimes we get to the point where we have to file for a guardianship for people.

We're going to talk about what those two things mean, especially for elderly people in southern Nevada.

 

First, I Will Define the Term "Capacity"

An important concept though, before we discuss those two things, is capacity. That's going to come up over and over again in the discussion of power of attorney and guardianship. What is capacity?

Capacity simply means for you, as a person, your ability to mentally appreciate and understand the consequences of your decisions.

Decisions, whether they're financial decisions, whether they're health care decisions, have risks and rewards and consequences.

Your mental ability to appreciate the consequences of those decisions and act rationally in relations to those risks and consequences is essentially capacity.

As we all know, there are medical conditions and other reasons that people begin to lose capacity over time and sometimes it happens very quickly through accidents and other things that may happen, such as traumatic brain injuries, where that person loses capacity.

What that means is they are no longer mentally able to appreciate those risks and rewards and consequences of their decisions and thus it raises concern about the person's well being, about their safety, about them being subject to potential exploitation by other people or undue influence from other people.

There's processes put in place to protect a person in the event of incapacity.

That's a brief nutshell of what capacity means.

 

Next, I Will Explain Power of Attorney

Let's talk for a minute about what is a power of attorney and how it can help an elderly person.

A power of attorney is essentially kind of like a contract where you're going to sign a document that is going to grant rights and authorities and powers to a person, who is called an agent under the power of attorney, to make decisions for you or to exercise rights and authorities that only you can exercise.

Let me give you some examples of what the person can do for you under the power of attorney.

 

Medical Power of Attorney vs. General Power of Attorney

Let's assume you've named your son Frank to be your power of attorney.

There's two types of power of attorney, excuse me, sorry for this side track, but there's a medical power of attorney and there's general power of attorney. There's generally two different documents. Same concepts. We're naming Frank to make decisions.

Under the medical power of attorney, that's fairly straight forward. It allows Frank to make medical decisions for you in your place, again, only if you are not able to make those medical decisions for yourself.

For instance, he'd be able to determine what medications you would receive, what doctors you were treated by, what hospitals you might be admitted to, what rehab facilities you went to after being treated in a hospital, where you're going to live after being treated in a hospital or rehab facility.

Those are medical decisions related to who you are as a person and your well being as a person.

Under a general power of attorney an agent can make decisions, or has authority over, such as your bank account.

They can access your bank account and use it. They could sell your house for you. They could prepare and file your tax returns for you.

They'd have authority over your insurance policy such as homeowners insurance, car insurance, health insurance.

Essentially, anything you can do in you general the agent would have the ability to make those decisions and has the authority to do that under the power of attorney.

 

power of attorney, guardianship

 

Now That You Understand Power of Attorney, I Will Explain "Springing" Power of Attorney

There's an important concept in power of attorney that you need to understand and it's a protection for most people and I often recommend it for almost all of my estate planning clients.

That's called the spring power of attorney or springing rights under power of attorney.

Let's think in your mind about that point in the future at which point you have lost capacity. What we talked about again, you are incapacitated.

Think about that point in the future.

If you have designated your power of attorney to be a springing power of attorney, Frank, your son who you named to be your agent, though you've named him as your agent in the power of attorney, he has no rights, he has no power or authority, until you become incapacitate and then his rights spring into effect, in essence.

How does Frank accomplish that?

How do his right spring into effect?

Frank has to go to a doctor, to a physician, and obtain an opinion from the physician that says, "My mom or my dad has lost capacity. That they are incapacitated."

Once he gets a doctor's opinion, his power of authority under the power of attorney spring into effect.

It's a protection for you. If you want to put that power of attorney in place to protect that time when you're incapacitated, you can do that but you want to reserve to yourself and only yourself.

Even though you love and trust Frank, while I have my capacity I'm the only that is going to make these decisions. When I become incapacitated, his authority spring into effect.

It's a great protection and something that most people should think about and consider rather than the opposite which is if it is not springing, Frank can use the power of attorney tomorrow while you have your capacity to run your life for you.

Some people want that because they want the assistance, most people say, "I love Frank, I trust Frank, but let's wait until I'm incapacitated."

Power of attorney is very good for elderly people. It's relatively inexpensive to have a power of attorney.

 

Let Us Now Contrast Power of Attorney and Guardianship

It avoids the need for a court guardianship process when that incapacity arises and it allows the person to act pretty quickly without needing to wait for court authority. Which transitions us now to court guardianship process.

Many people don't get a power of attorney while they have capacity and they come to the point of incapacity and suddenly, Frank or other families, become concerned that you are not able to make your decisions or that you're making unsafe decisions that are putting you at risk.

They don't have a power of attorney document they can rely on.

The only way that they can have those same rights and same authorities to take care of you is to file papers in the guardianship court asking that Frank, or whoever, be named as the guardian for you.

Assuming that you are incapacitated and other legal standards apply that show that the guardianship is appropriate, once the court appoints Frank as the guardian, Frank has essentially the same rights as he would have under power of attorney.

Same rights to make medical decisions for you, to decide what health care you'll receive, to manage your money and finances for you, your property, to take care of all those general matters. Same rights happen under the guardianship.

However, he's stuck in this court process that requires annual reports, it requires annual filings with the court, annual accountings, and so it can be a little bit burdensome and it can be costly and time consuming to go through the guardianship process.

Nevertheless, they have the same rights under power of attorney and guardianship, both meant to take care of you while you're incapacitated.

 

How To Revoke Power of Attorney

Last thing we want to talk about, if you're still with us here at this point in the video1)Of course you are!, is what do you do if you are concerned about the agent under your power of attorney or you're concerned that you're stuck in a guardianship with a guardian named for you and in both situations you feel like you've lost control of your life.

Where Frank is running your life for you and you're not happy with what he's doing for you, both under the power of attorney and guardianship.

A power of attorney, if you still have capacity, you can always revoke your power of attorney.

Tear it up, get rid of it, notify other people who might be aware of it that you have revoked Frank's rights under the power of attorney.

That's fairly straightforward and easy.

 

It Is Difficult to Terminate a Guardianship

Now, if Frank has gone ahead and got that doctor's opinion that says you are incapacitated or if you're stuck in guardianship, in both situation you're unfortunately you're going to be stuck in some court process to prove your capacity.

You're going to have to try to prove that you do have the ability to make your own decisions, that you have the mental ability to understand the effect of those decisions. If you can do that and prove your capacity, then you can revoke the power of attorney and get rid of Frank or you can get out of the guardianship.

The guardianship would be cancelled, it'd be terminated, and you'd have your right back to take care of your person, your own finances, at that point.

Both situations are not desirable because, again, you're stuck in a court process. It's uncertain.

It's difficult to get a doctor to give an opinion that you have capacity when another doctor has already determined that you're incapacitated. Especially if there's diagnosis of Alzheimer's or dementia or something like that, it becomes very difficult.

Another protection I want to point out as we finish here, is that third parties, other people, Frank's siblings, your other children, other family or friends, can watch Frank's actions whether under power of attorney or under guardianship and they can come into those processes and file things or try to protect you.

