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Problem probates include at least these categories:
What Exactly did the Decedent Own?
Some people are very organized and leave instructions to their heirs as to where their property is located and what their assets are. Other simply die and the heirs have to figure out what was owned. Most counties offer free online real estate searches by name. But, financial assets can be much harder to track down. In the most difficult case, the person who died owned dozens of different financial accounts. Typically, the best way to learn what these assets are is to collect the person's mail if possible. Sooner or later most financial accounts generate statements.
It occasionally happens that a probate is done and after the probate is closed an additional bank account is discovered. Nevada requires a new probate in this situation and the value of the new probate is considered to be the value of the old probate plus the value of the newly discovered asset.
Sometimes the heirs know that the Decedent had a bank account at, say, Wells Fargo Bank, but that they don't know how much is in the account and can't get their hands on any bank statements. To start the probate it is necessary in many cases to know the approximate value of the estate. In such a case a Special Administrator can be appointed to have authority to demand that the bank give a statement of the account and/or to inquire of other institutions if the Decedent had an account with them and if so how much was in the account. See Special Administration
The Person Who Died Didn't Have Clear Title to Property in "Their" Estate:
Mom "inherited" some real estate from her Grandma because Grandma willed it to her, or because Grandma died without a will and Mom was her only heir. But, no one did a probate when Grandma died. Now, Mom dies and Children inherit. Except in this case it will be necessary to do two probates, one on Grandma and one on Mom if the property is still in Grandma's name. See Double Probates
Or, it may be much simpler to clean up title in Mom's name when probating Mom's estate. Suppose Mom owned the real estate in joint tenance with Grandma and Grandma died first. The county records show that title is jointly held by Grandma and Mom. This is very easy and not really a problem probate: Anyone can file an "Affidavit of Death" with the two death certificates of Grandma and Mom attached showing that the property automatically became 100% owned by Mom upon Grandma's death.
There might also be liens against the property that would have to be either paid off or settled or declared invalid before the estate could sell the real estate.
Another problem we have encountered is this: Bill dies. He owned some property in his own name. He also owned a piece of real estate held by a trust. But there is no living successor trustee named in the trust, or the trust document is lost. Now it will be necessary to file a separate action asking the Court to take jurisdiction of the trust and to name a new successor trustee and if necessary to make the Decedent's estate the trust beneficiary--if the trust is unclear as to who the beneficiary is.
Some people while alive try to hide their assets from creditors by illegal means. For example, a "private vault'' company offers safety deposit box rentals where the customer does not have to provide normal ID. For example, the customer might provide only an iris scan and a password. The idea is that if the customer ever got sued the customer could deny owning the safety deposit box. This would be criminal fraud if the customer was required to state his or her possession under oath after a judgment had rendered against the customer. But, some people engage in those sorts of crimes. And since the private vault company would not even have to have the customer's name in their records, the private vault company would not be able to respond to a court order inquiring about the assets of a named individual. Now, if the customer dies without having previously given another person access to the safety deposit box, you can see the problem.
Likewise some people in the hopes of avoiding creditors set up trusts in foreign countries that do not honor court orders from the United States. Hopefully, such a trust would provide for the death of the customer and a distribution of assets according to the customer's wishes. However, an American probate attorney working with a probate court in the United States will not be able to use the probate court to obtain assets if there is problem.
But more commonly, the heirs may not know what bank or financial accounts the Decedent had. Before the internet, these accounts always generated mailed paper statements. If you could get the Decedent's mail forwarded to you, sooner or later, you would learn about all of the Decedent's accounts. Now with internet banking the paper statements don't come. Sometimes heirs only learn of an account of the Decedent when a "probate researcher" contacts them hoping to earn a fee for providing the information. (How do the "probate researchers" learn about the account. They may periodically scan the unclaimed property listings of state treasurers. But it can take years between when someone dies and when their bank turns their account over the State Treasurer's unclaimed property division.)
Unclear or Defective Will:
Sometimes people try to save money by buying a Will form rather than have a lawyer write their Will. How much should it cost to get a lawyer to write a Will? Some lawyers advertise $99 Wills. In our experience sometimes the lawyer advertising that rate is only willing to do that as a loss leader if there is a decent probate estate and the lawyer hopes to get the probate when the person writing the Will dies. Such a lawyer will keep the original of the Will "for safe-keeping," insuring that the heirs will at least have to contact that lawyer when the person who wrote the Will dies. Sometimes, if the secretary making the appointment determines that there isn't much money in the estate, there isn't an appointment available until 5 months out. Most people wanting a Will don't know the advantage of a trust or of planning to transfer property with Transfer on Death Deeds or Payable on Death financial accounts, and, if they are put off by the legal fees for a Will, often get a Will form online. Sometimes this works and sometimes it doesn't.
