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What is Probate?
Probate is the process of getting a court to say who owns a dead person's property. Probate is a public court proceeding that is usually handled by a probate lawyer. In Las Vegas and all of Clark County (including Henderson and Boulder City and North Las Vegas and Mesquite) as well as in Reno (and all of Washoe County) probate is handled by a specialized probate court. In other Nevada counties there is no specialized probate court. All probate court proceedings in Nevada are handled at the District Court level except when an appeal is made. For purposes of navigating the website for Clark County Courts, one needs to know that the Probate court is treated as a sub-division of Family Court which is a divison of the District Court. In Washoe County which includes Reno, for purposes of navigating the Washoe County Court website, the Probate Court there is treated as its own division of District Court. (In some other states, especially Eastern states, the probate court may be called the Orphans' Court, or the Surrogate's Court or the Chancery Court.)
Most people want to avoid probate because probate lawyers charge, typically between 2% and 4% of the value of the estate for their service, or even more, and because probate takes months, or even years, and is a public process We offer substantial discounts from standard probate rates in Nevada. Low Fees for Uncontested Probates Even so, it makes sense to plan in advance to avoid probate.
Probate of real estate can be avoided if real estate is held in joint tenancy or in a trust or if the owner files a transfer on death deed before dying. Probate of financial accounts can be avoided if the account is held in joint tenancy or has a payable on death beneficiary.
As a practical matter, property usually goes into probate only if there is a fight among the relatives or heirs or if the property has a title and the relatives or heirs 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. However, as a matter of law, valuable property without a title which is not held in a trust should be distributed through the probate process. Occasionally a probate case is filed just involving property without a title because of disputes among heirs, or questions about whether creditors have claims against the property.
Nevada and California have NOT passed the Uniform Probate Code in its entirety, but Arizona has.
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 that happens there is a six year deadline for next of kin to try and get the property back. See our section: Mom Dies, Nevada Inherits However, in the huge majority of cases involving a person dying without a will, the nearest relatives hire a lawyer to do what is called an intestate probate proceeding, and the property is distributed according the laws set out in NRS Chapter 134.
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. But if you die without a will a relative can apply to be the administrator, and the relative will not have to post a bond if the application states that all funds collected will be held by in the probate attorney's trust account. At Reed & Mansfield in a case like this we will set up a special sub-account of our trust account with its own account number for the estate if there would be significant interest earned, otherwise we can use our regular trust account. (Interest on all attorney trust accounts with funds from more than one client go the State Bar of Nevada's fund for legal aid.)
- 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 the parents die while the children are still minors. The parents could also specify at what age the children would get the money. Without such a "testatmentary trust" provision, the minor children would get all of their money at age 18.
- 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" standard, 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.
- Fourth, when ownership of real estate is transferred from one person to another all of the Nevada counties impose a real estate transfer tax unless certain exceptions are met. The two relevant exceptions to for this discussion are: 1) There is no tax if the transfer is between parent and child or between spouses, and 2) There is no tax due if the transfer is by will. So, if the people who would inherit without a will are not spouses or children or parents, transferring by the will is one way to avoid a transfer tax when the owner dies.
But, remember that a will is only effective if it goes through the probate process which can be time-consuming, and even in the absence of disputes, will usually involve legal fees and costs of two, three, or even four or more per cent of the assets.
How Complicated is Probate and What Does It Cost?
It is our goal to be your high quality, low cost Las Vegas probate lawyers. The old model of probate billing is to charge by the hour. Most clients hate this because they can't know if the lawyer really spent the time billed, they don't know what it will cost in the end, and because it rewards inexperience and inefficiency by the attorney. On this website we list our flat fees. Low Fees for Uncontested Probates. We believe you will find that these fees are not only affordable, but truly low cost in comparison with what other Las Vegas probate attorneys charge.
What is Subject to Probate?:
The following assets pass outside of probate:
1) Assets in a valid trust.
