Probate
What is Probate?
(Please see our More Detailed Probate Website: www.probatenevada.net)
Probate is the process of getting a court to say who owns a dead person's property. Probate is a public court proceeding. In Las Vegas (and all of Clark County) probate is handled by a special probate court. (In some states the specialized probate court may be called an Orphans' Court or a Surrogate's Court or Chancery Court.)
As a practical matter, property usually goes into probate only if there is fight among the next of kin or if the property has a title and the next of kin need the Court to clean up the title. In many cases, after a person dies, there is no probate. This can happen for several reasons:
Many people plan in advance to avoid probate. A living trust avoids probate if all of the person's property is in the trust. Real estate held in joint tenancy and joint bank accounts go to the surviving party without probate. IRA accounts and life insurance policies usually name payable on death beneficiaries.
Property without a title doesn't need a court to transfer title. Property such as jewelry, furniture etc. is often distributed among family members without a court's involvement.
What Does a Will Do and What Happens if a Person Dies without a Will or a Trust?
A will is designed to tell a Probate Court how property should be divided upon death. If a person dies without a will, the person's property will be divided according to the Law of Intestate Succession. For example, if a single parent died leaving 3 adult children, each child would receive a 1/3 share if there were no will.
It is a common misconception that if you die without a will the State of Nevada gets your property. The State of Nevada only gets your property if you die without any next of kin coming forward. In that case your property escheats (goes) to the State. After than happens there is a six year deadline for next of kin to try and get the property back.
In addition to letting you custom tailor the distribution of your assets a will can perform these additional functions:
First, it can allow your executor to serve without the expense of posting a bond.
Second, it can contain what is called a testamentary trust. For example, parents with young children can specify who would hold their money for their minor children if they both die. The parents could also specify at what age the children would get the money.
Third, a will is an appropriate place for parents of minor children to express their desires as to who will raise the children if they die before the children become adults. The issue of who has control of minor children is always determined by the "best interests of the children," but a Court in trying to decide what is in the best interest of the children may be strongly influenced by what the now dead parents wrote in their will.
How Complicated is Probate and What Does it Cost?
We strongly advise most people to have a trust written and to put their property in a trust. See our website section of Trusts. There are three basic reasons to avoid probate by putting property in a trust:
First, if there is any substantial property involved, it is a heck of a lot cheaper to have property pass through a trust than through probate. Our firm will do most trusts for $675. Our probate rates are discussed below. If a person dies with their property in a trust, most times the successor trustee can handle the distribution of property without an attorney. Few people can do probate themselves.
Second, depending on the amount of property involved, probate can takes months, even if all of the next of kin or will beneficiaries agree on everything.
Third, probate is a public record. If you are leaving your daughter $350,000 do you want a public record of that?
The Different Kinds of Probate Proceedings:
In Nevada there are 4 levels of probate complexity and expense:
Estates under $20,000 and No Real Estate or Contests:
The easiest probate proceeding is for estates for under $20,000 with no real estate and no competing claims. The person seeking to administer the will or distribute the property if there is no will files an affidavit. As of July 1, 2009, there is no filing fee in Clark County. Most people can handle this themselves. Please don't call us for free advice on how to do this yourself.
Estates under $100,000:
THE FEES QUOTED BELOW ARE LIMITED TO CLIENTS RESPONDING TO THIS WEBSITE:
The second easiest probate proceeding is for estates under $100,000. This can include real estate. A petition is filed and a court date is set. Notice is given to creditors or potential creditors and next of kin. If all of the paperwork is correct and no one objects at the hearing, the judge signs an order at the hearing and the proceeding is largely finished. Our fee to do this, if no one contests the proposed distribution, is $900 plus costs for timeshares and $1,000 plus costs for other probates under $100,000. The biggest cost is the $286 filing fee. If real estate is involved there will usually be a $5 or $6 charge for a certified copy of the court's order and a $15 or $16 filing fee to file the court's order changing ownership of the real estate. If there is a Nevada will there is a $18 filing fee for the will. In addition, if the probate is in Clark County which includes the greater Las Vegas area, there will be a $50 e-filing fee, explained more at our probate website, www.probatenevada.com.
Nevada law allows the probate court to defeat the claims of certain creditor or heirs in order to provide support for minor children or widows or widowers. For example, if a man died owing huge hospital and doctor bills, but had a small bank account in his name only, and left a wife, we would ask the court to allow the wife to have his bank account rather than the hospital and doctors, if the wife needed it for support.
Many of our filings in this category are for timeshares. Typically a person from out of estate has a probate proceeding in his or her home state. But the person bought a Nevada timeshare, say, Tahiti Village in Las Vegas. Because the timeshare is Nevada real estate, title must be transferred to the heir in a Nevada ancillary probate proceeding.
