We know you want to understand the many aspects of a probate but do not know where to start. Probate is likely new to you and there likely many emotions from the loss of a loved one interfering with your ability to get a good understanding about probate In Nevada . We simplify the process for you and take your worry away because everything we do is designed to make this trying-time easier for you.
1. What main FACTORS should I consider when hiring a lawyer to help with a probate?
The main FACTORS are if s/he can competently, timely and courteously provide all the following services under one roof: 1) file all documents with the court and provide notices to creditors and interested persons; 2) can properly compile an inventory and accountings so as to obtain the best tax effect for the estate and heirs/devisees, and 3) prepare the deceased’s final tax returns and fiduciary returns.
THE FACTOR that should scare you away is if s/he jokes, brags or affirmatively states s/he does not do numbers and defers to a CPA to prepare the accountings and tax returns. Here is why, lawyers are ONLY worried about minimally complying with Nevada statutory requirements in completing the probate. That is item 1 stated above. Accountants are ONLY worried about complying with accounting requirements that are different than statutory requirements and federal tax filing requirements. This is items 2 and 3 stated above. The worries of the lawyer and accountant are not connected to the other because they deal with completely different matters, yet all are completely dependent upon the other to properly probate an estate in an efficient way for the heirs/devisees. Said another way, one the one hand, a lawyer who jokes or brags that s/he does not understand accounting and tax matters cannot effectively communicate with an accountant on what is needed to be included in pleadings filed with the court to effectuate tax elections and deductions. On the other hand, the accountant cannot provide the lawyer with tax savings information for the estate and heirs if s/he does not know accurately what is needed from the lawyer? A significant number of lawyers and accountants do not understand the accounting requirements under the Nevada Revised Accounting Statues. Astonishingly we have two professions that should know the Nevada Revised Accounting Statues but do not. Simply stated, there is a loss of translation between the two professionals that leads to lost tax advantages and properly and timely informing heirs/devisees of information they deserve. See questions and answers below about Inventory and Accounting for examples on how a lawyer complies with Nevada statutory requirements while not properly keeping heirs/devisees properly informed.
2. What is probate?
Probate is the process that must be followed through the court system to clear and convey title to probate assets from a deceased to heirs/devisees. The process includes finding all the assets of a deceased subject to probate, determining creditors and paying just due debts, paying administration expenses, and then finally paying what remains to heirs/devisees.
3. What is a probate estate?
A probate estate is all of the deceased’s property subject to probate and his/her debts.
4. What are probate assets?
Probate assets are usually defined by what they are not. Non-probate property is property that transfers to another by operation of law (i.e. joint tenancy to real property) or by contract (like, life insurance proceeds or a share in a trust). So, if property does not convey by operation of law or by contract, a probate is required.
5. What is a devisee?
A devisee is someone named in a will to receive something – cash, stock, jewelry, a car, etc.
6. What is an heir?
An heir is someone who will take from an estate according to Nevada intestacy statutes if a deceased dies without a will.
7. What is an Inventory and why is it needed? How lawyers who do not understand important accounting principles fail the personal representative and heirs/devisees.
Inventory is a document a personal representative files with the court advising heirs/devisees of assets and values deceased left at death. This document is important in informing heirs/devisees of property the deceased left at death. This gives heirs/devisees the opportunity to provide feedback to the personal representative. It also provides heirs/devisees and accountants a central place to obtain values for tax elections and accountings. This is where a significant percentage of lawyers fail to advise the personal representatives to give heirs/devisees a breakdown of their share of the estate for each. Nevada statues only require listing of assets and values. The statutes do not address the most important thing heirs/devisees want to know; what is my share of the estate? While there will likely be reductions to the values stated on the inventory for payment of deceased’s debts and taxes, and for administration and legal fees paid, at least you are providing heirs/devisees with initial information they want to know. Failure to provide heirs/devisees with their initial share feeds into the natural tenancy of human nature to believe something shady is going on. This is a significant deficiency a lawyer who jokes or brags about not wanting to deal with numbers can cause unnecessary strife among all interested in an estate. Another issue lawyers fail to do is disclose values of the property on the inventory as of a proper date. This too causes significant negative tax effects to the estate and heirs/devisees.
