Prince & the Estate Tax (aka “Death Tax”)

Prince’s estate now looks poised to pay hundreds of millions of dollars in federal estate tax.  Politicians often refer to the estate tax as the death tax.  The administration of Prince’s estate offers an excellent opportunity to discuss the estate tax, especially some of the most common misconceptions.

Prince unexpectedly passed away on April 21, 2016 in Minnesota. Though his estate is worth hundreds of millions of dollars, it now appears that Prince had no will and no estate plan.  When a person dies without a will, they are said to have died intestate. Every state has intestacy laws. Intestacy laws distribute the estate to family members, usually (and roughly) in the following order: (1) spouse; (2) children; (3) parents; (4) siblings; (5) other relatives. Recently, I authored a guest post for Sparrow Wealth Management here in Las Vegas on Prince’s estate.  You can read more about the effect of intestacy on Prince’s estate there.

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Prince’s estate will likely pay many millions of dollars in estate tax, also known as the death tax.

  • Prince’s Estate Will Pay Millions in Death Tax.

Prince’s estate continues to make other kinds of news.  As it turns out, Prince’s estate will likely pay a substantial estate tax.

From Forbes:

Prince earned over $270 million pretax in the 14 years FORBES generated estimates for; current estimates place the value of his estate at between $150 million and $300 million. Estates of this size are usually controlled through a variety of trusts. That the artist–who so meticulously pulled his music from streaming and online platforms–died without a will or any apparent estate planning is highly unexpected.

There has been speculation that ownership would fall to Prince’s heirs, which include a sister and five half siblings. But before that can happen, an estate valuation must occur–and it will be closely watched by the IRS.

Besides his $7 million Paisley Park studio and a $16 million, 187 acre Chanhassen home, Prince’s most valuable assets include his music catalog and personality rights to the commercial use of his name and image.

His catalog, which includes the copyrights to songs on some 50 albums, was reportedly returned to Prince when he resigned to Warner in 2014. Early estimates pegged its worth at $100 million or more–conservative in comparison to Michael Jackson’s $150 million Mijac catalogue.

“The IRS is going to be a partner with the estate for a long time to come to the tune of 40 cents on the dollar,” explains Martin Neumann, a partner at Weinstock Manion with expertise in probate and estate planning. With a maximum federal tax bill of 40% and a maximum state tax of 16%, the taxes temper out to a 50% tax bill. For an estate worth a reported $300 million by current estimates, it could be paying up to $150 million in taxes. “So part of what will be handled is an agreement with the taxing authority with how the estate taxes are paid and over what period of time,” Neumann explains.

  • The Politics of the Death Tax

The estate tax is often called the death tax. The death tax is extremely controversial. Republicans and Democrats have staked out opposing positions on whether it ought to even exist.

From The Hill:

Republican leaders insist it’s patently unfair that people pay taxes as they accumulate wealth through the years, only for their heirs to pay additional taxes on that wealth after they die.

House Majority Whip Steve Scalise  (R-La.) said Tuesday that it is “morally wrong” for a family’s toughest decision after a death to be figuring out the next steps for their business. “That’s not supposed to be something people have to deal with when they’re grieving for the loss of a loved one,” he told reporters.

Republicans believe that voters agree with them on that point, even as polls have long suggested that most people believe the wealthiest Americans don’t pay enough in taxes.

For their part, Democrats are just as excited for Thursday’s vote. After all, President Obama won his second term in 2012 after explicitly campaigning for higher taxes on the wealthy.

And Democrats say they’re more than happy to have a debate over a repeal proposal that would add $270 billion to the federal debt over a decade, according to the Congressional Budget Office, while affecting only a small fraction of estates in the U.S.

“I guess when it comes to helping the wealthiest people in the country, it’s never enough,” Sen.Debbie Stabenow (D-Mich.) said Tuesday with a laugh.

  • Application of the Death Tax is Extremely Uncommon

There are many aspects of the estate tax which are misunderstood.  First, application of the estate tax is extremely rare. “Roughly 2 of every 1,000 estates have to pay any estate tax, largely because of its generous exemption levels.” According to Forbes, “for 2016, the estate and gift tax exemption is $5.45 million per individual, up from $5.43 million in 2015. That means an individual can leave $5.45 million to heirs and pay no federal estate or gift tax.”  In other words, anyone who dies with an estate worth less than $5.45 million in assets will pay no estate tax.  For better or worse, that is nearly everyone.  Estates worth more than $5.45 million will pay a 40% tax on everything above $5.45 million.  In other words, even the wealthiest estates pay no tax on the first $5.45 million.

The exemption to the federal estate tax has fluctuated over time.

Federal Estate Tax ("Death Tax") Exemptions from 2001-2016.

Federal Estate Tax (“Death Tax”) Exemptions from 2001-2016. Source: Wikipedia.

  • George Steinbrenner Beats the Death Tax

You probably noticed that there was no federal estate tax in 2010.  That means anybody who died in 2010 paid $0 in federal estate tax regardless of the value of the estate.  Back in 2001, the Bush tax cuts scheduled the estate tax to be phased out and completely eliminated by 2010.  However, by 2009, President Obama and Congress passed legislation to bring back the estate tax for 2011.  But for one year – 2010 – there was no estate tax.

Billionaire George Steinbrenner, owner of the New York Yankees and boss to George Costanza, died in 2010.

From the Wall Street Journal:

Because Steinbrenner died in a year when there is no federal estate tax, he  potentially saved his heirs a 55% estate tax on his assets — or a tax bill of about $600 million. The 55%  tax takes effect on January 1, 2011. If Steinbrenner had died in 2009 when the estate tax rate was 45%, his estate tax bill might have been nearer $500 million. Because the wealthy often do elaborate planning, putting assets into trusts taxed separately from the estate or into foundations that are tax-exempt, it is unclear how large his estate will be. Estate taxes may also be postponed on assets left to a spouse in years when there is an estate tax.

Several other billionaires who died in 2010 also escaped paying any estate tax. “The other billionaires to die in 2010 are Janet Morse Cargill of the family that founded Cargill Inc. (net worth: $1.6 billion), Texas pipeline magnate Dan Duncan ($9.8 billion), and California real estate mogul Walter Shorenstein ($1.1 billion). By rough calculation, their deaths in 2010 have cost the government some $6.5 billion.”  Even more impressive, billionaire Roger Milliken died December 30, 2010 less than 48 hours before the estate tax became effective again!