There is a court process allowed to challenge the agent's actions under a power of attorney.

That allows a third party that's interested in your welfare and interested in your well being to bring the agent into court and ask the court to review his actions to determine whether they're appropriate under the power of attorney.

If they're not appropriate his right would be cancelled under power of attorney and may be required to repay or things that he's done and correct it. Same thing in a guardianship.

Third parties can come in and ask the court to either remove the guardian and replace him with somebody more appropriate or to cancel the guardianship altogether for you if it's appropriate.

 

If You Are Getting Older, Please Consider Power of Attorney Documents

If you're an elderly person or getting to the point where you want to think about a point where you may reach incapacity, you definitely need to think about this.

You should come in and at least get some power of attorney documents put in place where you can choose proactively who you want to name as your agent to make those decisions for you.

Who you trust rather than leaving it to the whims of the guardianship court to determine who the court thinks is best to make those decisions for you.

In any event, if you're stuck under a power of attorney or a guardianship and need help getting out, definitely come and see us and we'll talk you through those processes of what needs to be done to help you gain your independence back, to gain your capacity back, to make those decisions for yourself and to protect yourself.

Either way, we're happy to help here at Clear Counsel Law Group and we have a lot of experience helping people with these issues.

Give us a call here at Clear Counsel and we'll be glad to answer any questions you have about this and we look forward to talking to you soon.

 

Footnotes

Footnotes
↑1 Of course you are!
Probate / Estate Planning / Probate Videos / Trusts - 10/24/2019

ClearCast #14: In Response to the Rob Graham Matter

[Editor's note]

Welcome to today's ClearCast!

A quick word about today's video.

If you are unfamiliar with what is being alleged, you can read more here about one of the victims. This is a horrible story about a local probate lawyer allegedly misappropriating client funds; it could be for even more than 13 million dollars.

If you are a client (or prospective) of Clear Counsel Law Group, we understand that it's important that you trust us with your most valuable assets.

In turn, we produced this video to explain how your money is protected.

Of course, if you have specific inquiry (or just need a little reassurance, certainly understandable), please reach out to us at (702) 522-0696.

Thank you and Merry Christmas!

-Brian

[End Note]

 

ClearCast Episode 14: Answering Your Questions Regarding Rob Graham

Jordan Flake: Hi, I'm Jordan Flake and I'm here with my partners Jared Richards, Jonathan Barlow. The three of us are the managing partners are Clear Counsel Law Group, and welcome to another ClearCast. Today we're going to be talking about something that has kind of rocked the legal community. We've had friends and family who've asked us questions about this news story. Through this ClearCast and potentially others, we hope to respond to some of these questions we receive, but I'm referring to the Rob Graham issue. Rob Graham is an attorney here in town. He practices in the areas of guardianship, probate, trust administration. The allegations right now are that he stole money from his client's trust account, basically that he misused that money. A lot of my friends and family have asked me, "What's a trust account? How did this happen? Why can an attorney all of a sudden steal a lot of money?" The allegations are that he stole $13 million, potentially, of his client's money is missing.

First of all, before we even get into those questions, we just roundly wholly 100% condemn any type of misuse, any type of unethical illegal access to clients' funds. That should never, ever, ever happen and we'll talk a little bit more about that. We all feel horrible and we spend a lot of time talking about the clients who are victims in this situation, and our heart goes out to them and their families. We'll talk about that a little bit more too as well, that we feel really, really bad. It's the worst possible way to spend the holidays, knowing that there was money that was being held and entrusted in an individual and now that money has essentially been stolen.

First, Jonathan, you're the one who, in our firm, in the three of us, you take a little bit more of a lead role in managing the trust account. Can you talk to us and some of our viewers about what is a trust account and difference between a trust account and operating account, how that works. There's a chance that people viewing this may actually be our clients and have money in our trust account right now and they'll want to know what's going on.

Jonathan Barlow: What we're doing. In short, there's two types of accounts that a law firm generally holds. One is what we call the operating account. That's money that we've earned. It's our law firm's money. We've earned it through fees, through clients paying us money to perform our services. That's our money as a law firm. We use that to pay our employees, we use it to pay our rent, and all the other expenses of operating the law firm. That's our operating account.

The story about Rob Graham doesn't really have to do with his operating account as far as the missing funds. What the missing funds came from was that second type of account that's called a trust account. A client trust account. Attorneys in various types of practices will have a reason to be holding money in a bank account that is not our money. For instance, just like Mr. Graham did probate work, we do probate work. That's when a deceased individual leaves behind assets that need to go through a process before they're distributed to the heirs. In doing that probate work, we'll collect a bank account. We'll close a bank account that the deceased individual had and we'll bring that money and deposit it to our client trust account.

Though that account at the bank is held with our law firm's name on it, it'll say "Clear Counsel Law Group" on the account statement as a designation IOLTA interest on lawyers' trust account, it's not our money. It's not ours. We are responsible to ensure that it goes to the right places, that it's applied appropriately. We are strictly prohibited from reaching into that client trust account and using it to pay anything other than the client's expenses.

Jordan Flake: Let me just stop you there and make sure that everybody's understanding. Grandpa John passes away and there's a bank account just in his name at Wells Fargo. There's $48,000 in that account. We get a probate started and we can go and we can liquidate that $48,000. We can't turn around and use that $48,000 to pay our employees, to buy Christmas presents for our family. We can't do anything like that because it's actually the family that Grandpa John left behind, that's their money we're just holding in trust. Can I shift over here to Jared? Jared does personal injury. Can he talk to us a little bit about the mechanics of a trust account in the personal injury context?

Jared Richards: Right. In a personal injury context, we go and we gather money for an injured person. When we gather the money, we put it into our trust account. Again, the moment it hits the trust account, it is somebody else's money. We then are responsible for making sure that that money goes to the right places. The money will often need to go to pay for medical providers. Sometimes it'll need to go to pay back, say if Medicare or Medicaid had paid medical bills. Sometimes that happens and we have to repay the government. Then we have to pay our clients. Out of that, we also get paid a fee.

At the end of a case, when we are going to distribute money, before we distribute money to ourselves for certain, we will send the client an accounting so the client knows where all the money went, where if we had to advance money for filing fees with the court or to pay to go depose another party's expert and we advance that money, we also account for that money when we get paid back for that amount. At the very end of the case, the client knows where every penny has gone and then gets the money that the client deserves.

Jordan Flake: There's a $50,000 vehicle insurance policy, $50,000 policy. You make a demand and say, "Hey, insurance company, your guy, your insured hit Tommy, our client." We give us the $50,000 and we hold that in trust because Tommy has medical bills that need to be paid out of that purse.

Jared Richards: Right. For example, as you said, let's say that Tommy got hurt and there's a $50,000 insurance policy. We make a demand on the insurance. The insurance company agrees and they pay $50,000. That $50,000 would go into our IOLTA trust account, the trust account we hold for clients. We then do an analysis of are there medical bills that need to be paid out of that account? Are there contractual obligations that our client has that we need to honor in that account?