2) Assets which have a payable on death or transfer on death provision. Financial accounts and even Nevada real estate can be titled in a way that upon death of the original owner, a specific person will own the property. In such a case, if the specific person fails to survive the original owner then that asset will have to through probate. UNFORTUNATELY, NEVADA TITLE INSURANCE COMPANIES ARE NOW REFUSING TO ISSUE TITLE INSURANCE ON NEVADA REAL ESTATE WHICH PASSES ON A TRANSFER ON DEATH DEED UNTIL 18 MONTHS AFTER THE DEATH OF THE GRANTOR. IN OUR OPINION THIS IS CONTRARY TO PUBLIC POLICY, AND THIS BEHAVIOR HAS THE EFFECT OF MAKING TRANSFER ON DEATH DEED LESS ATTRACTIVE IN SOME CASE AS A CHEAPER ALTERNATIVE TO A TRUST.
3) Assets which are considered to be held by two or more people as joint tenants. With respect to motor vehicles, a car titled to John and Mary Doe is considered held in joint tenancy so that if John dies, Mary owns it. With real estate a deed must say that the people hold as joint tenants or with right of survivorship. A deed to "John and Mary Doe, as husband and wife," does not contain either magic phrase. In that case if John dies, his "half" of the property must be probated. If the deed were to John and Mary Doe as joint tenants, if John died and Mary survived him, she would own the whole property.
4) Life insurance proceeds to the extent that a beneficiary is named who survives the person the policy was on.
5) IRA or other retirement accounts to the extent that a beneficiary has been named who survives the person holding the account.
6) As a practical matter, if Dad dies leaving a valuable coin collection and nothing else and all of the family is in agreement on what to do with the coin collection, the family may, simply divvy up the coin collection without involving the courts or lawyers. While technically wrong, I suspect this happens a lot.
As a practical matter, a probate becomes unavoidable if there is property with a title such as real estate or a bank account that requires a court order to transfer to the heirs.
Warnings on Some Fee Practices:
Some probate lawyers charge the greater of their hourly fee calculation or the allowed statutory attorneys' fees. Many clients sign this awful (for them) agreement because they don't know better or because their eyes glaze over reading the ten page fee agreement and the attorney has a nice smile. Some probate lawyers give the client the choice in advance of an hourly rate or the allowed statutory attorneys' fees. And some lawyers, such as our law firm offer a discount fee as described below.
In Nevada probate attorneys are allowed to bill their paralegals at their rate. So some probate firms will charge huge hourly rates for secretarial work.
If you are an administrator of a Nevada estate and there was no will and you live outside Nevada, you will need either to hire a Nevada resident co-administrator or give the entire job to a Nevada resident administrator. Some probate firms will just tell you that you need to hire a Nevada professional administrator and this will cost the estate $3150 for the first $100,000 in the estate and 2% of everything over that on top of, perhaps, statutory attorneys' fee of $4000 on the first $100,000, $3000 on the next $100,000, and 2% on the next $800,000 etc. In such a case, if you, as out of state administrator are willing to do the work of the administrator, we can get you a cheap Nevada resident co-administrator. On the other hand, if you don't want to be the administrator, we can get your professional administrator who will do all of the actual work of administration, either the Clark County Public Administrator or a private administrator.
Occasionally, but not often, a probate is begun as a Special Administration. See. Special Administration
Real estate must always be probated in the state it is located in. Suppose a person resident in Las Vegas dies owning real estate in 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. See Ancillary Probate. Most of our Ancillary Probates are timeshare probates; for a list of documents we need to do an Ancillary Probate, please see Timeshare Probate.
This is another reason for a trust. In the example above a trust would save the expense of three probates.
Do You Need an Attorney for Probate?
It is your constitutional right to represent yourself in almost all court proceedings. However, probate courts require that a number of documents be filed and written up in very specific ways. There are also specific procedures such as giving notice to creditors. The proceedings are complicated in a way that is designed to provide as much protection as possible to creditors and also to heirs in cases in which the administrator or executor handling the estate may be in conflict with and hostile to some of the heirs.