George Steinbrenner died in 2010 and paid $0 in federal estate tax ("death tax").

George Steinbrenner died in 2010 and paid $0 in federal estate tax (“death tax”).

  • Nevada Has No Death Tax or Inheritance Tax

Of course, many states also have their own estate tax. In 2015, 19 states and the District of Columbia had a state estate tax, or death tax.  As noted above, Prince’s estate will likely pay millions in estate tax to the State of Minnesota.  Fortunately for those of us in the Silver State, Nevada has no estate tax and no inheritance tax.   Nevada hasn’t had a death tax since 2005. Nevada’s estate planning and tax laws make us an attractive place to retire.  Therefore, don’t expect the state death tax to return to Nevada any time soon.  Nevada also has no state inheritance tax.

As contentious as the death tax is politically, in practice it affects almost no one.  Almost everyone dies with an estate valued less than the federal estate tax exemption. That said, the political battle over the death tax has been fierce for many decades and will likely continue.

 

 

 

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Invalid Holographic Will May Result in Entire Estate Going to State of Nevada

  • Holographic will was Jirina’s intent

What was intended to be a holographic will, ended up being an invalid will. Jirina, the Decedent, apparently did some do-it-yourself estate planning before she passed away.  This DIY estate planning yielded an invalid will and may result in the entire estate going to the State of Nevada.  Certainly Jirina didn’t want that.  Today’s post comes from a recent filing made in Clark County Probate Court under Case No. P-16-087576-E.

Jirina drafted and executed a will on November 19, 2014 leaving her entire estate to JoAnne.   The will indicates that Jirina had “no living relatives.”  Remember that- it will become very important later in this post.

  • A valid holographic will requires all material terms to be in the handwriting of the testator

Apparently Jirina believed she was executing a holographic willNormally, the signature of the decedent on the will must be witnessed by two disinterested persons.  However, a holographic will doesn’t require the signatures of witnesses.   “A holographic will is a will in which the signature, date and material provisions are written by the hand of the testator, whether or not it is witnessed or notarized. It is subject to no other form, and may be made in or out of this State.”  NRS 133.090(1). Emphasis added.

While some of Jirina’s will is written in her hand, most of it isn’t.  More importantly, most of the material terms of the will are typed, not handwritten.  When JoAnne petitioned the Clark County Probate Court to probate the will, the probate court staff noted on the Clark County Probate Court Approved list that the will was not a valid holographic will and could not be probated.

Normally, when a person dies without a valid will, their estate is subject to intestacy.  It’s common for people to die without a will.  Under intestacy, a series of statutes divies up the estate to family members with priority generally as follows: (1) spouses; (2) children; (3) parents; (4) siblings; (5) other relatives.  Nevada’s intestacy statutes can be found in NRS Chapter 134.

This leads us to our next question.  If Jirina’s will is invalid and she left behind no living relatives, who gets her estate?

  • Most likely, Jirina’s entire estate will go to the State of Nevada

NRS 154.010 gives the answer: “An estate escheats to and is vested in the State of Nevada for educational purposes if any person dies or has died, within this State, seised of any real or personal estate, and leaving no heirs, representatives or devisees capable of inheriting or holding the estate, and in all cases where there is no owner of the estate capable of holding it.”

In short, the estate escheats.  In Nevada, that means the estate goes to the State of Nevada for educational purposes.  It is extremely rare for an estate to escheat.  To escheat, two conditions must exist: (1) the decedent dies with no relatives; and (2) the decedent dies without a will.

Based upon the limited information in JoAnne’s probate petition for Jirina’s estate, it appears the estate will escheat to the State of Nevada to be used for educational purposes.

 

A valid holographic will must have all the material terms written in the hand of the testator.

A valid holographic will must have all the material terms written in the hand of the testator.

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Creditor Claim: A Nevada Probate How-To Guide

Through a creditor claim, if a person owes you money, and they die, you can still collect on the debt. Nevada probate is the process by which the financial and legal affairs of a recently deceased person are resolved. Most often, when a person dies, they have financial obligations that have yet to be satisfied, including debts.

Creditor Claim Step 1: Determine Whether Probate Proceedings Have Been Initiated

First, a creditor must confirm that probate proceedings have been initiated. This can be accomplished by reviewing the records of the Clark County District Court.  Search by the Decedent’s name.   If proceedings have started, proceed with the steps below.

However, if probate proceedings have not commenced, the creditor may file an initial probate petition with the court to begin probate.  To file the initial probate petition, the creditor must either be a Nevada resident or associate with a Nevada resident. NRS 139.010.  If a family member steps forward, they would have priority to become the personal representative/administrator of the estate. NRS 139.040. If no one steps forward, the creditor would then proceed to administer the estate.  This makes sense.  As a matter of public policy, we want the debts of those who die to be paid. Nevada ensures resolution of probate by allowing creditors to act as representatives of an estate.  For the creditors troubles, a personal representatives fee would be paid on top of any claim collected as follows, pursuant to NRS 150.20:

  • 4% of the first $15,000.00.
  • 3% of the next $85,000.00.
  • 2% of everything above $100,000.
  • Further compensation may be allowed by the Court for “extraordinary services.” NRS 150.30.

Thus, if an estate is worth $500,000.00, the personal representative fee would be as follows:

prfee

This gives the creditor additional incentive to take on the task of administering the estate.

Creditor Claim Step 2: File with the Clerk of the Court

Second, you will need to file a creditor claim. It is important to move forward with your creditor claim even if you have not received formal notice from the estate.  The estate has a duty to provide all known creditors with formal notice.  NRS 147.010. Claims must be filed within 90 days of this notice or they are “forever barred.” NRS 147.040(3).  Note, however, that if the estate is worth less than $300,000.00, a creditor has only 60 days to file a creditor claim.  NRS 147.040(4), NRS 145.060(3). Even if a creditor doesn’t receive actual notice from the estate, they must still file within the 60/90 days.  Otherwise, the claim will be time-barred. The Nevada Supreme Court has held “knowledge of death coupled with the failure to act will support the lower court’s discretion in denying a late filing.”  Continental Coffee Co. v. Estate of Clark, 84 Nev. 208, 213 (Nev. 1968).  This seemingly harsh rule exists because, “[t]he entire statutory scheme set out in Title 12 [Nevada Probate Code] demonstrates an intention on the part of the legislature to ensure the speedy and certain distribution of decedents’ estates.” Bergeron v. Loeb, 100 Nev. 54, 57 (Nev. 1984).  By time-barring late claims, except in extraordinary circumstances, probate administration moves quickly.

