Russell G. Gubler, Esq. Johnson & Gubler, P.C. Lakes Business Park 8831 W. Sahara Avenue

Russell G. Gubler, Esq. Johnson & Gubler, P.C.Lakes Business Park8831 W. Sahara Avenue Las Vegas, Nevada 89117 (702) 471-0065 telephone (702) 471-0075 facsimilewww.johnsongubler.comrgubler@mjohnsonlaw.com

LEGAL JARGON

WHAT IS A WILL? • A will is a legal document that allows you to leave your property to persons or charities in the amounts you wish. • It may also name guardians for your minor children, trustees for any trusts you create in your will and your personal representative (executor) to administer your probate estate. • A will only takes effect upon death.

WHAT IS A TRUST? • A trust is a legal entity that can hold property and is created based on a written agreement between the person creating the trust and the person administering the property on the creator’s behalf. • A trust may take effect during life or after death. • Note: A Trust must be funded.

WHAT IS PROBATE? • Probate is the court process in which probate property is collected, debts and taxes are paid, and the assets are distributed according to your will (or according to intestate succession if there is no will). • Probate typically lasts 6 months to a year (small estates). • During the probate process, the personal representative will go through many routine tasks, such as: • Identifying, inventorying, and appraising estate property; • May need appraisal at time of death and at time of sale. • Giving Notice to Creditors and Beneficiaries; • Filing reports/Accounting with the Court; • Paying estate debts and taxes; and • Distributing property as directed by the will or state law.

TYPES OF ADMINISTRATIONS • Transfer of Unencumbered Personal Property Not Exceeding $20,000 • Letter of Entitlement (NRS 146.080) • Setting Aside Estates (Not Exceeding $100,000) • May include real property • See NRS 146.070 • Summary Administrations (Not Exceeding $300,000) • See NRS Chapter 145. • General Administrations (Exceeding $300,000)

WHAT HAPPENS TO YOUR PROPERTY IF YOU DO NOT HAVE A WILL? • Certain assets in your name that are not otherwise distributed after your death (e.g., through joint tenancy) are known as your “probate property” • If you do not have a will, your probate property will be distributed according to “intestate succession” which is a pattern of distribution found in the Nevada statutes.

INTESTATE SUCCESSION – FOR SEPARATE PROPERTY • If the decedent leaves a surviving spouse and only one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child. • If the decedent leaves a surviving spouse and more than one child living, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation. • If the decedent leaves no issue, the estate goes one-half to the surviving spouse, one-fourth to the father of the decedent and one-fourth to the mother of the decedent, if both are living. If both parents are not living, one-half to either the father or the mother then living. • If the decedent leaves no issue, or father or mother, one-half of the separate property of the decedent goes to the surviving spouse and the other one-half goes in equal shares to the brothers and sisters of the decedent. • If the decedent leaves no issue or surviving spouse, the estate goes one-half to the father of the decedent and one-half to the mother of the decedent, if both are living. If both parents are not living, the whole estate goes to either the father or the mother then living. • If the decedent leaves no issue, father, mother, brother or sister, or children of any issue, all of the separate property of the decedent goes to the surviving spouse. • ETC. (See NRS Chapter 134).

WHAT IS SEPARATE PROPERTY? • Property held before Marriage; • Some Property received as a gift or inheritance; • Property held separate by agreement • Pre- and Post-Marital Agreements • Exception: Transmutation of separate property.

COMMUNITY PROPERTY • On the death of either husband or wife under NRS 123.250 • An undivided one-half interest in the community property is the property of the surviving spouse and becomes his or her sole separate property. • The remaining interest is subject to the decedent’s testamentary disposition. In the absence thereof, this property goes to the surviving spouse, and is only portion of the community property subject to administration under provisions of Title 12; and • On either spouse’s death, community property vests as provided in NRS 123.250.

PROBATE V. NON-PROBATE ASSETS • Joint Tenancy • Property owned in joint tenancy passes automatically by operation of law to the surviving joint tenant. • Property that can be held in joint tenancy: • Real property • Personal property, such as a bank account or investment account • “With Rights of Survivorship”

PROBATE V. NON-PROBATE ASSETS (CONT.) • Life insurance • On all life insurance policies, you must list a primary and contingent beneficiary. The proceeds will be paid out to whomever you listed as the beneficiary, regardless of what your will may say. • Retirement accounts • Deed upon Death - NRS 111.671. The owner of an interest in property may create a deed which conveys his or her interest in property to a beneficiary or multiple beneficiaries and which becomes effective upon the death of the owner. A deed created pursuant to this section must be known as a deed upon death.

PROPERTY IN THE ESTATE • A personal representative • Has a right to the possession of all the real, as well as personal, property of the decedent; • may receive the rents and profits of the property until the estate is settled, or until delivered over by order of the court to the heirs or devisees; • shall make a reasonable effort to keep in good tenantable repair all houses, buildings and appurtenances thereon which are under the control of the personal representative. • Exceptions: • A personal representative shall not take into possession any assets held by a guardian of the decedent until the guardianship is terminated • If a person dies leaving a surviving spouse or a minor child or minor children, the surviving spouse, minor child or minor children are entitled to remain in possession of the homestead, all the wearing apparel and provisions, all the household furniture, and are also entitled to a reasonable provision for their support.