An experienced probate lawyer understands all of this. Only a small percentage of attorneys do probates because of the specialized knowledge required just as only a small percentage of lawyers would feel competent to defend a person against a charge of murder. In general lawyers have happier clients and less stressful professional lives when they only do certain kinds of law they are experienced in rather than trying to use their law license to handle any kind of legal matter. If the average lawyer won't do a probate for lack of experience, you can imagine how hard it is for the average person to do a probate themselves.
How Can We Know the Value of the Estate?
The value of an estate in probate in, say, Nevada, is the value of the property that the Nevada Court is supposed to transfer to the heirs. Real estate in a different state does not count in determining the value of the estate in Nevada. Payable on death bank accounts or real estate held in joint tenancy (as long as the other tenant is still alive) does not count. Life insurance proceeds do not count.
If you want to know what Clark County (the county Las Vegas is in) thinks real estate is worth go to the Clark County Assessor's website: http://www.accessclarkcounty.com/ASSESSor/. However, the Clark County Probate Court does not currently accept these values. It will accept www.zillow.com estimates, or an appraisal by a licensed real estate appraiser. The www.Zillow.com estimate, of course, are free while a licensed real appraiser will charge a few hundred dollars. The reason to pay the extra for a professional appraisal could be that the www.Zillow.com estimate is too high and by using the actual value a simpler probate procedure might be available. The different kinds of probate procedures are discussed under our fees. Some of the courts in other Nevada counties will accept their county assessor's value of the property.
Zillow does not do valuations on mobile home lots or on timeshares. We have been successful in all Nevada counties valuing timeshares by averaging the asking prices of several similar timeshare re-sales offered on line. For mobile home lots, the Court in Nye County has accepted County Assessor valuations, but the Court in Clark County will not. Instead, the Court in Clark County has allowed only in the case of mobile home lots, a realtor who IS NOT A LICENSED REAL ESTATE APPRAISER, to give a letter opinion as to value. In this particular case, we were asking to set-aside the estate to the Decedent's widow and this required that the value of the estate be not more than $100,000. There were no other assets in the estate and in this case the Court accepted a realtor's letter stating that the value of the mobile home lot "was not more than $70,000." Has this been a bigger estate involving more than $100,000, it is not clear that the Court would have accepted the opinion of a realtor who was not a licensed real estate appraiser.
The website of the Nye County Recorder's office is:http://asdb.co.nye.nv.us:1401/cgi-bin/asw101. If real estate has a mortgage, the mortgage balance owed is subtracted from the gross value of the real estate. Back real estate taxes owed, back HOA fees owed, and other liens against the real estate are also subtracted.
The really hard part of this question is: How can you know all of the assets the Decedent owned? Some people, of course, plan and have an "In case of Death file folder" they leave with relatives or in their desk and the folder has a list of assets. In many cases, however, incoming mail or accumulated mail is the best way to learn of assets as financial accounts and real estate generate statements or tax bills.
How to Avoid Probate
Probate can be avoided with proper planning before death. We strongly advise most people to have a trust written and to put their property in a trust. However, there are other ways to avoid probate that are cheaper than a trust that will work well for some people. For more details on trusts see: Trusts For more details on cheaper will and trust substitutes see: Will or Trust Substitute 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 as part of package that includes a pour-over will and a healthcare power of attorney for only $950, which is even cheaper than what he have heard some paralegals will charge for similar documents. Our probate rates are discussed above. 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 without an lawyer.
Second, depending on the amount of property involved, probate can take months, even if all of the next of kin/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?
Money Saving Tip: Many attorneys write wills for $100, which is poor pay considering the time involved and overhead expenses of running a law office. This "loss leader" is done in the expectation that a certain number of these wills will come back to the lawyer who wrote the Will, especially if the attorney tries to keep the original for "safe-keeping." Of course, we feel ethically bound to point out to potential clients that a trust or other arrangement to avoid probate will benefit their heirs. Typically, two classes of Will clients say they don't want to pay the extra cost of a trust and deal with some of the extra complications of a trust. The first group really have hardly any assets so the trust doesn't seem to make economic sense. The second group are people without any real close relatives who will their property to several different beneficiaries and take the position that as the beneficiaries are already getting a windfall, it's not their job to go to extra effort to avoid probate costs. Since we do a trust package for $950 we urge clients with any significant assets to avoid to plan probate.