Note, however, that a creditor secured by real property does not have to file a claim to proceed with foreclosure. NRS 147.150.  See also Reed v. Sixth Judicial Dist. Court, 75 Nev. 338 (Nev. 1959).

All creditor claims in Nevada Probate bear interest at prime plus 2 percent until the claim is paid.  This is true regardless of any contractual provision. NRS 147.220.

Creditor Claim Step 3: Wait and See

Third, the creditor sits and waits.  The Personal Representative has 15 days after the 60/90 day claim period expires to accept or reject the claim. NRS 147.110(1). This is accomplished by filing an “Notice of Allowance” or “Notice of Rejection” with the clerk of the court. If the estate doesn’t respond within 30 days, the claim is deemed to be automatically rejected.  NRS 147.110(2).

Creditor Claim Step 4: Get Paid or Sue the Estate

Fourth, if the claim is accepted, you wait to be paid from the estate. Sometimes, payment will come immediately.  Other times, however, where the estate is complex, the creditor will wait until the end of the probate administration to be paid.

However, if the claim is rejected, the creditor has just 60 days to file suit against the estate. NRS 147.130(1).  The lawsuit is a separate case/matter from the probate proceedings.  The creditor is named as the Plaintiff.  The Estate, through the Personal Representative, is named as the Defendant. From this point, the lawsuit is litigated in the same manner as any lawsuit between two persons or entities.  If the creditor is successful in the lawsuit, the estate must pay the judgment.  However, if there are insufficient funds to pay the judgment, all unsecured, non-priority claims are paid on a pro-rata basis. It’s also important to understand that if the estate becomes insolvent, the Personal Representative of the estate is not  personally liable. NRS 147.230.

In Nevada probate, a creditor claim is governed by NRS Chapter 147. Photo Credit: Bill Walter

In Nevada probate, a creditor claim is governed by NRS Chapter 147. Photo Credit: Bill Walter

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Guardian Ad Litem: Nevada Probate

A guardian ad litem (also “GAL”) may be appointed by the Clark County Probate Court to protect the interests of certain persons. Typically, a guardian ad litem will be appointed for those that are incapacitated, minor, disabled or even unborn.

Guardian Ad Litem, Guardian and Attorney Are Not the Same

The difference between a guardian ad litem, guardian and attorney is often confusing.

  • A guardian is appointed by the Clark County Guardianship Court (not Probate Court) under NRS Chapter 159.  A guardian acts on behalf of a ward, who is living.  A guardian attempts to follow the instructions and preferences of the ward as much as practical.  A guardian balances the preferences of the ward against the long term interests of the ward.  A guardian is responsible for the personal and financial well-being of the ward.
  • An attorney in a probate proceeding acts on behalf of a client.   The attorney is the agent of the client.  The client gives the attorney directions and the attorney follows those instructions.  In this relationship, the client is competent to give instructions.  The attorney and client form an attorney-client relationship.
  • A guardian ad litem is different than an attorney or a guardian. From Cornell University Law School: “Unlike typical guardians or conservators, guardians ad litem only protect their wards’ interests in a single suit. Generally, courts appoint guardians ad litem to represent legal infants and adults who are actually or allegedly incapacitated.”  A GAL may or may not be an attorney.  Unlike a guardian, a GAL steps into the shoes of the ward and acts on their behalf as if the guardian ad litem were the ward.

In Nevada probate proceedings, GAL’s are governed by NRS 155.140(h):

At any stage of a proceeding, the court may appoint a guardian ad litem or an attorney to represent the interest of a minor, an incapacitated, unborn or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest would otherwise be inadequate. If not precluded by conflict of interest, a guardian ad litem or an attorney may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem or an attorney as a part of the record of the proceeding.

Guardian Ad Litem Examples

A few weeks ago I was sitting in Clark County Probate Court waiting for my cases to be called by the Probate Commissioner.  The Probate Commissioner was hearing a matter that involved minor children as beneficiaries of an estate. To protect their interests, the Probate Commissioner picked a random probate attorney from the gallery and appointed that attorney as GAL for the minor children.  That attorney will now use his judgment of what is in the interests of the minor children.  His responsibilities extend only to the probate case before the Court.

The Clark County Probate Court also has jurisdiction over non-testamentary trusts.  When a trustor becomes incapacitated, the Clark County Probate Court may appoint a guardian ad litem.  The guardian ad litem will then act on behalf of the incapacitated trustor.  The GAL may file pleadings or initiate litigation on behalf of the ward.

At any time in the proceedings, the Clark County Probate Court may appoint a Guardian Ad Litem.

At any time in the proceedings, the Clark County Probate Court may appoint a Guardian Ad Litem. Photo Credit: Chris Dyer.

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Nevada Probate Attorneys Fees

Attorneys fees in Nevada probate are paid for by the estate, not personally by the personal representative.  “An attorney for a personal representative is entitled to reasonable compensation for the attorney’s services, to be paid out of the decedent’s estate.” NRS 150.060(1). A personal representative is the person who represents the estate in the Nevada probate process.   This post discusses four types of arrangements for attorneys fees in Nevada probate: (1) Hourly; (2) Flat Fee; (3) Contingency; (4) Statutory percentage of the estate.

Nevada Probate Hourly Attorneys Fees

Payment by the hour is the most common attorneys fee arrangement in Nevada probate. The attorney keeps track of his or her time and bills it against the estate.  Importantly, the family member or person acting as personal representative is not personally responsible for the attorneys’ fees.  They do not pay the attorneys fees up front, or at all. Instead, the attorneys fees are paid from the estate.  At the end of the Nevada probate process, the attorney submits his or her invoices to the Clark County Probate Court for approval.  The Court reviews the proposed attorneys’ fees and invoices. The Court will approve the proposed attorneys fees if it feels they are reasonable. The attorneys’ fees are then paid for from the estate. NRS 150.067.

