FAQ's

Las Vegas Attorneys Serving Southern Nevada

Estate Planning | Elder Law | Family Law | Criminal Law

Please note that the following advice to our most frequently asked questions is based on Nevada law. Since laws and procedures vary from state to state, we suggest that you contact counsel in your own jurisdiction for advice on the probate laws and procedures in your area.

ESTATE PLANNING

Q: What is estate planning?
A: Estate planning involves agreements and documents defining arrangements for transferring assets in trust to be held, administered, and distributed by the trustee for the sole benefit of the named trust beneficiaries. This package often includes, but is not necessarily limited to, a Durable Power of Attorney, a Durable Power of Attorney for Healthcare, and a Directive to Physicians.

Q: What is probate?
A: Probate is a court proceeding which supervises the orderly and proper distribution of a decedent's assets to creditors, heirs, and beneficiaries.

Q: What does ancillary probate mean?
A: Ancillary probate is the term for probate if a decedent owned real property in a state other than the one where he resided at the time of his death.

Q: What is a will?
A: A will is a written instrument which reflects the manner in which one's assets are to be distributed upon death.

Q: If a person dies after signing a will, is there still a need to go through probate?
A: Yes. A will is simply a written expression of way you want your property to be distributed after you die. While several options exist which may alleviate the need for a formal probate proceeding, the mere execution of a will is not one of them. A will that is properly prepared and executed can be an effective way to express your desires regarding the disposition of your assets. It enables you to state the name of the person who you want to serve as the personal representative of your estate. The best reason for signing a will, however, is it reduces the likelihood of confusion after you die.

Q: If a relative dies (mother, father, not spouse) leaving credit card debts, are the heirs responsible for the debt, even if there is a will?
A: Debts of a deceased are subject to payment from the assets that comprise the estate at the time of death. So if someone dies with assets, those assets should be used to satisfy the debts of the deceased. If, however, the person who died left no assets, his heirs are not personally liable for his debts—assuming, of course, that the debt is only in the name of the person who died.

Q: How do you force an executor to file a will for probate?
A: N.R.S. 136.050 provides that "any person having a will in his possession shall, within 30 days after knowledge of the testator's death, deliver it to the clerk of the district court which has jurisdiction over the case." N.R.S. 136.060 provides for filing an application with the court and requires the person in possession of the will to produce it. A person who refuses can be remanded to the county jail until the will is produced. Generally, if there are no assets or if the assets owned by a decedent are titled in a way that makes a formal probate unnecessary, the court will not demand the filing of the will. However, if the decedent owned assets titled solely in his name, which would be subject to probate, this statute provides a remedy so that the probate process can be initiated.

Q: What is trust administration?
A: Assisting in the administration and distribution of assets pursuant to a valid trust agreement following the death of the original trustor.

Q: What is a family limited partnership?
A: A family limited partnership is a business arrangement that allows you to reduce your taxable estate while retaining full control of the partnership. It also allows you to compound your available gift and estate tax credits and exemptions, spread income among children in lower tax brackets, and to place assets beyond the reach of creditors.

Q: What is a life estate and how does it work?
A: A life estate is a limited property interest, which lasts only as long as the natural life of its owner. A person possessing a life estate has the right to use, occupy, or collect revenue from the property for the duration of his or her life. When the holder of the life estate dies, a full remaining ownership interest in the property transfers automatically to another designated person, called the "remainderman." For example, an estate plan may give a life estate in trust assets to a spouse, and provide that when the spouse dies, full title to the assets should pass to the children.

Q: Do I need a common disaster clause in my will or trust?
A: If you are married or are a co-owner of assets, a common disaster clause is an important aspect to consider when preparing your will, estate or trust. A common disaster clause is a statement in a will that explains how property is to be distributed if would-be devisees die from the same accident.

Q: What is a limited liability vompany?
A: A limited liability company is a business arrangement that allows you to take advantage of the liability protections of a corporation while enjoying some of the simplicities of a partnership.

