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 divided upon death and which person (the Executor) 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.
Important Note: 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. Find out more about Property & Probate.
Nevada and California have NOT passed the Uniform Probate Code in its entirety.