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The Law Firm of Reed & Mansfield, Attorneys  Personal Injury & Property Damage, Las Vegas, NV

 

Filing a Will in Nevada Before Death:

Wills may be filed with the Clerk of Court in the county where the Testator (person writing the will) resides before the Testator is dead.The filed will is now a public document. For this reason it is hardly ever done. People don't want to be pestered by relatives to change the will; some testators tell all relatives what they want to hear about the supposed will just to buy their peace. The filed will must be the original, not a copy. 

Filing a Will in Nevada After Death:

N.R.S. 136.050(1) says that any person who has possession of a will shall, within 30 days after knowledge of the death of the person who executed the will, deliver it to the district court clerk or deliver it to the person named as the personal representative [executor] in the will who then has a duty to file it. Once the will is filed it is a public record.

NOTE: The failure to file by itself is not a criminal violation. It merely subjects the person who failed to file to a lawsuit for money damages by someone who was financially hurt by the failure to file. Criminal liability could occur if the failure to file a will was coupled with an intent to conceal the existence of the will for financial gain.

EXAMPLES WHERE FAILURE TO FILE IS ROUTINE AND NO BIG DEAL: Dad dies and leaves a will. But everything Dad owns is held in joint tenancy with his wife who survives him. Wife is not going to bother to file the will. Or, Dad dies and leaves a trust and a "pourover" will. Everything Dad owns is in the trust. Probably no one will file the will. Or Dad dies and leaves a will and no assets. Again, no one is going to bother to file the will.

EXAMPLE WHERE FAILURE TO FILE IS CRIMINAL: Dad dies with a will leaving half his estate to his girlfriend and half to his son, the only child he ever had. Dad is not married. Dad  previously gave a copy of the will to Son and named Son Executor. Son destroys the will and tells a probate lawyer that Dad died without a will. Probate lawyer drafts a Petition for Son to sign saying Son gets everything because under the law of intestate succession (a person dies without a will) Son is the 100% heir. If girl friend can prove that Son perjured himself in the court filing, Son can go to jail for perjury and fraud.

This statute does not explain the difference between an original will and a copy of a will. However, the clerk of court will not accept a will copy so as a practical matter the statute refers only to the original will(Of course, the Clerk of Court is not a professional document examiner and sometimes a will may be filed as an original that actually is a copy.) If all the signatures on the will are in black ink, and with modern copy machines being so good, it often takes a careful examination to determine whether you are looking at the original or a copy. Some tell tale signs of the original are indentations in the paper made by the pressure of the signature and ink bleed through to the back of the paper by the notary stamp.Also, the notary stamp is usually in a very dark grey, not pure black. However, if the will is 20 years old there may be questions as to how color changes with age and whether imprints on the paper from a signature have faded. 

N.R.S. 136.050(2) puts upon the personal representative the duty to deliver the will to the clerk of the court. Finally, N.R.S. 136.050(3) states the consequences of failing to follow the above two statutory sections. The person who fails to make such a delivery without reasonable cause is liable to every person "interested in the will" who may sustain damage by the neglect of this duty. In the above example with Dad, Son and Dad's girlfriend where we said the failure to file could be criminal, the girl friend could also sue for money damages for the value of half the estate, if the estate had passed wholly to the son by his misconduct.

As a practical matter, if one wants to "deliver" a will to the court clerk for the district court that serves Las Vegas (Clark County District Court, aka, Eighth Judicial District Court) someone drives to the court and takes a number and waits to be called and then pays $18 if the will is accepted. Naturally, a lot of people do not bother to do this if there is no apparent need to probate the will either because there is nothing of the value that the person left or because all items of value were put into a trust or a joint account or a payable on death account or some other way to avoid probate. Trusts versus Wills

Practical Tip: If you go to court to file the original will make a copy beforehand. Then show the clerk the original will and the copy. The clerk will keep the original will and put a file-stamp on your copy. (Or if you forget to make a copy, ask the clerk to make you a copy for a buck a page and then put a file-stamp on your copy.) If a probate action is later filed you will need a file-stamped copy and it will be a nuisance to have to go back to court to get a file-stamped copy when you could have gotten one when you filed the original. I just wrote that sometimes there is no "apparent need" to do a probate. However, it can happen that a decedent's property is discovered many years after death in which case, at least in Nevada, we can start a probate years or decades after a person died. Often a bank or other institution after many years realizes that it cannot locate an account holder and may turn the money over to the county or state treasurer. Eventually, if nothing is done this money will "escheat" to the state Mom Dies; Nevada Inherits?? But, a probate may be done before this happens or within six years of the money being given to the State of Nevada. In such a situation the will that no one thought was worth filing could be quite important.

You can go online and see if a will has been filed in most Nevada counties. For example, for Clark County, the county that contains Las Vegas, Henderson, North Las Vegas, Boulder City and others, Google "Clark County, Nevada, Courts" and if you poke around a bit you get to a case look up bar to click on. You need to know that you want the district court and you want "Family Records." Once you get the search page, change the default setting from "case number" to "party" and then type in the name of the person who died. If the system is up to date, it will have an entry if the will was filed and another entry if a probate was initiated.

One interesting twist on the filing of the will is that some lawyers make it a practice to keep the original will and only give their clients copies. In most cases the reason the lawyer does this is that the lawyer knows the executor will have to come to the lawyer to get the will at which time the lawyer has a great opportunity to pitch himself or herself as the attorney to do the probate. (We always give the client the original will.) You should always pick a probate attorney on some rational basis such as a combination of reputation and price, not just because you have to go to her or his office to get the original will. Since our firm also does legal malpractice, see our website http://www.accidentawardslasvegas.com , I wonder if a lawyer who keeps an original will and fails to make reasonable efforts to learn of the death of the will client, might ultimately become liable to someone who should have benefited from the filing of the original will but didn't.

Using a Will Copy In Probate:

If the original of the will is not available but there is a copy, a lawyer can attach a copy of the will to a Petition and ask the Court to accept the will copy as valid. The first question that gets asked in a case like this where the original will is missing is: What difference does it make if the will copy if valid or invalid. For, example, if Mom died a widow with three children and left all of her estate equally to her three children according to the will copy, the same inheritance result would happen if there was no will. So, at least in Clark County (home of Las Vegas) the Probate Court would basically say, "Why don't you just proceed without the will and keep it simple?" But, suppose in the will copy Mom's three children are Anne, Bob and Charlie and the will copy gives 50% to Anne and 50% to Bob and nothing to Charlie. Now it makes a big difference whether the will copy is valid. Charlie in this case would have to be given notice of the hearing and the Court would consider any testimony Charlie could offer that Mom deliberately destroyed the original of the will that treated her children unequally. There are essentially two separate technical issues with a will copy: First, the copy can be proved to be authentic if both witnesses to the will are available to testify by affidavit or declaration under penalty of perjury that they did in fact witness the testator sign the will. (But how will the witnesses know what the will said that the testator signed and will they even remember if the will was signed 20 years ago?) Second, there may be the argument made against the copy, even if it is accepted as a true copy, that a copy should not be accepted because maybe the testator tore up the original and thereby revoked the will.

Note: Traditionally ripping up or destroying the original will has been considered a valid way to revoke the will. This is why courts do not automatically accept a photocopy of an original will.

The issue of whether a will is valid is discussed on the page Problem Probates