Estates between $100,000 and $200,000:
This proceeding is much more complex than the under $100,000 case.The filing fee as of August 1, 2009 is $286. In addition, there will be one required publication requirement for which the price is currently $70 using the Nevada Legal News, an $18 filing fee if there is a will, and e-filing fees of about $50 if the probate is in Clark County which includes the greater Las Vegas area, explained more at our probate website, www.probatenevada.com. If there are no unusual complications and no disputes between heirs, our fee for this probate is the same as the statutory fee for the administrator of personal executive, $3,150 for the first $100,000 and 2% on amounts over that plus costs (in most cases, but can be higher depending on the number of items of property to probated).
The administrator or executor in this proceeding must be a Nevada state resident, or else, the out of state administrator or executor must share the appointment with a Nevada resident. We can supply a Nevada co-administrator or Nevada co-executor if required. However, the executor or administrator is entitled to a statutory fee under N.R.S. 150.020, http://www.leg.state.nv.us/nrs/NRS-150.html#NRS150Sec020 that comes out to $3,150 for the first $100,000 and 2% of any amount on top of that. If a Nevada co-administrator or co-executor is required but the out of state co-administrator or co-executor does most of the work we suggest that this fee be split 1/3 to the Nevada co-administrator and 2/3 to the out of state co-administrator.
Estates Over $200,000:
This is a fairly complex procedure with a number of expenses in addition to the hugely increased filing fee of $539 as of August 1, 2009. Expect $140 in publication fees giving notice to potential creditors and other claimants, an $18 filing fee if there is a will, and e-filing fees of about $75 if the probate is in Clark County which includes the greater Las Vegas area, explained more at our probate website, www.probatenevada.com.. If there is real estate expect to pay to have it appraised as the appraisal will have to be filed with the court. Expect a lot of "red tape." Most attorneys charge by the hour for an estate in this category. We realize that the idea of hourly billing is scary to most people who worry that that hourly billing encourages slow work. We will be happy to discuss a flat rate for this category or probate. To give you a flat rate we would have to discuss with you all of the estate assets, the heirs, the creditors, etc. Our flat rate would be good assuming that there were no will contests or contests with creditors etc. Our flat rate will usually be the same as the statutory fee for an executor or administrator which is $3,150 for the first $100,000 and 2% of the amount over $100,000, plus costs, although for estates over $500,000 we can negotiate a lesser amount in some cases.
Because of the expense of probate we recommend the use of a trust rather than a will for estate planning.
Ancillary Probate:
Real estate much always be probated in the state it is located in. Suppose a person in Las Vegas dies owning property Nevada, California and Hawaii. The main probate would be in Nevada. Ancillary probate proceedings would have to be done in California and Hawaii to probate the property in those states. Unfortunately, timeshares are considered real estate. A Wisconsin resident with a Las Vegas timeshare must pay for an ancillary Nevada probate of the timeshare unless through estate planning the property will automatically transfer to someone else upon death.
This is another reason for a trust. In the example above a trust would save the expense of three probates.
Where in Nevada is Probate Filed?
Probate of the estate of a Nevada resident should be done in the County the person was a resident of. Clark County has roughly two thirds of Nevada's population and includes Las Vegas, Henderson, North Las Vegas, Boulder City and Mesquite.
If a resident of another state dies, but an ancillary probate of Nevada property is required, the probate may be done in any Nevada county in which the decedent (person who died) has property.
My Uncle/Dad/Brother Died; How Do I Find Out
What Property He Had?
We often get an inquiry along the lines of, "My Dad died in Las Vegas, but his wife (not my mother) won't talk to us about his assets and I'd like to know if he wanted me to inherit any of his property." Legally, if you are in possession of a will written by a Nevada resident who dies you must file the will with the district court or deliver the will to the "personal representative" which would be the executor named in the will or the closest relative if the executor named in the will is not available. This is set out in N.R.S. 136.050. http://www.leg.state.nv.us/nrs/NRS-136.html#NRS136Sec050
However, the penalty for the failure to do so is only that the person who failed to file or deliver the will could be liable in damages. Typically, the person with a will does not bother to file it (and pay an $18 filing fee) unless they need the probate court to take some action on the will.
Often when a person dies their biggest asset is their home. The Clark County Assessor's office offers free public online access to records showing ownership of Clark County real estate other than timeshares. This website is: http://www.accessclarkcounty.com/ASSESSor/ This website will show you how the property is titled. For example, if the property is titled jointly in the name of your father and his wife, then his wife will own the property upon your father's death. However, if the property is titled solely in your father's name, then there will have to be a probate to create good title in anyone else. (See above section for the major cities, including Las Vegas, in Clark County.)
Unfortunately, there is not free public online access to records showing whether or not the property has a mortgage or other claims against it. There is no public data base searchable by name showing ownership of stocks, bonds, bank accounts, etc.
The county closest to Clark County which includes Las Vegas is Nye County. The town of Pahrump in Nye County is about an hour commute from Las Vegas so often people own real estate in both Clark and Nye Counties. Nye county also offers free online public access to its Recorder's website which is: http://asdb.co.nye.nv.us:1401/cgi-bin/asw101
Reed & Mansfield
6655 W. Sahara Ave., Suite B-200
Las Vegas, NV 89146
702-343-0494
e-mail: lawlv@cox.net