8. What is an accounting?
An accounting is a summary of transactions that occurred over a specified period of time (i.e… January 1, 20XX to December 31, 20XX). Example of transactions are receipts of income such as dividends, interest and rental income, and expenditures such as payments for appraisals of property, costs to maintain property, burial expenses, etc. While Nevada statutes are very lax on what an accounting consists of, application of proper accounting principles that began in 1495 will go a long way to keeping heirs/devisees informed and thus eliminate or reduce their unrest. Providing proper accounting facilitates effective tax deductions and elections. This is another place where a significant number of lawyers advise accountants on complying with Nevada statutes, but not adequately informing heirs/devisees of increases and reductions to their estate share. A big loss of translation that many times negatively affects estates and its heirs/devisees. Many times the tax savings will outweigh the costs of providing an accounting. The costs of providing an accounting is mitigated because they are a tax deduction on the applicable fiduciary tax return.
9. In Nevada, is probate necessary if someone left a will?
The mere existence of a will does not determine whether a probate is required. What determines whether a probate is required is if the deceased left Probate Assets.
10. Is a probate necessary if a deceased did not leave a will?
If someone dies and did not leave a will, s/he died intestate. Preset default statutes, legalese – intestacy statutes, each state in the Union assumes the most likely individuals a deceased would have provided for who will inherit what remains after a probate. What determines whether a probate is required is if the deceased left Probate Assets.
11. If I have a trust, is a probate needed?
What determines whether a probate is required is if the deceased left Probate Assets.
12. Does all property of a deceased person need to be probated?
What determines whether a probate is required is if the deceased left Probate Assets.
13. If a deceased leaves a will not written in Nevada, will a Nevada court accept it?
Generally speaking, yes because of the Full Faith and Credit clause of the US Constitution. Nevada, however, requires wills from other states to meet a few basic requirements such as being executed according to the state law in which the will was signed.
14. How do I determined whether a probate is needed?
A process of elimination is performed on all assets a deceased left at death. Those assets that do not convey by operation of law or by contract must be probated.
15. Does Nevada have a time limit to file a probate?
16. Is there a way to avoid a probate for small estates?
Yes. Estates with personal property only with a total value of $20,000 or less for interested persons not a surviving spouse, and $100,000 or less for surviving spouses, all that is needed is to sign what is commonly known in Nevada as an Affidavit of Entitlement. The value of motor vehicles and military benefits do not count in determine the $20,000/$100,000. If a deceased left real property (house or vacant land) worth less than $20,000/$100,000, an Affidavit of Entitlement will not work. Nevada law requires a higher level of probate known as a Set Aside.
17. What is a Set Aside Probate?
A Set Aside Probate is a one-court-appearance probate for Estates worth $100,000 or less (after deducting encumbrances like a mortgage). This type of probate usually is required where the deceased leaves real property, or if someone is not a surviving spouse but is an interested person in the property of then estate worth up to $100,000. This type of probate requires the filing of a formal document usually called a “Petition for an Order to Set Aside Estate.”
18. What is an “Interested Person”?
Generally, an Interested Person is someone related (like a surviving spouse, a child, a parent, or a sibling) to the deceased, or who was named in a deceased’s will as a devisee or nominated as a personal representative.
19. What is a Summary Administration?
A Summary administration is a formal probate for estates worth greater than $100,000 but less than or equal to $300,000 (after deducting encumbrances). Various documents have to be filed to open the probate, show the court what assets are subject to the probate, and to close the probate. The initial petition to open the probate, the person who files the petition will ask the court to issue “Letters Testamentary.”
20. What is a Full Administration?
A Full Administration is for estates worth greater then $300,000 (after deducting encumbrances).
21. What are “Letters Testamentary” and who issues them?
Letters Testamentary (“Letters”) is a document a court issues granting a person authority to act on behalf of the estate. A court generally issues Letters after an interested person petitions the court requesting from the court order to issue the Letters.
22. How long does a probate take in Nevada?
A Set Aside takes about one month – the time to draft the petition, publish notice and appear in court. A Summary Administration takes about five months if nothing goes wrong. A Full Administration, takes about six to seven months if nothing goes wrong. All time described in this answer is applicable to court action. There are still other matters that must be taken care of outside what the court would be interested in (i.e… filing the deceased’s last tax return and the estate fiduciary tax return).
23. What is the cost of a probate in Nevada?
This amount varies depending upon the type of probate. Each have their own court filing fees and costs of publication. Legal fees vary depending upon the size of the estate. Fees can range anywhere from a flat fee for a Set Aside of two to three thousand dollars, to several thousand dollars for Summary and Full Administrations. Summary and Full Administrations fees are typically calculated on an hourly or percentage basis according to the Nevada Revised Statutes. See our ebook on Probate In Nevada for a fuller discussion of determining when to accept an hourly vs a percentage. We at Crest Key charge a flat fee (that is right we do not charge hourly or percentage) for matters in the Ordinary Course of a Probate for Summary and Full Administrations.
