A Certificate of Independent Review can be a vital instrument in protecting an estate plan. Specifically, in the event an individual wants to name someone other than that individual’s spouse or natural heirs in the individual’s estate plan, the use of a Certificate of Independent Review can help ensure the individual’s desires are upheld if challenged in court. If the individual obtains a Certificate of Independent Review by an independent attorney as part of establishing the estate plan, and the estate plan is subsequently challenged, the independent review shifts the burden of proof from the beneficiary of the estate plan to any person who may be challenging the estate plan.

Under Nevada law, a Certificate of Independent Review may be appropriate if an individual names a person, other than their spouse or a person who takes by right of intestacy (i.e. their natural heirs), as a beneficiary in their will, trust, or otherwise designated as the beneficiary (i.e. named beneficiary of a life insurance policy, bank account, IRA, etc.). In particular, a Certificate of Independent Review is generally advisable if the individual creating the estate plan has concerns regarding potential challenges to the estate plan based upon undue influence, fraud, and/or duress. Notably, NRS 155.097 sets forth a list of potential recipients that, if named in an estate plan to receive a bequest (i.e. inheritance and/or gift), such bequest would be presumed void. This list includes the individual’s attorney, caregiver, and any person who drafted or materially participated in drafting the individual’s estate plan.

For example, if an individual names their caregiver as a beneficiary of a life insurance policy, the individual’s heirs, and/or other named beneficiaries, can contest the designation of the caregiver as beneficiary. Without a Certificate of Independent Review, the bequest to the caregiver would be presumed void and the caregiver would need to provide clear and convincing evidence that the bequest was not a product of fraud, duress or undue influence. Conversely, if the bequest is confirmed by an independent attorney, and the attorney prepared a Certificate of Independent Review, then the bequest to the caregiver is presumed valid, and the burden to prove it is invalid shifts to the challenger.

An estate contest typically requires discovery and an evidentiary hearing which can prolong the closing of an estate, potentially for years, and can drive up attorney’s fees and costs.
If a Certificate of Independent Review is pursued, the independent attorney should also be independent (i.e. not in the same law firm) of the attorney drafting the estate plan. The independent attorney should meet with and discuss the individual’s intent as it relates to a bequest to someone other than a spouse or their natural heirs and certify, through the Certificate of Independent Review, that the bequest was not a product of fraud, duress or undue influence.

Contests over estate plans can be expensive to litigate. Thus, if an individual intends to name a beneficiary in their estate plan, other than a spouse or their natural heirs, a Certificate of Independent Review should be considered to ensure their estate planning goals are effectuated and not presumed void.