Intro to Probate

Probate is the legal process that happens after a person dies in order to pay lawful creditors and transfer assets to rightful beneficiaries. This can include proving the validity of a will, identifying the deceased person's property and the value of that property, transferring that property, and paying debts. Continue reading to learn the probate basics and the answers to some frequently asked questions.

The recent death of a friend or family member might have put you in the position of managing the affairs of your deceased loved one. Probate is the process by which the deceased's property is handled--from making payments, to selling homes, to paying creditors, to distributing money to people entitled to inherit it. Understanding the vocabulary and the probate basics below will help you decide which probate process is right for your situation.

Nevada probates are governed by the law written in Title 12 of the Nevada Revised Statutes ("NRS"), which contains 26 chapters (Chapters 132-156). While this page includes information on certain probate procedures, before you initiate any probate matters, you should review these laws and consider consulting with an attorney.

What do these probate words mean?

Several words are commonly used during the probate process, and knowing their meanings will help you identify what your probate needs are. Here are some words to know:

1.  Decedent: The person who died.
2. Estate: The estate is the net worth of the decedent's property after death. In other words, it is the sum of the decedent's assets (things decedent owned) minus his/her liabilities (what decedent owed).
3. Will: A will is a written document that the decedent prepared before dying that expresses how the decedent wanted his/her estate handled after death.
4. Testate: A person dies testate when he/she dies with a will.
5. Testator: The deceased person who wrote the will.
6. Intestate: A person dies intestate when he/she dies without a will.
7. Intestate succession: These are the rules that govern which family members are entitled to the estate when a person dies without a will.
8. Devisees: The devisees are the people who are named in the will to get a part of the decedent's estate.
9. Heirs: These are the people designated under state laws of intestate succession to inherit the decedent's estate when there is no will.
10. Executor: The executor is the person named in the will to manage the estate and distribute the decedent's assets.
11. Administrator: The administrator is the person appointed to manage the decedent's estate and distribute assets when there is no will.
12. Personal representative: This is a general term for an executor or administrator who is appointed to manage decedent's estate and distribute assets when there is a will.

A complete list of the probate definitions used in Nevada law can be found in the Nevada Revised Statutes, Title 12, Chapter 132.

Are Nevada courts the right courts to use?

To decide if you should go through probate in Nevada, you should ask the following questions:

1. Did the decedent live in Nevada?
2. Did the decedent own property in Nevada at the time of death?
3. Did the decedent die in Nevada?

If the answer is "yes" to any of the above questions, Nevada probably has jurisdiction, and you can go through the probate process in Nevada. If the answer is "no" to all three questions above, then Nevada likely does not have jurisdiction.

It is important to know that Nevada courts only have jurisdiction over real property in Nevada. This means that if the decedent lived or died in Nevada, Nevada courts only have jurisdiction over the property or estate located in Nevada. But if there is property in another state, that state's laws determine how the real property in that state will be distributed. An ancillary probate (meaning supplementary or additional) will have to be done to change title on that property located out of state.

(NRS 136.010.)

What property passes through probate?

Only certain property passes through probate. This means that certain assets that the decedent owned before death do not become part of the probate estate. Non-probate assets pass to another person by the law or under the terms of a contract. For example, if a couple owns a house in "joint tenancy with a right of survivorship" (this means that when one spouse dies, the deceased spouse's share passes automatically to the living spouse), that house does not have to go through probate. Other property, like life insurance and retirement accounts, pass to the beneficiary who the decedent chose to receive the benefits when the decedent was living.

Common examples of non-probate assets are:

• Assets owned or held in a trust.
• Payable on death accounts, where the beneficiary is named and alive.
• Community property with rights of survivorship.
• Property held in joint tenancy, where there is a surviving joint owner.
• Insurance, retirement plans, or annuities with beneficiary designations.

Is probate necessary?

If the decedent had property that didn't automatically transfer upon his/her death then probate is probably necessary. Also, if the decedent owed debts, probate might help resolve the creditors. Lastly, if there is a dispute as to who has the right to inherit property, then probate should be opened.

Otherwise, if the decedent left no property to transfer, then probate might not be necessary.

When is a will valid?

The short answer is: it is up to a judge to decide whether a will is valid or not. A will, or something that you think could resemble a will, should be submitted to the court following the death of the person who wrote the will, and the court will decide whether it should be found valid.

Nevada law provides that any individual over the age of 18 who is of sound mind may dispose of his or her estate through a will. (NRS 133.020.) To determine if the testator (writer of the will; the decedent) was of "sound mind" and had "testamentary capacity," the testator must know the extent of what he owns, the extent of his or her family, and the ability to form a rational plan for the distribution of his or her estate.