24. What other expenses and fees are typically incurred in the Ordinary Course probate in Nevada that are in addition to legal fees?
Court filing fees and publications of certain hearings and to unknown creditors. Law firms also typically charge for copies, and other miscellaneous expenses for runner fees and recording of documents in the applicable recorder’s office. Estates typically incur additional fees for preparation of accounting and tax return preparation for the deceased’s final return and any fiduciary income tax returns, and obtaining appraisals of property.
25. What are typical Probate Services in the Ordinary Course?
Matters in the Ordinary Course typically involve filing pleadings (documents filed with the court) necessary to open, administer, and close an estate. Ordinary Course also involves noticing known and unknown creditors and tracking filed claims of creditors, and advising the personal representative of the same. Typical pleadings filed are to open the probate and issue letters testamentary/administration, publish notice to creditors, track creditor claims, file inventory (or waiver when applicable) of discovered assets of the deceased, and then filing pleadings to close the estate and show proof of compliance with court orders. Attendance at the hearing on pleadings are also included.
26. What is a Petition?
A petition is a document filed with the court that complies with the requirements under the Nevada Revised Statutes, Nevada Rules of Civil Procedure and local court rules advising the court of facts and applicable laws the court needs to know to support a request for a certain result / order.
27. What is an Order?
An Order is a court ruling containing supporting facts and applicable law on a specific issue(s) brought to the attention of a court through the filing of a petition.
28. What do Extraordinary Services typically include?
Extraordinary Service include sale of personal and real property, operation of deceased’s business, participation in litigation, securing a loan to pay debts of the estate, preparation of taxes for the deceased and estate, and other matters outside the scope of services in the Ordinary Course.
29. What are typical legal fees for matters outside the Ordinary Course?
Typically, law firms charge by the hour in Summary and General Administrations. Common matters outside the Ordinary Course is the sale of personal or real property, requesting for additional time to publish an inventory of Estate assets, accountings; petitions to continue the business of the Deceased, litigation, and income tax preparation.
30. What right do I have to see the will of a family member?
In Nevada, the individual who has possession of a will of a deceased has an obligation to file the will with the court within 30 days after the date of death of the deceased. If they do not file, interested persons have a right to recover damages if they are injured. For example, assume there is no property to be probated, if the person in possession of the will does not file it with the Court, there is no damage. Sorry, hurt feelings is not considered an injury.
31. Can the courts in Nevada probate property located in another state?
The answer depends upon the type of property in question and the state in which the deceased was a resident at the date of death. First, real property is always probated in the state court in which the state the property is located. States always have the right to determine how real property within its borders is conveyed. So, Nevada courts cannot probate real property located in, say Maine; only the courts of Maine can probate the real property. Personal property, no matter the location – like Italy or the moon, on the other hand is generally probated in the court of the state where the deceased died a resident.
32. If a probate is started in another state, is a probate also required in Nevada?
Maybe. All depends upon state of residency of the deceased at death and if real property of the deceased is located in Nevada.
33. How do I know what state an individual died a resident of?
This question is usually not hard to determine because every interested person knows the home where deceased regularly returned to seek shelter and privacy. Where residency is a question, factors such as where did the deceased spend most of her/his time, where was deceased registered to vote, where was residential real property located that deceased regularly stay in, where were motor vehicles registered, where were taxes paid, where do children go to school, etc.
34. Is an attorney required to be hired to probate an estate in Nevada?
The answer is no. A person who is nominated in a will to serve as personal representative, or who has priority under Nevada Revised Statutes can petition the court in pro per to be confirmed as personal representative. While a lay person could figure out how to file all the documents with the court, notice creditors and address claims, coordinate filing of an inventory, calculate the accountings, and file a closing pleadings, figuring all out could turn out to be very time consuming. If you are retired or are unemployed, and no family fusses arise, this may be a viable option.
35. What is a Personal Representative?
A Personal Representative is an individual who the court confirmed to act on behalf of an estate (i.e… like gather assets, notice creditors, sell property after court confirmation). A person named in a will to serve as personal representative or who possesses priority under the Nevada Revised Statutes of an estate IS NOT a personal representative until a court confirms the individual. In other words, any one named in a will or who possesses priority under the Nevada Revised statutes is a nomination only. Once the court confirms an individual as personal representative, that is when s/he possesses authority to act on behalf of an estate.
36. What is an Independent Administration of Estates?
An Independent Administration of Estates releases a Personal Representative from the requirement of obtaining court confirmation–like the sale of property. The court can allow a full or limited independent administration.
37. What are the advantages of probate?
The main advantage is court supervision of the Personal Representative. Another is resolving disputes between or among family member as to the disposition of property of the estate. Finally, to obtain a court order that could provide a tax advantage – like ordering property was community property between the deceased and surviving spouses.