Jordan Flake: If we just gave that money to the client ...

Jared Richards: Then it would be a problem because then we may be breaching the client's contractual obligations. We may be breaching our own contractual obligations, and we may actually be violating the law that require us to, say, pay back Medicaid.

Jordan Flake: Right, and if we use that $50,000 to run off and pay our own expenses ...

Jared Richards: Then we've got major problems. We've just stole the money.

Jonathan Barlow: Then a similar issue related to that is several law firms have several different actual trust accounts with different account numbers. We hold all ours in one account. We got Mr. Jones's money in there, we got Ms. Smith's money in there. It's all in there. Just like we can't use the trust account to pay our expenses, I can't use Mr. Jones's money to pay Ms. Smith's medical bills for her case.

Jordan Flake: Which is why from an accounting standpoint we have sub-accounts that we keep track of who has what share of that account.

Jonathan Barlow: What we do is we have every single case that we have, every single client that we have, we separately distinguish, this is their money, this is where it went, this is where it's going. Because I can't dip into this account or this person's money to pay the other person's money. That's essentially how a trust account works until it's determined, like Jared said in the personal injury context, this is where all the money's going. Similarly, we do that in the probate or trust context of determining where it's going to be distributed.

Jared Richards: We're all very careful to not make mistakes. However, if the attorney does make a mistake with that money, the attorney is personally responsible for that money. While that money is in the attorney's trust account, that attorney's on the hook for all of it.

Jordan Flake: Right, and that's been my experience since starting our law firm, is that when we have our trust account checks and I'm signing a check and that check's going out the door, I look at that and I say, "Am I sure that this money is money that is under the law ready to be legally paid out?" There's no other considerations here, because if I did send out a check that I shouldn't have sent out, then I personally am on the hook for that. I would go to Jonathan and I'd say, "From operating account you need to reimburse this client because we mismanaged some trust funds and we need to put it back immediately." If that ever happened.

Jared Richards: Not that that does happen because we're careful, but if it were to happen, that's exactly what would happen.

Jonathan Barlow: In the Rob Graham context, one of the big questions is it's $13 million, and that's a significant and sizable trust account.

Jordan Flake: Clear, I'm going to lawyer this one. To be clear, we don't know. We don't have any personal knowledge about what went on with Rob Graham. We just read the same newspapers everybody else does and we hear the same allegations. When people are hurting and they lost their money and it appears that an attorney abused a position of trust, we're all human first and we are rabid and we want justice, but Jared, I think what you're getting at is facts are going to come in and we need to be careful.

Jared Richards: The allegation is right now that he stole $13 million, and if that's true, then [crosstalk 00:09:56].

Jonathan Barlow: My only point is the price tag is shocking, the amount.

Jared Richards: It's a huge amount.

Jordan Flake: What is alleged to have happened here, if you guys want to go into that at all? Did Rob Graham one day open up his online trust account and see that there was $13 million and think, "Okay, this is my chance to write a check to myself?" What's the allegations say?

Jared Richards: I think that what happens in situations like this, you have two possibilities. Either the attorney makes a conscious decision to liquidate the entire trust account and run away with it, which I don't know of any actual incident where I've heard that happening, but I'm sure it has happened before. I think that the allegation here is that Rob Graham was not running as efficient and as successful as a business as he wanted to project, and that he was using client money to supplement his own business, his own money, which is just as illegal and just as wrong. It's just a slower and more slippery slope.

Jordan Flake: So there wasn't a $13 million check?

Jared Richards: Probably here. We don't know.

Jonathan Barlow: I don't think that's the allegation. I think the allegation right now is that over the course of time, he started dipping into some client funds and then continue to dip in to try to make that right. Sort of a Bernie Madoff type of a transaction.

Jordan Flake: Ponzi scheme.

Jonathan Barlow: Almost a Ponzi scheme.

Jordan Flake: Almost, where he's using the money that's there today to meet those obligations.

Jonathan Barlow: Exactly.

Jared Richards: And hoping that the money tomorrow will come in to pay yesterday's obligations.

Jordan Flake: The money that he's waiting to have come in through the door in this situation appears to have not been his money, and that's the major, major problem. If we're just running all of our expenses out of the operating account, that's business. That's just the way it's done. If an attorney were to ever dip into the trust account and say "I need to make payroll this month. Shoot. I only have $15,000 in my operating account and I have $4 million in my trust account. I could use some of the $4 million to pay my payroll since I don't have enough in my operating account." That's kind of what might have happened here.

Jonathan Barlow: Who knows if thinking, "I'll pay it back."

Jordan Flake: I'll make it back and I'll ...

Jared Richards: The only difference between the allegation of him stealing all $13 million in one fell swoop or him dipping in month after month for a number of years is the dipping month after month, we can more humanize it, but it doesn't make it any less wrong.

Jordan Flake: Right, because the end result is the same, which is a tragedy of thinking, "My Grandpa John died. He had $48,000 in his Wells Fargo account. We hired Rob Graham to go and liquidate that $48,000 account and we were going to split it up three ways."

Jared Richards: Exactly.

Jordan Flake: "We were hoping to be done around the holiday season so we could all have that extra money to go out and buy Christmas gifts or whatever for our family." Now that money's gone. That's horrible.

Jonathan Barlow: It's devastating.

Jordan Flake: It's devastating to the families.

Jonathan Barlow: There's a couple other allegations that raise points that are red flags in the way that a lawyer handles his trust account. Apparently, according to allegations, it appears that Mr. Graham was the only person at his office who really controlled the trust account, who had any access, knowledge of the trust account. That sure makes it easier to hide some things that you don't want other people to know about. One good protection, and particularly with the three of us here, is to have multiple people who have control of the trust account, who have eyes on the trust account, and who review that trust account and realize, "What's this payment coming out?" And can question those things if necessary. That's been a good thing for us, is that the three of us can have that equal access to it, equal control over it. Heaven forbid one of us try to do something wrong. You have two people who are going to watch over it.

Jared Richards: Exactly. You have at least multiple partners that have oversight that can track it. Also, something that we do that I think more firms ought to do is we have a bookkeeper that is the employee of a separate accounting firm who helps us keep track of our books. If there are abnormalities that happen in the books, the bookkeeper would be alerted and the partners would be alerted. Those two things are safeguards: multiple partners with oversight, and somebody outside the firm that's connected to a separate accounting firm that has oversight as well.

Jordan Flake: To that point, you have the bookkeepers keeping their books and we're keeping our books and they have to match up every single time. That's all done internally. One of the problems with the Rob Graham case, the allegation is that his mother-in-law was the bookkeeper, and so those conversations and those huge red flags that needed to pop up in this context apparently never did.

Jonathan Barlow: Right. If our books that we keep here on my computer don't match with the accountant's books, then we make the correction as necessary.

