death | Black & LoBello

SB 221 Clarifies Trusts and Estates

On August 15, 2011, in Asset Protection, Estate Planning, Legislation, Probate, by blacklobellolaw

SB 221 is intended to improve the law relating to trust and estate issues with the following objectives: (a) to simplify the process of transferring assets at death, whether or not probate is required; (b) to clarify the rights of creditors as to nonprobate asset and trust assets; (c) to clarify exemptions from creditors’ claims that do apply; and (d) to improve and update our laws to make Nevada an ideal jurisdiction for probate and trust matters.

Some highlights of the Bill include Sections 73 and 177 which give additional strength to no-contest clauses in wills and trusts and clarify that with certain important exceptions, a beneficiary’s share can be reduced or eliminated if they violate the provisions that a settler or testator has set forth even if that conduct does not constitute a formal contest of the will or trust.

A major new addition to the probate code provides for the Independent Administration of Estates Act which expedites the probate process and reduces the administrative costs of probate by allowing a personal representative to act more independently, involving the probate court only when needed for disputes or significant issues. This Section should allow executors to conduct activity such as selling real estate without the additional court appearances, filing fees and attorney fees currently associated with selling a parcel of real property through the probate court.

Section 196 provides that when a trust authorizes or directs a trustee not to provide an accounting, a procedure exists where the trustee provides the account to one or more reviewers who will determine whether the beneficiary’s interest in the trust is being properly administered without revealing the details of the account to the beneficiary.

Christopher J. Phillips, Esq.

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Tagged with: beneficiary's share • death • Estate Planning • Independent Administration of Estates Act • Nevada • Probate • SB 221 • transferring assets • trust

Chris Phillips talks Trusts on KLAV AM 1230

On June 22, 2011, in Asset Protection, Estate Planning, Probate, by blacklobellolaw

Click here to listen to Mr. Phillips talk about how different types of trusts can be used to protect your assets as well as other methods used to transfer assets in case of death or disability.

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Tagged with: 000 in equity • asset protection • creditors sue • death • dropping home value • exempt up to $550 • family trust • irrevocable spendthrift trust • pour-over will • primary residence • Simple revocable trusts • transfer of assets • trustee

Nevada Probate Basics

On November 17, 2010, in Asset Protection, Estate Planning, Probate, by blacklobellolaw

Christopher J. Phillips, Esq., explains when a probate is required in the state of Nevada.

Tagged with: asset • attorney • Black • Chris • Christopher • death • deed • delays • intestate • joint • Las Vegas • lawyer • LoBello • management • Phillips • Probate • spouse • tenancy • testament • will

What Can’t They Get At?

On October 19, 2010, in Asset Protection, Estate Planning, Finance, by blacklobellolaw

Using State and Federal Exemptions as Part of an Asset Protection Strategy

Exemptions Provided by Federal Law

Under Federal Law, specifically the ERISA Anti-Alienation Provision (29 U.S.C. § 1056(d)(1)), qualified retirement plans are protected from judgment creditors (this protection typically does not apply to spouses and/or the IRS). The law states”[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” This means that assets held in an ERISA pension plan are not available to creditors. Therefore, ERISA qualified asset protection planning gives a method for business owners and individuals to shelter assets that may otherwise be available to creditors, while at times generating a sizeable tax deduction in the process.

Exemptions Provided by Federal Law Under Federal Law, specifically the ERISA Anti-Alienation Provision (29 U.S.C. § 1056(d)(1)), qualified retirement plans are protected from judgment creditors (this protection typically does not apply to spouses and/or the IRS). The law states”[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” This means that assets held in an ERISA pension plan are not available to creditors. Therefore, ERISA qualified asset protection planning gives a method for business owners and individuals to shelter assets that may otherwise be available to creditors, while at times generating a sizeable tax deduction in the process.

Exemptions Provided by Nevada Law

The Nevada Legislature has enumerated several “exempt” assets via NRS § 21.090.

Nevada Homestead Protection

Under $550,000 NRS § 21.090(1)(l) and NRS § 115.01, the equity interest in a properly claimed homestead will be protected from judgment creditors. However, there are limitations to this exemption that should be noted. Most significant is the limitation of the state homestead exemption in bankruptcy to $125,000, regardless of state law providing for a larger or unlimited exemption. This limitation applies to homestead interests that are acquired within a 1215-day (3 years and 4 months) period prior to the filing of the bankruptcy petition. Consulting a qualified Bankruptcy Attorney regarding these issues could be helpful as these issues can be complex and must be handled on a case by case basis.

Other Exemptions Provided by Nevada Law

Nevada also provides for protection of up to $500,000 worth of non-qualified Retirement assets (NRS § 21.090(1)(r)). Please note that many of the limitations under ERISA law apply to this exemption as well.

NRS 21.090 provides for additional exemptions, such as the cash value associated with whole life insurance policies (limited to an amount prorated to annual premium payments of $15,000 per year).