One problem that often comes up with DIY (Do it yourself) wills is the witnessing. Unless the will qualifies as a holographic (handwritten will) or an electronic will (and the law on electronic wills is unclear and untested) a will to be valid needs to be witnessed by two competent adults who personally observe the testator (will writer) sign the will. These witnesses should then state under penalty of perjury that they witnessed the testator sign the will and the testator appeared competent and not acting under undue influence (see N.R.S. 133.040 for details) or their signatures stating that should be notarized and their statement should be in the form of an affidavit. In some DIY wills we get, the witnesses have merely signed without their statement meeting the requirements of an affidavit or declaration under penalty of perjury. If this is the case, the problem might be solved if the two witnesses can be located and if they will give affidavits meeting the requirements of N.R.S. 133.040. But, this can involve extra expense and time and if the witnesses are dead or can't be located or are uncooperative, the will then fails.
An unusual witnessing problem arose with this DIY will. The will writer (Testator) was widowed and had had three children, one of whom died and left her own children. The Testator wanted to leave everything equally to his two surviving daughters and not provide for his grandchildren of his deceased daughter. He purchased a decent 2 page Will form. Item II stated:
"I give, devise, and bequeath the following real and personal property: If the Testator had written in "My entire estate," everything would have been fine. Instead he wrote in, "See attached of Page 3 of 3." On the second and last page of the Will form was the proper witnessing statement for two witnesses who signed and had their signatures notarized. This was on Page 2 at the bottom of which was written "Page 2 of 3." Then the handwritten third page was listed the Testator's assets at the time he wrote the Will. The probate judge looked at the Will and decided that the handwritten page 3 was an essential part of the Will but since it came after the notary stamp he would not accept it unless someone produced 2 affidavits from people who knew the Testator's handwriting and could testify that it was his handwriting and that these people giving the affidavits were not inheriting under the Will.
The two competent adults who witness the signing of the will cannot be beneficiaries under the will.
Sometimes if the will fails and can't be "fixed" it doesn't make much difference. If Dad writes a defective will leaving everything in equal shares to his four children and Dad died unmarried and never had any other children, the inheritance will be the same with or without a will. (In this case if the none of the children are Nevada residents, but Dad was, without a will any of the children will have to work with a Nevada resident Co-Administrator whereas with a will Dad could have appointed a non-resident adult child to serve as Executor.) However, if Dad is estranged from one of his adult children and cuts that child out of the will, then if the will fails, all children will inherit equally.
A holographic will is one in which all materials terms are written in the will writer's handwriting. A requirement to admit such a holographic will is that two people not inheriting under the will must give affidavits or declarations under penalty of perjury to the effect that they know the will writer's handwriting and the will is in his handwriting. In one case we had, the will writer wrote his will entirely in his own handwriting and then went to a notary who notarized his signature. Although, the Court agreed it was a holographic will the Court did not accept the notary signature and seal in place of two witnesses to the will writer's handwriting. This didn't seem logical to me, but laws are laws and this illustrates the problems that can arise with DYI wills.
"That is Not What the Testator Promised Me."
Suppose Dad's first wife has died and he is married to a second wife and also suppose Dad and has two adult children by his first wife. Dad loves his second wife and his adult kids but at least one of the three people important to him (second wife and two adult children) start bending Dad's ear about why they have a greater need for a large share of his estate when he dies. All Dad wants in his last years is peace in his family. Some people in Dad's situation take the easy way out and tell whoever lobbies him for special consideration what that person wants to hear. So, for example, second wife has been promised the vacation home by Dad and also Dad's daughter Sue has been promised the same vacation home. Both Sue and second wife sincerely believe that Dad wanted them to have the vacation home because he told each of them that. Now, in fact, Dad, in his will left the vacation home to his son Dave. In this case both second wife and Sue could believe that Dave somehow tricked Dad into leaving him the vacation home. Generally, in this case the Courts say, "I'll go with what Dad told his lawyer to put into his will."