Jordan Flake: Do either of you expect to see more regulation from the government or the state bar? State of Nevada, or the state bar?

Jared Richards: The problem is that from time to time, you will hear the Nevada bar reprimand somebody for overdrawing their trust account. Because any bank, the rule is the banks, if they hold attorney trust account money, if the check bounces, if the account is overdrawn, the bank is required to notify the state bar so the state bar can do an investigation as to why. The shocking part of Rob Graham is yes, it appears that he may have stolen some money. I know, I'm a lawyer, I'm being all cautious. That's why they're smiling. Because we don't know. The allegations may have some ...

Jonathan Barlow: It'll come out.

Jared Richards: Yeah, the allegations will come out and the facts will come out in their own due course. The two things that are utterly shocking about this case is the size of the alleged theft and the prominence of the attorney. In the probate estate planning community and those people that watch, I can't remember what news channel Rob advertised on, but Rob Graham's a known name. We all know the name. Between those two things of a large amount stolen by a noted, prominent attorney, it may jar the rule makers into making more rules.

Jonathan Barlow: I wouldn't be surprised, really, to see something else change. Really, the only time that the state bar, and this is why I think there probably will be some changes, the only time the state bar will come and look at your client trust account and make sure to get a truly outside from the government or state bar or whatever, is if there's a complaint made against one of our attorneys, that doesn't even necessarily have to do with a client trust account. Say one of our attorneys messed up a case. Client gets upset and they file a complaint with the state bar.

Jordan Flake: I'm going to lawyer that one too. We don't do that.

Jonathan Barlow: Right, it hasn't happened because we haven't ever been audited. Anyhow, in the context of the state bar coming in to investigate, "Why'd you mess up this guy's case?" They will audit the book at the same time.

Jordan Flake: Just as a matter of course.

Jonathan Barlow: As a matter of course, almost. That's about the only time that they independently come in to audit books. I wouldn't be surprised to see some audit requirements coming out of this.

Jared Richards: The problem you have with that is the sheer number of attorneys out there handling [crosstalk 00:18:06].

Jonathan Barlow: Trust accounts, yeah. It's a monumental task.

Jared Richards: It would be a monumental task to send in auditing standards for everybody.

Jordan Flake: Right, but if that task is necessary to restore the community's faith in our profession, which is one of the goals of the state bar, then they'll have to do it.

Jonathan Barlow: One of the good things to that point is what's happening with Rob Graham's client. As discouraging as it was to see a very prominent name like this happen, we have observed the rest of what we call the probate bar. The other probate attorneys have rallied around this issue, not to pour dirt on Mr. Graham's grave, but to try to get his clients back to where they need to be. That was primarily led initially by Jason and Brandy Cassidy, excellent probate attorneys here in town, who took the initial task of .. What the state bar's asking them, "Cassidies, would you do this?" They took those client files and they've been trying to sort through those files. They've done an excellent task of doing that. Now, I've seen multiple attorneys who have offered to help and who will be probably taking on some of those cases, including our law firm. We'll be taking on a large handful of these cases to help them move forward.

Jared Richards: With the understanding that the money for those cases already seems to have been embezzled.

Jonathan Barlow: Almost in every case, the attorneys will be doing that pro bono, including our firm. Meaning without payment.

Jordan Flake: Without payment. You're right. This is just a small silver lining on this sad story, but it is nice to see that the attorneys all recognize how wrong this is and what a tragedy it is for the clients involved, and to the extent possible we're trying to mobilize our resources, and especially good shout out to Jason and Brandy Cassidy, who are really taking on the bulk of that project, and we're all here to help. Any last closing thoughts on this from either of you? On this whole situation and what you would want to tell our viewers.

Jonathan Barlow: It's shocking to see a story like this. It shocked us to see a story like this about an attorney. It'll shake confidence. A lot of people don't have good opinions of attorneys in the first place, so it'll certainly shake some confidence of them. If there's any hope behind this, is the fact that this is such a rare occurrence. I've been practicing 10 years and nationwide, this is the first story that I've seen of this size or nature. Just happened to happen in our backyard with somebody we know. It's such a rarity to see something like this happen that you can take some comfort in knowing there's a lot, 99.9% of the attorneys out there are doing this the right way, including our firm trying to do the right way the best we can.

Jordan Flake: Great, any last thoughts?

Jared Richards: No, I think Jonathan covered it.

Jordan Flake: I think the only last thing I'd say is really with any regulations, the biggest and best regulation is just be extremely trustworthy. To know why we're doing this and to know that there are real people, our clients are real people and that they deserve trust, respect, and especially when it comes to valuable assets and things of that nature. Thanks so much for joining us for ClearCast. If you have any thoughts on this ClearCast, please link us, comment us, ask us any questions. If you would like to see us answer questions in a future ClearCast, please let us know. Jonathan, Jared, thanks so much for joining us today and we'll see you next time.

 

ClearCast / Estate Planning / General Interest / Las Vegas / Nevada Law / News / Probate / Probate Videos - 12/21/2016

ClearCast Episode 10: Parentage & The Prince Estate's Tricky Probate Matters

[Editor's Note]

Welcome to today's ClearCast!

I don't know about you, but thought the world of Prince and so saddened to see him pass away last April.

You may not believe this, but the man worth between $100-300 million dollars didn't even have a will, let alone an estate plan.

As you guess with an intestate estate of this size, there have been complications. Namely: two women have come forward purporting to be Prince's niece and grandniece, asking for their share of the estate.

The hearing in Minnesota is scheduled for today. We get you all prepared. Plus, we will give you a sense of how this would work out in Nevada.

Thanks for watching.

-Brian

[End Note]

 

[End Note]

The Prince Estate: When Parentage and Probate Laws Mix

Transcript:

Jordan Flake: Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. Welcome to another ClearCast. I'm here with my partner, Jonathan Barlow. He's also a expert in the field of probate and trust disputes and litigation. Back in the news this week is Prince, the musician who died of an overdose last April. Maybe you were a big fan. Basically there's some really sticky probate issues that they're dealing with off in Minnesota. He was a resident of Minnesota. Essentially, what I understand from the situation is that Prince didn't have any surviving children or parents.

Jonathan Barlow: Not married also.

Jordan Flake: Not married, and he passed away without a will, which means intestacy laws apply. Which in that case what would happen is it just goes equally to Prince's brothers and sisters. However, if Prince has a predeceased brother or sister then that share would pass down to that brother or sister's children. Basically we have a situation where two women, one claiming to Prince's niece and another claiming to be Prince's grandniece have come along and said, "Hey, our dad, Dwayne, was Prince's brother. Dwayne passed away five years ago in 2011, and therefore we're entitled to Dwayne's share of the estate because he was Prince's brother." By the way, the estate is a pretty big estate. Rounding out possibly as high as, this is speculation, but possibly as high as 30 million dollars or even more. It's not a small amount of money that we're talking about here.

Jonathan Barlow: It's worth fighting about.