38. What are the disadvantages of probate?
Public airing of private matters, publication of deceased’s property in public records, delay in distributions to heirs/devisees, legal fees and court costs.
39. What rights do “interested persons” have under Nevada probate law?
Except to the extent granted to a personal representative under the Independent Administrations Act to not provide notice, interested person have a right to be notified of actions the Personal Representative takes while administering an estate.
40. What is a Personal Representative?
A personal representative is someone who the court has confirmed to act on behalf of an estate. The personal representative can be nominated in a will, or if a deceased dies intestate, according to priorities provide for in the Nevada Revised Statutes.
41. Does anyone have the right to be a Personal Representative?
No. The deceased in a will can nominate a personal representative, or have preferential status under the Nevada Revised Statutes. A court still has to confirm an individual as personal representative. The person asking to be confirmed has to meet certain minimum requirements (i.e.. not convicted of a felony, not a drunk, is of sufficient age, etc.).
42. Can more than one Personal Representative serve at the same time for an estate?
43. What are the main duties of a personal representative in Nevada?
To find and protect all property of the deceased, keep heirs/distributees informed of progress and significant events determine and pay debts rightfully due of the deceased, provide an inventory of assets found and protected, liquidated property if necessary, pay administration expenses, provide an accounting of financial transactions, and distribute the balance to heir/distributees.
44. If I am a personal representative, can I be required to pay the debts of the deceased from my own money?
Yes and No. If you personally guaranteed a debt of the deceased, then yes you will because of prior commitments, not because you are personal representative. Also, if you did not give creditors an opportunity to file a claim against the estate and you distribute money to heir/devisees, or pay other creditors, you will be personally responsible to the creditor. If you give creditors the opportunity to file a claim and you pay from an estate assets, you are not responsible.
45. Does the Personal Representative have to tell the heirs/devisees what s/he is doing?
While you do not have to tell everything you are doing, generally you must keep distributes/heirs informed of significant matters (i.e..,. Inventory of estate assets, accounting for transactions, sale of property, payment of creditor claims, inventory of deceased’s property subject to probate).
46. Are Personal Representatives required to file an inventory of estate assets and to account for financial transactions during the administration of an estate?
Yes, personal representatives must file with the court an inventory of estate assets and accountings for heirs/devisees. There is one exception for both where all heirs/devisees agree to waive their filings. Be that as it may, we suggest inventory of probate assets and accountings still be compiled and given to heirs/devisees to keep them informed. This eliminates or reduces heir/devisee concerns. Also, depending upon all that occur in an estate, compiling an inventory and preparing an accounting will provide significant support in preparation of the deceased’s last tax return and fiduciary returns. We, as attorneys and CPAs have seen many times where a personal representative did not produce an accounting and lost significant tax deductions to an estate and thus pay tax dollars that should have been paid to heirs/devisees.
47. Can the Personal Representative delegate his or her power to someone else?
Yes, but delegation should be done carefully.
48. Who decides if property of the estate is to be sold or kept and passed to the heirs?
Language in a will may provide guidance. If no language in the will, then a Personal Representative has authority to dispose of the property. We generally advise the personal representative to give heirs/devisees the opportunity to acquire the property.
49. What can I do if I don’t agree with the decisions of the Personal Representative?
Make yourself known to the personal representative and/or file a petition a court stating your disagreement.
50. May the Personal Representative be a creditor of the estate?
Yes, but is subject to closer court scrutiny to determine if the claims are appropriate and fair.
51. Can the Personal Representative be removed?
Yes, for breaching her/his duties.
52. Does Nevada probate law require a Personal Representative to give notice to creditors, and if not why would a Personal Representative want to?
Personal Representatives are not required to give notice to creditors, but should. If a Personal Representative does not give notice and a creditor files a claim, and all property of the estate has been distributed, then the Personal Representative will be responsible to pay with his/her own property.
53. How is notice to creditors given in Nevada?
For known creditors, direct mailing of a notice to file a claim. For unknown creditors, by publication. Whether a creditor is known or unknown, the notice must contain proper statutory language.
54. Is an appraisal required for real estate before it can be sold?
Yes. First because the NRS requires it, and second, because you need to determine the basis for gain/loss calculation for the income taxes to the estate.
55. What happen in Nevada if there is not enough money in the estate to pay administration expenses, all the creditors, and heirs/devisees?
Administration expenses are paid first (attorney and personal representative fees), last illness expenses of deceased, other administration expenses, then creditors, and if any money is left over, to the heirs/devisees.