Wills must be in writing (not oral), signed by the testator or by someone directed by the testator, and signed by two competent witnesses. (NRS 133.040.) A will can also contain a self-proving declaration where a notary public attests to the witnesses' signatures. (NRS 133.055.)

Wills that are entirely handwritten and signed only by the decedent are called holographic wills. In Nevada, holographic wills are acceptable so long as they are (1) dated; (2) signed; and (3) contain provisions that say who gets what (e.g., my truck should go to Jane) upon death. (NRS 133.090.) To prove a holographic will was really the decedent's will, you might need to give the court either (1) two affidavits from two "non-takers" (people who will not get anything under the will) saying that they knew the decedent's handwriting or (2) a handwriting expert's testimony.

Electronic wills are also sometimes valid in Nevada. They do not require witnesses, but they must be written, created and stored in an electronic record; contain the date and electronic signature of the testator which includes at least one authentication characteristic of the testator; and be created and stored in a way that (1) only one authoritative copy exists; (2) that the copy is maintained and controlled by the testator or a custodian designated by the testator; (3) that any attempted alteration of the authoritative copy is readily identifiable; and (4) that each copy of the authoritative copy is readily identifiable as a copy. (NRS 133.085.)

CAUTION! Remember, a will is not necessarily a sure thing. The court will have to decide if the will is valid, how to interpret the will, and how the estate gets distributed. A will contest is when someone disputes the validity of the entire will or part of that will. For example, someone might contest the will because he or she believes that the will was forged, or that the decedent was forced into preparing the will, or that the decedent was not in the right mental capacity when the decedent wrote the will. Also, in some cases, the law may favor the interests of the decedent's surviving spouse and minor child, despite what's written in the will. Probate matters involving will contests go to trial, so you should seek the advice of an attorney before proceeding with any probate matters involving a will contest.

What should I do if I have the will?

The decedent's original will should be filed with the court within thirty (30) days after the death. Failure to do so could result in you becoming liable to all interested parties to the will. (NRS 136050.)

The fee is $18.00 to lodge the will with the court. You can file the will at the clerk's office for the Eighth Judicial District Court, which is located on the 3rd floor of the Regional Justice Center at 200 Lewis Avenue, Las Vegas, NV 89155 or at the Family Courts and Services Center at 601 N. Pecos Road, Las Vegas, NV 89101. If the will was handwritten, attach a copy of a typed out version as well.

Who has the right to decedent's property?

All the devisees (people named in the will to receive assets) and heirs (family members who have an interest in the estate of the decedent) have an interest in the decedent's estate.

A. Who has the right to decedent's property if the decedent died intestate?

If there was no will and the decedent died intestate, or if the will is considered invalid for any reason, then the estate will pass through the laws of intestate succession in Nevada. The decedent's "separate property" is treated differently from the decedent's "community property." The basic difference between separate and community property is that the separate property is property acquired before marriage, while community property is acquired during marriage. Exceptions like gifts and inheritances, even if acquired during marriage, are usually considered separate property unless co-mingled with community property.

If the decedent dies intestate and is survived by a spouse, children, grandchildren, parents, or siblings, then use the Intestate Succession Chart below, which references sections of Chapter 134 of the Nevada Revised Statutes, to see how the property will pass:

 There are certain exceptions to intestate succession:

1. A surviving spouse and minor children's share of the estate might be increased pursuant to NRS 146.
2. If an intestate heir properly exercises his power to disclaim, he/she will not receive anything. An heir can do this in writing if he/she is over 18 years of age, identifies the decedent and the property being disclaimed, signs off on it, and files it within a reasonable time after he/she acquires knowledge of the interest. (NRS 120.220.)
3. If a decedent dies in possession of assets that do not rightfully belong to him/her, then they are not estate assets that can be distributed. (NRS 148.410.)
4. Half-siblings are treated equally as whole blood siblings, unless the inheritance comes from the decedent by descent or devise from an ancestor, in which case all those who are not of the blood of the ancestor are excluded from inheritance. (NRS 134.160.)

B. Who has the right to decedent's property if the decedent died testate?

If the judge validates the will and determines that the will governs, then the decedent's estate will pass to the devisees or named parties in the will. If the court finds the will to be invalid in whole or in part, then the intestate laws will govern.

Where do I rank in terms in relation to other family members?

In certain probate applications, the ranking of the applicant is important. If there is a survivor with higher or equal ranking to the applicant, the applicant will need consents from those survivors, an affidavit describing the status of those survivors, or to make sure those survivors are noticed of the application.

Here is a general list of family ranking in order, the first being the highest ranking:

1. The decedent's spouse
2. The decedent's adult son or daughter
3. The decedent's parents
4. The decedent's adult brother or sister
5. The decedent's grandchildren

(NRS 139.040.)

