Probate in Nevada is the process by which a recently deceased person’s (“Decedent”) affairs, including payment of debts, marshaling of assets, selling property in some instances, and, eventually payment to heirs/beneficiaries.
Nevada probate is governed by Title 12 of the Nevada Revised Statutes, Part IV of the Eighth Judicial District Rules (in Clark County), Nevada Rules of Civil Procedure and published opinions of the Nevada Supreme Court.
Is Nevada Probate Necessary?
First, one should determine whether opening a probate estate is even necessary. Sometimes, probate isn’t necessary. Where an individual has placed all of their assets into a trust, it is usually not necessary to open a probate estate. Similarly, if an individual dies with less than $20,000.00 in assets, there is no need for probate in Nevada.
Additionally, sometimes the Decedent’s assets are titled in such a manner that the assets automatically pass without probate. For example, if a married couple owns a home in what’s called ‘”joint tenancy,” title to the home automatically passes outside of probate. Sometimes bank and investment accounts are “beneficiary designated,” meaning that the Decedent already determine who that specific account should be given to upon his/her death. These types of accounts do not require probate.
If a Decedent passes away with less than $100,000.00 in assets, a single petition to the probate court can “set aside” the entire estate “without administration,” meaning that, aside from the single petition, there is no probate administration. The set aside is automatic where there is a surviving spouse or minor children.
Is There A Will?
If probate is necessary, the next question is whether or not the Decedent left a will.
If the Decedent left a will, the will must be lodged with the clerk of the Court. The terms of the will will be followed by the probate court, so long as those terms do not conflict with Nevada law and the will is valid.
When people die without a will, they are said to have died intestate. Distribution of their assets and/or property will be governed by the laws of intestacy, which, in Nevada, can be found in NRS 134.
Who Will Administer Probate?
If the Decedent had a will, the will usually designates a person, usually a family member, to administer the probate estate. This person is called an Executor or Personal Representative.
If there is no will, the person appointed by the Court is generally referred to as an Administrator. In either instance, the person seeking to administer the estate must petition the probate court to obtain authority to act on behalf of the estate.
Whether Executor, Personal Representative of Administrator, the person in charge of administering a probate estate is responsible to marshal assets of the estate, address creditor claims, file accountings and other reports with the Court and to follow relevant Nevada probate statute and law.
Once the Court approves appointment, the Executor/Administrator takes an oath and receives paper work which gives them authority to act on behalf of the estate.
Executors/Administrators can represent themselves or, most often, they hire an attorney that specializes in probate administration.
What Assets are in the Estate?
A Personal Representative is responsible for marshaling the assets of the estate. This is usually accomplished by reviewing the records of the Decedent and by speaking with family and friends of the Decedent. Once the assets are marshaled, the Personal Representative files an “accounting” with the Court.
Are There Debts to Be Paid?
Most probate estates encounter at least some debts owed by the Decedent. These debts can be as simple as unpaid monthly bills like cable or utilities or may be more substantial like credit card debt or a mortgage. Where there is a mortgage, usually the house must be sold to satisfy the debt. Sales of real estate in probate must be approved by the Court.
Unsecured creditors, like credit card companies, must file a claim with the estate in order to collect any monies they are owed. The Personal Representative has a duty to provide formal notice to all known creditors. Additionally, the Personal Representative must publish notice in the newspaper to the general public as a means to notify creditors unknown to the Personal Representative. Creditors have a limited window in which to file the creditor claim. If a creditor fails to timely file a claim, that claim is forever barred.
The Personal Representative decides whether to accept or reject creditor claims. If the claim is rejected, the creditor has a limited period of time to file a lawsuit against the estate to collect.
To Whom Are Assets Distributed?
The final step in probate administration is to distribute the remaining assets to the heirs/beneficiaries, once creditors are paid and assets are marshaled, as described above. If there is a will, the assets are distributed according to the terms of the will. If there is no will, the assets are distributed according to the laws of intestacy. Under the laws of intestacy, the assets are generally distributed in equal share to the closest living relatives of the Decedent.