Tuesday, May 23, 2017

Where There's a Will, There's a Way

Nevada law provides for two ways of creating a valid and binding Last Will and Testament.  The first method is by drafting a will, in writing, that is signed by the testator or by an attending person at the testator’s direction, which is attested to by at least two competent witnesses who subscribe their names to the will in the presence of the testator.  The second method is often referred to as a “holographic will,” wherein the signature, date and material provisions of a will are written by the hand of the testator.  For a holographic will, there is no requirement that it be witnessed or notarized.

When a document meant to be a Will does not comply with the requirements for either a witnessed or holographic Will, a court may not enforce the directions provided about who beneficiaries are and what they should receive.  Instead, a court may substitute Nevada’s default rules governing disposition of a person’s estate, which may be completely different from a testator’s wishes.

To ensure that your estate is distributed according to your wishes, it is important to seek professional legal assistance in drafting a Last Will and Testament or other testamentary documents.  Be wary of download-able forms, templates, or non-legal professionals who attempt to provide low-cost alternatives for drafting Wills or Trusts, as these ‘low cost’ alternatives tend to be the much more expensive option in the long run, as families and loved ones have to pay extra attorney's fees and court costs if these documents are not drafted properly.


To review a Will you have already created, or discuss the requirements of what constitutes a valid Last Will and Testament under the laws of Nevada, contact an attorney at JEFFREY BURR today.

-Attorney Rebecca J. Haines

Wednesday, May 17, 2017

Enforcement of No-Contest Clauses

Most wills and trusts, in my experience, contain no-contest clauses, which say something like: if a beneficiary contests the terms of my will or trust they get nothing. Most clients like this language. They think it protects them from a beneficiary who comes swinging out of the corner so-to-speak and tries to claim more than what was left to him or her. The problem is that sometimes the no-contest clause protects a will or trust, but sometimes it doesn’t.


Nevada law states that no-contest clauses will be enforced with certain exceptions. It will not be enforced if a beneficiary seeks (1) to enforce the terms of the will or trust, (2) to enforce his or her legal rights under the will or trust, or (3) to have a court construe or determine the legal effect of the will or trust. Also, a no-contest clause will not be enforced in certain circumstances if legal action is brought in good faith and based on probable cause. These exceptions combined with the overarching principle that law abhors forfeitures can at times render a no-contest clause seemingly meaningless. So if you suspect you will have problems with your beneficiaries, please consider consulting with an attorney at Jeffrey Burr, Ltd. about planning around your particular circumstance.


Wednesday, May 10, 2017

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 to assist you in the proper amendment of your trust.