Types Of Nevada Probate Based On Estate Value
For purposes of deciding which probate (Set Aside, Summary or General) is allowed, the Court will value real estate at the gross value minus amount of mortgage owed
Reed & Mansfield Cost Savings:
Our Fees are based on the gross value of real estate minus the mortgage owed. Most of our competitors base fees are on gross value of real estate regardless of if there is a mortgage owing as that is what the statutory attorneys' fee schedule allows.
Filing An Affidavit of Entitlement
Estates Under $25,000 or Under $100,000 if the Only Claimant Is A Spouse
(No Real Estate or Contests)
The easiest probate proceeding is for estates for under $25,000 (or under $100,000 if the only claimant is a spouse) with no real estate and no competing claims. The person seeking to administer the will (or distribute the property if there is no will) files an Affidavit of Entitlement. There is no filing fee in this case to file the affidavit in Clark County, Nevada. If there is a will the filing fee for the will is $18. Many people can handle this themselves.
Please Note: We do not provide assistance with these estates. The Legal Aid Center of Southern Nevada, 702-386-1070 can help you with an estate in this category if you meet their financial guidelines and the probate is in Clark County, home of Las Vegas. You can find an up to date "Affidavit of Entitlement" form on the Washoe County Court's website.
Estates Under $100,000 or Estates Under $25,000 That Hold Real Estate or a Timeshare or Larger Estates that involve a Pour Over Will into a Trust:
The second easiest probate proceeding is for estates not exceeding $100,000 using the "set aside without administration" procedure. This can include real estate. Real estate is valued at its value minus any mortgage for the purpose of deciding which probate procedure can be used.
A petition is filed and a court date is set. Notice is given to next of kin and all creditors are paid. If all of the paperwork is correct and no one objects at the hearing, the judge signs an order at the hearing and proceeding is largely finished.
If there are no complications, this process can be completed as soon as we can get a court date after we file the Petition and all necessary paperwork. Many of our filings in this category are for timeshares.
This cheaper, simpler proceeding has recently been expanded to include an estate of any size if there is a valid Pour Over Will into a Trust. Let me explain:
- Usually when a lawyer sets up a trust the plan is to title all assets with a title in the name of the trust because if something has a title, such as a house, a car, or bank account, it is NOT in the trust unless it has been re-titled into the name of the trust.
- But lawyers ( and legal document preparation companies such as LegalZoom.com know that sometimes client will fail to re-title all property with a title into the name of the trust. For example, Dad goes to LegalZoom.com and buys a trust package but never changes the title on his house from his name to his trust. Or Mom puts her house in her trust, then sells it, buys a new house and forget to take title of the new house in the name of her trust. The purpose of the Pour Over Will is that anything not in the trust when the person dies goes into the trust--BUT THIS PROCESS REQUIRES A PROBATE PROCEEDING TO GET THAT PROPERTY INTO THE TRUST.
- So, traditionally, in the cases just mentioned above, the house has to go through a probate process based on the value of the house and in Nevada the most complicated, longest probate proceeding is for estates over $300,000.
- BUT, Nevada has enacted NRS 146.070(1)(b) which states: "If a decedent’s will directs that all or part of the decedent’s estate is to be distributed to the trustee of a nontestamentary trust established by the decedent and in existence at the decedent’s death, the portion of the estate subject to such direction may be set aside without administration..." In other words, in the above examples, if the house that was NOT put into the trust is worth $800,000, we can still do the simpler probate process usually reserved for estates less than $100,000, if the conditions cited in italics in the above statute are met. This set aside procedure is slightly more complicated because the rest of the statute cites in the paragraph states: "Any portion of a decedent’s estate set aside to the nontestamentary trust pursuant to this paragraph is subject to creditors of the estate unless the petitioner provides proof to the court that the trustee has published or mailed the requisite notice to such creditors on behalf of the nontestamentary trust and settlor pursuant to NRS 164.025." That notice is a 90 day Notice to Creditors. Presumably, the Court would not want to issue its Order until after that period had run and if there were Creditor Claims that our client did not quicky resolve this process could be more involved than the usual Set-Aside Without Administration.
For information on our fees for a Set Aside Without Administration please see our Low Fees For Uncontested Nevada Probates page.
Please Note: Real estate can be transferred to heirs using this process but not sold during the probate process using this procedure. See Sale of Real Estate.
When a probate is initiated in Nevada, notice has to be given to Nevada Medicaid. (Not to be confused with Medicare which is considered an "earned benefit" as opposed to Medicaid which is considered a form of welfare.)
