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.
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.