Occasionally it will happen that a parent will cut one adult child out of their will. If there is a true estrangement, this often does not create a problem providing the will is valid. But what if Mom has three adult children and each adult child thinks he or she gets along great with Mom. Then Mom greatly favors one child in her will and Mom has not prepared the other children. I have seen this situation lead to some bitter fights, either over the validity of the will or over the distribution of items in the will. My suggestion in writing a will or a trust is that if Mom wants to favor one child over the other, but not cut-off any child, Mom should give the favored child the additional property or money either before death or in an instrument separate from the trust or will. In fact, if Mom knows that her estate plan will cause bitterness, perhaps, she should have her assets pass automatically on death to specific people by using pay on death accounts and transfer on death deeds. That makes it somewhat harder for the unhappy heir to launch a contest.
Of course, in some situations Parent will leave unequally to adult children with the blessings of all involved because some adult children may have greater needs or less wealth than others.
Specific Asset and Changed Circumstances:
Suppose Dad has all his money tied up in his residence and two rental homes and he is widowed and has three adult sons he wants to treat equally. Suppose all three properties are roughly equal in value. He writes a will leaving one property to each son and everything else to be divided evenly. Now suppose he sells a rental property, puts the money in his bank account, and forgets to change his will. Or suppose, unexpectedly between the time he writes the will and dies, one property doubles in value and another property declines in value. Now under the literal language of the will he is not treated his three sons equally, contrary to his intentions. My advice to avoid problems like this is that if Dad truly wants to treat his three sons equally he should simply write in his will or trust, "I give all my assets in equal shares to my three sons."
Too Many Heirs?
Let's say a person dies without a will and does not leave a spouse or children, or parents. In that case the property will go to the siblings, of if a sibling has predeceased, then to the children of the siblings. If the person who dies has a lot of siblings, many of whom have predeceased after each producing a number of children, there are going to be a lot of heirs. Some of these heirs may receive only a few hundred dollars if the estate is small, but they all have to either waive their rights to the inheritance or be put on the mailing list for all court filings. For small estates this can be quite burdensome.
Suppose Dad dies leaving no spouse, no will and two adult children he has kept in touch with and older estranged adult child he and the other two children have had no contact with in decades. Does the estranged child have to be included in the estate? Yes. The estranged child has a one-third interest in the estate. If the estranged child has died and left children, his children share equally in his one third interest. But maybe the estranged child has died without children? In such a case an investigator or probate researcher is hired to try and locate the estranged child and or his children. If the estranged child's social security number is known the Social Security Administration will advise if they believe he is dead or still alive. Usually, however, the social security number of the estranged child is not known. If proof of the estranged child's death is found along with proof that he left no children, then his share will go the two known children. (Actually, for the two known children to get the share of the dead estranged child, the estranged child would have to have died before Dad in this example.)
What Makes a Will Valid or Invalid Just by Examining It?
Wills come in two types. A holographic will is a will in which the signature, date and material provisions are in handwriting by the testator (person making the will). This is set forth in N.R.S. 133.090. A holographic will can be on a scrap of paper and say simply, "I, John Doe, leave my entire estate to Mary Smith" followed by John Doe's signature and date. Of course, other interested parties might challenge this will, for example, by arguing that the handwriting did not match other examples of John Doe's handwriting.
But, if any material provisions are in the testator's handwriting, then it is not a holographic will.
If a Nevada will is not holographic it is not valid unless two witnesses have signed their names to the will stating that they witnessed the testator sign it (or a person at the direction of the testator sign it.) and that the will writer appeared to them to be of sound mind and of suitable age. in other words, if Scheming Adult Child brings in doddering old Dad and tells him to sign a will giving her everything and Dad seems confused, the witnesses should not say the will writer appears to be of sound mind and memory. This requirement is set forth in N.R.S. 133.040 and 133.050.
Problems arise when someone writes a will using a form they got off the internet that wasn't designed to conform to the law of Nevada or whatever state they were then resident in. Maybe there are witness signatures but the witnesses don't testify in an affidavit or under penalty of perjury that the testator appeared to be of sound mind and memory. Perhaps, this defect can be cured later with affidavits from the witnesses if they can be located. Or, perhaps, the witnesses can't be located and this defect may not be curable.
Suppose the will writer (testator) signs and dates his signature May 1, 1999. Suppose one of the witnesses signs and dates his signature May 1, 1999, and a second witness signs and dates his signature May 5, 1999. This suggests that the May 5 witness did not witness the testator signing the will on May 1 and that therefore the will is invalid. This would be especially true if the two witnesses had their signatures notarized on different dates.
Nevada, like every other state, is required by the federal constitution to give "full faith and credit" to other states' laws. So, for example, if a will was written in Montana in 1989 and it doesn't meet Nevada's requirements, Nevada courts will accept it as valid if there is an opinion letter from a Montana attorney that the will was valid under Montana law in 1989.
