What Do I Need + Why?
When most people think about estate planning, a Will is what comes to mind.
However, most people need more planning than can be provided by a Will- especially in Nevada.
This article explores my recommendations as to what you should consider when putting together a comprehensive Estate Plan, including key differences between a Will and a Revocable Living Trust, as well as why you probably want to avoid Nevada probate.
What’s in a Comprehensive Estate Plan?
One of the best ways to preserve and pass on your wealth is through a well-designed Estate Plan. An effective plan ensures your assets go where you want—efficiently and with minimal stress for your loved ones.
A comprehensive estate plan ensures your wishes are honored if you become incapacitated or pass away. Additionally, it helps protect your estate without the hassle, cost, or delays of guardianship or probate litigation.
A comprehensive Nevada Estate Plan typically includes the following documents:
- Revocable Living Trust (also known as “Family Trusts”, “Revocable Trusts”, “Living Trusts” or “RLTs”)
- Pour-Over Will
- Caretaker Instructions + Nominations of Temporary + Permanent Guardians This is vital for parents with minor children, as these documents nominate and give instruction to Guardians for your kids.
- Detailed Trust Schedule of Assets, including Trust Asset Assignments
- Certificate of Trust
- Durable Power of Attorney (for financial management, especially important if you become incapacitated)
- Health Care Documents, including:
- Advance Health Care Directive (specifically tailored according to your personal wishes)
- Stand-Alone HIPAA Release
- Living Will
- Nevada Statutory Advanced Directive (for Nevada residents, see NRS 449A.400 to 449A.481)
- Personal Property Memorandum
- Trust Funding Instructions + Checklist (to ensure your assets are properly transferred into your Trust and proper beneficiary designations are made/updated)
- Transfer Documents, including:
- Deeds (transferring real estate to your trust)
- Assignments of Business Interests (for any business interests you hold)
- Memorial Instructions (for Nevada residents, these should include a Nevada Affidavit Authorizing Final Disposition)
What is a Revocable Living Trust / Family Trust?
A Revocable Living Trust (RLT) is the foundation of a comprehensive estate plan.
A properly formed and funded Revocable Living Trust can help you avoid probate entirely. It streamlines estate administration and helps preserve your estate’s value. Like a Will, it clearly states who gets what—and how.
Unlike a Will, a Revocable Living Trust usually avoids court involvement—no probate required. We’ll cover Revocable Trusts in more detail later. First, let’s explore Nevada Wills and the probate process.
Nevada Wills
In contrast to a Revocable Living Trust, a Nevada Will is a one-way ticket to probate court. Why??? A Will is not a separate legal entity (like a Revocable Living Trust). It’s merely an instrument that tells the Court who to give your estate to after passing. Also, a Will only applies AFTER your death – a Will doesn’t address any lifetime issues (such as planning for your incapacity or mental disability).
In your Will, you can name anyone you choose as Personal Representative (Executor) of your estate. However, probate attorneys often control the actual property distribution, which can be costly and frustrating.
A Will is a necessary document in that it you can nominate Guardians for Minor Children (if applicable).
After you pass away, your Will must be filed with the probate court and is subject to the entire probate process in order for its provisions to be carried out. This can cost your estate a significant amount of money (and time/hassle/frustration for your family – sometimes several years).
So- what exactly is Probate? Why do I want to avoid it?
The short answer: Probate can be lengthy & time-consuming, bureaucratic, frustrating & expensive.
The long answer: The Probate process is – very basically- the process of gathering, accounting, & distributing a deceased person’s property — the legal process of re-titling assets from the name/estate of the dead person to their heirs. Probate is subject to state statutory rules & required timelines enabling all interested parties to come and make their claims against the estate (creditors). On average, the Nevada probate process takes 13 months (can range from 6 months to many years, if the estate is contested).
The Court then decides how the proceeds of the estate shall be distributed.
Remember – a Will alone does NOT bypass the Probate Process!
If the deceased person had a Will, the Court typically follows the Will’s provisions regarding estate distribution. If there was no Will, the Court then looks to Nevada laws regarding intestate succession (your “heirs at law”). The state intestate laws dictate “who gets what” —meaning that none of your desires/wishes are considered. The Legal Aid Center of Southern Nevada’s Civil Law Self-Help Center website provides an excellent & detailed overview of the probate process in Clark County, Nevada here.
Simply put: with a Will, your beneficiaries end up with less money (due to higher costs involved in probate), at a later date, with much more hassle & red-tape (vs. a properly funded Revocable Living Trust based plan).
