Planning with a Last Will and Testament

• One of the most common forms of Estate Planning tools is a Will.  Simple, a Will is a written document that takes effect upon your death and tells everyone how to distribute your property.  You can revoke or change it at anytime during your lifetime.
•  The primary reason for making a Will is to provide written instructions on how your assets are to be distributed among your beneficiaries.  A properly drafted Will accomplishes the following:
  • Outlines how you wish to distribute your assets including specific gifs of your tangible personal property.
  • Designates a Personal Representative, also known as an Executor, who is responsible for taking inventory of your property, preserving your estate, paying creditors, administrative expenses and death taxes, and disposing of the remainder of your property among your beneficiaries.
  • If necessary, appoints Guardians for minor children in the event of the death of both parents.
• In order for a Will to be valid, it must conform to certain laws.  Most people do what is called a “formal” will, which is a typed document, witnessed by two other people and a Notary Public.
• Nevada law also recognizes what is known as a “Holographic Will”.  A Holographic Will is a handwritten will.  In order for it to be valid, it must be entirely in your own handwriting, dated and signed.  It does not need to be witnessed or notarized.  The writing must clearly state that you intend for it to be your Will.  You should write it on plain paper.  Do not do it on paper that has any other markings such as letterhead.  If done properly, these Wills are just as valid as formal wills.

Will my estate have to go through Probate if I have a Will?

• Yes.
• What is Probate?
  • Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the Will or intestate laws.
  • Court supervision of the probate process helps ensure that the directions left in your Will are carried out properly.
  • The probate process can take as little as four months or as long as several years.  Things that can significantly delay the process include if your Will is contested or if you own real property in other states.
  • The costs of probate are usually made up of attorney’s fees, executor fees, and court costs.

Will Substitutes

• A will substitute is an alternative to a will.  A will substitute allows for property to pass to a designated beneficiary without passing through probate.  For example, if you have a life insurance policy you can designate a beneficiary to receive the proceeds from the life insurance policy.  This is a will substitute because the property will pass to your chosen beneficiary but will not have to pass through probate prior to being transferred.
• What are other will substitutes?
  • Deed Upon Death
    • Allows you to transfer real property upon your death to your designated beneficiary or beneficiaries through preparation and recording a special deed.
    • To be effective, the deed must be signed, dated, and notarized in compliance with state law.  The deed must include an accurate legal description of the property to be conveyed.  Finally, the deed must be recorded in the county where the real property is located prior to the death of the owner.
    • Upon the death of all owners, the beneficiary will need to file a certified death certificate for each owner and a Affidavit attesting to the fact that the owner has died and that he or she is the designated beneficiary.
    • The owner retains full ownership of the property while living, and can revoke the Deed Upon Death at any time.
    • The interest transferred to a beneficiary under a Deed Upon Death is transferred subject to all mortgages, liens, judgments, and other encumbrances, if the assets of the deceased owner’s estate are insufficient to pay the amount of such claims.
  • Payable on Death (POD)
    • Of course, it is well known that you can also designate a beneficiary for the proceeds for a life insurance policy, an annuity, and retirement accounts.
    • Likewise, most financial institutions and banks allow you to establish a payable on death designation for bank accounts.
    • Contact the appropriate institution holding your account to arrange for a Payable on Death designation.
  • Transfer on Death (TOD)
    • For most securities and brokerage accounts you can establish a transfer on death designation.
    • Contact the appropriate institution holding your account to arrange for a Payable on Death designation.
  • Vehicle Transfer on Death
    • Transfer on Death allows motor vehicle owners to add or remove a beneficiary to the title of a motor vehicle, trailer, or semitrailer.
    • Ownership of the vehicle passes to the beneficiary upon the death of all legal owners.  The beneficiary must apply for a new title to complete the process.
    • Vehicles with a lienholder, lessor, or titled as Tenants in Common may not have a transfer on death beneficiary.
    • Beneficiaries have no ownership interest in, or control of, the vehicle until after all the owners have died.
    • Please contact the Nevada Department of Motor Vehicles to add a beneficiary to the title of your car or trailer.
  • Joint Tenancy
    • Joint tenancy is a form of joint ownership that is created by a written instrument indicating joint tenancy.  In the case of real property, a deed would provide, “John Doe and Mary Doe” as joint tenants.  Upon the death of a joint tenant, the survivor would become the sole owner by recording at the County Recorder’s Office an Affidavit Terminating Joint Tenancy.  Joint tenancy may be created in numerous assets, including automobiles, stock certificates, brokerage accounts, and bank accounts