We believe it is very false economy for someone to write their will without a lawyer. Errors are unlikely to become apparent only after it is too late to fix them. Many lawyers offer a $100 will. It is unlikely that a will drafted by a licensed lawyer in good standing with their state bar (you can call the state bar and ask) will be defective to the point of being invalid. However, we also believe that if you have any real assets a will is so important that it makes sense to pay a bit more to deal with an attorney who will take the time to discuss your situation in detail.
IT IS ALSO INPORTANT TO UNDERSTAND THAT IN CERTAIN CIRCUMSTANCES EVEN A PERFECTLY VALID WILL MAY BE MEANINGLESS. For example Dad wills his house to daughter but then later quitclaims from himself to himself and new girlfriend who survives him. In this case the house on his death will probably go to girlfriend. Or husband and wife own everything jointly; when the first one dies a will leaving everything to the survivor of the two of them is not probated because the property passes to the survivor more easily under joint ownership law. Or everything is owned in a trust so there is nothing to pass under the will.
Will Challenges and Will Contests:
A will can look perfectly valid, but it can be challenged on various grounds, including that it is a fake or that it was revoked or that the testator was not mentally competent when he or she signed or on the grounds that a major beneficiary of the will used undue influence to get the testator to sign it.
Because a holographic will, see above and Probate Words and Terms, does not need witness signatures or a notary, a holographic will is most subject to the claim that it is a fake. This issue can be resolved in part by analysis of the testator's handwriting and signature.
A valid way to revoke a will is to physically destroy the original. Obviously, in some cases many copies may have been made and it may be beyond the testator's control to destroy all copies. For this reason courts want an original will filed. See Will Original vs. Copy. If the original has been destroyed by accident or cannot be located, the court will demand and consider evidence that the destruction or loss of the original was accidental and it may accept a copy. However, if someone challenges the copy the court will probably conduct a hearing to determine if it should accept the copy.
The claims of undue influence and incompetence of the testator usually go together, but not always. The test of the testator's competence is not a tough one. Often Dad (whose wife predeceased him or divorced him), and was an old man when he wrote his will, leaves all or a substantial part of his estate to pretty young woman and Dad's adult children feel this isn't right. In looking at this situation a Court will likely consider the following:
- Dad has a perfect right to leave his estate to a friend or young woman and leave his children nothing as long as Dad understands that it is natural in most situations for a widowed father to want to leave his estate to his children.
- Is there any medical evidence of Dad's mental incapacity? Has he been diagnosed with Alzheimer's or some other senile dementia?
- Did young woman have control over Dad (aside from the sexual attraction control that many women have over many men)? Was Dad physically dependent upon young woman for care? Was he physically dependent upon young woman to write his checks and manage his finances because Dad's eyesight was poor or Dad couldn't do the math to balance a checkbook? Specifically, the Court will take a very hard look at a will written in favor of a "care taker" or someone who was helping the will writer live his life.
- Sometimes when a person gets old and is likely to soon die and has money, various relatives or person close to the old guy will pester him for promises that they be left various things. For example, both Girl Friend and Dad's adult Daughter want Dad to promise her his house when he dies. The court understands that this presents an ugly conflict for Dad and that Dad's response may be to make separate and conflicting promises to each that she will get the house. Therefore, testimony about oral promises are not usually given much weight by a Court in a will contest. In other words, most Judges understand that old people may make false promises to live out their last years in peace.
Changes to a Will:
If a lawyer is asked to write a change to a will--the legal term is codicil--many of us, including myself, think it the better practice to simply destroy the old will and write a brand new will. Why not have the entire will in one document instead of in two or more? However, a codicil may be written. The validity of a codicil is subject to the same legal requirements of a will. If a codicil is entirely written (no typing or printing), signed, and dated, it is a valid holographic document. Or a codicil can be typed up, and signed in the presence of two attesting witnesses and it will be valid. Problems arise if, say, Mom, takes her lawyer drafted will, has a fight with one of her children and crosses the child's name out of the will or whites the child's name out. Or what if Mom handwrites in some changes. Probably these changes are not going to meet the requirements of a proper will or codicil. What if Mom whites out a specific bequest? Is this an invalid amendment or a partial destruction of the will such that that bequest is revoked? We don't have any Nevada court decisions on that particular point.
The reason that Trusts have separate amendments written rather than simply re-writing the trust is that a trust is designed to hold title to property to avoid probate and other issues. Once a trust is funded, i.e., property is titled in the name of the trust, it would be burdensome to transfer property out of an old trust and into a new one. (The date of execution of a trust also identifies it as well the name. This is why the John and Mary Doe Family Trust dated 1/1/09 is legally a different entity than the John and Mary Doe Family Trust dated 1/1/12.)