So now that you’re convinced you want to avoid probate at all costs, let me explain more about the ins & outs of a Revocable Living Trust-based estate plan.
How Does a Revocable Living Trust Avoid Probate?
A Nevada Revocable Living Trust prevents your estate from having to be submitted to the probate process primarily because the Revocable Living Trust is a separate legal entity created during your life to hold your estate assets. However, you still control everything (unless you become incapacitated/pass away).
A Revocable Living Trust that is properly “funded” (meaning it owns title to your property) avoids the probate all together. This is because the Revocable Living Trust owns the assets and there is no estate (property) that is subject to probate per Nevada law.
A Revocable Living Trust has certain advantages when compared to a Will:
- A Living Trust allows for the immediate transfer of assets after death without court interference.
- It also allows for the management of your affairs in case of incapacity, without the need for a guardianship or conservatorship process.
- With a properly funded Living Trust, there is no need to undergo a potentially expensive and time consuming public probate process.
How Does a Family Trust Work?
When you form your Nevada Revocable Living Trust, several things are specifically stated within the Trust document:
- Initial Trustee: You designate the Trustee (usually you – or in the case of a married couple, usually the husband and the wife are the trustees);
- Successor Trustee(s): You designate one or more Successor Trustees, which are persons you’ve designated to step into your shoes upon your incapacity/death, so that they may legally handle the trust’s business.
- Lifetime Beneficiaries: You designate the Lifetime Beneficiary(ies). If you’re not married, you’re usually the trust’s sole lifetime beneficiary. If you’re married & create a trust jointly with your spouse, both spouses are typically the lifetime beneficiaries.
- Who Gets your Stuff – “Death” Beneficiaries: You specify who inherits your estate after you pass away. These are the “death beneficiaries”. You can additionally state how the beneficiaries receive their inheritance (outright, %’s at certain ages, in an asset-protection trust, etc.)
- And Much More … Trusts can do a lot more than this, such as minimize gift & estate taxes, protect beneficiaries with special needs, etc.
Trust Administration: While you’re Alive (& not incapacitated)
As you typically serve as sole Trustee, you have complete control & custody over all trust assets. Because you’re also typically the Lifetime Beneficiary, you can use all assets as you wish, allowing you to retain full & unconstrained control. As “Grantor” (creator) of the trust, you can typically amend/revoke/restate the trust in its entirety, allowing for a maximum degree of flexibility.
Trust Administration: Upon Incapacity
The trust spells out its legal definition of incapacity & the steps involved in appointing someone to take the reins (the Successor Trustee/s). As you’re still the Lifetime Beneficiary, trust assets are to be used solely for your own benefit.
Trust Administration: After Death
Upon your death, the designated Successor Trustee becomes the current trustee of the trust. The Trustee is bound by the terms of the Trust & has a legal duty to follow its terms. The Trustee is usually responsible for gathering the trust’s assets (with the option to liquidate as needed) and then distributing the assets to the trust’s death beneficiaries. The Successor Trustee then closes out the Trust after the final distribution is made. That’s it!
When an experienced Nevada estate planning attorney, like the lawyers at Phillips Ballenger, aid in your planning, ALL OF THIS HAPPENS PRIVATELY, WITHOUT COURT INVOLVEMENT- saving the estate a good deal of money (attorney’s fees, court costs/fees, publication fee, appraisers fees, etc., etc.) but also a tremendous amount of time & hassle for your family or other beneficiaries.
Comparing Estate Plans – Wills vs. Trusts:
| Will-Based Plans: | Revocable Trust Based Plans: | |
| Names beneficiaries? | Yes | Yes |
| Confidential/no public record filings? | No | Yes |
| Avoids Probate Court? | No | Yes |
| Efficient & private administration after your death? | No | Yes |
| Provisions made for your estate during your incapacity or mental disability? | No | Yes |
| Nominates custodial guardians for minor children? | Yes | No… but can be designed to create ‘sub-trusts’ to administer + safeguard kids’ inheritance |
Whether you choose a will or a trust you should seek the advice of your trusted professional advisor team (including an experienced attorney whose practice is focused in Estate Planning issues, a tax professional, and a financial advisor). Making this a priority now can save money and precious time later!
Read read more about PB Law’s personalized approach to the Planning Process.
Read more about our approach to the Nevada Probate Process.
We’re here if you have more questions about the difference between Wills and Trusts, and this may affect your estate planning or estate administration – please feel free to reach out via phone @ 702-997-5701.