What is
a Guardian?
A guardian is someone authorized by the Court to manage
your affairs. A guardian may be appointed if you become unable
to make sound decisions, handle your own resources or resist undue
influence. A guardian may be a family member, a friend or, in some
cases, a private professional guardian or the county public guardian.
Unlike an agent with a durable power of attorney, because a guardianship
removes some or all of your civil rights, the Court supervises
a guardian in the handling of your affairs.
 You can name your own guardian in a written document ahead of
time (a will, a power of attorney or an advance directive). That
document may be considered by a judge if necessary. Even after
a petition for guardianship has been filed, you can name your own
guardian if you are physically and mentally able to do so. If someone seeks to have a guardian appointed for you, the
law requires that you be notified, and you may oppose the guardianship
in a court hearing with the help of any attorney if you request
it.
Are there alternatives to guardianship?
Yes, as described in the section “How can I help ensure that my
affairs… on page 6, advance directives such as living wills, durable
powers of attorney for health care and for handling your affairs
can help avoid the more costly guardianship while preserving your
civil rights.
Do I need a Will?
Yes, you need a Will if you want any control over who will inherit
your property. Even if you own very little, a Will allows you to
earmark a particular piece of jewelry or a cash gift for a person
or charity of your choosing. You can express your funeral and burial
wishes, and you name a “personal representative” (previously referred
to as an “executor” or “executrix”) to carry out your wishes. The
personal representative – who must be officially appointed by a
judge – will collect and manage your assets, pay off debts and
distribute your property.
Your Will may be handwritten or a simple form Will; however, your
Will must meet strict requirements to be valid. You should keep
your Will up-to-date, reviewing it after significant life-changing
circumstances, such as divorce or the death of a beneficiary. If
you decide to rewrite your Will, do not make your changes on the
original, as these changes will generally not satisfy the strict
requirements to be valid. You can amend your Will with a separate
legal document referred to as a codicil. You may want to consult
an attorney before creating or changing such an important document.
If you die without a Will (referred to as “intestacy”), your property will go to your spouse, children
and/or next of kin in accordance with Nevada’s laws governing
intestate succession. If you do not have a spouse, children or next of kin, your property will go to the state for educational purposes.
How will my property be divided up after my
death?
If you have a valid Will, the personal representative named in
your Will starts the process by filing a petition in court and
seeking appointment as your personal representative. Once appointed,
your personal representative will take charge of your assets, pay
your debts and distribute the rest of your estate to your named
beneficiaries. This process is supervised by the Court and is known
as “probate.” If you do not have a valid Will, a relative or other
interested person can start the probate process.
Simpler procedures are available for transferring property to
a spouse, children or next of kin or if the estate amounts to less
than $100,000.00.
Does a Will cover everything I own?
No. Generally a Will does not control the distribution of life
insurance proceeds, retirement plan assets, accounts with named
beneficiaries, certain jointly owned assets, “transfer on death”
or “pay on death” accounts and assets held in trust.
What is a revocable Living Trust?
A revocable living trust is a partial substitute for a Will. Assets
which are conveyed into a revocable living trust are managed by
a “trustee” or, if the trustee is unwilling or unable, by a “successor
trustee” during your lifetime and after death as you have provided
in the trust. The person establishing the trust (known as the “grantor”
or “settlor”) usually names himself or herself as trustee and manages
the trust assets. Unless you become incompetent, you can revoke
or change a revocable living trust at any time during your lifetime.
The advantages of a living trust include (a) the assets transferred
into the trust do not go through probate, (b) you can designate
a successor trustee to manage the trust assets in the event of
any incapacity and (c) the distribution process after death often
takes less time than the probate process.
A revocable living trust does not remove all need for a Will.
Generally, you will still need or want a Will – known as a “pour-over
Will” – to cover any assets that were not included (intentionally
or by omission) in the trust.
Be aware that a living trust is not appropriate for everyone.
Whether
a living trust is the best option for you will depend on your particular
circumstances. Watch out for unqualified “advisors” who sell living
trusts in “trust mill” scams and who seek to obtain seniors’ private
financial information for other purposes as well. Before creating
and funding a trust, you should seek advice from a qualified estate
planning attorney. (See Getting Legal
Assistance.)
Will my Estate be taxed after my death?
The answer to this question depends on your circumstances. Under
present federal law, property left to your spouse or a charity
will not be subject to “estate tax.” The portion of the estate
that is left to anyone else – even your children – will be taxed
if your assets total over $3.5 million in 2009. In 2010, unless
Congress passes an extension or a new federal law, the estate tax
is repealed, and in 2011 will revert to $1 million.
Under present federal law, you can also give away as much as $13,000
a year to each of your children or to anyone else without incurring
a federal “gift tax.” In addition, you could pay your grandchildren’s
college tuition or medical insurance (or anyone’s tuition or medical
bills, for that matter) free of gift tax – but only if the payments
are made directly to the educational institution or medical provider.
(See IRS Form 709.) For information on estate tax and other gift
tax exemptions, contact an estate planning attorney or call the
Internal Revenue Service. |
