Henderson Attorney Serving Southern Nevada

Estate Planning | Elder Law

Please note that the following advice to our most frequently asked questions is based on Nevada law. Since laws and procedures vary from state to state, we suggest that you contact counsel in your own jurisdiction for advice on the probate laws and procedures in your area.

ESTATE PLANNING

• What is estate planning?
• What is probate?
• What does ancillary probate mean?
• What is a will?
• If a person dies after signing a will, is there still a need to go through probate?
• If a relative dies (mother, father, not spouse) leaving credit card debts, are the heirs responsible for the debt, even if there is a will?
• How do you force an executor to file a will for probate?
• What is trust administration?
• What is a family limited partnership?
• What is a life estate and how does it work?
• Do I need a common disaster clause in my will or trust?
• What is a limited liability company (PLLC)?

ELDER LAW

• What is Medicaid planning?
• What is a guardianship?
• What is a Durable Power of Attorney for Health Care?
• What is a Durable Power of Attorney for Asset Management?
• What is a Special Needs Trust?

 

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ESTATE PLANNING

Q: What is estate planning?
A: Estate planning involves agreements and documents defining arrangements for transferring assets in trust to be held, administered, and distributed by the trustee for the sole benefit of the named trust beneficiaries. This package often includes, but is not necessarily limited to, a Durable Power of Attorney, a Durable Power of Attorney for Health Care, and a Directive to Physicians.

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Q: What is probate?
A: Probate is a court proceeding which supervises the orderly and proper distribution of a decedent’s assets to creditors, heirs, and beneficiaries.

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Q: What does ancillary probate mean?
A: Ancillary probate is the term for probate if a decedent owned real property in a state other than the one where he resided at the time of his death.

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Q: What is a will?
A: A will is a written instrument which reflects the manner in which one’s assets are to be distributed upon death.

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Q: If a person dies after signing a will, is there still a need to go through probate?
A: Yes. A will is simply a written expression of way you want your property to be distributed after you die. While several options exist which may alleviate the need for a formal probate proceeding, the mere execution of a will is not one of them. A will that is properly prepared and executed can be an effective way to express your desires regarding the disposition of your assets. It enables you to state the name of the person who you want to serve as the personal representative of your estate. The best reason for signing a will, however, is it reduces the likelihood of confusion after you die.

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Q: If a relative dies (mother, father, not spouse) leaving credit card debts, are the heirs responsible for the debt, even if there is a will?
A: Debts of a deceased are subject to payment from the assets that comprise the estate at the time of death. So if someone dies with assets, those assets should be used to satisfy the debts of the deceased. If, however, the person who died left no assets, his heirs are not personally liable for his debts—assuming, of course, that the debt is only in the name of the person who died.

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Q: How do you force an executor to file a will for probate?
A: N.R.S. 136.050 provides that “any person having a will in his possession shall, within 30 days after knowledge of the testator’s death, deliver it to the clerk of the district court which has jurisdiction over the case.” N.R.S. 136.060 provides for filing an application with the court and requires the person in possession of the will to produce it. A person who refuses can be remanded to the county jail until the will is produced. Generally, if there are no assets or if the assets owned by a decedent are titled in a way that makes a formal probate unnecessary, the court will not demand the filing of the will. However, if the decedent owned assets titled solely in his name, which would be subject to probate, this statute provides a remedy so that the probate process can be initiated.

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Q: What is trust administration?
A: Assisting in the administration and distribution of assets pursuant to a valid trust agreement following the death of the original trustor.

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Q: What is a family limited partnership?
A: A family limited partnership is a business arrangement that allows you to reduce your taxable estate while retaining full control of the partnership. It also allows you to compound your available gift and estate tax credits and exemptions, to spread income among children in lower tax brackets, and to place assets beyond the reach of creditors.

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Q: What is a life estate and how does it work?
A: A life estate is a limited property interest, which lasts only as long as the natural life of its owner. A person possessing a life estate has the right to use, occupy, or collect revenue from the property for the duration of his or her life. When the holder of the life estate dies, a full remaining ownership interest in the property transfers automatically to another designated person, called the “remainderman.” For example, an estate plan may give a life estate in trust assets to a spouse, and provide that when the spouse dies, full title to the assets should pass to the children.

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Q: Do I need a common disaster clause in my will or trust?
A: If you are married or are a co-owner of assets, a common disaster clause is an important aspect to consider when preparing your will, estate or trust. A common disaster clause is a statement in a will that explains how property is to be distributed if would-be devisees die from the same accident.

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Q: What is a limited liability company (PLLC)?
A: A limited liability company is a business arrangement that allows you to take advantage of the liability protections of a corporation while enjoying some of the simplicities of a partnership.

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ELDER LAW

Q: What is Medicaid planning?
A: Medicaid planning includes arranging assets so a person can qualify for Medicaid assistance when long-term nursing home care is required. It also helps preserve the financial assets of the spouse who remains at home.

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Q: What is a guardianship?
A: Guardianship is a court-supervised procedure for appointing an individual to manage the personal and financial affairs of a minor or an incapacitated person.

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Q: What is a Durable Power of Attorney for Health Care?
A: A Durable Power of Attorney for Health Care outlines a person’s desires with respect to critical care. It also appoints an individual to carry out the directives contained within the document.

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Q: What is a Durable Power of Attorney for Asset Management?
A: A Durable Power of Attorney for Asset Management outlines a person’s specific desires with respect to managing finances. It also appoints an individual to carry out the directives contained within the document.

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Q: What is a Special Needs Trust?
A: A Special Needs Trust is a document that helps preserve the assets of someone with limited capacity, while also preserving any governmental income or benefits that individual may be receiving.

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