Jordan Flake: It's definitely worth fighting over. The niece and grandniece have come along and said, "Hey, listen. We're entitled to this because Dwayne was Prince's brother, and he's predeceased Prince, and this is the share." What are the complications here?

Jonathan Barlow: Well, it all sounds very reasonable.

Jordan Flake: It sounds great.

Jonathan Barlow: All things being equal the niece and grandniece would be exactly right. They would be entitled to that one share. The complication comes in because Prince's other siblings are saying that Dwayne, who you mentioned, the father of this niece and grandniece ... That Dwayne was not Prince's biological sibling, nor he was Prince's adopted sibling. Meaning, Prince's parents did not legally adopt Duane, and Duane was not their biological child.

Jordan Flake: Duane could've just been a guy.

Jonathan Barlow: Duane was just some guy.

Jordan Flake: Just some guy ...

Jonathan Barlow: Sorry, Duane.

Jordan Flake: ... who as young, little bundle of joy just showed up in Prince's family's household. Is that what happened?

Jonathan Barlow: Something like that. I wish we had known. Maybe Prince wrote a song about this. I don't know.

Jordan Flake: "Raspberry Beret", that's what it was referring to.

Jonathan Barlow: Dwayne's daughter and his then granddaughter, the niece and grandniece of Prince, are saying, "Hold on a minute aunts and uncles. We think you're aunts and uncles even though you don't think we're nieces of yours." They're saying, "Hey, wait a minute. Dwayne's and Prince's father brought Dwayne into his house," essentially that's what they're saying. Brought him into his house, treated him like his child, raised him as his child, always treated him as a child, and for all purposes he was never treated as if he wasn't. In fact, even Prince himself later in life and more recent years had acknowledged Dwayne as a half-brother or brother of some sort.

Jordan Flake: Prince's dad was saying, "Hey, these are my kids. This is Prince over here. He's really famous. This is my son, Dwayne. He's okay." I'm kind of the Dwayne of the family, by the way, in my own family, but anyway ...

Jonathan Barlow: We all have one of those.

Jordan Flake: We all have a Dwayne in our family. Basically Prince's dad was saying, "Yeah, Dwayne is my son." To what extent is that a legal hook?

Jonathan Barlow: It's interesting. Most states have adopted this law called the Uniform Parentage Act, and we have that here in Nevada, which gives us an interesting interplay in what's going on in Minnesota and Prince's estate right now. The Uniform Parentage Act basically says, in a very short way to say, just as Prince's father had done with Dwayne, if you bring a child into your house and treat that child as your child, even if you don't adopt them, even if it's not your biological child, and you hold them out to the whole world as your child, and for all purposes treat them as you child the law will say that person is that person's legal child for all purposes. Including for inheritance. Including for child support. Any purpose of establishing parentage it will establish that, so what's the niece and grandniece are saying is that parentage has already been established.

There was actually any interesting case in Nevada just last year in 2015 that dealt with the Uniform Parentage Act in a probate proceeding. Similar to this situation occurred a woman named Joyce was raised by her parents. Robert was her dad, but it sounds like it was never really clear whether Joyce was his biological child. On Joyce's birth certificate did list Robert as her father, but apparently it was not clear. When Robert died Joyce's, same thing, her aunts and uncles, came along and said, "No. Everyone knows Joyce is not Robert's biological child. Everyone knows that Robert did not adopt her, and so if we want Joyce wants to claim something she's got to have a DNA test." Essentially they wanted to exhume Robert and force a DNA test, which is horrible in itself to think that they would do something like that.

Anyway, the Nevada Supreme Court came along and said, "No, no, no. Sorry, under the Uniform Parentage Act," that law, the Uniform Parentage Act, "it says that if you're going to challenge somebody's paternity that is established in this way you have to do it within three years after that person turns 18 years old."

Jordan Flake: In application to the Prince case, they would've had to challenge Dwayne's being Prince's father's son, and also Prince's brother by the time he was 21?

Jonathan Barlow: Essentially. That's correct.

Jordan Flake: That would've been back in the '60s, or '70s, or whenever it was.

Jonathan Barlow: Sometime a long time ago, and so the law says-

Jordan Flake: Otherwise it's conclusively established?

Jonathan Barlow: It's done. In fact, those third parties, the aunts and uncles, the brothers and sisters, whoever it is they are legally prohibited, they're barred from contesting that paternity that has been established under the Uniform Parentage Act.

Jordan Flake: Is the niece and grandniece going to win in Minnesota then?

Jonathan Barlow: That's a good question. We never predict, right?

Jordan Flake: Right. Yeah, we don't.

Jonathan Barlow: Minnesota's going to do what Minnesota does, but interestingly the Nevada case, the Nevada Supreme Court case last year cited to a case that happened in Minnesota several years ago.

Jordan Flake: I'm sure there's not a lot of case law anywhere in the country on this type of topic.

Jonathan Barlow: Really unique interplay of parentage in probate. If they follow what the Nevada Supreme Court said they're going to have a very hard time disproving that this niece and grandniece are not entitled to inheritance.

Jordan Flake: Wow.

Jonathan Barlow: They're likely going to ... Without knowing Minnesota law really closely myself, if I was to guess they're going to receive a share Prince's estate.

Jordan Flake: I would love it if we could get ahold of one of the attorneys in this matter to come and smack us down, and tell us why we're wrong. We may be. If anybody out there knows. This is kind of interesting-

Jonathan Barlow: Which reminds me, I have a greeting card that I got from Prince a couple years ago. It said, "Hey, brother." I think I need to show up at hearing on Friday and see.

Jordan Flake: He probably has a song where he says, "You're all my brothers and sisters," or something like that.

Jonathan Barlow: He was talking about us.

Jordan Flake: He was talking about us, exactly. This is also interesting because if you're out there in the world right now and you suspect that your parents are holding out a non-biological sibling/child as an actual child then you have to get on top of that business before that individual turns 21.

Jonathan Barlow: It really sets up a really strange circumstance where essentially essential siblings that have been raised together-

Jordan Flake: "We're the real siblings."

Jonathan Barlow: That's right.

Jordan Flake: They get together and they say, "You're a fake sibling. We're going to get a court order," or what? How do they ...

Jonathan Barlow: That's theoretically what would happen. When that child turns 18 or 19 you can throw them into court to disprove that they have parents.

Jordan Flake: Do you see what a weird law this is? Because who is going to actually come along and challenge that unless there's a death in the interim.

Jonathan Barlow: Right, which is very rare.

Jordan Flake: Which would be very, very rare, so it's a very bizarre law, but this is why we enjoy being probate attorneys. We enjoy being estate planning attorneys. We love it when stories like Prince hit the national media because as always it highlights the need very good estate planning.

Prince was worth 30 million dollars, speculatively. He could've afforded an attorney to prepare a simple estate plan.

Jonathan Barlow: Even a simple will.

Jordan Flake: Even a simple will would've clarified.

Jonathan Barlow: A $99.00 will could've solved this whole thing. For all we know Prince would've wanted Dwayne's children to receive.

Jordan Flake: Right. Absolutely.

