Appeals May Be Taken From These Probate Orders
In normal civil litigation, very few orders may be appealed. In contrast, a party may appeal most probate court orders.
1. Except as otherwise provided in subsection 2, in addition to any order from which an appeal is expressly permitted by this title, an appeal may be taken to the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution within 30 days after the notice of entry of an order:
(a) Granting or revoking letters testamentary or letters of administration.
(b) Admitting a will to probate or revoking the probate thereof.
(c) Setting aside an estate claimed not to exceed $100,000 in value.
(d) Setting apart property as a homestead, or claimed to be exempt from execution.
(e) Granting or modifying a family allowance.
(f) Directing or authorizing the sale or conveyance or confirming the sale of property.
(g) Settling an account of a personal representative or trustee.
(h) Instructing or appointing a trustee.
(i) Instructing or directing a personal representative.
(j) Directing or allowing the payment of a debt, claim, devise or attorney’s fee.
(k) Determining heirship or the persons to whom distribution must be made or trust property must pass.
(l) Distributing property.
(m) Refusing to make any order mentioned in this section.
(n) Making any decision wherein the amount in controversy equals or exceeds, exclusive of costs, $10,000.
(o) Granting or denying a motion to enforce the liability of a surety filed pursuant to NRS 142.035.
(p) Granting an order for conveyance or transfer pursuant to NRS 148.410.
The list is exhaustive. Thus, a party may appeal most probate orders. Usually, however, an attorney will not recommend an appeal unless the issue is extremely consequential.
A party may seek review of a probate order even if it is not listed in NRS 155.190(1). A party obtains this review through a writ. A writ is different from an appeal. A party has an absolute right to have the order listed in NRS 155.190(1) reviewed by an appellate court. In contrast, an appellate court, like the Nevada Supreme Court, may choose to not even consider a writ. This is, therefore, the biggest difference between an appeal and a writ. Additionally, complicated rules, many of which are found in NRS Chapter 134, govern writs.
Probate Appeals: Procedural Steps
A party who wishes to appeal a probate order is known as the appellant. The appellant must initiate the appeal within 30 days of notice of entry of the order. NRS 155.190(1). The appellant triggers the appeal by filing a Notice of Appeal with the district court. An appellant is usually a 2 to 1 underdog in any appeal. In 2015, 226 civil appeals resulted in affirmance, while just 81 resulted in reversal. Of course, the odds in any appeal will depend on a lot of factors including the law, the facts and the record below.
Probate Appeals: Nevada Supreme Court & Nevada Court of Appeals
The Nevada Supreme Court will then do one of two things. It will either issue a briefing schedule or refer the matter to the Nevada Court of Appeals.
The Nevada Court of Appeals is an intermediary court. However, a party cannot file an appeal directly with the Court of Appeals. Instead, all appeals first go to the Nevada Supreme Court. Then, the Supreme Court decides whether they will decide the matter or refer it to the Court of Appeals. Voters created the Court of Appeals in 2014 by referendum.
The Court will issue a briefing schedule. The appellant will file an Opening Brief. Then, thirty days later the responding party will file an Answering Brief. Finally, the appellant will file a Reply Brief, responding to the Answering Brief.
From here, the Supreme Court may decide to hear oral argument. Oral arguments are brief. Hence, each party only gets fifteen minutes. Justices pepper the attorney with pointed, difficult legal questions about the case during oral argument. The Court issues a decision without oral argument in an overwhelming majority of appeals.
Probate Appeals: The Decision
The Court decides whether or not to publish a decision. The Court may also decide to issue an unpublished opinion. These terms are a little confusing because all Nevada Supreme Court opinions are public record. A published opinion is one that becomes binding precedent upon Nevada courts. For example, earlier this year, the Nevada Supreme Court issued a published opinion on an appeal I authored, In the Estate of Leroy G. Black, Deceased, 132 Nev., Advance Opinion 7 (2016). That case is now law in Nevada. I contrast, an unpublished opinion is a decision which only applies to that case. It isn’t binding on Nevada courts. The Nevada Supreme Court and Court of Appeals publish a very small minority of their decisions. Each year, the Nevada Supreme Court receives just under 2,000 appeals. Of those appeals, just over 100 result in published opinions.
Probate Appeals: Considerations
A prospective appellant should not take the decision to appeal lightly. Hence, party should proceed with an appeal only where the issue is significant. This is due to the cost and time an appeal requires. Thus, the Court may take up to a year and a half to issue a decision. Additionally, an appeal will certainly be a five figure expense. Therefore, a party considering an appeal should consult with an experienced probate attorney. Therefore, the probate attorney can evaluate whether an appeal makes sense. Remember, very few appeals result in reversal.