Estate Valuation Issues:
If all the heirs get along well, the personal representative can usually make an easy decision on how to sell or give away personal property. (Most furniture and clothing is not worth selling; usually there aren't arguments about the sales price of the furniture and clothing if it is worth selling and usually there aren't arguments about the sales price of a car or jewelry or guns.)
But sometimes there are hurt feelings. Suppose Parent leave the estate unequally to adult Children. One of the adult children with hurt feelings may start fighting about the value of various items the personal representative wants to sell. In some cases I have seen siblings spend unreasonable amounts of money on lawyers' fees to fight over property that isn't that valuable. Sometimes a little generosity on the part of the favored child or heirs to the unfavored child or unfavored heirs is a good investment in making the probate remain uncontested rather than contested.
Death Certificate Issues:
The general rule in the United States is that property other than real estate should be probated in the state that the Decedent (person who died) was a resident of at the time of their death. The Clark County, Nevada, Probate Court won't do a probate of personal property unless it is shown a death certificate that lists Nevada as the Decedent's residence. What state gets put as the Decedent's residence on the death certificate can be pretty arbitrary. Typically the funeral director will ask the "informant" and accept the informant's answer. (The "informant" is usually the relative arranging the burial or cremation.) If the death certificate shows that the Decedent was a resident of another state, but the Decedent was really a resident of Nevada, then an application for an Amended Death Certificate must be filed with the State of Nevada, Department of Health and Human Services. There is a $40 filing fee. This is not a complicated procedure, but it can delay probate.
Other "corrections" to a death certificate may be more complicated. For example, to change the marital status of a decedent on the death certificate may require a court order.
Another important thing to know about death certificates is that many institutions will not follow a probate court order until they are also shown a certified copy of the death certificate. For example, the personal representative takes all necessary court papers, all certified, to a bank or the DMV to ask for the account balance or to have the vehicle title transferred into the heir's name. The clerk demands a death certificate. It does no good to argue that you have a court order saying the person died. You will have to bring or send the certified copy of the death certificate.
It occasionally happens that a person who has property in the United States dies in a different country. If the person who died is a U.S. citizen, the U.S. Department of State will issue a document called, "Death of a Citizen Abroad." Probate courts will accept this instead of a death certificate. Many foreign countries include English on the their death certificates. For example, European Union country date certificates may be printed in more than a dozen languages.(For example, a German death certificate will have the phrase, "Date of Death" in at least a dozen languages.) Probabe Courts accept these foreign death certificates if they include English.
Financial institutions may unreasonably demand that such a death certificate have an apostille from either the issuing government or the Nevada Department of State. Trying to get this is usually a fool's errand. In one case I had to file a Motion in the Probate Court to make Wells Fargo accept the determination by the Clark County Probate Court that the person was in fact dead based on the German death certificate. Once I filed this Motion and served it on Wells Fargo's agent, they agreed to accept the Probate Court paperwork and German death certificate.
If the foreign death certificate does not contain English, the Probate Court will demand a translation and may be picky about what constitutes an acceptable translation.
No Personal Representative:
Most states including Nevada allow for a simplified probate procedure if the estate is small. For example, in Nevada, if the estate is not worth more than $100,000, it may in many cases be probated through a procedure called "Set Aside Without Administration." See our page on Probate In this situation there will never be a personal representative and no Letters Testamentary or Letters of Administration will ever be issued. Instead, there will be a court order ordering transfer of assets or real estate. Some timeshare companies and financial institutions may demand to see certified Letters. To avoid this problem when I do a Set Aside Without Administration I will include in the Order I draft for the judge this explanation. In addition, I often attach statements from the financial accounts to be transferred as Exhibits to the Order.
Heirs Can't Agree:
Of course the biggest problem estates are those in which the heirs start fighting among themselves.
But even if the heirs are reasonable and don't get into a fight among themselves, it is important to understand that the estate attorney represents only those heirs who are named as Executor Administrator.
For the probate process to work smoothly, all heirs need to understand that the estate lawyer representing the Executor(s) or Administrator(s) and the Executor or Administrator should communicate with other heirs on estate issues.
