Delayed Probates in Nevada
There is no specific Nevada law that says a probate has to be started within a given time period of a person’s death. An example of a probate that might be done decades after a person died would the hypothetical case of Jack who is married to Jill, but they live in house that for some reason is in Jack’s name only. Jack dies and Jill continues to live there, making all tax and mortgage and HOA payments, and everyone in the family is happy with this arrangement. Then Jill dies and the house has to be probated as part of Jack’s estate. (Or, there might be a good argument that the house was community property of Jack and Jill in which case half the house would be in Jack’s estate and half in Jill’s estate.)
BUT as a practical matter there are many good reasons why a probate should be started promptly after a person dies. In the above hypothetical, let us say that 15 years after Jack died, an accidental fire destroyed the house. The insurance company might balk at paying the claim on the grounds that for 15 years insurance had been obtained by a non-owner of the house.
Foreclosure Due to Unpaid Responsibilities
A much more urgent situation to do a probate is where the home-owner dies and no family member completely takes over all of the obligations associated with owning the house. Taxes, or the mortgage, or even the HOA assessments go unpaid. Any three of these situations can lead to a foreclosure sale. Or a squatter can move in and damage the house greatly.
Possible Increased Probate Costs
Another problem with a house that is not probated is that Nevada law allows a volunteer unrelated to the family members to start the probate proceeding if necessary to prevent harm to the estate. Let’s say the HOA isn’t getting paid. As mentioned above the HOA could foreclose. But, let’s say someone on the HOA board is friends with a realtor or probate attorney. Then a probate attorney hired by the realtor can initiate the probate. This attorney would be obligated to mail notice to any known family member. But if there was a family member, who for whatever reason, including grief, didn’t initiate the probate the family member might ignore the mailed notice. If the probate is and sale is conducted honestly, the net probate proceeds should eventually go to the family member(s), but in this scenario, the total probate expenses may be way higher than if a family member took charge.
After some time, usually a couple of years, financial institutions holding money of the decedent will turn the money over to the state treasurer. This money will remain in the state treasurer’s unclaimed assets funds for some time where it will be easy to get in a probate proceeding, but then eventually the money will escheat to the State of Nevada. There will be a deadline for claiming escheated funds, but the process of getting escheated funds back from the state involves a complicated lawsuit. Then eventually the escheated funds will be unclaimable.
Benficiaries Changing Over Time
Another problem with a delaying a probate is that distribution to the heirs or the Will beneficiaries may become more complicated. Let’s say Jill, unmarried at time of her death, dies and leaves three living adult children, Al, Betty and Charles, and she never had any other children. Without a Will Al, Betty and Charles each inherit a third. Now, suppose Jill’s estate is probated 5 years later at which time Al has died, but has left 3 children of his own. In this case a second, separate probate might have to be opened up to distribute Al’s one third share to his children (or maybe his children and spouse). (In this case if Al had died before Jill, and again, assuming no Will, his share would automatically go to his three children without the need for a second probate.)
Finally, the longer a probate is delayed, the more time there is for creditors to appear and make claims. Typically, once an executor or administrator is appointed, notice to creditors is published (or mailed to known creditors) and 60 or 90 days after first mailing or publication, the deadline for a creditor to make a claim has expired.