Of course, if you are not the personal representative, you are not entitled to have your attorneys’ fees paid from the estate.  If you are objecting to the probate of a will, you generally will not be able to recover your fees from the estate.  Similarly, if you are a creditor of the estate, you will need to pay your own attorneys’ fees.

Flat Fee Probate Attorneys Fees

Sometimes, the legal services needed by a client are simple and straightforward enough that a modest flat fee makes the most sense.  For example, where an estate is less than $100,000, and there is a surviving spouse or minor children, the probate Court can “set aside” the estate.  This gives the entire estate to the surviving spouse/minor children. NRS 146.080.  This involves a single petition, notice to interested persons, a hearing and an order.  Therefore, a flat fee may be more appropriate because the process is less involved.

Contingency Nevada Probate Attorneys Fees

Sometimes, a Nevada probate attorney is paid on a contingency.  From the American Bar Association:

In a contingent fee arrangement, the lawyer agrees to accept a fixed percentage (often one third) of the recovery, which is the amount finally paid to the client. If you win the case, the lawyer’s fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money, but you will not be required to pay your attorney for the work done on the case.

An attorney who represents the personal representative of the estate may not be paid a traditional contingency. Instead, attorneys fees based upon the value of the estate are limited by statute, as discussed below.

However, a Nevada probate attorney may be paid on contingency by others. A creditor may agree to pay his or her attorney a contingency. In this arrangement, the attorney would keep a portion of the money collected from the estate on the debt owed to the creditor.  If the attorney is successful recovering the debt, he or she will be paid.  If unsuccessful, he or she will not.

An heir or beneficiary may also pay their attorney based upon a contingency fee agreement.  Example: Bob has been disinherited in his Father’s will.  Bob believes the will is a forgery.  Bob may pay his attorney a portion of his inheritance if the will contest is successful.

Generally, probate attorneys will only take a case on a contingency if the case is strong.  The percentage of the contingency fee is usually higher than what a personal injury lawyer would charge. This is because in a personal injury case, there is almost always an insurance policy from which the claim will be paid.  The risk for a probate attorney is much higher because estate litigation is more complex and there isn’t a guarantee of money to pay a successful claim.

Nevada Probate Attorneys’ Fees: Percentage of the Estate

Nevada Probate Attorneys’ fees may be paid based upon the size of the estate. By statute, the attorneys’ fees are paid on a tier system:

  • 4% of the total value of the estate from $0-$100,000.00.
  • 3% from $100,000.01-$200,000.00.
  • 2% from $200,000.01-$1,000,000.00.
  • 1% from $1,000,000.01-$25,000,000.00.
  • Anything above $25,000,000.00 in a “a reasonable amount to be determined by the court.” NRS 150.060(4)(f).

This type of fee arrangement is uncommon. It’s usually a lot cheaper to pay an attorney by the hour if the estate is large.  For example, let’s assume an estate is worth $500,000.00.

Under NRS 150.060(4), Nevada probate attorneys fees on a $500,000 estate would be $13,000.

Under NRS 150.060(4), Nevada probate attorneys fees on a $500,000 estate would be $13,000.

Normally, a probate administration that is not contested (litigated) or does not have unusual problems will cost around $5,000-$7,000 if billed hourly, regardless of the value of the estate.  Therefore, it wouldn’t make much sense to pay $13,000.00 in attorneys’ fees under NRS 150.060(4).

Nevada Probate Attorneys Fees

Nevada Probate Attorneys Fees

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Special Administrator Can’t Sell Property

NOTE:  This post is co-authored with probate real estate agent Steve Hoopes and probate attorney Thomas R. Grover, Esq.  

We were sitting together in Clark County Probate Court a few weeks ago when we witnessed a completely avoidable mess.   An Estate had petitioned for the court to approve the sale of real property.  A buyer was present and willing to proceed.  The only problem?  The Estate had no authority to sell the property!

How could this be?

The person attempting to sell the property on behalf of the estate was a Special Administrator, not a Personal Representative. The difference is huge.

Steve Hoopes is a Las Vegas real estate agent who specializes in probate sales in Clark County Probate Court. He can be reached at 702-340-1545.

Steve Hoopes is a Las Vegas real estate agent who specializes in probate sales in Clark County Probate Court. He can be reached at 702-340-1545.

In Nevada, a Personal Representative has expansive powers to act on behalf of the Estate.  Many of those powers are enumerated in NRS Chapter 143.  “The personal representative who has full authority has the power to sell or exchange real property of the estate.” NRS 143.405.  Even then, however, the Court must approve (or “confirm”) any proposed sale of real property. “…all sales of property must be reported to the court and confirmed by the court before the title to the property passes.” NRS 148.060(1).

Unlike a Personal Representative, the powers of a Special Administrator are limited to the scope of their appointment. “A special administrator may exercise such other powers as have been conferred by the order of appointment.”  NRS 140.040(2)(c).

In the hearing on Friday, a Special Administrator attempted to sell real property of the Estate.  The Special Administrator came to court with a buyer who had already signed a purchase contract (subject to Court confirmation).  The buyer was expecting to have the sale confirmed.  However, it wasn’t because the Special Administrator didn’t have authority to sell property.

The following paragraph is from the order appointing the Special Administrator.  It defines the scope of the Special Administrator’s authority to act on behalf of the Estate:

The scope of appointment of the Special Administrator.

The scope of appointment of the Special Administrator.

As you can see, the Special Administrator didn’t have authority to sell real property. This could have created all kinds of problems for the Special Administrator and the real estate agent who listed the property. The most obvious problem is that the Estate could lose the buyer. There are, however, worse problems that could result. If the sale fails, the seller could sue the Special Administrator individually for fraud.

The broker – innocently enough – went along with the Special Administrator’s desire to list and sell the property but the broker should have insisted on written verification and proof (by way of court order) that the person signing the listing agreement indeed HAS the authority to do so. In this case, Letters of Special Administration would do the trick.

