Navigating Probate in Nevada
Probate is the legal process whereby an estate in Nevada passes through probate court proceedings to get to the decedent’s heirs. Below is a basic probate overview.
Is Probate Needed?
After a loved one passes away, the first step in navigating your way through the Nevada probate process is to determine whether the estate needs probate at all. There are a number of questions that must be answered.
For example, you must ask about what type of assets the decedent held. Is there personal property or real property? What is the value of the estate? Was there a beneficiary designation on any of the accounts?
Before you can determine the value of the assets or whether there are beneficiaries designated, you have to find all of the assets, which can be tricky.
How to Find Assets of the Estate:
To find assets, the personal representative may want to begin with the decedent’s records. Look through files or lock boxes they may have. There may be a home safe that important documents are kept in.
Keep an eye on the mail. Bank and other financial account statements may arrive in the mail shortly after the end of the month. You want statements for the month that includes the date of death.
Although today, many people don’t receive their account statements in the mail, but rather just have online access. This can make finding information about accounts difficult unless the personal representative or someone else has online access to the accounts.
Appointment of a Special Administrator:
If the person appointed as the executor in the decedent’s Last Will and Testament, or if there is no Will, then the person entitled to serve as the estate administrator, is unable to obtain access to the information needed about the financial accounts, they may need to file a petition to seek court approval to be appointed as the special administrator.
As special administrator, they have the authority to receive financial statements and other information that is needed to determine whether a probate is needed.
It should be noted that even though a special administrator has been appointed, a formal probate has not technically been started. A special administration is simply a temporary situation where the Nevada court has given the special administrator certain powers until such time as the appropriate petition is filed to move the probate proceeding along.
Which Assets Make Up the Estate Subject to Probate?
In basic terms, those assets held in the deceased person’s name alone, with no beneficiary designated, need probate. If an asset is held in a trust, for example, it would not have to go through probate.
Or if the asset were held in joint tenancy with rights of survivorship, the asset would simple pass to the surviving joint tenant by operation of law. Probate isn’t required.
Many times a bank account or brokerage account has one or more beneficiaries listed. Such would pass directly to the named beneficiary. This type of account is often referred to as a payable on death (POD) account.
Nevada real estate with a transfer on death deed recorded would also avoid probate. The property passes directly to the named beneficiary. You just need to record an affidavit of death along with the death certificate.
Under Nevada law, most other assets make up the estate. It is just a matter of what kind of probate procedure is needed.
What Type of Probate is Required?
Once you have a handle on which the decedent’s assets need to go through the probate process, you must determine which probate method is needed. The personal representative then must file the proper petition with the district court. To learn more about the types of probate in Nevada, click here.
Testate or Intestate?
Next, you need to know whether the decedent died with or without a Last Will and Testament. If no valid Will exists, then the decedent died “intestate” and the laws of intestacy apply.
And if there is a valid Will, the person died “testate.” To be valid, the Will must meet certain requirements concerning its execution and contents. For example, it must be dated and signed by the testator. It must have two disinterested witnesses. And it should have a self-proving affidavit or declaration attached.
If you suspect that a Will that someone is asking the court to admit to probate may not be valid, you may have a Nevada will contest. In a will contest, the court will determine the validity of the will.
Affidavit of Entitlement:
In certain situations, Nevada law provides that assets which would normally pass through probate avoid such if their value is under a certain amount.
If the assets are to pass to a surviving spouse, the limit for using an affidavit of entitlement, also know as a small estate affidavit, is $100,000. When there is no surviving spouse, the limit is only $25,000.
Set Aside Estate:
A set aside proceeding is not technically a probate proceeding, since no probate estate is opened. It can be thought of as a simplified probate.
A petition is still filed with the court, asking the court to set aside the assets. However, there is typically just one petition filed and one court hearing, and you are done. To qualify for a set aside, the estate must be under $100,000, unless there is a pourover will.
If the decedent has a living trust and a will that names the trust as the beneficiary, the will is what is known as a “pourover” will. In this case, even if the estate is greater than $100,000, the court may authorize the assets be set aside to the living trust without probate.
Another potential benefit of a set aside proceeding in the State of Nevada is when there is a surviving spouse or minor children. In that case, the estate may be set aside to them without paying creditors.
Summary Versus Full Administration:
When the personal administrator files for a probate administration, they seek a summary administration if the estate is between $100,000 and $300,000 in value. For estates above $300,000, there is a general, full administration of the estate.
General Process of Probate in Nevada
The entire process of a probate administration is laid out in Title 12 of the Nevada Revised Statutes.
To file probate in Nevada, you petition the probate court. The petition first goes before the probate commissioner.
After filing the petition for probate, and once appointed by the court, the personal representative causes a notice to creditors to be published. The decedent may have debt. If a creditor thinks they have a claim against the estate, they must file a claim within the required time to file such.
While the notice to creditors is running, the personal representative must file an inventory that lists the property in Nevada that comprises the probate estate.
At the end of the creditors period, if there are no outstanding issues or contested matters to resolve, a final accounting and petition for final distribution may be filed. If the petition is approved by the court, the personal representative and attorney fees may be paid and the assets distributed to the heirs.
The probate case is not technically closed until a decree of final discharge is filed.
Through the Probate Maze
As you can see, to navigate the probate process, there is a lot to do on the deceased’s death. The process may seem simple, but it can quickly become overwhelming. There are different petitions to be filed, notices to send, inventories and accountings to file. And there is a certain period of time to file each item.
The reality is that probate in Nevada is more like a maze. The question is often asked, “Do I need a probate lawyer?” To answer that question you would need to honestly determine your level of knowledge of what Nevada law requires and the level of frustration you are willing to accept.
To get an idea of what a probate lawyer in Henderson or Las Vegas will do to help guide you through the probate maze, click here.
In addition to case law, statutory Nevada probate law is found at N.R.S. Chapters 132-156.
If you need to find a probate attorney in Henderson or the Las Vegas area, look no further. Our team of probate attorneys and paralegals have over 50 years of combined probate and estate administration experience. We’ve been through the probate process hundreds of times, and can successfully guide you through the maze.
Call for a free initial probate consultation: (702) 894-4110.