SALE OF REAL PROPERTY IN THE ESTATE • NRS148.220 Notice of sale: Publication; posting; description of property. Notice of the time and place of sale of real property must be published in a newspaper published in the county in which the property . . . for 2 weeks, being three publications, 1 week apart, before the day of sale or, in the case of a private sale, before the day on or after which the sale is to be made. • Exception for real property valued under $5,000 • Should note in offer that the sale is subject to Court approval. • Should ensure that Buyer is willing to wait for Court approval.

SALE OF REAL PROPERTY IN THE ESTATE (CONT.) • NRS148.230 Public auction; postponement of sale. A sale at public auction must be made in the county in which the real property is located[.] . . . The sale must be made between the hours of 9 a.m. and 5 p.m. on the day named in the notice of sale, unless the sale is postponed. • Postponement determined by personal representative. • Postponements cannot exceed 3 months. • In case of a postponement, notice must be given by a public declaration at the time and place first appointed for the sale • NRS148.240 Private sale. The notice of a private sale must state a place where bids or offers will be received, and a day on or after which the sale will be made, which must be at least 2 weeks after the first publication or posting of the notice[.] • The bids or offers must be in writing, and may be left at the place designated in the notice or delivered to the personal representative personally at any time after the first publication or posting of the notice and before the making of the sale.

SALE OF REAL PROPERTY IN THE ESTATE (CONT.) • NRS148.260 Confirmation of sale: New appraisement; appraisal dispensed with under certain circumstances. No sale of real property at private sale may be confirmed by the court unless: • the court is satisfied that the sum offered represents the fair market value of the property sold, • the real property has been appraised within 1 year before the time of sale. • Exception: If the personal representative is the sole devisee or heir of the estate, or if all devisees or heirs consent in writing to sale without an appraisal, the requirement of an appraisal may be dispensed with and the personal representative may rely on the assessed value of the property for taxation in obtaining confirmation of the sale.

SALE OF REAL PROPERTY IN THE ESTATE (CONT.) • NRS148.270 Hearing concerning confirmation of sale: Considerations; higher offer; continuance. At the hearing, the court shall consider the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and the evidence in relation to the sale. • Court must determine: • good reason existed for the sale, • that the sale was legally made and fairly conducted, and complied with the requirements of NRS 148.260. • the sum bid is not disproportionate to the value, • it does not appear that a sum exceeding the bid by at least 5 percent • if the bid is not more than $100,000, or by at least $5,000 if the bid is $100,000 or more, the court shall enter an order confirming the sale and directing conveyances to be executed. Otherwise, it shall vacate the sale. • If a written offer of 5 percent or $5,000 more in amount than that named in the return is made to the court by a responsible person, and the bid complies with all provisions of the law, the court may accept the offer and confirm the sale to that person. • If a higher bid is received at the time of a hearing to confirm the sale, the court may continue the hearing if it finds that the original bidder was not notified of the hearing and might desire to increase his or her bid, but failure to notify the original bidder or to continue the hearing is not grounds to void an order confirming a sale. • Should make sure bidder is there.

NRS148.300 FAILURE OF PURCHASER TO COMPLETE SALE. • If, after the confirmation, the purchaser neglects or refuses to comply with the terms of the sale, the court . . . may vacate the order of confirmation and order a resale of the property. • If the amount realized on the resale does not cover the bid and the expenses of the previous sale, the purchaser is liable to the estate for the deficiency.

MORE ON TRUSTS • Two main types: revocable and irrevocable. • Revocable or “living” trust is the most common form of trust. • Trusts have many different uses. • Properly organized living trusts will avoid probate. This may be important depending on issues such as cost of probate, privacy etc. • Trusts can also be used to address issues like tax planning, asset protection and problematic heirs.

INCAPACITY • Commonly overlooked issue for families • Plan ahead by designating someone to act on your behalf as to your person (including medical) and your property. • If not, your family will need to go to court for a guardianship and/or conservatorship order to do so.

POWER OF ATTORNEY FOR PROPERTY • A property power of attorney is a document in which you name another person to act on your behalf for legal and financial matters. • The power of attorney may allow your agent to do all acts or the acts may be limited to certain acts. • By appointing an agent, you can avoid a court procedure to appoint a conservator in the event you become disabled or unable to make your own decisions.

MEDICAL DURABLE POWER OF ATTORNEY • A medical power of attorney names another person to act on your behalf for medical decisions. • A medical power of attorney becomes effective only if you are unable to make the decisions for yourself. • The power of attorney may allow your agent to do all acts or the acts may be limited.

LIVING WILL • A living will states your wishes regarding the use of artificial life support systems if you are terminally ill, comatose, and beyond hope of recovery.

Probate Charts from Second Judicial District Court of Nevada, Probate Court

Russell G. Gubler, Esq. Johnson & Gubler, P.C. Lakes Business Park 8831 W. Sahara Avenue