Other useful NRS 21.090 exemptions include (please note, this list is not exhaustive):

Social Security Payments;
Payments from the Division of Welfare and Supportive Services of the Department of Health and Human Services;
Proceeds from a life insurance policy;
Payments received as disability, illness or unemployment benefits, unemployment compensation and Veteran’s benefits;
A vehicle, if your equity in the vehicle is less than $15,000;
Child support and alimony received;
Personal property up to $1,000 in value;
Personal injury payments, in an amount not to exceed $16,150, received as compensation for personal injury (not including compensation for pain and suffering or actual pecuniary loss);
Seventy-five percent of the take-home pay (with qualifications); and
Wrongful death settlements (with qualifications).

No discussion of asset protection is complete without a thorough analysis and understanding of Fraudulent Transfer law. For example, a transfer to defeat the rights of existing of anticipated creditors that would violate fraudulent transfer laws is illegal. Additionally, hiding assets in an offshore account (and not disclosing the account in a bankruptcy schedule), and hiding funds from the IRS is illegal.

Tiffany N. Ballenger, Esq.

Tagged with: alimony • asset • Bankruptcy • benefits • Black & LoBello • child support • death • disability • ERISA • exempt • exemptions • homestead • illness • injury • IRS • judgment • Las Vegas • life insurance • Nevada • NRS • payments • policy • protection • qualifications • Social Security • supportive services • unemployment • vehicle • welfare

Nevada Probate Basics

On October 13, 2010, in Asset Protection, Estate Planning, Finance, by blacklobellolaw

What would happen to your assets if you died today? A proper estate plan can be the difference between an efficient, expeditious, and inexpensive distribution of your estate and an administration that takes years and costs tens of thousands of dollars. In Nevada, there are several mechanisms that can be implemented to avoid the expense of probate entirely.

When people do not establish a trust or take other steps to avoid probate, the Probate Court will then supervise all activities relating to the payment of the final expenses of the decedent, determine who is entitled to inherit the deceased person’s assets, and charge for those services.

Nevada has four levels of probate or estate administration.

Affidavit of Entitlement or Affidavit of Small Estate

If the deceased owned $20,000 or less and had no real property and no debts, the heirs can present a simple affidavit with a death certificate to a bank, DMV, or other entity in order to transfer title. In this case there is no need to file anything in Court.

Set Aside without Administration

If the deceased owned $100,000 or less, the heirs or beneficiaries under the Will can petition the District Court to distribute the decedent’s assets to the heirs or beneficiaries without any Court supervised administration. This procedure is relatively simple and economical.

Summary Administration

If the deceased owned assets valued between $100,000 and $200,000, either the deceased’s next of kin or the person the decedent designated in a Last Will and Testament as the Executor/Executrix must conduct a formal, Probate Court supervised procedure to administer the estate, pay the debts and distribute the remaining assets to the beneficiaries. If the deceased did not have a Will, a relative or other interested person may petition to administer the estate. The assets go to the relatives of the deceased in accordance with Nevada’s laws of intestate succession. This process cannot be completed in less than four (4) months and the administrative and attorneys’ fees associated therewith can be determined by a percentage of the total estate.

General Administration

If the deceased dies with assets in excess of $200,000, the estate must be administered under Probate Court supervision, as in a Summary Administration. The only difference between the two is that, in a General Administration, there is a longer period of time creditors have to file claims against the estate and the filing fees are almost double that of a Summary Administration. This process cannot be completed in less than five (5) months and it is not uncommon for an uncontested General Administration to take longer than one (1) year.

Probate Court can be avoided with an estate plan designed by a competent attorney. The costs for establishing mechanisms for avoiding the intervention of the Probate Court are generally much less expensive than conducting a Probate administration and generally lead to much fewer problems such as will contests, trust contests and other litigation which can lead to additional fees and delays.

Christopher J. Phillips, Esq.

Tagged with: 0% • Administration • affidavit • assets • Black & LoBello • Christopher • credit • death • debt • deceased • decedent • entitlement • excuses • fixes • interest • kin • Las Vegas • lien • Nevada • Phillips • Probate • Probate Court • rate • solutions • will

Reasons for Initiating Probate

On June 18, 2010, in Asset Protection, Elder Law, Estate Planning, by blacklobellolaw

The probate process begins after a family member dies and someone, either the executor of the will or a family member, initiates proceedings in probate court. There are certain reasons why an estate would need to be probated. First, property that is owned solely in an individual’s name must always be probated. This applies even when the deceased created a will that leaves property to another person because, when property is titled only in the name of the deceased, no one else is able to sign documents relating to that asset. The probate court will name a person who has the ability to sign any necessary documents.

Second, if a family member has passed away with outstanding debt, the creditors have a certain time period to initiate probate proceedings and file a claim against the existing estate in order to get paid.

Third, probate proceedings are always initiated when both parents of a minor child pass away. Usually, the probate process names a legal guardian of the child to protect that child’s financial assets.

Finally, probate proceedings are most commonly initiated when family members disagree on the distribution of their loved one’s assets. When family members fights over the division of the estate, the process can become both costly and emotional. Therefore, have a reputable attorney draft estate planning documents and ensure those documents are always updated and accurate.

Amy M. Friedlander, Esq.