If Nevada Medicaid ever paid for any health care of the Decedent, no matter how long ago, it has a right to get paid back out of the estate. If paying this claim requires the sale of the real estate, then we cannot use this simple procedure to do the probate and will have to use the procedure described immediately below. On the other hand, if Dad dies owning a $90,000 Nevada condo and nothing else and there is a $5,000 Nevada Medicaid claim and no other claims, and the heirs can write a check to Nevada Medicaid for the $5,000, then we can use this simple procedure to get the condo to the heirs.
In order to file a Set Aside Petition the Petitioner must state under penalty of perjury that all known debts of the estate have been paid. Let's say we do this. What problems could arise with Creditors' claims?
DCM Looks At Probate Filings To See If Their Clients Have Any Claims
First, DCM, a corporation that collects credit card debt is now looking at all Clark County probate filings to see if their clients have any claims against the dead person. In January of 2017 for the first time DCM jumped in before the Set Aside Hearing to file a Creditor's Claim. In this case my client had not known about the credit card claim but the Court refused to set aide the estate until the Creditor's Claim was resolved.
DCM Asserts Claim On Indidividual Who Inherited Money Through The Set Aside Without Administration Procedure
Second, suppose in this case DCM had not been too speedy and the estate had been set aside to my client before DCM asserted its claim. Under a 2011 Nevada law, people who "get" money when a person dies (whether they get it thru probate, or because they are a payable on death beneficiary, or because they are on a joint account with the person who died) are liable to creditors of the estate up to the amount that they received from the dead person. Therefore, occasionally, even though an estate is worth less than $100,000 and would appear to qualify for the cheaper, quicker "Set Aside Without Administration" procedure, it makes sense to use the more time consuming and expensive "Summary Administration" procedure usually used for estates over $100,000 and not more than $300,000 and described below. The reason is that in the Summary Administration procedure, a notice to (unknown) creditors is published in a newspaper and any creditor unknown to the person claiming under the estate has a 60 day deadline to file a Creditor's Claim and if they don't the statute of limitation runs against them. (The person claiming under the estate has a duty to mail a Notice to Creditors to known creditors. Again, then the known creditor has 60 days to file a Creditor's Claim. Some Creditors, especially if the claim is small, don't bother.)
If you as the client and we as the lawyer decide this is the way to go, our fee (not including costs) will be $3,800. Costs will be about $475 in Clark County and somewhat higher in other counties where the fee to publish Notice to Creditors is higher. If a creditor makes a claim and you as the client decide to deny the claim and the creditor files a lawsuit, that would involve an additional fee, but unless the creditor has a very substantial claim, it is very rare for a creditor to file a lawsuit when its claim is denied.)
Sometimes these credit collection agencies can be tricky. In one estate I got an offer to settle a credit card debt of the Decedent for 50% off, but the same agency had offer smaller discounts on other debts it was trying to collect. My client knew of the other debts but not the one with the 50% discount offer. I talked to the agency and asked why they had not filed a Creditor's Claim. The response was that the charges were incurred on a credit card after the credit card holder died and payment was only voluntary!!!
By the way, as mentioned elsewhere in this website if the heirs can call up the creditors and offer an immediate payment they can often get a very large discount.
Sometimes Surviving Spouses or Minor Children Can Avoid Creditors' Claims in Estates Under $100,000.
Under NRS 146 if the Estate is not over $100,000 it should be set aside without payment of creditors' claims if this is necessary to provide support for a surviving spouse or minor children. In fact, this preference is pretty automatic except for one wrinkle. Often the surviving spouse or minor children receive money from the dead person (Decedent) outside of probate. For example, the surviving spouse owns a joint account with the Decedent or hold title to property in joint tenancy with the Decedent or is a beneficiary of a life insurance policy on the Decedent's life. These are called "non-probate transfers." If the Court is being asked to cut off creditors in an estate not over $100,000 so the surviving spouse or minor children can be supported, the Court will demand to know how much the surviving spouse or minor children are receiving from non-probate transfers from the Decedent. If there are non-probate transfers to the surviving spouse or minor children, then the court will consider the needs of the surviving spouse or minor children and then decide whether the creditors' claims can be cut out. As a practical matter, at least in Clark County (home of Las Vegas) the Court has been fairly generous to spouses and minors in these cases. Of course, if the creditor has a lien or mortgage on estate assets, nothing in NRS 146 cuts our such "secured" interests of the creditors.
Because of the requirement that the Petitioner state under penalty of perjury that all debts of the estate have been paid when using the "Set Aside Without Administration" quick and cheap procedure, NRS 146.070(3) requires that such a Petition may not be filed until 30 days have passed since the death. Presumably, this gives some time for the Petitioner to learn of debts of the estate.