Unequal Treatment of Children
Some of the most bitter probate battles I have seen is where a parent leave money or assets unequally to their adult children. For example, among three children the estate is split 50%, 25% and 25% and one of the aggrieved adult children fights with the executor (who has been left 50%) over every little thing. If a parent wants to cut one child out of the will entirely, there is no tactful way to do this. But if the parent just wants to make the distribution a little unequal, my strong advice is for the parent to make gifts while alive to the favored child so that upon the parents' death all children are treated equally and there is less likely to be a fight over distribution of assets.
Sometimes Dad dies leaving bank accounts but also debts larger than the bank accounts and other assets. What is the result? See Creditor's Claims
Support of Surviving Spouse and Minors:
N.R.S. 146.070 provides that if the gross value of the estate, after deducting encumbrances does not exceed $100,000 in value, the estate should be set aside to the surviving spouse and/or minor children. This can be a problem for creditors and for people who would otherwise inherit under a will or the law of who inherits if there is no will. For example, Dick and Jane have a rocky marriage and are probably headed for divorce. Jane's parents have been giving Jane emotional and some financial support. They have no children. Jane dies unexpectedly. Dick has a good job. Under this statute, as interpreted at least in Clark County, Nevada, if Jane's estate is not worth than $100,000, Dick gets her entire estate, regardless of Jane's will.
Order of Death:
Usually who inherits under a will or in the absence depends upon the order of death. For example, Dick and Jane each had three children (with other mates) before they marry, are now married, and have no children together, and are both killed in car wreck. Neither has a will and each has an equal amount of money. How is their money divided between the two sets of kids? In Nevada's version of the simultaneous death act, N.R.S. 135, if it can be shown that Dick died at 11.15 a.m. in an ambulance on the way to the hospital and Jane died at 11:20 a.m. in an ambulance on the way to the hospital, Jane's kids will get more than Dick's kids. In some other states the result would be that since Dick and Jane died within 24 hours of each other, they are considered to have died simultaneously and in the example, the two sets of kids would inherit equally.
Another example of order of death would Tom has life insurance policy that lists as the only beneficiary his girlfriend, Mary. Tom and Mary are killed in a car wreck. If Mary is considered to have died first, then when Tom died there was no beneficiary under his life insurance policy and the pay-out belongs to his intestate heirs, or those heirs who by statute inherit in the absence of a will. If Tom is considered to have died first, the pay-out belongs to Mary's intestate heirs.
What happens if you think someone has died but there is no body? In one case I had California issued a death certificate after a man's caregiver was convicted of his murder even thought a body was never found.
N.R.S. 156.010 through 156.260 deals with the Estates of Missing Persons. A brief summary is that once the person has been missing for three years, N.R.S. 156.120, a probate can be opened up and the property can't be sold (except to pay taxes and in other narrow exceptions) or distributed until a year after the appointment of the personal representative, N.R.S. 156.170. If all of the missing person's property is in a trust and the missing person is the trustee, the remedy would be to apply to the District Court where the missing person resides and have the Court appoint a trustee (probably the successor trustee) and accept jurisdiction of the trust. N.R.S. 164.010.
Can't Find all the Assets:
Some people plan for their death and may leave a folder in a prominent place labelled "In Case of Death" listing their assets, or may describe their assets to an heir. However, other people die without doing this. How, then, are the heirs supposed to know what the assets are? Usually financial accounts generate mail so if one can get the decedent's future mailings most financial accounts may be located. County real estate records are computerized so one can usually go online and see if the decedent left real estate in any particular county. But sometimes assets aren't located until long after a person dies. If the probate has been closed, and a new asset is located there will have to be second probate.
When the Estate Owns Real Estate:
See the bottom of the page on Sale of Real Estate: Sale of Real Estate
Pourover Will and Trust Problems:
A common and good tool estate planning tool to avoid probate is to put everything into a trust. Trusts versus Wills A pourover will is also drawn up that says if any asset didn't make it into the trust and has to go through probate the Probate Court should award the asset to the Trust. We recently were contacted by a Beneficiary in a case where the Decedent was discovered dead of natural causes in his house and the Public Administrator discovered in the house a 25 year old trust and pourover will. Nothing was titled in the name of the trust. All of the successor trustees listed in the Trust had long ago died. Therefore, this probate will require filing two court actions. The first will be a probate of the house and the bank account which were not in the trust. The second will be a separate action also filed in the Probate Court, asking that the beneficiary be appointed the successor trustee. (If the person who was the beneficiary under the trust was the same person who would have inherited in the absence of a will, the Probate Court might have allowed the beneficiary to do the probate as if there were not will which would have avoided a separate trust action. However, in this case, in the absence of the will and trust, a different person would have been the beneficiary.)