He may have wanted that. In any event, as we always do, we invite you to leave any thoughts, or comments, or additional information in the comments section, or on our Facebook, wherever we post this video.

Thank you so much for joining us.

 

ClearCast / News / Probate / Probate Videos - 10/21/2016

Watch This Before Adding a 'Pay on Death' Provision to Your Estate Plan

Transcript:

Hello, my name is Jonathan Barlow. I’m an estate planning and Las Vegas probate attorney here at Clear Counsel Law Group. Thank you for tuning for yet another riveting video about probate and estate planning tips and practices that you can use to help you in your life and probably actually your elderly parents who actually most need this advice.

Today we’re going to about what are called “pay on death designations” or “transfer on death designations,” sometimes called “beneficiary designations” also. You might typically think of these in the context of life insurance policies.

That’s what people most think about. If I have a life insurance policy, I get to name somebody. When I die the money goes to little Jimmy or little Sally or whoever you want it to go to.

You can do these same type of beneficiary designations on a host of other type of assets, and not just life insurance. For example, you could put they’re called “POD” or “TOD”, for short, you can put POD designations on your personal bank accounts.

You could put a POD designation on a vehicle title. You can put them on stock certificates. In fact in Nevada and some other states, not all states, but Nevada in particular, allows you to do a form of a deed called a “beneficiary deed” or “transfer on death deed” for your house.

What the effect of these are POD or TOD designations is, is that when you die the ownership of that asset transfers automatically simply by virtue of your death to the person you designated. Let’s think about the house.

 

Potential Problems with 'Pay on Death' Provisions with Real Property

If you’ve done a beneficiary deed for your house, and you say, “When I die,” basically in this deed, “When I die this house shall be transferred to Brian, Jim and John, my three sons, as joint owners. They essentially, after you pass away, they go down to the County Recorder, take your death certificate with a form of an affidavit and say, “Hey, dad’s died and now we own the house.”

That’s essentially in layman’s terms how that would work. That transfers the title automatically to them. They’re then the current owners. It’s quick, it’s easy and it gets those assets transferred really quickly.

Now, we want to contrast that to what happens if you don’t use these type of designations. Typically these type of assets would go through probate, which is something that we do here at Clear Counsel Law Group quite a bit.pay on death, nevada, las vegas, probate

Probate’s a core process that oversees the transfer of those assets to whomever they’re supposed to go to. Whether they go to your closest next of kin or whether you’ve done a will that says you want them to go somewhere. Probate can be expensive in the attorneys’ fees that are paid.

In Nevada, typically, and of course it depends a lot of factors, but attorneys’ fees are going to be somewhere between five to ten to fifteen thousand dollar or more to get that estate through probate. A lot of people are concerned about that cost and that’s why they look for these other vehicles to … or ways to transfer assets without incurring that cost after they pass away.

Again, it’s a quick and easy way to do it. However, I want also point out some important pitfalls and reasons why you might not want to do that. That’s really the main reason why we’re talking about these today.

Let’s think about this. Let’s think about, again, that house. You’ve got Brian, Jim and John, your three sons, and you want to make it easy for them to get your assets after you pas
s away. After you pass away, and if you make Brian, Jim and John the co-owners of the house, that is in almost every situation I’ve ever seen becomes a disaster scenario for those three sons.

Suppose Brian no longer wants to pay for his share of the house mortgage, or Jim says, “I’m not going to pay for the property taxes. I don’t got that kind of money to do that.” John says, “Well, I want to rent the house out and I want to get some rental income.” The other two are like, “Well, I don’t want to be landlords for some period of time.”

It’s a disaster waiting to happen because all three of them essentially have to agree on how they’re going to hold the property, how they’re going to use the property, who’s going to pay the expenses, when are we going to sell, how much are we going to sell for.

It’s a very, very difficult situation to put people in to be able to be on same page with that.

 

Potential Issues with 'Pay on Death' Provisions with Bank Accounts

Now, with financial accounts it’s not as big of a concern. If you have, again, let’s say your savings account has got fifty thousand dollars in it, and you go into the bank and you designate Brian, Jim and John as the pay on death beneficiaries of the savings account it is really easy for them because the bank is just going to cut three checks in equal amounts to the three of them.

We’re not going to have problems with co-ownership. Let’s think about a couple of things that could go wrong with that situation.

Let’s say John is actually sixteen years old when you pass away. He’s a minor child. The bank is not going to give him that money.

If you have a minor child, and even if it’s life insurance, if it’s a bank account, if it’s any asset those assets will not be transferred to that child unless somebody sets up a court appointed guardianship for that person.

You’re throwing them into a guardianship proceedings in order for that person to get access to the account or benefit from the account. Even if that happens, when John turns eighteen in a couple years he’s going to get all that money straight out, straight into his hands at eighteen years old.

There’s not very many eighteen year olds that can handle a substantial amount of money very well. That’s something you’d probably want to avoid.

Other problems that could come up; let’s Jim, he’s an adult, however Jim’s receiving government benefits. I had this situation just last week actually with somebody whose father has passed away.

We’re not into taking care of his estate, and one of the children was receiving a government benefit. If he receives a large inheritance, he’s going to lose that government benefit for a period of time, and becomes ineligible for that. It kicks him off of the government benefit because he’s received a large inheritance.

That would happen if a person is designated as the pay on death beneficiary of a bank account. They receive twenty thousand dollars, the Government’s going to want to know about that, and he’s probably going to lose a benefit that is conditioned upon his level of income and assets and things like that.

These are considerations you really have to think about. Sorry, one more consideration. Let’s say you designated Brian, Jim and John five years ago, and two years ago Brian died. Brian has children. You love those grandchildren very much, and you’d otherwise want to take care of them.

Guess what, when you pass away, and you have forgotten to go and update that, so when you pass away the only surviving beneficiaries are Jim and John. That bank account is going to go fifty percent to Jim, fifty percent to John, and zero percent to Brian’s kids who are your grandkids that you love.

They get nothing.

You effectively have disinherited that line of your family. Also, an unintended consequence that happens frequently with these pay on death beneficiary designations.

There are a lot of good things about these pay on death designations. They do make it easy to transfer the assets. They’re very inexpensive because there should be no need for an attorney to be involved at all. There’s going to be no court costs to transfer them.

However, there’s all kinds of pitfalls to using these in certain situations.

If you’re thinking about using a pay on death beneficiary designation on your bank account, on your car title, on your house deed, you’re still well worth talking to an estate attorney who can advise you about the benefits of using a trust, benefits of doing a will, benefits of doing the pay on death designations, which a good estate planning attorney will go through that and say, “Yeah, you know what, that will work for you the pay on death designation. That makes sense in this situation. Why don’t you go ahead and do that.”

They’re not always going to have to try to sell you on the trust or the will or anything like that if you get a good one.

Sit down with a good estate planning attorney, somebody that you trust to give you the best advice to go through your situation with all your kids or whoever you want to benefit.

