Tuesday, December 31, 2013

January AFR's

The Section 7520 rate is 2.2%    
Jan-13 Annual Semi- Quarterly Monthly
AFRs   Annual    
Short-term 0.25% 0.25% 0.25% 0.25%
Mid-term 1.75% 1.74% 1.74% 1.73%
Long-term 3.49% 3.46% 3.45% 3.44%

Monday, December 23, 2013

End of the YEar Estate Plan Tune-Up


It is hard to believe that we are already at the end of 2013.  It has been an exciting year for estate planning.  In the first week of 2013, congress passed new legislation making the estate laws tax permanent.  In many cases, the new laws have allowed for many families to simplify their estate plan.
As the year comes to a close, it is a good time to complete a quick tune-up of your estate plan to make sure you are ready for the New Year.  Here is a short tune-up list to cover some of the basics:

·     Confirm with your attorney that your estate plan is in conformity with the new laws passed in 2013;

·     Consider simplifying your estate based on new tax laws with higher exemption amounts;

·     Verify real estate records to make sure all real property is titled in the name of the trust or if you do not have a trust that a beneficiary deed has been prepared and recorded for each property, if appropriate;

·     Check all financial assets to make sure each asset is either titled in the name of your trust or has a designated beneficiary designation;

·     Review distribution provisions in your estate planning documents (or beneficiary designations) and contact your attorney if changes are desired;

·     Look at your trustee and executor designations and make changes if needed;

·     Ask questions if anything in your estate plan is unclear.
We hope that each of you have a happy New Year!

Corey J. Schmutz, Esq.

Friday, December 20, 2013

'Twas the Night Before Christmas (Legalese)


[A little fun for the holidays - yet still relevant to our blog since it discusses the Gift Tax - jcw]
 
Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g. stockings, hosiery, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus a/k/a Santa (hereinafter “Claus”) would arrive at sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g. kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e. the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically indentified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted an additional co-conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor residents, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “taxable gifts” to said minor pursuant to the applicable provisions of the "annual exclusion" from gifts as found in §2503(b)(1), Subtitle B, Chapter 12, of the Internal Revenue Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim:

“Merry Christmas to all and to all a good night!” Or words to that effect.

Author Unknown

Posted by:  Jason C. Walker, Esq.

Tuesday, November 26, 2013

The Reverse QTIP, Back In Drive


With portability, the estate tax concerns of most clients have been alleviated.  However, in some cases, the generation skipping transfer tax (“GSTT”) problem remains unsolved, because the portability provisions of Internal Revenue Code (“IRC”) § 2010(c) do not port or transfer the GST exemption of the deceased spouse (“Decedent”) to the surviving spouse (“Survivor”).
 
Portability and its new developments have caused many estate planners to move away from drafting the previously oft used “A-B trust” or “two trusts.”  Instead, estate planners have increasingly employed the disclaimer trust – a trust where all of the trust assets stay in one trust unless the Survivor decides for estate tax or non-tax reasons to disclaim assets to the equivalent of a bypass trust.  Because of portability, the disclaimer trust will satisfy the estate tax objectives of many married clients without the necessity of creating an “A-B trust.”  However, the disclaimer trust will not fully satisfy the needs of every client.  This is particularly the case for those clients who may be subject to the GSTT.    
 
For these clients instead of employing the pure disclaimer trust, they can either revert back to using the traditional “A-B” trust or consider creating a QTIP trust and making a reverse QTIP election.  Depending on the nature of the client’s assets and the domiciliary of the client, however, it may be more advantageous from an income tax perspective to avoid the bypass trust in the traditional “A-B” trust regime.  In these circumstances, use of a QTIP trust with a reverse QTIP election could be a fruitful solution.
 
By making a reverse QTIP election under IRC § 2652(a)(3) over a properly executed QTIP trust (with an inclusion ratio of zero), the Decedent is deemed to be the transferor of the assets passing under the QTIP trust for GSTT purposes.  In other words, no QTIP election is deemed to have been made for purposes of GSTT.  Therefore, the Decedent’s GSTT exemption can be allocated to the QTIP trust even though the trust is includable in the Survivor’s estate for estate tax purposes.   Effectively, then, the Decedent is able to port his or her GSTT exemption to the Survivor (to the extent the QTIP trust is funded).  In this way, married clients who may be subject to GSTT may avail themselves to the benefits of portability while also maximizing their GSTT exemption.  This solution may result in greater usage of the reverse QTIP election.
 