ELDER LAW

Q: What is Medicaid planning?
A: Medicaid planning includes arranging assets so a person can qualify for Medicaid assistance when long-term nursing home care is required. It also helps preserve the financial assets of the spouse who remains at home.

Q: What is a guardianship?
A: Guardianship is a court-supervised procedure for appointing an individual to manage the personal and financial affairs of a minor or an incapacitated person.

Q: What is a Durable Power of Attorney for Health Care?
A: A Durable Power of Attorney for Health Care outlines a person's desires with respect to critical care. It also appoints an individual to carry out the directives contained within the document.

Q: What is a Durable Power of Attorney for Asset Management?
A: A Durable Power of Attorney for Asset Management outlines a person's specific desires with respect to managing finances. It also appoints an individual to carry out the directives contained within the document.

Q: What is a Special Needs Trust?
A: A Special Needs Trust is a document that helps preserve the assets of someone with limited capacity, while also preserving any governmental income or benefits that individual may be receiving.

FAMILY LAW

Q: When can I get a divorce?
A: In Nevada, you may file for divorce if you or your spouse has been a resident of Nevada for the six weeks immediately preceding the complaint's filing. Because the length of time required to establish residency is so short, the court insists that the six
weeks be 42 calendar days in Nevada, exclusive of the date of arrival. If children are involved, the jurisdiction becomes the state where the children have resided for the most recent six months.

Q: How do I start the divorce process?
A: To begin a divorce, you must file a Complaint for Divorce. The complaint is accompanied by a summons (which notifies the defendant that a suit for divorce has been filed). A joint preliminary injunction (JPI) is usually filed at the same time. A JPI prohibits parties from transferring, concealing, liquidating, or otherwise disposing of assets that may be considered community property. It prohibits either party from taking the children out of the state to obtain jurisdiction over the children in another state. The JPI also prohibits the parties from harassing one another.

Q: What happens after the complaint for divorce is filed?
A: The next step in the process is to have the defendant (your spouse) served with the complaint, summons, and JPI. The person serving the paperwork must be a US citizen, over 18, and not a party to the action. Once your spouse is served with the complaint, an answer - responding to each of the allegations in the complaint - must be filed within 20 days (exclusive of the date of service).

Q: It has been more than 20 days since my spouse was served. Now what?
A: Your attorney can file a default with the clerk of court. A default is a request to have the clerk review your file and determine if an answer has been filed. If no answer has been filed, the clerk will issue the default submitted by your attorney. At that point, the attorney can either submit a request for summary disposition (a packet of documents for the court to review to determine if a decree of divorce should be executed by the court according to the terms of your complaint), or set the matter for a prove-up hearing (where the court takes testimony from you and someone who can testify you are a bona fide resident of the State of Nevada, and then issue a decree). In the event the terms of the complaint and the decree do not match exactly, the prove-up hearing is an option available to finalize the divorce process.

Q: My spouse filed an answer. Now what?
A: Usually, but not always, an answer comes with a counterclaim. A counterclaim is a complaint, but it is filed by the defendant. You need to file a reply to the counterclaim and respond to each allegation it contains. In the meantime, the person filing the complaint must set up an early case conference (ECC). The ECC is a meeting between the two sides (usually the attorneys) to establish the ground rules for the discovery process.

Q: What is discovery?
A: Discovery is how you get the information from the other side to lay out your case. The early case conference (ECC) establishes how the discovery process will go forward, how long discovery will last, how much time is required for trial, and what discussions will take place on if a settlement is possible. Discovery includes, but is not limited to, interrogatories (questions needing more than a yes or no answer), requests for admission (questions which require only a "deny" or "admit" answer), and requests for production of documents (requesting specific documents usually in the possession of your spouse, or that are easier for your spouse to get). A deposition is usually set after the paper discovery is exchanged. It is where parties or pertinent witnesses are asked questions, under oath, in front of a court reporter. The oath is the same one you will take in front of the judge during the trial, without the judge present. Depositions are less formal, but the oath is just as important. The other side can ask you almost anything they want. The judge is not there to rule on whether the information sought is relevant or otherwise admissible, so your attorney can preserve the argument by objecting to the question. Except for privileged information (doctor/patient, attorney/client, spousal discussions), you will still have to answer the question.

