Frequently Asked Questions

Documents that can be prepared by Otto & Jenkins Staff:

Real Property Transactions (Buy-Sell/Loan):

• Deeds, Affidavits, Promissory Note, Purchase Agreement, Deed of Trust
• Assignment of Rents, Performance Agreement, Request for Notice of Delinquent Taxes
• Personal Guaranty, Collection Instructions, Amendment to Promissory Note/Deed of Trust
• Subordination Agreement, Option to Purchase, Right of First Refusal

Personal Property:

• Bill of Sale, Promissory Note, Security Agreement, UCC Financing Statements
• Installment Collection Instructions, Assignment/Assumption of Note or Lease

Foreclosures:

• Notice of Default, Substitution of Trustee, Rescission of Notice of Default
• Notice of Trustee’s Sale, Trustee’s Deed, Deed in Lieu

Leases:

• Residential/Commercial Leases, Lease with Option to Purchase, Memorandum of Lease
• Assignment of Lease, Estoppel Certificate

Miscellaneous Real Estate Documents:

• Declaration/Abandonment of Homestead, General & Limited Power of Attorney
• Easements (with/without Maintenance Agreements), Boundary Line Adjustment

A trust or will is essential for effective estate planning. Here’s why:

1. Avoiding Intestate Succession

• Without a Will: If you pass away without a will, Nevada’s intestate succession laws dictate how your assets are distributed, which may not align with your wishes.
• With a Will or Trust: You can specify how your assets are distributed, ensuring your loved ones and causes you care about are provided for.

2. Streamlining Probate

• Wills: While a will still requires probate, it can simplify a court-supervised process of asset distribution.
• Trusts: A properly funded trust allows assets to bypass probate entirely, saving time, reducing court fees, and maintaining privacy.

At the Law Offices of Otto & Jenkins, we can guide you through creating these important documents.

Probate is the legal process that occurs after someone’s death. It involves proving a will’s validity (if one exists), identifying and valuing assets, paying debts and taxes, and distributing remaining assets to heirs or beneficiaries.

In Nevada, the probate process is governed by state law and depends on the estate's size and complexity. Here’s an overview:

1. When Probate is Required

Probate is necessary if the deceased owned assets solely in their name (without a joint owner or designated beneficiary) and the value exceeds certain thresholds:

• Small Estates: Under $25,000 ($100,000 for a surviving spouse) may qualify for a simplified process, such as an affidavit to transfer property.
• Larger Estates: These go through full probate proceedings.

2. Steps in the Nevada Probate Process

• Filing the Petition: Probate starts by filing a petition with the appropriate county court. The court reviews the will's validity or applies Nevada's intestacy laws if there is no will.
• Appointing a Personal Representative: The court appoints a personal representative (executor or administrator) to manage the estate. If the will names an executor, the court usually honors the choice. If not, the court selects someone, often a family member.
• Inventorying the Estate: The personal representative must inventory and value all assets, including real estate, bank accounts, investments, and personal property. Some assets (e.g., those with joint ownership or named beneficiaries) pass outside probate.

Note that the probate process varies with each case and can be lengthy.

 In Nevada, property can be conveyed via deed as per NRS Chapter 111.105. Standard ways to hold property include Tenants in Common, Joint Tenancy, Community Property, and Community Property with Right of Survivorship, Sole and Separate Property, 

1. Tenants in Common

• Each person holds an undivided interest in the property, but no right of survivorship.
• Interests should be clearly specified to avoid disputes. 

Example: "Peter Pan, unmarried, 60% and Jane Doe, unmarried, 40% as tenants in common."

• When a tenant in common dies, their interest passes through probate.
• Entities (e.g., corporations, LLCs) can also hold property as tenants in common. 

Example: "ABC Corp, 90% and Peter & Jane Pan, 10% as joint tenants with right of survivorship."

2. Joint Tenants

• Joint tenancy includes the right of survivorship, meaning property automatically passes to the surviving tenant upon death, bypassing probate.

Example: "Peter Pan and Jane Pan, joint tenants with right of survivorship."

• If one joint tenant transfers or encumbers their share, the joint tenancy is broken. An affidavit needs filed to transfer title to the surviving tenant (NRS 111.365).

3. Community Property

• In Nevada, married couples typically hold property as community property, presumed to be jointly owned.
• Without right of survivorship, the deceased’s share goes through probate.
• With right of survivorship, the property passes automatically to the surviving spouse, avoiding probate (NRS 111.064).

4. Community Property with Right of Survivorship

• Similar to joint tenancy, this allows the property to transfer automatically to the surviving spouse, bypassing probate.
• This can also affect tax benefits, such as a full step-up in the basis for the entire property (NRS 111.365).

5. Sole and Separate Property

• Property acquired before marriage or via gift or inheritance is considered separate.
• To acquire property as sole and separate, the other spouse must release any claim, typically through a deed.
• Such property can be willed and is subject to probate.

6. Revocable and Irrevocable Living Trusts

• Property transferred to a trust must be vested in the trustee(s) of the trust.

Example: "Peter and Jane Pan, Trustees of the Peter and Jane Pan Family Trust dated May 22, 1942."

• Depending on the trust's language, it may designate the trustees' interest in the property.

Example: "Peter Pan and Jane Pan, Trustees of the Peter and Jane Pan Family Trust dated May 22, 1942, as community property."

• If a trustee dies and the trust designates a successor, the title may need to be updated, and an Affidavit of Surviving Trustee may be required.

7. Life Estates

• A life estate is a property interest that lasts for the lifetime of a specified individual.
• To terminate a life estate, a court proceeding is required (NRS 40.525), including filing a petition, setting a hearing, and obtaining a court order.

8. Deeds Upon Death

• Nevada allows deeds upon death (NRS 111.109), which automatically transfer property to a designated heir upon the grantor’s death, avoiding probate.
• The deed is only effective upon the grantor’s death and is void if the property is sold or transferred during the grantor's lifetime.

HOME OWNERSHIP AND EQUITY PROTECTION ACT (HOEPA). 

In 1994, Congress passed federal ‘high cost’ home equity loan restrictions referred to as HOEPA. The provisions of this legislation are designed to protect consumers and prevent certain predatory lending practices.  HOEPA creates a special class of regulated closed end loans made at high interest rates or with excessive costs and fees.  These loans are subject to special disclosure requirements and, more critically, to restrictions on substantive terms as well as severe damage penalties and remedies.  HOEPA laws are powerful tool because they expand to liability to any assignees of the beneficial interest of a Deed of Trust and destroy any “holder in due course” shields, subject to limited exceptions. Compliance became mandatory on October 1, 2002.  Further, in 2003 Nevada adopted NRS 589.040 which further requires disclosure of such loans in Deeds of Trust recorded in Nevada. 

For more information visit here:  HOEPA compliance guide

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