Value of Real Estate
The Clark County Probate Court accepts Zillow.com evaluations of real estate for the purpose of determining the value of the estate, and therefore which probate proceeding is appropriate. It will not accept the Clark County Assessor's valuation. Many other Probate Courts in Nevada Counties accept their own County Assessor's valuation.
If the price of a house or other asset has gone up since the time of death, the value at the time of death can be used if lower to take advantage of a simpler probate proceeding. Zillow.com give historical data on the value of real estate.
Zillow.com is a "data-collecting" website. It feeds in to its proprietary analysis software sale prices of similar real estate with similar meaning easy data such as sales price and location and square footage, but not other data such as detailed analysis of the house's condition, views, landscaping, built-ins, etc. Everyone should understand that any given Zillow.com evaluation is only a quickie approximation and could be way off the actual value. The court will also accept an appraisal from a licensed real estate appraiser, if it is submitted along with a copy of the appraiser's license. Notice we are talking about a licensed appraiser, not a licensed real estate agent. Such appraisals often cost about $500.
If Zillow.com says a house has a value of $150,000 and there is a $120,000 mortgage owing on the property, the value of the house is only $30,000 and if this was the only estate assets the estate would qualify for a Set-Aside. If Zillow.com says a house has a value of $350,000 and there is a $200,000 mortgage on the house and this is the only estate asset, the estate will qualify for Summary rather than General Administration. In this last example we would base our fee on the estate being worth $150,000 whereas the attorneys' fee statue would allow the lawyer to base the fee on the estate being worth $350,000.
Value of A Probate Estate
The value of a probate estate is NOT increased by assets that pass outside of probate. For example, a person dies owning $1,000,000 of assets but $910,000 worth of these assets pass outside of probate (because they are in a trust, or in joint tenancy or payable on death accounts) only $90,000 of the assets have to go through probate. In such a case the value of the estate is $90,000, NOT $1,000,000. (This applies to Nevada state probate proceedings; it does not apply to calculation of federal estate taxes.)
The value of the Nevada probate is only what is probated in Nevada. For example, if the Decedent was a Wisconsin resident and there was a $500,000 probate in Wisconsin, but the Decedent only owned a $90,000 condo in Nevada (note that real estate always has to be probated in the state in which it is located) the value of the Nevada probate is $90,000.
Once a Nevada probate is closed, if additional probatable assets are discovered there has to be a new probate and the value of the new probate is the value of what was probated before plus the value of the new assets that have to be probated. This is why we don't close a probate estate until we are sure we have all the assets.
Can You Get Letters Testamentary in a Set Aside Proceeding?
Many times financial institutions tell heirs that in order to get their father' or mother's money they will need certified copies of Letters Testamentary or Letters of Administration. However, in a Set-Aside procedure, no such Letters are issued. To prevent problems in this situation, we always draft the Order we get from the Court to state that the estate qualified for Nevada's Set-Aside procedure and as a result no Letters Testamentary or Letter of Administration have been or will be issued. The financial institutions then have their legal counsel look at the Order and their counsel tells them no Letters Testamentary or Letter of Administration are required.
Estates Between $100,000 and $300,000
This is intermediate in complexity as compared to the under $100,000 case and the over $300,000 case. We explore every possibility to see if we can legally get the value of the estate under $100,000 to use the cheaper Set Aside Without Administration Proceeding.
In this proceeding, if the administrator is out of state there will have to be a Nevada co-administrator. Occasionally, we recommend using this procedure for estates under $100,000 if there is an issue of creditors whom the estate wants to try and cut out.
If there are no complications this process can be completed in as little as about three months after we file the Petition with all necessary paperwork. This probate requires a 60 day notice to known and unknown creditors. However, the facts of a specific estate, including sale of assets under the Court's supervision, could cause the process to take longer. When we say we offer "fast" probate we mean we are diligent in moving things along as fast as we can consistent with the legal requirements.
Potential Money Saving Tips
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Nevada has a Transfer on Death Deed provided for under N.R.S. 111.665 et. seq. It occasionally happens that we are able to tell heirs that they don't need to do a probate because Mom recorded a transfer on death deed (Deed Upon Death) to her children before dying so that now all the children have to do to claim her house is to file an Affidavit of Death (or pay us to do that.). To find out if someone who died owning real estate in Clark County filed a Transfer on Death Deed, you will have to check the County Assesor's Website. Look at the "Comments" section of the "General Information" block. If you see something like "BD 20090822:4545" this means Beneficiary Deed (Deed Upon on Death, also known as Transfer on Death Deed) recorded on August 22, 2009 and the whole set of numbers (both sides of the colon) is the instrument number.