Q: Discovery sounds expensive and time consuming, is it necessary?
A: In divorces, it is common for people to be distrustful of one another. Often, the distrust is warranted. The discovery process is the most effective way to uncover hidden assets and to establish if the other side is trustworthy. If the discovery process does not uncover hidden assets, or lies the other side has told, then the parties are more likely to participate in settlement discussions. On the other hand, finding omitted assets and catching the other side in lies provides good information for the trial. Remember, the judge knows very little about you or your spouse, and a substantial portion of the judge's decision is based on how believable the parties are. Judges are reluctant to reward liars or people who have attempted to hide assets. So, the discovery process can be an invaluable tool - to establish either good faith or deceit by your spouse.

Q: What if my spouse and I agree on everything?
A: Although you and your spouse may agree on everything you have contemplated, it is also true that often, you and your spouse have not thought of everything. You should not sign any written agreement before consulting with an attorney because the agreement could be used against you. Further, it is possible for you to agree to something which is against the public policy of the State of Nevada, and therefore, the court cannot accept that portion of your agreement (but may uphold the remainder of the agreement, possibly to your detriment). A classic example is an agreement to waive child support where the custodial parent is on state assistance. The bottom line is to make sure you really have everything covered, and that an attorney has reviewed the pros and cons of the agreement with you before you sign.

Q: How does the court determine custody?
A: Nevada law presumes that parents should share in the custodial rights and responsibilities. It is unclear if the Nevada Legislature intended this as equal custodial rights and responsibilities as several judges have interpreted this law's meaning. There is some statutory authority for this. If one parent requests joint legal and joint physical custody, the judge must provide written findings why the request is being denied. This warns judges that if one party wants joint legal and physical custody, and the judge denies it, they must be specific about their reasoning, or the Nevada Supreme Court will overturn their decision. Another statute mentions that the Nevada Legislature expects both parties to be actively involved in their children's lives (though it stops short of saying they must share joint legal and physical custody). Ultimately, in contested custody cases, the judge will usually send you and your spouse to mediation to attempt to resolve custody between the two of you, rather than leaving it to the judge.

Q: What is the point of mediating custody issues?
A: There are various good reasons couples should mediate (or at least attempt mediation) of custody issues. The first is that parents know better than the court what arrangement serves their children's best interests. Remember, if pressed to do so, the judge will make a custody decision that affects the rest of your children's lives based on only two or three hours of testimony and evidence from each side. Other than that evidence, the judge knows little about you, your spouse, your children, or what time sharing arrangement will serve your children's best interests. Mediation is literally an opportunity for the two parents to take the guesswork of a Judge's decision out of the formula. It also can save the spouses a lot of money. And, even if you and your spouse cannot come to agreement all the issues, you may be able to resolve some issues - holidays and vacations, for example and reduce the amount of issues the judge will need to resolve. In Clark County, the success rate of custody issue mediation is about 70% (though only about half actually resolve custody itself).

Q: How does the court divide assets?
A: All items acquired during a marriage are presumed to be community property—and in the absence of some compelling reasons—will be divided equally between the parties. A compelling reason, for example, might be an inheritance or gift during the marriage which is not commingled into a joint account or with other community money. The issue becomes more complicated if there are assets from prior to the marriage—usually treated as the sole and separate property of the person bringing it into the marriage—but which may have a community property aspect to them (paying the mortgage on a sole and separate property home during the marriage, for example). When the nature of the spouses' property is established or agreed to, it is fairly simple to divide it between the parties. In very rare and extraordinary circumstances, the judge may set aside the sole and separate property of one party to support the other, or provide for an unequal division of assets.