Are they minors? Will they be able to handle co-ownership after you die? Are they receiving benefits that would be affected by this?

Those are all considerations that you should take into account when deciding whether to use a pay on death beneficiary designation.

I hope this has been helpful for you. If you have any more questions about pay on death designations certainly give us a call here at Clear Counsel Law Group.

We’d be very glad to answer your questions, to give you a free consultation about your estate planning situation, to give you the advice about what tools you should use or not use.

If you end up doing some planning with us then we’ll charge you for that, but the consultation is free.

Give us a call here at Clear Counsel Law Group.

Take care.

 

Probate Videos / Estate Planning / Probate - 09/29/2016

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

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

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

What to Do If You Need to Stop a Trustee

 

 

Transcript:

Good afternoon. My name is Jonathan Barlow. I'm a probate and trust attorney here at Clear Counsel Law Group. Over the course of my practice, I have done not only the regular administrations of trusts and probates, but I've dealt with countless disputes and litigated matters and trust and estate litigation.

One of the questions that often comes up is a concern about a trustee: if the trustee is acting inappropriately or if there is concern that the trustee is mishandling the money, spending the money, hiding the money, doing something like that.

 

You Need a Lawyer That Thinks About Legal Strategy, Not Just Lawsuits

My clients often ask me, "What can we do? What can we do to stop a trustee to prevent the trustee from continuing these bad actions? It appears to me that they're at risk of losing the money of the trust, so I'm not going to receive what I'm entitled to receive? What do I do? Do I got into court? Can we try to resolve this?"

This is really important that you have an attorney who has handled these and has a feel for that. There's no sheet of paper that we can go through, a questionnaire, and say, "Is this happening? Is that happening? Yes? No?" At the end of it, it tells us, "Go into court immediately," or "You could probably try to resolve this informally."

I can tell you this, from my experience, where there's smoke, there's usually fire. What I mean by that is if have an inclination or indication that the trustee is doing something inappropriate, you think that there's transactions that shouldn't be occurring, money going out that shouldn't be going out, you're probably right.

There's usually something going on behind the scenes with that trustee that you should be concerned about. You need to know, "Do we go into court immediately?" That's usually the best option.

Like I said, where there's smoke, there's fire.

The best chance you have to stop a trustee, to prevent that trustee from running away with the rest of the money, or losing the rest of the money is to get a court involved as soon as possible so that a court can put a freeze to those accounts, put a freeze to the trustee's actions, potentially remove the trustee out of the picture altogether so that somebody else can handle this.

Of course, going into court is expensive. It can be very time consuming. You throw yourself into, essentially, a lawsuit situation, which can take a couple years to resolve. It can cost tens of thousands of dollars. Those are considerations you need to think about in determining whether to go into the court route.

 

When an Informal Approach Might Be More Appropriate to Stop a Trustee

Sometimes my clients will ask me, "Do you think we can informally resolve this? Do you think we can get them to settle this matter?"

Certainly, there are times where that's the best approach, where you get a feel that based on the family relationship, we have a sense that the trustee is willing to cooperate, that the trustee would be likely to come in and sit down with us, or their attorney would come in and sit down with you, share information, share account documents, tell us what's going on, and see if we can't resolve the dispute.

They may have every indication of wanting to do that, too, and not running away. Certainly, we want to have a feel for that and know is that the best way to do that? Should we approach them informally through a letter, through a phone call, and say, 'Can we try to resolve these questions that we have?'"

However, you just don't want to wait too long.

stop a trustee

 

An Example That Proves the Rule

I have a colleague who tells this horror story. Early in their career, early in their practice, they were doing this. They were pursuing a trustee who they had every indication was not acting appropriately. There appeared to be money missing.

The trustee had, in fact, said, "I'm not going to give you what the trust says you're supposed to get." They tried to work this out with the trustee's attorney. They asked the trustee's attorney to give them account documents.

In fact, the trustee's attorney did give them account documents, account statements from the bank account, that appeared to show that all the money was still there in the bank account.

Months later, almost a year later, they finally found out that those account statements were completely fraudulent. The trustee had gone into those account statements and made photocopies, actually cut out sections of transactions, large sections, pages of transactions, and put the document back together, changed the numbers.

It was fantastic and amazing what this trustee did to hide hundreds of thousands of dollars of transactions and make it appear that money was there when it wasn't. She committed a blatant fraud on them. They didn't know about it until far too late.

By the time that they realized the fraud, got a court judgment against the trustee for over $1,000,000, the trustee was literally gone, nowhere to be found.

My good friends out there, my good colleagues, would be interested to know if you know where Beverly is and you know Beverly owes over $1,000,000, let me know and we'll put her in touch with my friends over here. They'll be glad to hear about it.

 

An Experienced Probate Lawyer Can Help You Stop a Trustee

We want to avoid those situations. We want to act promptly, whether prompt means get into court as quick as possible or whether prompt is let’s get them into our office to talk about it because we think that has the best chance of success.

We need to do that. It's not worth waiting.

If you have sense that there's something going wrong, you're probably right and your probably entitled and need to get the information to answer your questions. I personally have a lot of experience doing that here at Clear Counsel. It's one of our specialties is proceeding with these disputed matters and getting resolution for you.

Give me a call. We do a free consultation to review the facts, to try to get a feel for what we think.

Do we got to go into court immediate?

Can we resolve this informally?

Give me a call for that free consultation. I'll be glad to talk to you about this, answer your questions, and get you the resolution you need.

 

Probate Videos / Probate - 06/15/2016

Can a Witness be Compelled to Appear in Probate Court?

 

 

 

How to Require a Witness to Appear in Probate Court

Transcript:

Hello, my name is Jonathan Barlow. I'm a probate and trust attorney in the Las Vegas, Nevada area. In particular over the course of my career I have handled many trust and estate disputes so disputed matters, litigation matters within the probate and trust context.

It often comes up that we become aware as we're trying to resolve this dispute, as we're trying to get the court to have a trial on it and determine what should happen, we often become aware that there is a person somewhere who has information, a witness, who has information that would be helpful for us in our disputed case.

If that's your situation, you come to me and say, "We've got to get this testimony of Joe. Joe knows what happened in that situation. He could tell us what happened."

There are two things that I could do to help you get that testimony and make sure that the court hears that testimony.

 

How I Compel A Witness to Testify

The question is, can we make Joe come to court and testify as a witness? Is there a legal process that we can force Joe to come into court as a witness?

First, if Joe is in the state of Nevada and our case is happening here in Nevada, yes. I can give a subpoena to him, have a subpoena served on him. It's a legal document, a legal command to Joe that says, "Joe, you are commanded by the state of Nevada to appear at a certain place at a certain time to give testimony."

That's usually in a trial. We can have a subpoena served on him. He is legally required to come to court to give his testimony. Now Joe can choose to ignore that and not show up and that's a risk that could happen. However if he does that he's going to be in contempt of court, he could face jail time and a civil penalty, so usually people don't ignore those subpoenas.

 

What if the Witness Doesn't Live in Nevada?