As you can see from the previous sections it will cost about $2,300 more to probate an estate just over $100,000 than an estate just under $100,000 and take a few additional months to do so. Additionally, if we start the summary administration procedure and then it turns out that the estate is really worth less than $100,000, we still charge you the fee of $4,000 because the summary administration process is much more involved than the set aside without administration process.
Let's suppose we have a situation where Dad, a single man at the time of his death, dies and has 3 adult children. Further suppose his children, while going over his papers, see from recent statements that he died owning $150,000 worth of financial accounts. To keep our example simple, we will suppose there was nothing else in his estate. By looking at the statements the adult children can see that none of the accounts are joint accounts and none are held by a trust. But what the children can't see from looking at the statements is whether the accounts have a payable on death beneficiary. If one of the children calls up, say, Fidelity which has the accounts, Fidelty says, "Sorry, because of privacy concerns we can't talk to you. Once you can prove to us that you have been appointed executor or administrator we can give you the information." Let's further suppose that $100,000 of these accounts name the adult children as payable on death beneficiaries. But Fidelity won't tell them that.
In this case the adult children could call Fidelity before hiring a lawyer and ask for the claims procedure for payable on death beneficiaries. Then each adult child could send to Fidelity a certified copy of Dad's death certificate and completed paperwork to claim as a payable on death beneficiary on the chance they are a payable on death beneficiary. In this example, the adult children would collect the $100,000 payable on death and then hire me to do the cheaper, faster Set Aside Without Administration probate on the remaining $50,000 that Dad forgot to make payable on death to his children. Or, if everything was payable on death, they wouldn't even need to hire a lawyer.
This procedure is worthwhile if it means the difference between a Set Aside Without Administration versus a Summary Administration. However, if you know the estate is over $100,000 it makes sense to hire us in the first place. If we think at the outset that the estate is worth $300,000, but because some of the assets are payable on death the estate is worth only $100,000, our fee will be $3,800 based on the actual value, not the originally thought value. However, in this example, if we initiated the filing assuming the estate was worth $300,000 the filing fee would be about $250 higher and there would be one extra publication fee.
Traditionally a retirement account lists a primary beneficiary and a secondary beneficiary. If the account holder dies the primary beneficiary gets the money upon proper application; if the primary beneficiary has predeceased the owner, the secondary beneficiary gets the money. But what if the owner never filled out the beneficiary form, or just filled out a primary beneficiary (such as spouse who predeceased the owner) but not secondary beneficiaries? The usual answer is that the account must be probated.
Importantly, some retirement plans specify that if the account owner dies without having named a beneficiary, then the money goes to the spouse, but if there was no spouse, or the spouse predeceased the owner, then the retirement money goes to the children in equal shares. If this is the case the retirement money does not have to go through the probate process and does not add to the value of the probate estate. A financial institution such as Fidelity may be willing to advise if a particular retirement account has this feature.
Another example is that Wells Fargo sets up its IRAs so that if there is no beneficiary named, an adult child or a spouse of the Decedent can get the IRA funds without probate. However, if the next of kin is neither an adult child or a spouse, and there is no beneficiary listed, then probate is required.
We discuss the distinction between community and separate property on this page of the website: Community / Separate Property Let's suppose Husband dies and the home that both the deceased husband and surviving lived in is titled only in the name of the husband. Let's suppose this home is owned free and clear and is worth $190,000 and that is the only asset of the probate estate as all other assets were jointly owned. Is this a $190,000 probate requiring Summary Administration, or can it be done as a $95,000 Set Aside Without Administration? If the wife can claim that the marital home was really community property then this is a $95,000 Set Aside Without Administration. In addition to the cost savings of doing the Set Aside instead of Summary Administration there are two other potentially favorable aspects to the wife of this being characterized as Community Property. Under N.R.S. 146.070 non-secured creditors are cut off if the estate has a value of not more than $100,000 and the heirs are either a surviving spouse and/or minor children and if the estate is not worth more than $100,000, the spouse and/or minor children defeat all other inheritors.
Estates Over $300,000
This is a fairly complex procedure. Most attorneys charge by the hour for an estate in this category. We realize that the idea of hourly billing is scary to most people who worry that that hourly billing encourages slow work. We will be happy to discuss a flat rate for this category of probate. Please view our low fees for uncontested Nevada probate for more information.
If there are no complications, this process could be completed in about 4 or 5 months after we file the initial petition with all necessary paperwork. This process involves a 90 day notice to known and unknown creditors. However, specific facts, such as sale of assets under the Court's supervision, could cause the process to take longer. When we say we offer "fast" probate we mean we are diligent in moving things along as fast as we can consistent with the legal requirements.
Because of the expense of probate we recommend the use of a trust rather than a will for estate planning. Notably, we currently offer a trust package for only $950, please contact us for details if you are interested.