Friday, November 22, 2013

Amending Your Trust

The main component of the estate plan for most people is a revocable living trust that they establish during their lifetime. When you create a revocable living trust, you can only plan for the present and for the near foreseeable future.  However, an unanticipated change in circumstances in your life may necessitate the amending of your revocable living trust.  Simple examples are when you wish to change the successor trustee or provide for a specific bequest to a new beneficiary or change the amount of a monetary bequest going to a beneficiary.  In these situations, how do you amend the trust?
 
First of all, oral changes to a trust agreement will never be legally enforceable (i.e. trustor tells someone that his car should go to a child or grandchild.)  The reason for the unenforceability of oral amendments is that once the trustor is deceased, he or she is not there to verify (or deny) the purported oral amendment.  If this was not the rule, anyone could allege that the trustor orally changed the trust before he or she died, and there would be no way to prove or disprove this. 
 
In order to determine how to properly amend your trust, the provisions of the revocable living trust agreement must be closely examined. The agreement will specifically state how the trust can be amended.  Oftentimes the trust agreement will provide that any amendment to the trust must be in writing, dated, signed by the trustor and delivered to the trustee.  It is essential that the terms of the trust regarding amendment be strictly adhered to.  Even when amendments are made in writing, there can be problems. People will sometimes attempt to amend their trust by marking out some provision and handwriting something in its place. They may even date and initial the change.  However, if the trust agreement requires that the amendment be signed by the trustor and it is not re-signed, the amendment fails to satisfy the amendment conditions as set forth in the trust agreement.  This, of course, can have serious ramifications, including the possible failure of the trustor’s intentions being carried out once he or she has died. The successor trustee or an interested party could petition the court to take jurisdiction of the trust and determine what the intent of the now deceased trustor was.  This seems to be a failure, however, since one of the main advantages of a revocable living trust is to avoid court involvement and the accompanying costs and fees.  Also the court may construe the trust contrary to what the true intent of the deceased trustor really was.
Accordingly, it is best to always consult a qualified estate planning attorney such as those at the Law Offices of JEFFREY BURR to assist you in the proper amendment of your trust. 
 
-Attorney John R. Mugan

Thursday, November 14, 2013

Accessibility of Healthcare Documents

We encourage all of our clients to execute a healthcare power of attorney and a directive to physicians.  Under Nevada law, these two documents are the equivalent of a living will and are also sometimes known as an advanced care directive.  The names used from state to state and between different attorney’s offices can be confusing, but the content of the documents is basically the same:

1.       Who is empowered to make healthcare decisions for me when I can’t make them myself?

2.       What are my preferences for termination of life support and other “end of life” decisions?
These documents are of great importance for a client having health issues.  A person going in for a scheduled surgery or hospital stay usually has time to remember and gather these documents.  But a person going into the hospital unexpectedly is not likely to have these documents at hand.
 
An article in the New York Times discussed this issue with a social worker in New Jersey.  She explained the frustration in having to try and track down these documents from law firms, family, and friends of patients.  The story encourages people to provide copies of their healthcare documents to their primary physician and to their named healthcare agents.  I agree with this advice.
Luckily in Nevada, we have a free resource that can also help avoid this problem.  The Living Will Lockbox administered by the Nevada Secretary of State is a free program offered to Nevada residents where your healthcare documents are securely scanned and stored for easy retrieval.  The Living Will Lockbox affords healthcare providers and patients easy access to the patient’s living will or advanced care directive by allowing these documents to be easily downloaded using the patient’s last name and a registration ID number.  Following registration the Living Will Lockbox provides a card for your wallet containing your registration number and the web address.  This service is a great idea and makes your documents easily accessible in an emergency situation.  Bottom line: make sure your documents are accessible by either utilizing the Living Will Lockbox or providing copies of your documents to your physician or healthcare agents.

- Jason C. Walker, Esq.

