When dealing with the unfortunate loss of a loved one, family members are often faced with the daunting task of locating and deciding what to do with deceased person’s (often referred to as a the “decedent”) estate and property. There is a lot of work to be done and the associated tasks may seem incredibly daunting, especially when dealing with the emotional pain of the loss. The difficulties may be magnified if your loved one's estate is subject to the probate process. To aid those facing these uncertainties, we've supplied some general information about probate in Nevada. To learn more about probate generally, please visit our Nevada Probate page. The first section below will aid in helping you figure out whether a probate may be necessary in your situation. The second section describes the different types, or levels, of probate in Nevada and some of the steps involved within each type. Is Probate Necessary? When meeting with a client who has lost a loved one, this is usually the first question we are asked. We made the following chart to help you figure out if opening a probate may be necessary. Simply breakdown the decedent’s different types of assets into the following columns: | | COLUMN ONE | COLUMN TWO | COLUMN THREE | | Assets | Assets owned solely by the decedent with: - No co-owner - No named beneficiary | Assets owned jointly with a co-owner Assets with a designated beneficiary | Assets owned by the decedent’s trust or other entity (such as a corporation, partnership, or LLC) | | Examples | An individual’s bank account, i.e. a checking account solely in the name of “John Doe” with no co-owners A home owned solely by “John Doe” | A jointly owned bank account (John and Jane Doe’s checking account); A home owned as “joint tenants”* An IRA with a named beneficiary | A home titled in the name of the “Doe Family Trust” An LLC with multiple members** | | Probate Necessary? | YES | NO *A home titled jointly as “Tenants in Common” may be subject to the probate process | NO **Look to the entity’s operating agreement or by-laws as to how the business interest is treated after the death of an owner. | If all of the assets fall under Column Two and Column Three (with no other issues), probate shouldn't be necessary (but non-probate estate administration may be needed). However, if any of the assets fall under Column One (even if most of the other assets fall under Columns Two/Three), OR if there are other issues (such as incapacity/death of a joint owner), a probate will likely be necessary. As there are a myriad of circumstances that may make complicate this analysis, consulting with an experienced probate attorney is advisable, to at the very least help you to begin to navigate the process. If the decedent’s estate IS subject to the probate process, there are proscribed steps to be taken in accordance with Nevada law. Here is a general outline of what to expect in a Nevada probate. Types of Probate Administrations in NevadaThere are four different types of probate in Nevada, depending on the decedent’s estate value. Below, we've broken the four types or levels of probate down, with a general outline of their associated steps. Within each level a Personal Representative (sometimes known as an “Executor” in other states) must be appointed by the Probate Court. This person is tasked with gathering all of the assets and making sure that they are passed to their rightful recipient, or heir. The Personal Representative may also be in charge of making sure that creditors of the decedent are paid. LEVEL 1: ESTATES UNDER $20,000 WITH NO REAL PROPERTYThis first type of probate process is referred to as an “Affidavit of Entitlement.” This is the simplest level of probate, and this streamlined process can usually be done simply with the help of an experienced probate attorney. Notes: - You must wait 40 days (after date of death) to start the Affidavit of Entitlement process.
- If you don’t know what assets your loved one owned (or their value is unknown), then a petition for a “Special Administration” can be filed with the Probate Court.
LEVEL 2: ESTATES UNDER $100,000The second type of probate administration is called a “Set Aside” proceeding. Thankfully, minimal court involvement is necessary for this process. Notes: - The estate can be made up of homes, land, and/or personal property.
- The Set Aside proceeding can begin 30 days after date of passing.
LEVEL 3: ESTATES UNDER $200,000The third level of probate is referred to as a “Summary Administration”. This process is more complicated than the first two levels in that it requires certain procedures for giving notice to creditors and paying certain creditors’ claims. LEVEL 4: ESTATES OVER $200,000The fourth, and highest, level of probate is referred to as a “General Administration”. This is the most complex level of probate (and typically takes the most amount of time). Notes: - Requires the most court supervision.
- Sometimes, the Personal Representative must post a bond (to make sure they don’t handle assets inappropriately- this is often waived if a reputable probate attorney represents you).
Tasks may include: - Selling homes/cars/other property
- Transferring property titles (i.e. homes/cars)
- Petitioning the court to make funds available to care for dependents of the decedent
- Noticing Creditors
- Notifying potential creditors and heirs (may include publishing notice)
- Payment to creditors
- Payment to heirs/beneficiaries
- Creation of Trusts called for under the Decedent’s Will
- Payment of federal/state/property taxes
- Filing Estate Tax Returns
For questions, or to schedule a consultation with Nevada Probate attorney Chris Phillips, please click here. |