04/08/2016 9:30 AM

Return Of Sale Of Real Property And Petition For Confirmation And Petition To Set Aside Estate Without Administration ALSO PRESENT: [Buyer] and the [Buyer’s Agent].   COMMISSIONER NOTED that if a Special Administrator is appointed, the powers are usually strictly limited unless specifically prayed for within the Petition and granted. [Attorney for the Special Administrator] was questioned as to his justification for coming in with a confirmation of sale. He explained that at first they did not realize there was a house with a mortgage loan in the form of a reverse mortgage with a debt of $230,000.00. The appraised value was about $130,000.00 and he recommended that the house be allowed to be foreclosed upon and nothing further done with that asset. He also noted that the Medicaid lien was negotiated. He later learned that one of the heirs and the Personal Representative had listed the house that was supposed to be foreclosed on and they had a Buyer for the house, under contract. At that time he became concerned about the liability to the Estate because the Personal representative [actually, Special Administrator] had signed the contract. To avoid liability to the Estate was to Notice it for a sale even though not originally authorized. COMMISSIONER ADVISED that things were done without the power and authority as a Special [Administrator] and were powerless per se. COMMISSIONER ADVISED that, given the circumstances, he will go ahead a take the bids but WILL NOT ACT ON THE SET ASIDE because that has to be reported back as the Special Administration as part of the set asides. COMMISSIONER NOTED this is a Short Sale. Commissioner called for bids. Hearing none, SALE APPROVED. [Attorney for the Special Administrator] confirmed he will submit a new order.

By listing the property in the Multiple Listing Service and offering a sales commission, the listing broker is representing to the REALTOR community that he/she has a valid listing contract with the “authorized” seller. The commission offered by the listing broker through the MLS is something of an “assurance” that a buyer’s broker will be compensated at the successful close of escrow.

Had the Probate Commissioner unraveled this sale, not only would it be a set back to the estate and the buyer, but the buyer’s broker may have also faced losing a commission on the sale – not to mention the negative impact on his relationship with his buyer-client.

Under a cross section of NRS 645, the Greater Las Vegas Association of Realtors MLS Policies Rules & Regulations and, Article 17 of the REALTOR Code of Ethics, the buyer could hold the estate, the Special Administrator and the listing broker responsible to some degree for the misrepresentation broadcast through the MLS. The buyer’s broker could hold the listing broker responsible the commission owed.

The whole situation was a big ugly mess that could have easily been avoided by a “trust but verify” standard of practice adopted by the listing broker. It didn’t help the fact that a seemingly overzealous yet well intentioned Special Administrator wasn’t properly educated by counsel.

 

A Special Administrator who does not have authorization to sell real property of the Estate exposes himself/herself, the Estate and the real estate agent to liability.

A Special Administrator who does not have authorization to sell real property of the Estate exposes himself/herself, the Estate and the real estate agent to liability.

 

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Bankruptcy & Nevada Probate

Nevada probate law and bankruptcy (“BK”) law often interact, and, at the surface may seem contradictory. After all, probate matters are governed by state law while bankruptcy falls squarely within the powers of the federal government under Article 1, Section 8, Clause 4 of the United States Constitution (“The Congress shall have Power To…establish …uniform Laws on the subject of Bankruptcies throughout the United States.”) In contrast, because probate is not explicitly enumerated in the Constitution, the states retain sovereignty.

Nonetheless, from a 30,000 foot level, there are some interesting parallels.  In both areas, a third party, either a personal representative or a trustee, has a duty to marshal assets of the estate.  In both areas, creditors must file claims within a limited period of time, and of course, some, none or all of the claim may nor may not be paid depending upon the circumstances.  So what happens when a probate estate becomes insolvent?  Can a probate estate declare bankruptcy?  And what happens when a bankruptcy debtor dies?  Do the federal bankruptcy proceedings stop and transfer to state probate court?

A bankruptcy estate may proceed to probate, but a probate estate may not seek bankruptcy protection.

A bankruptcy estate may proceed to probate, but a probate estate may not seek BK protection.

When A Debtor Dies in Bankruptcy

“Death’s got an Invisibility Cloak?” Harry interrupted again.
“So he can sneak up on people,” said Ron. “Sometimes he gets bored of running at them, flapping his arms and shrieking…”
― J.K. Rowling, Harry Potter and the Deathly Hallows

Death sneaks up at inopportune times, sometimes while a person is in the middle of a bankruptcy.  So what happens?  At the outset, it’s important to understand that family, beneficiary and heirs are not personally responsible to pay the debts.

Bankruptcy Rule 1016:

Death or incompetency of the debtor shall not abate a liquidation case under chapter 7 of the Code. In such event the estate shall be administered and the case concluded in the same manner, so far as possible, as though the death or incompetency had not occurred. If a reorganization, family farmer’s debt adjustment, or individual’s debt adjustment case is pending under chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death or incompetency had not occurred.

First, the BK doesn’t necessarily stop or terminate.  A Chapter 7 BK involves liquidation of the debtors assets.  In Chapter 7, the debtors assets are liquidated to pay creditors.  Some property, like pensions, the residence of the debtor and vehicles, are exempt from liquidation.  Thus, under Bankruptcy Rule 1016, if the debtor is in Chapter 7, the BK must continue and complete.  Of course, even after a Chapter 7 BK there may be exempt property remaining.

Exempt property may include:

  • Home equity, up to a certain value.
  • Vehicles, up to a certain value.
  • Pensions
  • Personal items (clothing, jewelry, household items)
  • Personal Injury Claims

The exempted property left over after the death of a debtor in Chapter 7 BK may need to be probated.  I say may because often, exempted property won’t have much value.  If the value of the property is greater than $25,000.00, or there is real property in the estate, probate proceedings will be necessary.  If the value of the estate is less than $25,000.00, the estate may be administered by affidavit without court intervention.

While a Chapter 7 BK must continue after death of a debtor, a Chapter 13 BK may, but does not have to, continue.   In Chapter 13, the debtor is put on a monthly payment plan, lasting 3-5 years.  If the debtor dies while in the middle of this plan, one of four things can happen.  First, the BK estate could be dismissed. Anytime a debtor stops making monthly payments, the bankruptcy estate will be dismissed.  The personal representative could choose this option.  However, because dismissal ends bankruptcy protection, creditors could come after the estate in probate proceedings.  Second, the personal representative of the probate estate could ask the bankruptcy court for a hardship discharge. This would result in wiping out the creditors, which would prevent them from coming after assets in the probate estate.  Third, the personal representative could ask the bankruptcy court to convert to a Chapter 7 (liquidation).  Finally, the personal representative could continue making payments in Chapter 13.

