The 2011 Nevada Legislature added new statutes that require a “Certificate of Independent Review.” When a testator, settlor, or grantee obtains a “Certificate of Independent Review,” it is strong evidence that a transfer is not the product of fraud, duress, or undue influence.
Day R. Williams will draft a “Certificate of Independent Review” upon referral from a Nevada attorney.
The pertinent statutes are as follows:
NRS 155.0965 “Transferor” defined. “Transferor” means a testator, settlor, grantor of a deed and a decedent whose interest is transferred pursuant to a nonprobate transfer.
(Added to NRS by 2011, 1460)
NRS 155.097 Validity; circumstances in which transfer is presumed void.
1. To the extent the court finds that a transfer was the product of fraud, duress or undue influence, the transfer is void and each transferee who is found responsible for the fraud, duress or undue influence shall bear the costs of the proceedings, including, without limitation, reasonable attorney’s fees.
2. Except as otherwise provided in NRS 155.0975, a transfer is presumed to be void if the transfer is effective on or after a transferor’s death and the transfer is to a transferee who is:
(a) The person who drafted the transfer instrument;
(b) A caregiver of the transferor;
(c) A person who arranged for or paid for the drafting of the transfer instrument; or
(d) A person who is related to, affiliated with or subordinate to any person described in paragraph (a), (b) or (c).
(Added to NRS by 2011, 1460)
NRS 155.0975 Exceptions to presumption that certain transfers are void.
NRS 155.0975 Exceptions to presumption that certain transfers are void. The presumption established by NRS 155.097 does not apply:
1. To a transfer of property under a will if the transferee is an heir of the testator whose share in the estate of the testator under the terms of the testator’s will is not greater than the share the transferee would be entitled to pursuant to chapter 134 of NRS if the testator had died intestate.
2. Except as otherwise provided in this subsection, if the court determines, upon clear and convincing evidence, that the transfer was not the product of fraud, duress or undue influence. The determination of the court pursuant to this subsection must not be based solely upon the testimony of a person described in subsection 2 of NRS 155.097.
3. If the transfer instrument is reviewed by an independent attorney who:
(a) Counsels the transferor about the nature and consequences of the intended transfer;
(b) Attempts to determine if the intended consequence is the result of fraud, duress or undue influence; and
(c) Signs and delivers to the transferor an original certificate of that review in substantially the following form:
CERTIFICATE OF INDEPENDENT REVIEW
I, ………………………… (attorney’s name), have reviewed ………………………… (name of transfer instrument) and have counseled my client, ………………………… (name of client), on the nature and consequences of the transfer or transfers of property to ………………………… (name of transferee) contained in the transfer instrument. I am disassociated from the interest of the transferee to the extent that I am in a position to advise my client independently, impartially and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer or transfers of property in the transfer instrument that otherwise might be invalid pursuant to NRS 155.097 are valid because the transfer or transfers are not the product of fraud, duress or undue influence.
(Name of Attorney) (Date)
4. To a transferee that is:
(a) A federal, state or local public entity; or
(b) An entity that is recognized as exempt under section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3) or 501(c)(19), or a trust holding an interest for such an entity but only to the extent of the interest of the entity or the interest of the trustee of the trust.
5. A transfer of property if the fair market value of the property does not exceed $3,000.