Thursday, May 14, 2020 | 2 a.m.
Attorney Kim Boyer with Boyer Law Group
The coronavirus has prompted some to start thinking more about their own mortality.
Las Vegas elder law attorney Kim Boyer said that while some of her clients have chosen to wait out the pandemic before finalizing their estate plans, others have rushed to get their affairs in order.
“This current crisis has people thinking about protecting their families and getting estate planning in place,” she said.
Here’s what you need to know about planning out your estate plan during a pandemic:
What happens if I die without an estate plan?
For those who die without an estate plan, their assets will go through the probate process into what is called intestacy, Boyer said.
“So the state will determine through the statutes who receives the assets,” she said. “And that may not be what some people want, which is another good reason to have a plan in place. You get to choose who receives your assets.”
Under intestacy, the state essentially divvies the assets based on what it thinks the individual would have wanted, said Brian Wall, who is the assistant dean of admissions at the William S. Boyd School of Law at UNLV. Wall also teaches courses on probate law and estates.
Brian Wall is the assistant dean of admissions at the William S. Boyd School of Law at UNLV.
“Nevada and most West Coast states are different in that we are community property states, meaning that a lot of property is going to be owned by married couples together with what is called right of survivorship,” he said. “So if one spouse dies, then the other automatically gets their share of the house or whatever it might be. That’s why intestacy laws in Nevada and most West Coast states give a little bit less to the spouse, because existing laws give more to the spouse anyway.”
Nevada courts do recognize substitute wills or “holographic wills,” where a person can hand write their wishes on a piece of paper. These documents must be signed and dated, but don’t have to be witnessed or notarized, Boyer said. While an option, Boyer said holographic wills are more vulnerable to being challenged in a court than traditional wills.
“It would have to be proven up in court after death,” she said. “One of the things you have to prove is that it is the testator’s handwriting.”
Estate planning while social distancing
Just like everyone else, law firms across the Las Vegas are having to change the way they do business to service their clients while also adhering to social distancing guidelines.
“Clients are concerned right now, they want to make sure everything is in order,” said Corey Schmutz, estate and probate attorney at the Law Firm of Jeffrey Burr in Henderson. “We’ve changed the way we do things a lot. We used to always have in-person meetings with clients to go over things face-to-face, and that’s completely changed.”
Statutes involving estate planning are mostly antiquated and likewise aren’t written to allow for too many things to be done remotely. Nevada in some regards is unique, in that it’s the only state that allows electronic wills or trusts, Wall said.
Attorney Corey Schmutz with the Law Firm of Jeffrey Burr.
“If you’ve got someone who is technologically savvy, you can essentially do everything over a shared Google doc or some sort of video platform like Zoom and take care of everything that way. That way no one has to be in the same room,” Wall said.
But some attorneys are dubious about using this process, as the statute that allows it is still new, and there isn’t much precedent to prove it is as tried and true as traditional wills, Schmutz said.
“We’ve gone out to people’s residents and we’ll stay outside,” Schmutz said. “We’ll get them on the phone and we’ll watch them sign the documents through a window so that everyone is safe and properly notarize them.”
Should I set up: a will or a living trust?
Nevada has one of the least stringent living trust laws in the country, making it a more appealing option for some testators, Wall said.
“There’s a lot more flexibility with what people can do with their property,” he said
While both documents can ensure assets are distributed to the right people, a trust is a much more thorough and complex document that keeps assets from going through probate court.
Trusts are also a better way to protect beneficiaries, Schmutz said.
“If you have minor or disabled children, a trust can have a lot of provisions that can protect those children from predators or divorce in the future to make sure the assets you leave to your family actually go to your family,” he said.
Schmutz said he’ll recommend a trust or will on a case-by-case basis. While a trust protects more complex assets, it doesn’t make sense for those with minimal assets and few beneficiaries.
Powers of attorney and living wills
Death isn’t the only time an individual may be unable to ensure their wishes are followed through. That’s where a living will comes into play, which is essentially a written statement detailing someone’s desires regarding medical treatment should they no longer be able to express informed consent.
“A living will tries to anticipate exactly what you want to have happen,” Wall said. For example, if someone were to fall into a comatose state following a car accident, they could indicate whether or not they would want life support.
A power of attorney takes this a step further, as it empowers another person to make medical decisions on an incapacitated person’s behalf.
“The most responsible form of planning is to do a hybrid version where you do both,” Wall said.
