Trust administration is a vital component to the completion and distribution of a loved one's intended desires. We can assist you with the allocation of assets between trusts, noticing creditors, preparation and recordation of certificates of incumbency and successfully distributing the assets without further liability to creditors and the IRS.
It is normally the intent of trustors (the ones who create trusts) to avoid probate by creating a trust document. Nevada law allows for the non judicial administration of trust estates. However, if issues arise within the administration of a trust, the probate court has jurisdiction to administer the case.
Once a trustor passes away, the successor trustee accepts the appointment as trustee by signing and recording a certificate of incumbency. Thereafter, notice of the successor trustee’s appointment and direction to file claims is given to the creditors and interested parties. The trustee has the duty to create and fund additional trusts identified in the trust document, maintain or liquidate the trust estate assets as set forth in the trust, and provide an accounting of his or her actions to the beneficiaries. Once the trustee is ready to distribute the trust assets, a notice of proposed action is given to the beneficiaries and other interested parties, who have 30 days to object in writing. If no objections are received, the trustee is free to proceed with the proposed distributions. If an objection is received, the trustee must either resolve the issues and issue a new proposed distribution or bring the matter before the probate court for resolution.
Should a dispute arise involving the administration of a trust estate, the Nevada probate court has jurisdiction to hear the matter. Such issues may be appointing a successor trustee, removing a trustee, resolving claims disputes, obtain an accounting of assets and administration, and interpreting vague provisions within the trust as it relates to beneficiary rights. With more than two decades of experience on our side, we know how to maneuver through the Nevada probate court system. We understand the value of listening to you and learning about your loved one's wishes, as well as the needs of you and your family.
A trustee or beneficiary may petition the probate court to take jurisdiction over the trust. The petition is noticed to all interested parties and a hearing is held where the court will either take jurisdiction over the trust or not. The actual administration of the trust estate is similar to that of a non judicial administration, but supervised. It may be that once an issue is resolved, the court’s jurisdiction can be terminated and the non judicial administration of the trust estate resume.
Trust Administration comes with unforseen twists and turns, many times mirroring the trustor’s life choices. A savvy law firm experienced in proper estate administration and identifying issues needing resolution is a must for a trustee to avoid potential personal liability. Creditors and beneficiaries also need aggressive representation to ensure their rights are being protected. At Goldsmith & Guymon we have the experience and know how necessary to accomplish these goals. We believe in forming relationships with our clients to understand their expectations and desires. Our team can assist you in all facets of trust administration and litigation as the need arises.
There can be terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order. Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the Nevada probate process. The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are to protect the assets and interests of the creditors and beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can. Read on for some essential reminders about the Nevada probate process and how representatives can assist with the process.
The complexity of probate administration tends to increase with the value of the estate. Our lawyers can serve your legal needs no matter how large or small the estate in question:
For estates under $25,000: Cases can be resolved through the use of affidavits for personal property. These cases may be completed very quickly, following the expiration of 40 days after the death of the loved one, so long as there is no real property.
For estates under $100,000: Cases can be resolved through the use of a set-aside proceeding. These cases may be resolved within three weeks, so long as the loved one has been deceased for 30 or more days. The set aside may be used for both personal and real property.
For estates under $300,000: Cases can be resolved through summary administration. These proceedings are more time consuming than a set aside but are shorter than a general administration. These require a 60 day notice to creditors following the appointment of a personal representative.
For estates over $300,000: Cases can be resolved through general administration, which is the largest type of administration in Nevada. These require publication of the initial petition and a 90 day notice to creditors.
A personal representative is required to lodge the last will and testament (if one exists) with the clerk of the court and petition the court to admit the will and otherwise appoint him or her as personal representative to administer the decedent’s estate. A hearing on the petition is held after which, if approved, letters of administration are issued giving the personal representative authority to act on behalf of the estate. The personal representative is then required to prepare and file an inventory detailing all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. Claims belonging to decedent are considered assets and must be listed in the inventory. These include promissory notes, unexercised options, and any pending or potential law suits against third parties. The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. (Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.) If the inventory is filed late, the representative could be fined and removed, which would slow down the process (and raise tempers).
The personal representative must give notice to decedent’s creditors to file claims in the probate proceeding within a specified date. This includes making publication in the appropriate newspaper and sending written notice to known creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Depending upon the type of estate being administered, its creditors, and the beneficiaries involved some claims may have priority over others. The personal representative may be personally liable to these claimants having priority. As such, in general once a representative is appointed the court restricts access to accounts, blocking them from any withdrawals, until further order of the court.
One thing to realize if you are a beneficiary is that a will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. In Nevada, an administration may not begin until 30 days after the decedent’s death. Generally, the representative must settle the decedent’s claims and identify allowed creditors before any distribution of the assets. The court must approve all distributions before they are made. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is properly administered.
The representative must keep the beneficiaries in the loop, to include providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the Nevada probate process. Real property may be sold only upon approval from the court after notice and opportunity for public bidding.
Many law firms are set up to handle simple cases efficiently and effectively. But when they encounter unexpected twists and turns and a simple case becomes complex, they must enlist the assistance of another law firm. Often, that other law firm is Goldsmith & Guymon.
We take pride in being the law firm that other lawyers turn to in complex disputes. Our attorneys know how to assemble cases based on skillful management of the facts and effective legal strategies. When we take a case, we do not have to enlist the assistance of other law firms. We handle cases from start to finish toward a positive resolution, no matter how simple or complex the case may be.
Our attorneys can represent your interests in litigation resulting from will contests, allegations of mishandling of estate assets, rejected creditor claims and other estate disputes. If an estate distribution conflict features diverse assets and presents complex legal issues, we have the experience and skill to fight for you in court to pursue a positive outcome.
As you can see, being a representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are returns to be filed and taxes to be paid, along with many other details.
So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with Goldsmith & Guymon, P.C., experienced probate attorneys, to guide the representative or beneficiaries during this process … and avoid all of the hidden land mines.