Why A Probate Estate Isn’t Entitled to Bankruptcy Protection

A probate estate can’t seek bankruptcy protection.  That is, while bankruptcy protection may be sought before death, as described above, once a person is dead it is too late to obtain such protection.  That may seem counter intuitive given that a bankruptcy estate can proceed to probate.

Under 11 U.S.C, § 109(a), only a “person” can file for bankruptcy protection.  Courts have ruled that a probate estate cannot seek such protection because it is not considered to be a person.  “A probate estate…is not an individual person within the meaning of Bankruptcy law and and such a probate estate, albeit an insolvent one, must be administered pursuant to the laws of the decedent’s local jurisdiction.” In re Estate of Brown, 16 B.R. 128 (Bankr. D.D.C. 1981)

This, even though insolvency is extremely common in probate estates.   People often die with more liabilities than assets.  So how is the insolvency resolved?

Nevada probate law has a statutory scheme to resolve insolvent estates, much in the same way the federal bankruptcy code accomplishes the same result.

NRS 147.195:

NRS 147.195  Debts and charges of estate: Priority of payment.  The debts and charges of the estate must be paid in the following order:

      1.  Expenses of administration.

      2.  Funeral expenses.

      3.  The expenses of the last illness.

      4.  Family allowance.

      5.  Debts having preference by laws of the United States.

      6.  Money owed to the Department of Health and Human Services as a result of the payment of benefits for Medicaid.

      7.  Wages to the extent of $600, of each employee of the decedent, for work done or personal services rendered within 3 months before the death of the employer. If there is not sufficient money with which to pay all such labor claims in full, the money available must be distributed among the claimants in accordance with the amounts of their respective claims.

      8.  Judgments rendered against the decedent in his or her lifetime, and mortgages in order of their date. The preference given to a mortgage extends only to the proceeds of the property mortgaged. If the proceeds of that property are insufficient to pay the mortgage, the part remaining unsatisfied must be classed with other demands against the estate.

      9.  All other demands against the estate.

Most creditors will fall into NRS 147.195(9).  Where the value of allowed claims in subsection (9) exceeds the remaining assets, those claims will be paid on a pro rata basis.  Thus, a probate estate doesn’t need bankruptcy protection because Nevada probate law already has a system in place to resolve insolvency.

 

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In Nevada, Can a Lender Invoke the “Due On Sale” Clause and Foreclose on a Home After the Owner Dies?

Lenders are not necessarily allowed to foreclose on real property following death of the owner.

Even with a “due on sale” clause, lenders are not necessarily allowed to foreclose on real property following death of the owner.

Most mortgages include a due on sale clause (sometimes also called an “acceleration clause” that says whenever the property is sold or transferred, the entire balance of the mortgage automatically becomes due.  What happens to a mortgage when the owner dies? Can the bank/lender immediately come in and foreclose on the property?

It really depends on the situation. Often, lenders are prohibited by federal law for foreclosing on real property following the death of the owner.

From 12 U.S. Code § 1701j–3:

(d) …With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, …a lender may not exercise its option pursuant to a due-on-sale clause upon—


(3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety;

(5) a transfer to a relative resulting from the death of a borrower;

Due on Sale Clause: Joint Tenancy

Most often, when a married couple holds title to real property, especially their residence, they do so in joint tenancy.  This is what is contemplated in section (d)(3, quoted above.  In joint tenancy, all of the owners own the property collectively and entirely.  When one owner dies, the property transfers automatically to the remaining living owners.  Thus, when one spouse dies, ownership of the real property automatically passes to the surviving spouse.  Even though ownership automatically transfers, a formal change of title still must be made.  This happens through an “Affidavit of Death of Joint Tenant,” in which the surviving tenant (surviving spouse) signs an affidavit affirming the death of the joint tenant and attaches a Death Certificate.   The Affidavit of of Death of Joint Tenant is then recorded by the county recorder in the same way that a deed would be.  Under 12 U.S. Code § 1701j–3(d)(3)

Due on Sale Clause: Deed Upon Death

Subsection (d)(5) contemplates a situation where property is transferred to a family member through what’s called a “deed upon death.”

NRS 111.617:

The owner of an interest in property may create a deed which conveys his or her interest in property to a beneficiary or multiple beneficiaries and which becomes effective upon the death of the owner. A deed created pursuant to this section must be known as a deed upon death.

The owner records the “deed upon death” with the county recorder while s/he is alive.  However, because s/he is alive, the dead doesn’t transfer ownership or title of the property.  When the owner dies, the title and ownership then automatically passes to the person(s) named in the Deed Upon Death.  Under 12 U.S. Code § 1701j–3(d)(5) quoted above, when a Deed Upon Death transfers title to property to a family member, the transfer cannot trigger a “due upon sale” clause within the mortgage contract.

Foreclosure in Nevada Probate

That said, it is not uncommon for foreclosure to become an issue in probate where 12 U.S. Code § 1701j–3(d)(3) is not applicable.  Sometimes a mortgage is in arrears or even in default prior to the death of the owner.  Other times, there may not be sufficient liquid assets in the estate to make mortgage payments through the approximately six month (or longer) probate process.  What then?  Usually, the attorney for the estate can contact the lender and explain that while there aren’t assets to pay the mortgage now, upon completion of administration of the estate, there will be.  The lender then voluntarily agrees to forestall foreclosure proceedings.  Most lenders are very reasonable in this situation as long as you can show them that their position is secure.  However, sometimes a lender won’t agree to forestall foreclosure proceedings against property in a probate estate.  In this case, your probate attorney can file for an injunction against foreclosure in the Clark County Probate Court.   Over the years, I have filed for several of these and they are almost always granted. Usually, the Court will enter an order forbidding foreclosure of the property for 60-90 days.  If, for some reason, the time period needs to be extended, you can petition the court for that as well.

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Notice to Creditors in Nevada Probate

Notice to creditors must be made by the personal representative under Nevada probate law.  NRS 147.010 (“A personal representative shall publish and mail notice to creditors…”). When a person dies (called the “Decedent”), they almost always leave some unresolved debts behind.  Those obligations may be as simple as monthly utility bills or may include more serious, complicated liabilities.