HOA Fees, Taxes and Mortgage Owed on Real Estate and/or Real Estate in Poor Condition:
As you might expect, the mortgage company, the Homeowners Association and/or the County Tax Department expect to get paid on schedule even if the owner has died. They all have the option of foreclosing on the property if payments get too far behind. If there are only one or two heirs and they have some cash they will usually keep up these payments so that late fees don't reduce their inheritance. Often, the HOA or mortgage company will hold off on foreclosure if they see that an estate has been opened since they will expect to get paid out of escrow. However, they are not legally required to hold off on foreclosure. Sometimes it is necessary to sell the property at a cheap price to make a quick sale before foreclosure happens. These are usually cases, however, in which there was some big delay in opening the estate.
Likewise, if the real estate is in bad condition and there are one or two heirs who can afford to do so, they will usually pay to fix the property up to get the best sales price. (Realtors can usually advise which things, such as new paint, yard clean-up and de-weeding, fixing code violations, will raise the selling price more than their cost.) However, if there are 14 different heirs or a small number of heirs without the ability to do so, the property may have to be sold at a cheap price without any cosmetic work done to enhance its appeal because no one will advance the cash.
In Clark County, Nevada's most populous county, contested probates are seriously back-logged. Until about 2019 uncontested probates could be moved, if the parties and lawyer acted promptly, as fast as the law allowed. However, beginning in about 2019, it is taking about 5-8 weeks to get an uncontested probate hearing, instead of the prior 2 or 3 weeks. However, this is far better than the case in most California counties where an uncontested probate hearing can take a few months to get a date. Most Nevada counties schedule probate hearings with a few weeks rather than a few months like California.
As of 2019, a lawyer can e-file a Notice of Hearing for a probate case and the Court will accept the Notice with whatever date is on it and place its file-stamp on the notice. Then, later a court clerk checks to see if there is room on the Court's calendar for that case. If there is not, the Court Clerk will issue a new Notice of Hearing with a later date. Sometimes the only way the lawyer know this has happened is if the lawyer checks the case status online and sees the later hearing date, although the Cost Clerk is supposed to send an e-mail advising of the new notice.
Disclaimers versus Re-Assignments
Suppose Mom dies and leaves all she has to her four adult children equally. (Or, if she dies without a will and is unmarried when she dies and only ever had four children, all of whom are adults and still alive, her estate should go equally to those four children.) Now suppose one of her assets is a timeshare and only one of the four adult children wants the timeshare: the other three adult children are glad to have their sibling take over the timeshare.
In this situation, the common thing to do under Nevada law would be have each of three children who do not want the timeshare execute under oath a "Re-Assignment" of their interest in the timeshare to the adult child who wants it. Then the Court will award the timeshare to the heir who actually wants it.
But in some states a "Disclaimer" is commonly done. In such a state the three kids who don't want the timeshare would execute a "Disclaimer" saying they don't want the timeshare or they renounce their interest in the timeshare. In those states, if the three adult children disclaimed their interests all would go to the non-disclaiming child and this is what is stated as the general law of the U.S. in Page on Wills, Bowes Parkes Revision, Section 49.12, “Devolution of renounced devise or legacy”:
”If the will does not contain a general residuary clause, which is capable of passing the property in question, a legacy or devise passes as intestate property upon renunciation.
“If the will contains a general residuary clause, which, by its terms may pass the property in question, a renounced legacy or devise passes under such residuary clause, unless the will shows the testator’s intention to make some other disposition…”
However, in Nevada this procedure can backfire and create huge problems. Under Nevada law, N.R.S. 120.230, the disclaimed share goes not to the other heirs, but to those people who would have inherited from the disclaiming heir if the disclaiming heir had left no will and died after the decedent. These people can be referred to as the "intestate heirs of the living disclaiming heir of the decedent." Now if one or more of this group is a minor child, a real problem is created because the minor child can't give away his interest in the property and the court may not accept the minor child's parent giving away the interest.
In conclusion, in Nevada when one disclaims an inheritance that inheritance may go to the disclaimer's heirs rather than to the remaining heirs of the Decedent unless the disclaimer is written to read like a Re-assignment. This is an example of how probate law can vary from state to state. This also illustrates how a lawyer in one state can give a wrong answer if the lawyer answers a "general question about probate" involving the law of another state.
Probating Stocks and Gold Medallion Signatures
Stocks can be held in an individual’s name or more commonly in “street name.” For example, a person has an account with Schwab and if they buy, for example, 1000 shares of Ford, the car company, they never see a certificate for the 1000 shares, all they see are monthly statements from Schwab showing that they own 1000 shares of Ford. This is known as having the stock in the “street name.”
