Probate, The Role of a Will & More
Probate is the process of getting a court to say who owns a deceased person's property. It is a public court proceeding that is handled by a probate lawyer. Property with a title such as real estate or a bank account will always have to be probated when the owner dies unless the property is in a trust, held in certain forms of joint ownership or, in certain special cases, a beneficiary on death has been designated.
Probate & The Role Of A Will
A Will is designed to tell a Probate Court how property should be distributed upon death and which person (the Executor or Administrator, either of which is also called the Personal Representative) should have responsibility for working with a lawyer and the Court to do this. Learn more about Wills and their functions.
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 in which who gets what is filed in a public court data base. We offer substantial discounts from standard probate rates in Nevada and in California for estates over $400,000. Low Fees for Uncontested Probates. Even so, it makes sense to plan in advance to avoid probate.
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 trust avoids probate if all of the person's property is in the trust and in the case of property with a title, the title 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. (Legally, valuable personal property such as gold and silver, jewelry, rare coins etc. above a certain amount should be probated, and if there is a probate ongoing, should be reported as part of the probate estate. However, as many probate lawyers base their fees on the value of the estate, it wouldn't surprise me if in a lot uncontested family probates, property without a title gets distributed outside the probate process.)
Nevada and California have NOT passed the Uniform Probate Code in its entirety.