ESTATE PLANNING, TRUSTS & PROBATE: FAQs
ANSWERS TO THE FAQ
What is Estate Planning in Nevada?
Put in simple terms, estate planning involves putting your affairs in order so as to maximize the benefits that your assets can provide to you during your life and to your heirs after your death.
Estate planning is a process that has three objectives in mind:
• To ensure that at your demise, assets will pass to those persons you designate in a manner which will provide them with the maximum benefits;
• To reduce or eliminate the federal, state and local tax burdens on your estate and heirs; and
• To provide for the passing of your assets at your demise to your chosen beneficiaries without the necessity of a Nevada probate and without its costs, time delays, and inconveniences.
What does a proper Nevada Estate Plan include?
In Nevada, a proper estate plan may include:
• An adequate Will and/or Revocable Living Trust;
• A nomination of Guardian for yourself, should you become incapacitated, and also for your dependents, should you become unable to care for them yourself;
• A Durable Power of Attorney for Asset Management and Financial Decisions; and
• Final instructions relating to burial and/or cremation, along with directions relating to your funeral, if any.
How often should my Nevada Estate Plan be reviewed and updated?
If you already have an estate plan, it should not be considered permanent. Conditions, as well as your desires, may change. Estate plans should be reviewed at least every two or three years; however, any important change in your life will demand immediate review. These important changes might include:
• Birth, death, marriage, divorce, or disability of you or a beneficiary;
• Large increase (or decrease) in the net worth of you or a beneficiary;
• Substantial change in your asset classification;
• The planned purchase or sale of a business;
• Your change of residence to another state;
• Changes in the tax law.
What is a Trust?
A trust document is an agreement between three people dealing with assets. Every Trust Agreement has at least three parties thereto. These parties are as follows:
• The Trustor is the creator of the arrangement who appoints a
• Trustee to hold the legal title to the subject assets for the benefit of the
• Beneficiary, who holds equitable title to the assets and any income derived therefrom.
Although there are certain legal limitations, it is possible for the Trustor, Trustee, and Beneficiary to be the same person. In some situations, the Trustor may wish for a trust company, bank or other professional fiduciary to serve as the Trustee.
What are the benefits of establishing a Trust in Nevada?
Trusts offer a number of important benefits in the State of Nevada:
• Probate Avoidance;
• Potential savings on capital gains tax;
• Retention of privacy of family assets and finances;
• Avoidance of the need for guardianship proceedings;
• Potential creditor protection for your beneficiaries (and maybe even yourself, with the use of a self-settled spendthrift trust);
• Control over the distribution and management of trust assets during life and after death; and
• Avoidance of or reduction in the amount of death taxes.
Who can be a beneficiary of a Trust in Nevada?
In larger estates where tax savings are an important consideration, the use of trusts may play a paramount role. In Nevada, even relatively small estates can usually benefit from the probate avoidance offered by a trust. Oftentimes, individuals do not realize just how large their estate is. A Trust can be designed to meet the needs of a large or small estate. Its cost is a fraction of what the avoided Nevada probate expense or federal estate tax would have been.
What Happens If You Do Not Have A Will Or A Trust?
If you do not have a Trust and have not used other probate-avoiding techniques, upon your death your assets will pass according to the laws of the state which has jurisdiction over your respective assets. The laws of intestacy, as they are called, may not provide for those you desire to obtain your assets, and even if they do, the following problems may still arise:
• Higher estate taxes;
• Additional inconvenience and expense (Nevada probate expenses can run from 2% to 5% of the value of your probate estate, depending upon the value of your assets); and
• Necessity of guardianship for assets inherited by minor children with rules probably not designed to accomplish your goals.
If a person has a Revocable Living Trust, what needs to be done when they die in Nevada?
Despite what you may have heard elsewhere, the truth is there are always at least some loose ends to tie up when a person dies. No matter how simple the estate may be, there are always some loose ends to tie up. The process of tying up these loose ends is what we call “Estate Administration.” If the decedent’s assets are worth more than $5,250,000 at death (this is the 2013 amount, which may increase based upon increases to the cost of living) there are substantial loose ends to tie up including the filing of a Federal Estate Tax Return and the possible payment of an estate (death) tax. Estates of this size generally take at least 10-12 months to settle (assuming a friendly family situation and no significant complications). If the decedent’s taxable estate is worth less than $5,250,000 (depending on the laws in effect at the time of death), there may still be a few loose ends to take care of.
Does it cost less to administer a Will or a Revocable Living Trust?
If just a Will was used, Probate Court proceedings are often necessary to settle the estate. In Nevada, probate is a very formal and organized process. Because we have not adopted the Uniform Probate Code (UPC), as in most other states, the process is even more formalized and difficult. The more formal and organized a process, the more complicated it typically becomes and the expense usually increases accordingly. Probate fees in Nevada are governed by statute. Statutory fees for the Attorney and the Executor are computed by formula. In Nevada Probate estates where estate tax returns must be filed or where an A-B Trust was used, court approved extraordinary fees in addition to the statutory fees are common. If a Living Revocable Trust is used, Probate is usually avoided and attorney fees are typically much less than they would be where Probate is required. Estimates of the national average for settling estates larger than $1 million outside the Probate Court system run in the 1% range, as based upon the estate value. This process is referred to as “Estate Administration.”
How else can a person avoid Probate in Nevada, in addition to using a Revocable Living Trust?
The following methods are often used to avoid probate (sometimes this is useful, and sometimes it is counterproductive): joint tenancy title, community property title, bank account trusts, pay on death accounts (POD) or transfer on death accounts (TOD), designating beneficiaries for life insurance proceeds, retirement proceeds (IRA’S, TSA’S, 401K’s, etc.) and retirement plans, gifts made during life, and beneficiary deeds. As with everything else, there can be no one right way in all situations and each technique has its own potential up- and down-sides. This is one reasons why we offer free consultations, so that we can help you understand the trade-offs associated with your desired plan.
My child is married to someone I don’t trust. How can I protect the inheritance from a potential divorce?
Under Nevada law, inheritances are characterized as the separate property of your child and do not automatically become their community property. Therefore, your child’s spouse has no rights in or to the inheritance. Of course, what your child does after receiving the inheritance can change what was once characterized as separate property into community or jointly held property. Certain types of Living Trusts can help greatly in preserving these inherited assets as the separate property of your child.
How do attorneys in Las Vegas charge for their services?
There are a number of different methods under which attorneys charge clients for their services. What method one attorney uses may be radically different than another. Of course, it’s important that you understand how your attorney will be billing and charging in your situation. Some lawyers charge based upon the time they spend on your behalf, billed at their hourly rates, while others will be willing to quote a flat fee for their services. Follow this link to read about our Commitment to Reasonable Fees.