Monday, November 11, 2013

Estate Tax Changes Article

Interesting article by our own Jason Walker, Esq. in November 2013 Nevada Business Magazine.  http://www.nevadabusiness.com/2013/11/estate-tax-changes-require-immediate-attention/

Tuesday, November 5, 2013

Speaking Engagement

Please join Corey Schmutz, Esq.  for a
Dementia Detection & Management Seminar
Friday, November 8, 2013
7:30 am - 8:00 am Breakfast
8:00 am - 3:15 pm CME Sessions
Touro University Nevada
874 American Pacific Drive
Henderson, NV 89014

Register at www.tun.touro.edu/dementia_cme


Halloween fun at JEFFREY BURR

From left:  probate paralegal Tracy, probate clerk, Francisca, EP clerk Amber and probate paraelgal Candy enjoying a spooktacular day on Thursday.

Wednesday, October 30, 2013

BOO--DON'T LET PROBATE BE A SURPRISE FOR YOU!


I'm often asked why certain assets have to be probated and, correspondingly, what happens to the assets if no probate is opened.  With limited exceptions, when a person dies owning assets in his or her name alone, those assets cannot be transferred to the intended beneficiaries without involving the Courts in a process known as probate.  Probate is in fact the legal procedure through which the title to assets is transferred out the name of the deceased person and into the names of the beneficiaries.  Consequently, probate is often unavoidable where a deceased person holds sole title to specific assets.  If no action is taken with respect to such assets, they will in essence remain frozen.  No one has authority to collect the asset or to direct the disposition of it.  Ultimately, unclaimed assets may be escheated to the State by the third party holding any such asset on account of a deceased person.
Probate can rear its head in a number of situations.  First, probate will likely come into play when a person neglects to do any planning for the transfer of his or her assets upon death.  Probate issues can also pop up even when a person has engaged in some sort of planning.  For example, problems frequently arise in the case where a person undertakes to make lifetime transfers or prepare estate planning documents without the guidance of a qualified legal practitioner.  Additionally, if a person dies having a Will but no living trust, then the Will normally requires probate.  Setting up a living trust usually involves the goal of avoiding probate.  In this case, an unanticipated probate could still result when a person neglects to title one or more assets into the name of the living trust either at the point the trust is established or later when additional assets are acquired.

Many of you have already been exposed to a probate horror story or two.  Probate has been depicted as slow, expensive and outdated.  Complications such as owning property in other States or having interested persons who disagree over the disposition of the estate, can easily cause the costs to rise and delay the time it takes to complete the process.
What some people may fail to realize, however, is that probate is entirely a voluntary process.  It only arises in connection with the estates of persons who have not taken appropriate steps to avoid probate.  Indeed, there are plenty of  good reasons to consider avoiding probate, whenever possible, including privacy matters, reduction of costs, and efficiency in the distribution of assets.  Our team of estate planning attorneys can advise you as to effective strategies to avoid probate that are tailored to your unique situation.  We can further counsel you on various methods available to facilitate post-death transfers of assets in certain circumstances without necessitating a full blown probate.  The bottom line is that no one ought to be taken by surprise with unintended consequences affecting the disposition of his or her property.

Attorney Kari L. Stephens

Wednesday, October 23, 2013

When Is It Time to Start Estate Planning?

Estate planning is often thought of something a person should do in their later years.  However, there are a number of reasons why a person should not wait to do his or her estate planning earlier.  The following U.S. News article, aimed at those under 40, provides a number of issues to consider:

-Attorney A. Collins Hunsaker
 

Tuesday, October 22, 2013

ASDO Conference 10/23/13

Just a friendly reminder that ASDO
(Aging Services Directors Organization) is having its
Annual Caregiver Conference
October 23, 2013
8:30 am - 4:00 pm
at United Healthcare
2716 N. Tenaya
Las Vegas, NV 89128

5 CEU's are approved for nurses & social workers

Please call (702) 363-7566 for registration information

Wednesday, October 16, 2013

Income Tax Ramifications at Death of Trustor


When a person (“Trustor”) establishes a revocable living trust during his or her lifetime for the Trustor’s benefit and the Trustor is the trustee of the trust, most of the time the trust is not required to file a separate income tax report, Form 1041. When the person creating the trust is also the beneficiary of the trust, the trust is “self-settled.”  All income and deductions of the trust are reported on the Trustor-beneficiary’s individual income tax return, Form 1040.  This saves the cost of the preparation and filing of an additional income tax return for the trust.