Back in the “old days,” if someone bought, for example 1000 shares of Ford, they got an expensively printed certificate for 1000 shares of Ford. This certificate was like a car title. Although the shares would have to be sold through a stock broker, the seller would sign the back of the certificate and deliver it to the stockbroker.
Occasionally when we do a probate our client brings in a bunch of old style stock certificates, often for companies not now in business, but for companies which may have been bought out by another company. Do these certificates have value? What we do in this case is either have the client take them to a stockbroker they do business with our take them to a stockbroker we know and ask them to check the certificates out.
More commonly, though, our probate clients bring in a statement showing that the Deceased owned various stocks. The company holding these stocks could be a stock brokerage company like Schwab, or the investment arm of a bank such as Wells Fargo. When the person has all their stocks in one account, it is easier for the Executor or Administrator to deal with.
But sometimes a person will own one or more stocks in various special accounts. For example, some publicly held companies offer a program whereby if the company holds the stock for the individual, all dividends will be re-invested at a discount, say 5%. So, the person lets, for example, Johnson & Johnson hold their Johnson & Johnson stock to take advantage of that program. Or a person retires from a company holding shares of the company, doesn’t have a regular stock brokerage account, and keeps the stocks in account managed by Compushare or some similar company.
So, when doing the probate, the more different institutions holding shares owned by the Deceased, the more of a task it is for the Executor or Administrator.
Getting the shares (or the money the shares are worth) out of an institution is typically a chore. The institution may require a Gold Medallion Signature. Banks offer this service but banks have some liability in doing a Gold Medallion Signature and generally will offer this service only for their own customers. If a Gold Medallion Signature is required it will usually be required of all personal representatives. (A personal representative can be the Executor which is a person named in a Will and usually there is only one Executor, or it can be an Administrator because no one was named in the will and sometimes there are two or three Co-Administrators, especially as Nevada requires an out of state Administrator to have a Nevada resident Co-Administrator.)
In addition to the hassle of a Gold Medallion Signature, some banks and other institutions are demanding that the Letters Testamentary or Letters of Administration (issued by the Court to an Executor or Administrator) be presented to them no more than 60 days after the Court issued them. Thus, it may at times be necessary to get Letters re-issued or to get new copies of the Letters.
Squatters Move Into Decedent's House
Occasionally, after someone dies, squatters break into the Decedent’s home and set-up camp there. Whether the local police will help varies from place to place. Unfortunately, in the Las Vegas area the usual response of Metro (the police force from most of the greater Las Vegas area) is: “We won’t do anything unless you get an order of eviction.” Unfortunately, this takes some time (and extra legal fees) and although it hasn’t yet happened in my practice, other probate lawyers have told me that they got one set of squatters out and as soon as that happened, a second, different set of squatters moved and that required a second eviction proceeding.
Is there a better way? A friend of mine lives two houses down from a Metro cop and when they noticed a squatter in a nearby vacant house the resident Metro cop got his colleagues to roust out the squatters. But not everyone has that sort of connection.
One realtor I work with in a probate where the decedent was a hoarder and left his house in terrible condition has already agreed with the heirs to sell the house to a flipper because none of the heirs wanted to put money into fixing up the house. When this realtor discovered squatters her advice was, “The flippers I work with are used to these problems. We will just sell the house to a flipper and he can deal with the squatters.” (Flippers try to buy real estate cheap and fix it up and sell it for a profit.)
The faster we can get a probate going, the less chance of a squatter problem. During the course of 2019 the minimum time to get a probate hearing went from about 2-3 weeks to about 7 weeks.
However, I am surprised that I run my probates differently than many other probate lawyers I respect. Until 2011, the way to sell property in probate was to notice a court hearing for approval of the sale. That way meant that you needed a first hearing to get the executor or administrator appointed and then a second hearing to approve the sale of the property. But in 2011, Nevada passed the Independent Administration of Estates Act, which allows the administrator or executor to sell the property without court approval as soon as they are appointed as long as all people who will inherit from the sale of the property sign a consent form. Since I take almost exclusively uncontested probates, my administrator or executor can sell property as soon as they are appointed and this minimizes the time that property will be vacant and at risk of squatter problems.
BTW, when a probate is truly uncontested, in my opinion, this is a good reason for the probate attorney to advise a family member (with the consent of all other who will inherit) to move in ASAP to house of the person who died. Vacant properties are more at risk than occupied properties.