Out-of-State Trusts Need Updated

Gary FalesLiving TrustsLeave a Comment

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Many folks have Living Trusts that were formed in California or another state before moving to Nevada.  These trust documents should be updated to avoid what is known as “conflicts of laws”.  A Living Trust attorney forms trusts to avoid probate, but when a Living Trust is formed in another state, you are much more likely to need a court order to settle conflicts between Nevada and the originating state.  Additionally, Nevada has at least four favorable rules protecting your beneficiaries and trustees from unnecessary court costs.

  1. Nevada Trustees are not required to make costly reporting to contingent beneficiaries.
  2. Nevada Trustees can act within the scope of their authority without filing petitions with the court for authorizations.
  3. Parties in disputes may enter into non-judicial settlement agreements to interpret and modify the trust without court orders.
  4. Nevada Trustees can protect the assets from creditors by decanting or using Nevada Asset Protection Trusts.

Rules for Financial Power of Attorney

If you have an out-of-state power of attorney, it is much more likely to be rejected if you lose your mental capacity.  Banks and title companies want the assurance that Nevada law is not violated with out-of-state documents. Our statutory form should be supplemented with a Nevada-based comprehensive power of attorney because the statutory form is lacking in content.

No Advance Directive in Nevada

Many folks erroneously believe Nevada has an Advance Directive.  It doesn’t.  There are four health care documents that we use in Nevada in its place: (1) the Health Care Power of Attorney; (2) the Living Will; (3) the directive to the physician; and (4) the stand-alone HIPAA Authorization. Together, these documents give someone the ability to make health care choices for you if you cannot make them yourself. It’s a message to the world that you do not want artificial means used to prolong your life when there is no hope. It gives your loved ones you name to gain access to your medical records for up to 2 years after you die (it’s prolonged after death in case there is the need for an autopsy). Living Trust plans formed in another state may not have these provisions that Nevada requires.

If you formed your estate planning documents in another state other than Nevada, you are putting yourself and your family at risk of court intervention costing thousands of dollars, loss of time and your dignity.