However, what happens when the Trustor-beneficiary dies? In addition to the decedent’s final income tax return, Form 1040, having to be filed, the trust now becomes a potential taxpayer and the trust may be required to file its own income tax return, Form 1041. The current trust filing requirements are if the trust has any taxable income or if the trust has gross income of $600 or more or if a nonresident alien is a trust beneficiary.  The timely filing of the trust tax return is the legal responsibility of the successor trustee or trustees.  A federal employer identification number must be obtained for the trust, and the number is used as the trust’s taxpayer identification number for the trust assets and on the tax return. 

What if the trust was established by a husband and wife and there is a surviving spouse? If the surviving spouse has the right to all of the trust income and principal without limitation, is the sole successor trustee of the trust, and has the right to amend or revoke or terminate the trust, the trust may avoid filing a separate income tax report, Form 1041. Again, in this situation all of the trust income and deductions may be reported on the surviving spouse’s income tax return, Form 1040.

Another common income tax question is can the surviving spouse file a joint income tax return, Form 1040, for the year in which the death occurred even though his or her spouse did not live the entire tax year? The answer is yes, a joint income tax return can be filed for the year in which the death occurred.  This is helpful from an income tax point of view since the personal exemption amount for the 2013 tax year is $3,900.

There are numerous other income tax issues when a trustor-beneficiary dies.  For example, does a beneficiary of the trust have to report part or all of their inheritance on their income tax returns? The Jeffrey Burr law office has over 30 years of experience in administering trusts when a trustor dies, and the attorneys and support staff of the Trust Administration Department can answer this and other income tax questions a successor trustee and/or beneficiary may have. 
 

Thursday, October 10, 2013

Plan Plan Plan!!!!

Something a little different for our readers this week, but a great lesson to be had!  Read the following article from msn.com.  Make sure your family is really taken care of.

Thursday, October 3, 2013

100 Years of Income Taxes

First of all, let me state an opinion; I do not find taxes inspiring.  However, in searching the internet for inspiration on something to blog about for this week, I found an article that stated that today, October 3, is the anniversary of the federal income tax.  More importantly, the federal income tax was signed into law by President Woodrow Wilson on October 3, 1913.  So today is the centennial celebration of the income tax.  I doubt there will be very many private celebrations for this event.

You may read more about it here:  New York Times.  It is actually a very interesting article.

 Attorney Jason C. Walker

Wednesday, September 25, 2013

Upcoming Speaking Engagements

How the New Permanent Estate Tax Law
May Affect You
Thursday, September 26, 2013
5:30 - 6:00 pm
Acuity Financial Center
7881 W. Charleston Blvd.
RSVP to Debbie @ 579-7000

Drafting Effective Wills & Trusts
Monday, October 7, 2013
9:00am - 4:30pm
Gold Coast
4000 W Flamingo Rd.
Register at www.nbi-sems.com

ASDO Caregiver Conference
Wednesday, October 23, 2013
8:30 am - 4:00 pm
United Healthcare
2716 N. Tenaya Way
Call (702) 363-7566 to register

Rules of Trust Administration
Thursday, December 12, 2013
8:00 am - 4:30 pm
Hilton Garden Inn
1340 West Warm Springs Road
Register at www.lorman.com/ID392006

Thursday, September 19, 2013

Congratulations!

Congratulations to Jeff Burr, John Mugan, Bob Clark and James O'Reilly for being named Vegas, Inc.'s Top Lawyers The Best of the Best for 2013.

Wednesday, September 18, 2013

Estate Planning: Not for the Do-it-yourselfers

In this age of do-it-yourself frugality, many surviving spouses and family members are unfortunately experiencing the hidden cost of a loved one’s use of internet and other legal forms for estate planning. Oftentimes the Trust or Will form used by the decedent is improperly completed, does not meet the needs and desires of the person and family, and is contradictory and/or ambiguous. In the latter situation, a court must try and interpret what the decedent intended after the death of the loved one. This is expensive and time-consuming, and the Court may or may not be correct in its attempt to decipher the true intent of the decedent. 

Everyone’s estate plan is unique to his or her specific desires and needs. Some of the many considerations for your Trust and Will are:         

1) What are the federal estate tax ramifications of the terms of my Trust and Will;

2) What powers should I give to my trustee and executor;

3) How can I leave a child who receives governmental assistance an inheritance without disqualifying the child from such assistance, if at all;

4) In what situations can I delay distribution to a beneficiary, if any;

5) Can my Trust be the beneficiary of my qualified retirement plan;

6) What, if any, “no contest provisions” should be included;

7) What is the difference between “per stirpes” and “per capita”;

8) Will the spouses of my children inherit the child’s share if my child predeceases me;

9) What does “lapse” mean;  

10) What is the difference between an “option to buy” and a “right of first refusal”;  

11) What is the rule against perpetuities and how do I satisfy it, and

12) Should a HIPAA release be included in my Trust or Will.  

