Probate and The Pandemic: Legislative Changes Enacted in the Wake of COVID-19

Read an interesting article written by written by Jeffrey P. Luszeck, Esq. and Alan D. Freer, Esq. and published in Estate Planning issue of the bar journal Communiqué (November 2021).

The COVID-19 pandemic caused upheaval in all facets of life, including probate and trust law. Some of the issues that arose as a result of COVID-19 included the influx of individuals wishing to create estate plans due to concerns over mortality, the remote execution of documents, and the inundation of new probate matters with the court with the resulting increased pressure and/or workload on the public administrator. Assembly Bill (AB) 318, which became effective October 1, 2021 (except for Sections 4 and 33), addressed many of the issues that arose as a result of COVID-19.

I. COVID-19 legislation

A. Electronic Wills/Trust
Sections 4-14 and 34 amend provisions of the Nevada Revised Statutes (NRS) Chapters 132 and 133 to facilitate the execution of electronic wills, trusts, and remote execution of the same in light of COVID-19. Specifically, said amendments (a) simplify and clarify the electronic will statutes; and (b) create a clear procedure by which a qualified custodian of the electronic will can convert the electronic will into a certified paper original that is treated for all purposes the same as an original paper will.

B. Probate set-aside
Section 27 grants the probate court authority to enter an order pursuant to NRS 146.070 setting aside the estate in “pour-over” estates where the beneficiary is an intervivos trust established by the decedent. Section 27 was intended to simplify estate/trust administration by assuring consistent distribution of a decedent’s estate in the event assets are not transferred to an inter vivos trust. Section 27 is akin to a codified “Heggstad petition.”

C. Public administrator
AB 318 also increases the authority of the public administrator to protect estates. For example, Sections 44-46 grant the public administrator additional rights to information concerning decedents’ mortgages, safe deposit boxes, and residence to further safeguard and marshal assets of the estate. Sections 15, 16.5, 24 and 25 require notice and disclosure of certain information to be provided to the public administrator under certain circumstances, including when a petitioner is not a surviving spouse or heir, in order to ensure that the person seeking nomination has authority to do so.

Additionally, Section 22 exempts the public administrator’s office from posting a bond when obtaining a restraining order under NRS 143.165.

D. Power-of-Attorney
In order to reduce guardianships and provide an express method for adjudicating powers of attorney, Section 1 amends the declaratory relief statutes (NRS 30.040 and NRS 30.060) to confirm that certain individuals, including the principal and/or agent may obtain declaratory relief under the power of attorney.

II. Other notable legislation

A. Estate planning
Other notable amendments regarding estate planning include: (1) Section 29 amends the definition of independent attorney under a certificate of independent review (NRS 155.094); (2) Section 31 permits a trust to authorize the trustee to reimburse the settlor under certain circumstances without causing the settlor to be treated as a beneficiary; (3) Section 31 amends NRS 163.002 to clarify when a declaration that property is held in trust is sufficient to create a trust; (4) Section 33 clarifies that a trust remains irrevocable despite authority, power, or rights granted to persons other than the settlor; (5) Section 35 amends NRS 163.025 by allowing a trustee to combine or divide a trust; and (6) Section 39 amends Nevada’s trust decanting statutes.

B. Administration of estates and trusts
AB 318 also amends and streamlines estate and trust administration. For example, (1) Section 16 allows a Nevada professional to list their professional address, as opposed to residential address, when associated as a Nevada resident co-administrator; (2) Section 18 provides penalties for a third party’s refusal to accept letters testamentary; (3) Section 19 identifies what documents or information a person holding property attributable to a decedent may properly demand before releasing such property; (4) Sections 21 and 26 amend provisions in NRS 143.050 and NRS 143.520 concerning the continued operation of a decedent’s business by a personal representative; (5) Section 28 clarifies that the statutory percentage fee for a personal representative under NRS 150.060 is presumptively reasonable and not subject to additional review for reasonableness; (6) Sections 40 and 41 amend the notice to creditors provisions relating to trusts; and (7) Section 42 amends the virtual representation statute.

A copy of AB 318, as enrolled, can be found at: AB318 Text (https://www.leg.state.nv.us/App/NELIS/REL/81st2021/Bill/7839/Overview).

About the authors
Jeffrey P. Luszeck

Jeffrey P. Luszeck, Esq. is a member of the Las Vegas law firm of Solomon, Dwiggins, Freer & Steadman, Ltd., where he focuses his practice primarily on trust and estate litigation. Mr. Luszeck serves as secretary of its Probate and Trust Section’s Legislative Committee.

Alan D. Freer

Alan D. Freer, Esq. is a member of the Las Vegas law firm of Solomon Dwiggins Freer & Steadman, Ltd., where he focuses his practice primarily on trust and estate litigation. Mr. Freer has been a member of the Legislative Committee for the Probate and Trust Section of the Nevada State Bar since 2007 and has served as co-chair since 2014.

About this article: This article was originally published in the “Estate Planning” issue of Communiqué, the official publication of the Clark County Bar Association, (November 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-november-2021/.

© 2021 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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