F.A.Q for Probate, Trust Administration, Guardianship

Guardianship FAQ:

What is Guardianship?

• Guardianship is a process where a person is appointed to help take care of and make decisions for another person. There are two general categories of Guardianship: Minor and Adult. Within those, a Guardianship can be over just the Person, just the Estate, or both. The person who is under guardianship is called a "Ward."

What is a Guardian of the Person?

• A Guardian of the Person is charged with the responsibility for the care, custody and control of the Ward. This includes the requirement to perform the duties necessary for the proper care, maintenance, education and support of the Ward. The Guardian must make sure that the Ward has food, clothing, shelter, and all other necessities, including an appropriate residence. A Guardian of the Person may also authorize medical, surgical, dental, psychiatric, psychological, hygienic or other remedial care. A Guardian of the Person must also ensure that the Ward is properly trained and educated, and that the Ward has a trade, occupation or profession.

What is a Guardian of the Estate?

• A Guardian of the Estate has the duty to manage the Ward's assets. This includes protecting, preserving, managing, and disposing of the Ward's assets pursuant to the law, and determining what is in the Ward's best interests. There are certain actions, such as selling real property and making investments, that must be approved by the court before the Guardian can take action. A Guardian of the Estate is also required to apply the Ward's assets to the Ward for the proper care, maintenance, education and support of the Ward. In addition, a Guardian of the Estate is required to file an inventory of assets after being appointed, and in most cases, is required to file an annual accounting of the Ward's estate.

Is a Guardianship permanent?

• Guardianships can be terminated upon filing a Petition to the Court. A Guardianship of a Minor terminates automatically upon the minor attaining the age of 18. Prior to that, a parent can Petition the Court for the return of their child if they can prove that the circumstances that existed at the time the Guardianship was Ordered, have been rectified. A Guardianship of an incapacitated adult can be terminated upon a finding that the disability that caused the Guardianship in the first instance no longer exists.

Who can be a Guardian?

• Under Nevada law, a person must be an adult, over the age of eighteen, never convicted of a felony or suspended or disbarred from the practice of law, accounting, or any other profession involving the management of assets or that requires licensure. A guardian must also be a resident of the state of Nevada.

What if my family can't agree on who should be guardian?

• In many cases, friends or family members will often seek guardianship over a loved one. There is an order of preference as to who has priority to serve as guardian. For minor children, the preference is always to a parent, but the Court must consider several factors in determining whether the parent is appropriate to serve as guardian.

• For adults, the first preference is a person nominated by the Ward while they were competent; second, a nomination made by a Will; and third, family members in the following order: 1) spouse, 2) adult child, 3) parent, 4) sibling, 5) grandparent or adult grandchild, 6) uncle, aunt, adult niece or adult nephew.

What is a Living Will or Directive Relating to Life Support?

• This is a written document that lets you set forth your wishes regarding the withholding of life support procedures.

What is a Durable Power of Attorney for Healthcare?

• This is a written document that lets you set forth your wishes with regard to critical care and which appoints an individual to carry out the directives contained within the document. If a Power of Attorney is executed while a person is competent, it may eliminate the need for a guardianship in the future.

What is a Durable Power of Attorney for Financial Matters?

• This is a written document that lets you set forth your wishes regarding management of your finances if you are no longer able to do so, and appoints an individual to carry out the directives contained within the document. Typically this document is used to allow another person to access your assets and pay bills and otherwise manage your finances. If a Power of Attorney is executed while a person is competent, it may eliminate the need for a guardianship in the future.

Probate FAQ:

What is Probate?

• Probate is a court process that supervises the gathering and distribution of a decedent's assets in accordance with a Will, or in accordance with the laws of intestacy if there is no Will.

What types of Administration are there?

• There are four ways to distribute assets upon one's death. They are:

1. Affidavit of Entitlement: Estate is transferred by Affidavit if the estate is less than $20,000. No Court filing is required.

2. Set Aside: Estate is less than $100,000.00, after deducting mortgages, and is distributed by Court Order pursuant to the terms of a Will, or in accordance with the laws of intestacy if there is no Will. No executor or administrator is appointed.

3. Summary Administration: Estate is between $100,000.00 to $200,000.00. A Probate proceeding is opened, an Executor or Administrator is appointed, Creditors are noticed for 60 days and given the opportunity to file claims, and distribution cannot occur for at least ninety days.

4. General Administration: Estate is greater than $200,000.00. A Probate proceeding is opened, an Executor or Administrator is appointed, Creditors are noticed for 90 days and given the opportunity to file claims, and distribution cannot occur for at least ninety days.

What assets do not require Probate?

• Generally, any asset held in joint tenancy, any asset listing a beneficiary other than the estate, such as life insurance policies and retirement benefits, and any asset held in a living Trust.

What assets require Probate?

• Generally, all assets in the decedent's sole name, including personal assets of the decedent not titled, such as furniture and jewelry, one-half of a decedent's community property if married, and the decedent's interest in any asset held as a tenant in common.

Trust Administration FAQ:

What is a Trust?

• A Trust is a legal entity that can own property. A Trustor, the person creating the Trust, typically transfers his or her property to a Trust to avoid probate upon his or her death. Trusts can also be used to protect assets and for tax planning in certain circumstances. The Trustor also names a person to serve as Trustee. The Trustee is a person or persons given the authority to manage the Trust assets. During the Trustor's life, the Trustor often serves as Trustee. A Successor Trustee is named to serve after the Trustor's death or incapacity.

What is a Trust Administration?

• Once a Trustor is deceased, the Trust assets must be administered and distributed pursuant to the terms of the Trust. This can mean that the assets are simply given to specified beneficiaries, or it can be a much longer process where assets are held and invested for the benefit of others, such as for the benefit of a grandchild to use for their college education. The complexity of the administration and the time it takes depend on the nature and extent of the Trust assets and the terms of the Trust.

Do I have to go to Court for a Trust Administration?

• Many Trusts can be administered without having to go to court, which saves time and money. However, if there are issues as to what a certain provision of the Trust means, who the beneficiaries of the Trust are, what assets are part of the Trust, and whether the Trustee is acting appropriately, Trust Administrations can be brought before the Court to make sure that the Trust is being administered properly.

What if I have been named as Trustee?

• If you have been named as Trustee you should consult with an attorney. A Trustee is a fiduciary that is charged with the duty of following the terms of the Trust as well as the law. If a Trustee breaches that duty or errs in distribution, the Trustee can be personally liable for harm that occurs.