Q: My spouse and I cannot agree on anything. What happens at trial?
A: The trial is the formal process of eliciting testimony and providing evidence to support your position on how the issues in your divorce should be resolved. Points of contention in a typical divorce are custody, child support, visitation, holidays and vacations, division of community property, identification of sole and separate property and/or debt, division of debt, alimony, and attorney fees. Each side has an opportunity (often not more than 3 or 4 hours per side) to persuade the judge that their position is correct. Experienced attorneys know to streamline this process and address and prioritize these issues. This gives the judge as much information as possible about the most important issues and helps enable the best possible result for clients. Spending significant time on irrelevant issues can result in a less favorable decision. This is especially true because Nevada is a no-fault divorce state.

Q: What is a no-fault divorce?
A: States are divided on whether or not there needs to be fault to obtain a divorce. On the east coast, fault is still largely necessary as an element of a divorce action. Because fault can be an element of a divorce action, it is something that must be proven. Fault may be due to abandonment, infidelity, cruel treatment, and the like. In fault states, you must prove this in order to obtain a divorce. Nevada has elected to take fault out of the equation. In Nevada, it is sufficient to be "incompatible in marriage," to live separate and apart for more than one year, or to have one of the parties adjudicated as incompetent. Most divorces in Nevada use incompatibility as the basis, and there is no requirement of proof, except to say the parties have grown apart sufficiently that they can no longer live together as husband and wife. Only one party needs to allege incompatibility. The judge will take them at their word, and then, under Nevada law, you and your spouse can focus on the legitimate issues related to your marriage's dissolution, rather than throwing mud at one another.

Q: I want to explain to the judge why I am divorcing my spouse why can't I?
A: Because Nevada is a no fault state, the court is not interested in why the marriage has fallen apart. The judge is only interested in severing the ties that bind you and being as fair and equitable as possible in resolving your contested issues. By being a no-fault state, Nevada allows you to focus on the real issues in your divorce, rather than spending a significant amount of time on unproductive attacks on one another.

Q: The divorce process sounds costly, is it?
A: There are five significant factors which go into how much a divorce will cost: the husband, the wife, each attorney, and the judge. Is the husband reasonable? How about the wife? Did they hire knowledgeable attorneys who will provide valuable advice? Will the judge leave most matters to the parties or micro-manage the case? Each aspect can minimize or exacerbate the costs associated with a divorce action. In a perfect divorce, husband and wife are reasonable and candid, their attorneys discuss potential settlements reasonably, and the judge keeps the parties and their attorneys focused on the case's legitimate issues. The worst-case scenarios is where one (or both) of the parties are unreasonable, they have attorneys who either are not well-versed in the law or cannot explain settlements appropriately to their clients (or both), and the judge wants to lead the parties step by step through the process. Most cases have some elements of the best and the worst. Remember, it takes two to tango, so if one party is unreasonable, the cost of litigation shoots up. If both are unreasonable, or they have unreasonable attorneys, it goes up exponentially from there.

Q: Why should I hire you as my divorce attorney?
A: Ultimately, the decision to hire a particular attorney is in the hands of the client. My practice has been primarily focused on family law since I began practicing law. Over the years, I have been able to determine what different judges think about specific issues and how various family law attorneys approach cases. I have developed a deep understanding of family court issues and their applicable laws. A client really cannot understand if a particular attorney is a good fit without discussing their case with an attorney. At that point, you can determine if the attorney is knowledgeable—and almost equally important—if you and the attorney mesh. No matter how knowledgeable the attorney is, if you are not comfortable and do not communicate well, it is unlikely that you will be happy with your representation. I always recommend coming in to meet me, to make sure you are comfortable with my expertise and that our personalities will not clash. I never charge for the initial consultation, and I will take as much time with you as necessary to go over your case.