Nevada probate law requires the personal representative to give notice to creditors.  Creditors then have a limited time to file a claim against the estate.  Claims are filed with the Clerk of the Court.   In estates worth less than $300,00.00, creditors have 60 days to file claims. NRS 147.040(4), NRS 145.060(1). For estates worth more than $300,000.00, the window is 90 days.  NRS 147.040(1). Claims not filed within a prescribed time period are forever barred.  As I’ve blogged about previously, this deadline is strictly enforced by the courts, even if the creditor does not receive formal notice.

There are two types of creditors: known creditors and unknown creditors.

Unknown Creditors in Nevada Probate: Publishing Notice to Creditors

I always tell clients to gather the records of the Decedent at the beginning of the Nevada probate process. Even when a personal representative diligently gathers records, some creditors may not be discovered.  Nevada probate law gives notice to these creditors, called “unknown creditors,” through publication in the newspaper.

The notice in the newspaper, must by statute (NRS 155.020(4)), follow this form:

NOTICE TO CREDITORS

       Notice is hereby given that the undersigned has been appointed and qualified by the (giving the title of the court and the date of appointment) as personal representative of the estate of ………………………….., deceased. All creditors having claims against the estate are required to file the claims with the clerk of the court within ………. (60 or 90) days after the mailing or the first publication (as the case may be) of this notice.

       Dated ………………………………

This notice must be published three times over a period of at least 10 days.  The dates of the first and last publication do not count toward the 10 day period.  “Every publication required by this section must be made in a newspaper published in the county where the proceedings are pending, but if there is not such a newspaper, then in one having general circulation in that county.”  NRS 155.020(2).

An affidavit must be filed with the court proving the notice to creditors was, in fact, published.  NRS 155.080. Here is an example:

This is an example of an Affidavit of Publication for a Notice to Creditors in Nevada probate.

This is an example of an Affidavit of Publication for a Notice to Creditors in Nevada probate.

Known Creditors in Nevada Probate: Publishing Notice to Creditors

Known creditors are entitled to individualized notice by mail.  Once appointed by the court, the personal representative, must “mail a copy of the notice to those creditors whose names and addresses are readily ascertainable…” NRS 155.020(4).

Some personal representatives may be tempted to perform a less than diligent search of the Decedent’s records.  This, in hopes of avoiding giving notice to known “readily ascertainable” creditors.  This is a bad approach.  If the creditor can show it did not know of the Decedent’s death, they may be able to file a late claim.  Sending a creditor notice starts the clock ticking.

Sometimes, specific creditors are discovered for the first time after notice to creditors has been given.  In this situation, the personal representative is required to mail notice to the newly discovered creditor. “ If before the last day for the filing of a creditor’s claim under NRS 147.040, the personal representative discovers the existence of a creditor who was not readily ascertainable at the time of first publication of the notice to creditors, the personal representative shall immediately mail a copy of the notice to the creditor.” NRS 155.020(5).

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In the Estate of Leroy G. Black, Deceased, 132 Nev., Advance Opinion 7 (2016)

willcontest

Appeal from a district court order dismissing a will contest.
Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.

Vacated and remanded.

Goodsell & Olsen, LLP, and Michael A. Olsen and Thomas R. Grover, Las Vegas, for Appellant.

Clear Counsel Law Group and Jonathan W. Barlow and Amy K. Crighton,
Henderson, for Respondent.

BEFORE PARRAGUIRRE, C.J., DOUGLAS and CHERRY, JJ.

OPINION

By the Court, PARRAGUIRRE, C .J.:

Under NRS 137.090, an individual filing a petition to contest the validity of a will must issue citations to the estate’s personal representative and the will’s devisees within three months of the will being admitted to probate. In this appeal, we are asked to determine whether a failure to timely issue citations results in dismissal of the will contest and whether a petitioner can move to enlarge the time to issue citations pursuant to NRCP 6(b) or EDCR 2.25. We hold that a failure to timely issue citations deprives the court of personal jurisdiction over those to whom the citations are to be issued. Additionally, we hold that NRCP 6(b) does not apply to statutory time limits. However, we further hold that the district court erred in failing to determine whether petitioner demonstrated excusable neglect under EDCR 2.25 when requesting an enlargement of time to issue the citations. Accordingly, we vacate the district court’s order and remand the matter for further proceedings. [1]

FACTS AND PROCEDURAL HISTORY

Appellant William Fink filed a post-probate will contest within days of the statute of limitations expiring but failed to timely issue a citation to Phillip Markowitz, respondent and executor of the estate, in accordance with NRS 137.090. Fink filed a petition to enlarge time for issuing citations, and the probate commissioner recommended the petition be granted, concluding that (1) NRCP 6(b) and EDCR 2.25 granted the court discretion to extend the time limit for issuing citations, and (2) Fink demonstrated excusable neglect as required by both rules. Upon Markowitz’s objection, the district court dismissed the will contest, explaining that NRCP 6(b) does not apply to statutory time limits. The district court did not address whether EDCR 2.25 applied in this matter. Fink now appeals.

DISCUSSION

On appeal, Fink argues the district court erred by: (1) concluding his failure to timely issue citations as required under NRS 137.090 justified dismissing the will contest, (2) holding NRCP 6(b) did not apply to the statutory time limits imposed by NRS Chapter 137, and (3) failing to extend time under EDCR 2.25. This court reviews a district court’s interpretation of a statute de novo. D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d 731, 737 (2007). Language in a statute must be given its plain meaning if it is clear and unambiguous. Id. “A statute is ambiguous if it is capable of being understood in two or more senses by reasonably well-informed persons.” Id.

A failure to issue citations in accord with NRS 137.090 constitutes grounds for dismissal of a will contest

Fink argues his failure to timely issue citations pursuant to NRS 137.090 does not require dismissal of his will contest. We disagree and hold that a failure to timely issue citations deprives the court of personal jurisdiction over adverse parties.

“After a will has been admitted to probate, any interested person. . . may, at any time within 3 months after the order is entered admitting the will to probate, contest the admission or the validity of the will” by filing a petition with the court. NRS 137.080. NRS 137.090 states that a citation “must be issued” “within the time allowed for filing the citation.” (Emphasis added.)