Now the second situation that often comes up though, which is a little bit sticker is, what if Joe is in New York? How can we get him from New York into Nevada?

We've got to have this information from Joe. In this situation, a lot of law firms get bogged down and they get tripped up on this and they say, "Well, we can't do it. We can't bring Joe into Nevada."

That's true, but we can't stop there and we don't stop there.

It's true, there is no legal process to force Joe to come from New York to Nevada to give his testimony. However, there is a way to get his testimony, preserve it so that we can use it in trial, and to support your case.

What we do is we start again with that basic Nevada subpoena and the Nevada subpoena says, "Joe, you've got to give us testimony."

We take that Nevada subpoena, we go to New York. We'd go open a case in New York actually and have the New York courts take the Nevada subpoena and out of that, create a New York based subpoena where the state of New York says, "Joe," just the same thing as in Nevada, "Joe, you are commanded to appear at a certain place and a certain time within the state of New York to give testimony."

 

witness

 

I as the attorney can either fly out there to be there in person which is most effective. It can be done over the phone if the parties agree.

I'll go out there to New York. Joe arrives, he's put under oath just as if he is in a court of law, sitting there at trial, he takes an oath to tell the truth.

We have a court reporter there who's taking down every word that's being said just as if we're sitting in a court. I get the opportunity to ask him questions. He's under oath to tell the truth and answer those questions. We get the opportunity to preserve his testimony through what's called a deposition. That's that deposition process.

Now we bring that deposition back to Nevada and we get to the point of having our trial. We call Joe and say, "Hey Joe. We'd really appreciate you coming out to Nevada to come to the trial and give your testimony." Joe says, "Not going to do it. Not coming out there. Not going to take the time nor the expense to do that."

 

The Value of a Witness Deposition

We're not up a creek. In that situation, we can go in and ask the court to allow us to have permission to use Joe's deposition, to use the video from that deposition or to simply have the transcript, the document read, the answers and questions read, into court at the trial. That's treated just as if Joe was sitting there in court at trial giving his testimony.

That's a way to preserve his testimony even though he's all the way out on the other side of the country and even though we can't legally command him to Nevada to give that testimony.

You're not out of luck if we've got to get this testimony from other people and we here at Clear Counsel know how to do that process and we've gone through that process of going to other states to get those subpoenaed issued in the other states to get that testimony.

We've flown to other states to take that testimony and use it in trials successfully to preserve their testimony.

If you're in that situation, where you're wondering about getting this evidence or testimony or we need this information from a witness, we here at Clear Counsel would be glad to talk to you about that.

We do a free consultation to review your case, to review the disputes that you're having and help you plan a way to resolve those disputes and preserve testimony from witnesses whether they're in Nevada or out of New York.

I encourage you to give me a call and let's have that free consultation today.

 

Probate Videos / Estate Planning / Probate - 06/08/2016

Your Nevada Estate Plan Deserves To Be Drafted by a Nevada Attorney

 

 

 

Transcript:

Hi. My name is Jordan Flake. I'm an attorney with Clear Counsel Law Group, and I practice in estate planning. Today I want to address a question that we get about whether or not it's important to have a Nevada attorney, who is at a law firm in Nevada, prepare your estate planning documents.

What we have, sometimes, is there are out of state law firms that will do legal services. Sometimes people will go to a different state to get their wills drafted, or the power of attorney, or their trust documents drafted.

There are a lot of reasons why it's important to come see a Nevada attorney whose main office is here in Nevada and who is familiar with Nevada laws.

In the entire arena of estate planning there is a lot of overlap between the different states. There really is, and that's fine.

A house in California or Iowa needs to have certain designations that would help it pass, upon your passing. Whether you're in any state Iowa, California, Nevada there's certain concepts that apply across the board.

Because of that we have a situation where sometimes residents of one state will obtain estate planning documents from a firm that may only have a small outpost here, or they may go to a different state and get those documents.

 

You Need a Nevada Attorney to Update Your Estate Plan

However, I think that by doing that you'd be missing out on a big opportunity. With estate planning it's important to go with an estate planning attorney that is where you are.

I would encourage Nevada residents to come to an estate planning attorney here, locally.

Here's why, estate planning often isn't just a one-shot situation.

At least good estate planning is a situation where every three to five years your estate planning attorney should follow up with you and say, "Hey, has anything changed in your life?" Is there a different marriage, maybe a different job, maybe you've sold houses or purchased a house. Maybe one of your siblings had or one of the people you had designated as a personal representative had passed away.

You want somebody who's close to you geographically, and who's close to you from a professional standpoint, who will be able to ask these questions and get these answers from you. That's one advantage of having someone local. It's going to be easier to have the type of relationship where you have more constant contact.

 

nevada attorney

 

As a Nevada Attorney, I Understand the Nuances of Nevada Law

Second to that, also, is there are differences in the law. Even there aren't big difference in the law, there easily can be differences in the law when the Nevada legislature changes the law.

You're going to want somebody who is tied in enough to Nevada's revised statutes, that when there is a big change in the law something triggers in our mind that says, "Hey we should reach out to all of our estate planning clientele and let them know that this thing has changed."

That's another reason why you wouldn't want to go with an attorney who merely has a Nevada license, or has a license in another state but isn't really tied into the state. They're not going to be aware of changes in the law that might effect your estate planning situation.

 

The Clear Counsel Difference

Clear Counsel, in contrast, if there is a change in the law we're equipped to determine which clientele are going to be affected by that. We'll send out a newsletter, or a letter, to all of our clients saying, "Hey, these are some changes in the law. Please contact us if you feel like this might apply to you." That's just another advantage of going with someone here locally.

That actually can be extrapolated into a more general sense of, we're tied into the community.

For example, I'm an appointee on the senior citizens advisory commission for City of Henderson's senior citizens. I know a lot about different resources in the community that are intended to benefit seniors.

I'm sitting here with a senior citizen from Henderson. Of course we're talking about estate planning. Other things come up to.

We have somebody maybe move here from Michigan and they wonder what service opportunities are available. I know those types of things because I am locally tied into the community.

I can tell you, "Hey, it just so happens that the senior community center down here offers all of these different programs. Here's somebody who you can get in touch with."

That's the type of overall generalized advantage that you can get from dealing with a local Nevada attorney who's plugged into the community. Who's aware of the laws, and who's geographically available to talk about any changes that might happen with your estate plan.

If you're here in Nevada, please reach out to us, Clear Counsel Law Group. We'll meet with you. For a consultation we don't charge at all. In the future you'll be happy that you had somebody here locally who can help you out with different changing situations. Whether in the law, or in your own life.

Give us a call. I'm attorney Jordan Flake. You can reach us at (702) 476-5900.

Thank you.

 

Estate Planning / Probate / Probate Videos - 06/02/2016
Clear Counsel Law group

What we offer

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696
info@clearcounsel.com

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Copyright 2019 Clear Counsel Law Group® | Nav Map

Nothing on this site is legal advice.