Q: What is your retainer?
A: The amount quoted for a retainer varies based on several factors: Is there a complete agreement or areas of conflict? Does the case involve complex issues? Is the other side hiding assets? Does the other side want to fight just for the sake of fighting? Each case is different, so there is no set retainer. The point of a retainer is to place enough money on account so the firm is not placed in the situation of pestering you for more money while zealously advocating on your behalf. Any retainer amount left at the case's conclusion will be refunded.

Q: What is you hourly rate?
A: The hourly rate I charge varies depending on several factors, including but not limited to the time and labor involved, the novelty and difficulty of the questions involved, the skill required to properly litigate the issues presented, the possibility of precluding other representation if I take on the case, the amount charged locally for similar work by an attorney with similar experience, any time limitations placed on me by the client, the nature and length of our relationship, and my experience, reputation, and abilities.

Q: How do I retain you to represent me?
A: First things first, schedule a meeting with me to discuss your case and the options available to you. After we have gone over your case and discussed the hourly rate and retainer, you can decide if I should represent you in your divorce action. I will not pressure you into a decision at the time of our consultation. Feel free to meet with other attorneys to discuss your case with them. I am confident once you meet with me, you will want me to represent you. Nevertheless, an informed consumer is my best client, so shop around as long as your circumstances permit. I will be ready to represent you when you decide it is time for me to do so.

Q: How do I contact you?
A: Call (702) 382-2210 and ask for an appointment with John Eccles. Anyone you speak to has access to my calendar and can set up an initial meeting—at no cost to you. Because of my schedule, and the nature of my business, I cannot take consultations over the phone (except in unusual circumstances, for instance, if you do not reside in Nevada). I will give you my time, and all I ask in return is that you take the time to come see me in my office—no strings attached.

CRIMINAL LAW

Q: When am I under arrest?
A: You are under arrest when law enforcement officers take you into custody or deprive you of your freedom of movement by holding you to answer for a criminal offense.

Q: What are my rights when the police question me?
A: You have the right to remain silent. Anything you say can be used against you in court. If you decide to answer questions, you can change your mind and stop answering them at any time. You have the right to consult with an attorney before answering questions and to have an attorney present when answering questions. If you decide to answer questions or make any statements, the information you provide should be accurate and truthful. You also have the right to reasonable bail, the right to a fair and public trial, the right to be informed of the charges against you, the right to be confronted with the witnesses against you and to gather witnesses of your own, and a number of other rights.

Q: What should I do if I have been arrested?
A: If you have been arrested, answer all questions about your identification—such as your name, address, and birth date—truthfully. You have a right to refuse to answer self-incriminating questions, and you have a right to have your attorney with you while answering questions.

Q: What property of mine can an officer search?
A: If you are arrested in your home, officers may conduct a limited search of the immediate area without a search warrant. The officers may seize contraband, stolen property, or evidence of a crime. The officers may also check the rest of the house for accomplices or threats to the officer's safety.

If you are arrested in your car, officers may search for weapons. The officers may ask for consent to search the vehicle. If you give consent to search, the officers may and probably will conduct a complete search of the vehicle. In the absence of consent, the officers cannot conduct a general search unless there is probable cause that the vehicle is carrying evidence of a crime or contraband.

Q: What happens after I am arrested?
A: The officers will take you to a police station, jail, or other detention facility. You will be advised of the charges against you and given an opportunity to contact an attorney. You may be asked to provide samples of your hair, blood, breath, etc. If you refuse to provide these samples, a request for a court order to obtain these samples may result. You will be processed into the jail and taken before a magistrate or judge as soon as possible to receive additional legal warnings if you do not post bail.

Q: What is the presumption of innocence?
A: A criminal defendant is presumed innocent until proven guilty. This means the prosecutor has the burden of proving (beyond a reasonable doubt) that you committed the crime of which you are accused and that you do not need to do or say anything to prove your innocence.

