Fundamental Discussion Before Drafting a Will. As an estate planning attorney, it is important for me to ask the right questions of my clients. I need to know about the client’s life, goals, family and relationship status, as well as about their assets, liabilities, income and expenses. Before making recommendations, I really need a good picture of their financial and personal life. Without such information, mistakes will be made and important planning opportunities will be lost.Many new clients come to me with a wrong understanding of how the law works. For example, they think if they have a Will that their loved ones will avoid probate. Or they think that just because they own property as joint tenants or as community property their problems are over. Other clients wrongly suppose that life insurance is not included in their taxable estate. There are as many testamentary misunderstandings as there are people in the world, maybe even more.
When assisting a client in choosing their plan, for example, whether they should use a Will or a Revocable Trust, all benefits and downsides of a will should be clearly discussed. The attorney should have a complete understanding about what a client’s estate consists of, as well as what the client’s desires are. The client should fully disclose the reasoning behind his desires and requests, to better aid the attorney in offering the most fitting plan for that client.
Must–have Provisions and Will Drafting Do’s and Don’ts.
Statutory requirements. Nevada Revised Statutes (NRS) 133.010-133.100 sets out the basic requirements for a Will in the State of Nevada. Some of these requirements are as follows: (a) Must be of sound mind and at least 18 years old (NRS 133.020); (b) Formal wills, as opposed to holographic wills, must be in writing and signed by the testator, or by some person in his presence, and by his express direction and attested by at least two competent witnesses, subscribing their names to the will in the presence of the testator (NRS 133.040); and (c) notarizing the witnesses’ affidavits can be very helpful in establishing that the witnesses truly witnessed the execution of the will. NRS 133.050 allows for this.
A holographic will is one in which the signature, date, and material provisions of the will are written by the hand of the testator, whether witnessed or notarized. NRS 133.090.
Tangible personal property can be disposed of by a written statement of list left by the testator, so long as the list or statement is referenced in the will. It must also be signed, and dated, as well as be sufficiently clear in identifying the specific personal property and individuals who should respectively take such personal property. Real property and other property with titles, such as bank accounts or corporate stock, should not be included on the list, but rather handled within the body of the will or trust. NRS 133.045.
Disinheritances and No Contest Clauses.
Disinheriting spouses. In Nevada a testator cannot deprive his surviving spouse from that spouse’s separate property or share of the community property, nor can a testator disinherit a spouse who has a right by title of joint tenancy. A testator can, however, disinherit his spouse from receiving the testators separate property and the testators’ share of the community property. If this is the testator’s desire, his will must specifically mention the name of the spouse and the intent not to make provision for said spouse. Without this language the court will presume that the omission of the spouse was inadvertent and the spouse will be entitled to an intestate share. See NRS 133.110 and Leggett v. Leggett, 88 Nev. 140, 494 P.2d 554 (1972). The statutes relating to intestate shares are provided in NRS 134.030 – 134.210.
Disinheriting children. Children don’t have the same benefit and presumption as spouses who are not mentioned in the will. If they are left out, it is not assumed, necessarily, that it was inadvertent. If it was inadvertent, sufficient facts would have to be presented to the Court to prove such. In any event, testators should also specifically name any children they wish to disinherit to take away the argument of inadvertent omission.
Everyone else. Testators can disinherit any other heirs or family members. See NRS 133.170.
No-contest clauses. These clauses will generally hold up, however, this clause will not keep a disinherited heir from contesting on the basis of improper execution of a will, incompetence of the testator, or undue influence being exerted on the testator.
Special needs trusts. If an heir is disabled and receiving government welfare based upon the disability, leaving an inheritance to such individual might cause their disqualification from the government benefits. Instead, a special needs provision might allow them to have their cake and eat it too.
Other testamentary trusts to protect assets and shield from immature beneficiaries. Consider using a revocable living trust. With that said, there may be situations where a testator will choose a testamentary trust rather than an inter vivos trust.
Provide for alternate distributions. “If John is not then living, then this bequest shall go to Kelly.”
Use a last resort clause. Heirs at law or qualified charity (Cy Pres provision).
Plan for minor beneficiaries. Consider trust provisions, as discussed above.
Residuary clause. In addition to specific bequests, always include a residuary clause, in case the testator forgets or is unaware of estate assets.
Methods of Designating Fiduciaries. Obviously there are pros and cons associated with each of the below options. The estate planning attorney should review all such pros and cons with the client and help them designate the fiduciary most appropriate given the particular client desires and objectives. Options for designating fiduciaries include the following: (a) One individual; (b) Multiple individuals; (c) Bank/trust company/professional fiduciary; (d) Designated individual(s) or company who will later name the fiduciary.
Obviously there are pros and cons associated with each of the above options. The estate planning attorney should review all such pros and cons with the client and help them designate the fiduciary most appropriate given the particular client desires and objectives.
Who may serve and an executor in Nevada? In Nevada, the following persons are prohibited from serving as executors (See NRS 138.020): (a) Those under the age of majority (18 years); (b) Those convicted of a felony; (c) Those adjudged by the court to be incompetent to execute the duties of the will by reason of drunkenness, improvidence, or want of integrity or understanding; or (d) A bank whose principal place of business is not in the State of Nevada, unless it associates as co-executor a bank whose principal place of business is in the State of Nevada. An out-of-state bank may appoint its substitute, but any natural person so appointed must be a resident of the State of Nevada.
For more information on drafting Wills, please schedule a free wills consultation.