One of the best analogies to this situation is a medical prescription pad: just because you have a valid medical prescription pad, that does not mean you should be writing prescriptions. The same is true in the legal profession: just because you have a standard, generic legal Trust or Will form, that does not mean you should complete it in an attempt to meet your individual estate planning needs.
 








Thursday, September 12, 2013

Upcoming Seminar

Will the new Permanent Estate Tax law effect you?
Thursday, September 26, 2013
3:00 - 6:00 pm
Acuity Financial Center
7881 W Charleston Blvd.
Las Vegas, NV 89117
Please RSVP to angie@jeffreyburr.com

Wednesday, September 11, 2013

AFR's for September

The AFRs for Sept Annual Semi-annual Quarterly Monthly
are as follows
Short-term 0.25% 0.25% 0.25% 0.25%
Mid-term 1.66% 1.65% 1.65% 1.64%
Long-term 3.28% 3.25% 3.24% 3.23%

Friday, September 6, 2013

Trust Funding – What To Do With Your Vehicle?

We always encourage our clients to properly fund their trust.  Ideally a person’s trust should become the new owner on real estate, bank accounts, life insurance, non-qualified retirement investment accounts, and even cars.

Naturally, plenty of clients balk at our instruction to transfer title ownership of their cars to the trust.  After all, in Nevada this can require making a change to your liability insurance policy so that the registration and insurance can be verified to match by the DMV.  And why go to all the effort when you are just going to upgrade the car next year?
While transferring title of a vehicle to a revocable trust is the best advice for dealing with contingencies, we do often recommend the following alternative:  the use of Nevada Department of Motor Vehicles Form VP239 – titled Transfer on Death Application.  The form can be found here.  This form allows current title holders to add one transfer-on-death beneficiary to the title.  The vehicle cannot have a lienholder, but the form is useful for permitting a hassle-free transfer of ownership of a vehicle upon a person’s death.   So, if the vehicle is paid for and if you are satisfied with the vehicle transferring directly to just one beneficiary, then this method is potentially much easier than transferring title to the trust.
For those interested in doing it the official way, the form for transferring title of a vehicle to a trust is Form VP188 and can be found here.  Make sure to read the information on the DMV website here under “Family Trust” for instructions on how to properly accomplish the transfer.

Thursday, August 29, 2013

Is There An Inheritance Tax In Nevada?

A question often presented to me by some clients is whether or not there is an inheritance tax imposed upon the client’s beneficiaries after his or her death.  Both in Nevada and federally, there is no tax imposed upon a beneficiary who receives a deceased person’s property.  Currently, there are a minority of states that do impose such a tax.  The tax rate usually depends upon who inherits the property, and property passing to a decedent’s spouse or to other close relatives is typically taxed at a very low rate or not taxed at all.

Inheritance tax should not be confused with estate tax.  The difference between inheritance and estate tax is a matter of who is responsible for paying the tax.  Estate taxes are levied on the total value of a decedent’s property and must be paid out before distributions are made to the decedent’s beneficiaries.  Whereas, the inheritance tax is calculated separately for each individual beneficiary, and the beneficiary is responsible for paying the tax.  Fortunately, Nevada does not impose an estate tax upon a decedent’s property.  Federally speaking, there is an estate tax, but there are significant exemptions that currently exist.
If you should have further questions regarding estate tax, inheritance tax, or estate planning matters please feel free to contact the attorneys at Jeffrey Burr.

Attorney A. Collins Hunsaker

Tuesday, August 27, 2013

Jeffrey Burr Speaking engagement

Please join us for a Spotlight breakfast

Palm Mortuary
6701 North Jones Blvd.
Las Vegas, NV 89131

Wednesday August 28th
9:00 am - 10:30 am

Speaker:  Jeffrey Burr, Esq.
Topic:  Basic Estate Planning

Please RSVP to Martin at 409-1252


Wednesday, August 21, 2013

Notice of Proposed Action-Possible Alternative to the Cost of Court

Going to court is an expensive proposition in almost all situations because of attorney fees and court costs.  Court is also often time-consuming as reflected in the adage “Justice grinds slowly”. Probate Court is no exception. One of the main advantages of creating a revocable living trust during your lifetime is to avoid probate when you die.
 