Although three members of this firm are licensed in California as well as Nevada, we currently restrict our trust practice to Nevada residents. However, we can refer you to a high quality, low cost California trust attorney if you like.
Contested Probates or Will Contests and Contingency Fees:
The Probate Court allows attorneys to take will contests or probate contests on a contingency fee. But most lawyers refuse to do so. We will consider doing a will contest or probate contest on a contingency fee (meaning we don't get paid unless you collect from the estate) but we are very selective in potentially taking probate and will contests on a contingency fee.
Variation in Probate from One Nevada County to Another Nevada County:
All Nevada judges who handle probate matters read the same Nevada statutes, the same Nevada Supreme Court decision, and when relevant, the same federal law. All the major aspects of probate procedure are set out by state statute.
The differences from county to county within Nevada are that filing fees for the different probate procedures vary from county to county, the cost of publication in a local paper varies from county to county, and there may be minor variations in procedure from one court to another. Additionally, some counties require an additional form to be filed explaining why a social security number is included in the filing. This usually comes up when a death certificate is filed as the death certificate includes the decedent's social security number.
All the lawyers in our firm have been treated with respect and courtesy by the judges and court personnel of all the Nevada counties we have filed probate cases in.
The two largest counties in Nevada, Clark (contains Las Vegas) and Washoe (contains Reno), have extensive probate court websites. In Clark County the probate court is set up as a division of the Family Court which is a division of the District Court. In Washoe County the probate and family courts are separate divisions of the district court.
Variation in Probate from State to State:
Probate procedure varies greatly from one state to another. Substantive probate law is largely uniform among the different United States and Territories, but some differences in substantive law do exist among different states along with cost differences. For example, California probate court fees, are roughly three times as much as Nevada probate court fees. An executor authorized in the will to serve without bond in California may have to post a bond if she is not a California resident or associate a California resident Co-Executor; if the situation were reversed Nevada would not require a bond.
Three members of our firm are licensed in California. We have not had any problems doing uncontested probates in California.
Federal Probate Jurisdiction:
Federal diversity jurisdiction (no conflicting parties from the same state, amount in controversy over $75,000) is available for contested probate matters. It is rare for probate cases to be filed in federal court, but it can be done in diversity cases. However, if a probate case is filed in state court, suit on a creditor's claim in federal court will likely be ineffective. Bergerson v. Loeb, 100 Nev. 54, 657 P.2d 397 (1984).
If a Party in a Personal Injury Case Dies:
Suppose John Doe causes an automobile accident resulting in injury or death and has auto liability insurance but dies before the claim is resolved. N.R.S. 140.040(3)(b), as explained in Jacobson v. Estate of Clayton, 119 P.3d 132 (2005), allows a special administrator, such as the Public Administrator, to be appointed to serve as the nominal defendant under the insurance policy if the estate had no other assets other than the liability policy.
Or Suppose, the injured person in a personal injury suit dies, either as a result of the injury or from unrelated causes but before the claim is resolved. Under Nevada law, NRS 41.085, the intestate heirs (those people who would have inherited from the Decedent in the absence of a will) may prove their respective damages in the action brought and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent. Also under NRS 41.085, the dead victim's estate owns these claims: Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived. In general, the claim of the estate is subject to creditors' claims except in certain cases.
If the claim of the dead plaintiff is to be settled before the statute of limitations for the estate to make a claim, it will be necessary to set up an estate so that the estate can sign a release necessary for the settlement. Even if the case is unlikely to be settled before the estate's statute of limitations has run, it will likely be advisable to set up an estate to increase the total claim.