Q: What is the difference between a misdemeanor and a felony?
A: The difference between a misdemeanor and a felony depends on the severity of the crime. A misdemeanor is generally a crime where the maximum penalty is one year or less in jail and fines of up to $2,500. Conviction of a felony in state court can result in jail or prison time for more than one year, up to $25,000 in fines, and can also result in other serious legal repercussions.

Q: What is the difference between and state and federal court?
A: Federal courts are established by the United States government to decide disputes involving the United States Constitution and laws passed by Congress. Federal courts have a more limited jurisdiction than state courts and generally decide cases in which the United States is a party, cases involving a violation of federal laws or the constitution, cases between citizens of different states and cases involving bankruptcy, patent law and maritime law.

State courts are established by a state, county, or city. They are courts of general jurisdiction, i.e. they handle a larger number and broader variety of cases than the federal courts. While they are required to enforce the federal laws and Constitution, they are mostly responsible for enforcing the state laws and the Nevada constitution.

Q: How does a criminal case get into federal court?
A: Federal criminal cases begin when a U.S. Attorney or Assistant U.S. Attorney representing the United States, brings evidence to a federal grand jury, which the government believes shows a person committed a crime. If the grand jury agrees, it issues a formal accusation, called an indictment. The person indicted may be arrested before or after the grand jury proceeding.

After the indictment, an arraignment is held where the defendant is brought before a judge and asked to plead guilty or not guilty. If the defendant pleads guilty, a date is set for sentencing. If the plea is not guilty, a time is set for trial.

In most cases, grand jury indictments are used for felonies. In less serious misdemeanor cases, the U.S. Attorney issues a criminal information charging the defendant with a crime.

Q: Does every case involve a trial?
A: No. Every criminal defendant has a right to a trial, but in many cases, a defendant and his or her attorney can reach a favorable settlement of the charges, which helps defendants avoid the cost, stress, and notoriety surrounding a trial.

Q: What happens before the trial?
A: When a defendant has been indicted or charged by criminal information, the lawyers begin the pretrial discovery process where they try to learn as much as possible about the other side's case. A good defense lawyer will conduct a thorough investigation before the trial of a criminal case, including interviewing witnesses and visiting the scene of the alleged crime. It is important to determine if the evidence the government plans to use was obtained legally; if not it cannot be used at trial.

Depending on the strength of the case against a defendant, either side may try to negotiate a plea agreement prior to trial. Defendants and their attorneys should work closely together to decide if a plea is a good option for them.

Q: What happens at trial?
A: If a jury is hearing a case, the first step is jury selection where the judge and sometimes the lawyers ask the potential jurors questions to determine if they can decide a case fairly.

Once the jury is in place, each side gives an opening statement in which they set out their version of the evidence in the case. After the opening statements, the parties begin introducing evidence through the examination and cross-examination of witnesses and introduction of documents and physical evidence as exhibits. The prosecution goes first, followed by the defense. After the close of the defense case, the prosecution may chose to present additional rebuttal evidence.

After all the evidence has been presented the lawyers give closing arguments and the judge gives instructions to the jury, explaining the relevant law, how it applies to the case, and what questions the jury needs to answer. The jury then goes to a separate room to deliberate and reach a verdict.

Q: What happens after trial?
A: If a defendant is found guilty, the judge sets a date for sentencing. If the conviction is for a felony in state court, the judge will order a pre-sentence investigation to aid in determining the sentence. In federal court, the judge decides the sentence after considering the federal sentencing guidelines and other information relevant to sentencing.

Defendants may appeal the verdict or file a motion for a judgment notwithstanding the verdict or a new trial if they believe there were legal flaws in the original trial or the jury's assessment of the evidence.

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FAQ's

Las Vegas Attorneys Serving Southern Nevada

Estate Planning | Elder Law | Family Law | Criminal Law

ESTATE PLANNING

ELDER LAW

FAMILY LAW

CRIMINAL LAW

ESTATE PLANNING

ELDER LAW

FAMILY LAW

CRIMINAL LAW