When one dies with a revocable living trust that has been properly funded, the probate process can be avoided. Normally, a court is never involved with the supervision of a revocable trust when the creator of the trust dies. However, there may be times when a court will become involved in a trust administration (i.e. there is a dispute among the parties, the trust agreement is ambiguous, the trustee is acting improperly, et cetera). If there is a possible disagreement on a trustee’s desired course of action, is it always necessary to go to court even though you would like to avoid the cost of doing so?  The answer is no. 
 
A possible alternative is a Notice of Proposed Action.  Under Nevada law, a trustee can mail out a written Notice of Proposed Action to certain prescribed adult beneficiaries of the trust. The Notice must state certain things, including but not limited to a description of the proposed action, an explanation of the reason for taking the action, and the time within which objection to the proposed action may be made. The time provided for objecting cannot be less than 30 days after the notice of proposed action is mailed to the beneficiaries.  A beneficiary may object to the proposed action by mailing a written objection to the trustee within the time stated in the notice.  If no beneficiary timely objects to the proposed action, the trustee can proceed with the proposed action and is not liable to any present or future beneficiaries with respect to that proposed action. Accordingly, the mailing of a Notice of Proposed Action by a trustee is usually far preferable than immediately going to court to have a disagreement settled by the court. If no timely objection is made to the Notice of Proposed Action, the dispute over the proposed action has been settled without incurring the court costs and attorneys fee of going to court.

- Attorney John Mugan

Thursday, August 15, 2013

Mandatory Delivery of Last Will and Testament After Death


Probate is a court-supervised estate proceeding under which the probate assets of the decedent are controlled by the terms of the last will and testament of the decedent.  Probate is a lengthy, complicated and expensive procedure that is a matter of public record.  Probate should be avoided if possible.  The most common way to avoid probate is for the decedent during his or her lifetime to establish a revocable living trust and transfer his or her assets that would trigger a probate proceeding into the trust.  When the decedent dies, probate is avoided.  Administration of the trust is not court supervised, and is much quicker, simpler, far less expensive and confidential.  In such a case, the trust agreement, not the last will and testament of the decedent, is the key document that controls the ultimate disposition of the trust assets. The last will and testament of an individual who has created a revocable living trust is merely a “pour over will” that bequeaths (“pours over”) any probate asset into the trust and is administered pursuant to the terms of the trust.  Nonetheless, there is a law in Nevada that requires any person having possession of the last will and testament of a person they know is deceased to deliver it to the Clerk of the District Court which would have jurisdiction of the matter within thirty (30) days after learning of the death of the decedent.  The Clerk of the District Court currently charges an eighteen dollar ($18.00) last will and testament filing fee. 

Most individuals are not aware of this law.  An individual such as a surviving spouse or child who has possession of the decedent’s last will and testament and has failed to file the will within the thirty (30) day period usually becomes very concerned when they learn of the law. What are the consequences?  The good news is there are no criminal or civil penalties or fines for failure to timely file the last will and testament with the Clerk of the District Court, and there are no “last will and testament filing police” actively enforcing the law and pursuing a person who violates the law. Also the Clerk of the District Court will not inquire as to when the person filing the last will and testament learned of the death of the decedent.  The law states that any person who fails to comply with the law without reasonable cause is liable to any person interested in the will for damages the interested person may sustain by reason of the failure to file the will. Accordingly, a person having possession of the last will and testament of a person they know is deceased should always deliver it to the Clerk of the District Court even if it is past the thirty (30) day period.
 
 










Attorney John Mugan

Tuesday, August 13, 2013


Please join us for:

Dementia/Alzheimers and the Law
Presented by Attorney Corey J. Schmutz

Thursday August 15, 2013
3:00 PM

Vintage Park at San Martin
7230 Gagnier Blvd.
Las Vegas, NV 89113

Snacks & refreshments will be served.
1 approved CEU credit for nurses and social workers

Please RSVP to Sandy Simpson at 433-4455

Wednesday, August 7, 2013

AFR's for August

August   2013 Annual
Semi-annual
Quarterly Monthly
AFR's
Short-term
0.28%
0.28%
0.28%
0.28%
Mid-term
1.63%
1.62%
1.62%
1.61%
Long-term
3.16%
3.14%
3.13%
3.12%

