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

Prior to the enactment in 2011 of Nevada’s Independent Administration of Estates Act, N.R.S. 143.300 through N.R.S. 143.815, sale of real estate from an estate had to be subject to court approval. This meant that the estate and buyer understood that their sales contract would be subject to court approval. To get that court approval, notice of the sale along with its price would be published and a date set for a court hearing. Any person reading about or learning about this sale could make a higher offer at the court hearing. Usually, no one comes forward to “overbid” and then the court approves the sale. In fact, as a practical matter, the judge doesn’t want to hear any objection from an heir that the price is too low because the judge will consider that since the price was published in advance and no one came forward to overbid, the published sales contract is fair.

The disadvantages of this procedure were: 1) time delay, 2) expense of publishing notice, 3) expense of the court hearing if the attorney was billing hourly, and 4) for some buyers this would make the property less attractive than one that could be bought immediately.

Therefore in 2011 Nevada enacted the Independent Administration of Estates Act which allows the executor or administrator to sell real estate (and certain other property) without court supervision, if such authority if requested in the Petition which starts the probate. BUT, the catch here is that any heir or other interested party such as a creditor of the estate who has filed a Request for Special Notice (of all court proceedings in the probate) must be given notice of the proposed sale and its terms 15 days before the sale. If all of these people who must be given notice file a consent, the sale can take place as soon as they send in their consents. If none of these people who must be given notice do anything, the sale can take place 15 days later. BUT if anyone of these people who must be given special notice mails an objection to the court OR TO THE EXECUTOR OR ADMINISTRATOR, then the sale can only go through under the old court supervision process.

If four adult siblings who get along well are the heirs, it makes sense to have the executor or administrator appointed under the Independent Administration of Estates Act. Most realtors will tell you that a property is somewhat more likely to get top dollar if it can be sold immediately rather than waiting for court supervision.

But what if one of the four siblings who is not the executor or administrator files an objection? Or what if there are 15 different heirs and you never know if one will file an objection? (Remember the objection to selling without court supervision takes no legal skill; it is just a letter to the executor or administrator saying, “I object,” and the notice itself has a box the objector can check and mail back to the executor or administrator.) If someone objects, the court approval process must be started and the sale cannot take place when expected. Now, in hindsight, it would have been better for the realtor to have told prospective buyers that court approval of the sale would be necessary and it would take at least a few weeks.

Different probate attorneys have different views on whether when a probate is started it makes sense to ask that the Executor or Administrator be appointed with the power to sell real estate (and certain other property) without court approval, or whether it makes sense to just ignore this new law and automatically go the court approval route. Our belief is that in cases where the executor or administrator is confident all heirs will not object, it makes sense to try and sell property without court supervision. But, if there is any doubt, it is probably best to plan on selling the property with court supervision at the outset to avoid upsetting surprises.