“‘Must’ is mandatory, as distinguished from the permissive ‘may'” In re Nev. State Eng’r Ruling No. 5823, 128 Nev., Adv. Op. 22, 277 P.3d 449, 454 (2012). Therefore, the statute’s clear and unambiguous language requires citations to be issued within three months after the will is admitted to probate. However, these statutes do not specify what happens in the event one fails to timely issue citations.

A citation in a will contest is equivalent to a civil summons in other civil matters. See In re Estate of Kordon, 137 P.3d 16, 18 (Wash. 2006). As defective service of process deprives a court of personal jurisdiction, see Gassett v. Snappy Car Rental, 111 Nev. 1416, 1419, 906 P.2d 258, 261 (1995), superseded by rule on other grounds as stated in Fritz Hansen A/S v. Eighth Judicial Dist. Court, 116 Nev. 650, 654-56, 6 P.3d 982, 984-85 (2000), so too does a failure to issue citations in a will contest, see In re Estate of Kordon, 137 P.3d at 18 (holding that a “failure to issue a citation deprives the court of personal jurisdiction over the party denied process”); see also 95 C.J.S. Wills § 578 (2011) (“A court acquires personal jurisdiction over an adverse party to a will contest by issuance of a citation. A will contestant’s failure to issue a citation on the decedent’s personal representative deprives the court of personal jurisdiction over the personal representative.”). Therefore, we hold that a failure to issue citations in accord with NRS 137.090 constitutes proper grounds for dismissal.

However, just as Nevada district courts have discretion to enlarge time for service of process upon a showing of good cause, see Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 596, 245 P.3d 1198, 1200 (2010); see also NRCP 4(i), we see no reason to prohibit a district court from enlarging time to issue citations if such discretion is permitted under a procedural rule. Therefore, we now address Fink’s claim that NRCP 6(b) or EDCR 2.25 should have been applied to enlarge time to issue the citations.

NRCP 6(b) does not apply to statutory time limits

Fink contends NRCP 6(b) grants district courts the discretion to enlarge time to issue citations under NRS 137.090. We disagree.

This court reviews a district court’s legal conclusions regarding court rules de novo. Casey v. Wells Fargo Bank, N.A., 128 Nev., Adv. Op. 64, 290 P.3d 265, 267 (2012). “[T]he rules of statutory interpretation apply to Nevada’s Rules of Civil Procedure.” Webb ex rel. Webb v. Clark Cty. Sch. Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 (2009). Furthermore, in interpreting the language of a rule or statute, this court has repeatedly held that “the expression of one thing is the exclusion of another.” Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967).

NRCP 6(b) provides, in relevant part, as follows:

When by these rules or by a notice given there under or by order of court an act is required or allowed to be done at or within a specified time, …the court for cause shown may at any time in its discretion … upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, (Emphasis added.)

Under the rule’s plain language, a court has discretion to enlarge time when an act is “required … to be done at or within a specified time” under “these rules or by a notice given thereunder or by order of court.” NRCP 6(b). The rule does not mention acts to be done pursuant to statutes, and thus, we conclude NRCP 6(b) unambiguously does not apply to statutory time limits. [2]  See Galloway, 83 Nev. at 26, 422 P.2d at 246; cf. Romaine v. State Farm Mitt. Auto. Ins. Co., 87 Nev. 257, 258-59 & n.2, 485 P.2d 102, 103 & n.2 (1971) (holding NRCP 6(a) applied to a statute of limitations period under NRS 11.190 where the rule, by its plain terms, applied to statutory time limits). Therefore, the district court did not err when it held that NRCP 6(b) did not apply to NRS 137.090‘s
time limit.

The district court erred in failing to consider whether to extend time pursuant to EDCR 2.25

Fink also argues that the district court should have considered whether to extend time to issue citations pursuant to EDCR 2.25. We agree.

EDCR 2.25 governs the form of a motion to extend time and states “[a] request for extension made after the expiration of the specified period shall not be granted unless the moving party. . . demonstrates that the failure to act was the result of excusable neglect.” EDCR 2.25(a).

Further, EDCR 2.25 expressly applies to will contests. EDCR 2.01 (“The rules in Part II govern the practice and procedure of. . . all contested proceedings under Titles 12 and 13 of NRS.”). Unlike NRCP 6(b), EDCR 2.25 does not contain any implicit limitation on the rule’s application. Furthermore, Eighth District Court Rules “must be liberally construed . . . to promote and facilitate the administration of justice.” EDCR 1.10. This court has also long recognized “the basic underlying policy to have each case decided upon its merits.” Hotel Last Frontier Corp. v. Frontier Props., Inc., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963). In light of these principles, we conclude the district court erred by failing to consider whether to extend the time to issue the citations pursuant to EDCR 2.25. Whether extending time is appropriate based on excusable neglect is a factual inquiry that the district court must undertake. See Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 668, 188 P.3d 1136, 1146 (2008).

CONCLUSION

We conclude that failing to issue citations in a will contest deprives the court of personal jurisdiction over the parties denied process. Furthermore, we hold that the district court properly concluded NRCP 6(b) does not apply to statutory time limits. However, the district court erred in failing to consider whether to enlarge the time to issue the citations pursuant to EDCR 2.25. Accordingly, we vacate the order of the district court and remand for further proceedings.

[1] Pursuant to NRAP 34(1), we have determined that oral argument is not warranted in this appeal.

[2] Although NRS 155.180 states “the Nevada Rules of Civil Procedure … apply in matters of probate, when appropriate,” we hold it would be inappropriate to apply NRCP 6(b) to statutory time limits where subsection (b) omits any reference to statutes, in marked contrast to subsection (a). Cf. NRCP 6(a) (“In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act. . . shall not be included.” (emphasis added)). Furthermore, we conclude such a construction best harmonizes NRS 155.180 with NRCP 6(a) and (b).  See State, Div. of Ins. v. State Farm Mitt. Auto. Ins. Co., 116 Nev. 290, 295, 995 P.2d 482, 486 (2000) (stating this court seeks to harmonize rules and statutes). However, we note that NRS 155.180 may still apply NRCP 6(b) to probate matters where the action in question is made pursuant to rule, rather than statute.

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