Thursday, August 1, 2013

The DOMA Decision and Your Estate Plan

The recent Supreme Court decision in Windsor v. U.S., a case taking issue with the treatment of federal estate taxation for a married same-sex couple, has effectively struck down Section 3 of the Defense of Marriage Act, most often referred to as DOMA, retroactively.  Due to this decision, married same-sex couples can now enjoy a number of federal tax advantages including:

·         Filing a joint federal income tax return

·         Re-filing tax returns as “Married Filing Jointly” for recent tax years

·         Ability to elect IRA or other qualified retirement plan “stretch” provisions

·         Use of the federal marital deduction for lifetime, gift tax-free transfers to the other spouse

·         Gift splitting for annual exclusion gifting

·         Portability of the a decedent’s spouse federal estate tax exemption

According to the current IRS rules, the determination of whether a couple is married is a matter of state law of the couple’s current residence.  Without further guidance at this time, a same-sex couple married in a state which allows same-sex marriage, but not currently residing in a state which does not recognize such marriage, like Nevada, may not be considered married for federal taxation purposes.  It is anticipated that the IRS will issue guidance on these issues.  Many experts take the position that it is very likely that the IRS will recognize any legally performed same-sex marriage no matter where the couple might currently reside.

At Jeffrey Burr, we can assist same-sex couples, married or otherwise, evaluate their estate planning needs and tailor a plan accordingly.  Feel free to contact the law firm of Jeffrey Burr for a free consultation.

Wednesday, July 24, 2013

Upcoming Event: Saturday July 27, 2013


Be sure to visit Sandy Simpson at the JEFFREY BURR booth on
Saturday, July 27th at the Spotlight Spectacular!
 

Upcoming Events

July 25, 2013
3:00 p.m.
Vintage Park at San Martin
 
“State of Nevada Board of Examiners for Long Term Care Administrators”
Presented by: Corey J. Schmutz, Esq. of JEFFREY BURR
Topic will cover:
Priority Factors to ethical decision-making
-  Roles that the social worker plays within the ethical construct
-  Duties a social worker owes within the ethical construct
-  Family Consent Laws
-  Legality of out-of-state documents

Please contact Natalie at (702) 263-6313 to reserve your spot. It's not too late.

Wednesday, July 10, 2013

Nevada Small Estate Probate Avoidance Statutes


In previous blog articles, I wrote about the importance of avoiding probate.  However, where probate is unavoidable, there are several provisions in Title 12 of the Nevada Revised Statutes that can alleviate the burden of a full probate proceeding where the estate is less than $200,000:

 1.  Affidavit of Entitlement - NRS 146.080 allows estates with a total value of less than $20,000 (not including any real property) to be distributed directly to beneficiaries through the use of an affidavit.  The affidavit does not require court supervision and can be presented to any person who holds estate property.  The property is then distributed directly to the rightful beneficiaries of the estate without going through a formal probate.

There are certain requirements outlined in NRS 146.080 that must be adhered to for the affidavit to work.  For example, among other things, the affidavit may not be filed until 40 days after the date of death and the affidavit must state that all funeral expenses and debts have been paid or provided for.
 
2.  Set Aside - NRS 146.070 provides for the “set-aside” of small estates in two situations.  The first is where "the gross value of [the estate], after deducting any encumbrances does not exceed $100,000" and the estate assets are distributed to the surviving spouse and/or minor children.  The court, at its discretion, can direct that the entire estate be set-aside for their support and the decedent’s debts, if any, are discharged.

The second situation is where there is no surviving spouse or minor children.  The court can set aside the estate to the intestate heirs or beneficiaries of a last will and testament provided that the gross value of the estate is less than $100,000.  In the second situation, the creditors of the estate must be paid.  Although NRS 146.070 requires that a petition be filed with the court, the procedure is much faster and easier than a full probate administration.

3.  Summary Administration – NRS Chapter 145 provides that if the gross value of the estate after deducting encumbrances is less than $200,000, then summary administration is appropriate.  Although the steps for a summary administration are similar to a full probate administration, the provisions of NRS Chapter 145 provide for some relief in a summary administration.  For instance, the creditor claims period is shortened to 60 days and the initial petition for issuance of letters does not need to be published.

Should you have any questions regarding probate, feel free to contact our office.