Some probate applications require you to explain the whereabouts of all the family members who have equal or higher priority than you. For example, when petitioning for the cremation of your deceased brother, you would have to list all the family members who have equal or higher priority than you. Using the chart above, that would mean all your brother's siblings, your brother's parents, your brother's children, and your brother's spouse. Each of those people will have to be listed in the petition. If they consent to the cremation, they can fill out a consent form. If they do not consent, or you do not know where they are, you will fill out an affidavit explaining why you do not know their whereabouts.

What happens to estranged family members?

Most probate applications will ask for a list of all devisees and heirs. All family members, even if estranged, need to be listed on probate applications. If you know of a relative, even if he/she has not spoken to the family in years, you will still need to list him/her as a relative. Every probate application you submit to the court should be completed honestly, and you cannot cut a family member out of your application because you do not think he/she is entitled to anything.

Tip! A common mistake that probate petitioners make is failing to list family members. You do not have the authority to determine who should be listed--you must list all the decedent's family members of equal or higher priority. Even if someone has not been an active member of your family for years, or even if someone has been estranged from the decedent for years, or even if you knew the decedent mentally and emotionally "disowned" a family member, list that person. Disclosure of this information is necessary. If you take it upon yourself to try to keep this from the judge, you will be lying to the court.

How do you get the decedent's death certificate?

The death certificate is required for most court filings in probate. The funeral home, mortuary, cremation organization, or anyone in charge of the decedent's remains might be able to assist you in getting a copy of the death certificate. If you need to do it on your own, you can order one from the Southern Nevada Health District. Only "qualified applicants" can get a copy of the death certificates. Qualified applicants have to show that they have a direct and tangible interest in the record, which can include the decedent's family by blood or marriage, the decedent's guardian, or the legal representative of any of the decedent's family or guardian. (NRS 440.650.)

How do I find out what kinds of assets or debts the decedent had?

In order to go through the probate process, you will need to know as much as possible about the decedent's estate. This will include knowing what property the decedent had when he/she died, as well as what debts the decedent left outstanding. Keep an inventory or a list of things you know or find out that the decedent owned at the time of death.

If you do not know exactly what the decedent had, going through the decedent's mail and personal property will help give you an idea of what the decedent's assets are. Be on the lookout for bank statements, mail from insurance companies, correspondence with any governmental or taxing authorities, and any paperwork that could potentially contain information regarding decedent's assets. Common things you might find with a little digging include bank accounts, safe-deposit box keys, jewelry, insurance policies, stock certificates or registered bonds. You can also search for the decedent's real estate in Clark County by researching the Clark County Assessor's website.

Keep a list of the debts that decedent owed. Again, going through the decedent's mail and personal property will help give you an idea of those debts. Look for mortgage statements, car statements, credit card bills, and medical bills. Note what kinds of debts decedent had--whether they were secured or unsecured. Secured debt is debt where there is collateral involved--meaning if the decedent does not pay the debt, the lender can take back a piece of property. The most common types of secured debts are mortgages and car loans. Unsecured debts are debts where no collateral is involved. Common examples of unsecured debts are credit card bills and most medical bills.

Pay attention to any notices regarding funds that might need to be returned. For example, the Social Security Administration might request that the Social Security payment for the month of the decedent's death be returned. You will also want to know if the decedent had Medicaid, because if the decedent did, Medicaid might have the right to a piece of the decedent's estate.

If you still cannot find out what the decedent had after your own research, and you feel you need authority to dig more, you might want to be appointed as Special Administrator of the estate. This will give you authority to investigate the status of the decedent's estate. Visit here for more information on being appointed special administrator.

What happens to the decedent's creditors? Will I be responsible for debts owed?

The probate process will require creditors to be noticed of the death. Depending on the type of probate process you choose, the notice process will vary. You might be required to mail notice to creditors and/or publish notice. Creditors might share in the distribution of the estate and take cuts of the estate, depending on what kinds of creditors they are, if they participate in the probate process, and how much is in the estate.

You will not be responsible for the debts of the decedent, unless you were a co-signer who is jointly obligated on the debt. For example, if the decedent was your spouse and you both signed on for a credit card, you will still be responsible for that debt. Also, if you co-signed on your deceased sibling's car loan, you will be responsible following death.

Otherwise, you generally will not be held personally responsible for the decedent's debts that were obtained without your knowledge. However, the debts owed by the decedent might cut into the estate, which means there might not be as much left to go to the devisees or heirs after paying the creditors. Still, you will not personally owe the creditors any money. 

What happens if the decedent leaves no family?

If the decedent leaves no family behind, the estate goes to the State of Nevada. The Clark County Public Administrator is appointed to oversee the estate, then will follow through with administering it. After paying burial and funeral costs, paying creditors, and legal, accounting, and administrative fees, and making IRS filings as needed, any funds left over will go to the State of Nevada to benefit the state education fund if no family can be found.