PROBATE IS  A COURT PROCESS MUCH LIKE A LAWSUIT

The recent death of  someone you know might have put you in the position of managing their affairs. Probate is a court process where  a decedent's assets  are transferred to living beneficiaries and/ or heirs. Probate happens after a person dies in order to pay lawful creditors and transfer assets that do not have a joint owner or beneficiary designation to rightful legal beneficiaries. The probate process can include proving the validity of a will (if one exists), identifying and locating all of the deceased person's property, determining the value of that property, transferring that property to beneficiaries or legal heirs, and paying a deceased person's debts to valid creditors.

Unless the right type of estate plan is in place, a court  process is generally required to get a deceased person's financial or physical assets to living beneficiaries. A court action is required because a deceased person can no longer sign assets over to living people. Thus, a Probate Court Order is necessary to act as a substitute to deceased persons signature on a bill of sale, deed, or transfer of money. The Probate Court Order is the actual document used to transfer assets to living people. 

This can be scary, stressful, and time consuming. For this reason, I have dedicated my career to not only providing legal assistance for those dealing with probate cases, but providing exceptional estate planning legal services to ensure families do not have to deal with conflict, court, stress and agony associated with a legal issue. Instead families and loved ones should be allowed to grieve without added stress. 

During probate, the court supervises a number of different legal actions, all of which are aimed at finalizing your affairs and settling your estate. Although we'll discuss them more in-depth below, probate typically consists of the following processes:

  • Determining the validity of your will (if you have one).
  • Appointing an executor or administrator to manage the probate process and settle your estate.
  • Locating and valuing all of your assets.
  • Notifying & paying your creditors.
  • Filing & paying your taxes.
  • Distributing your assets to the appropriate beneficiaries.


In most cases, going through all of these steps is a real challenge. It's expensive, can take a long time, and be highly inconvenient, and sometimes, even downright messy.

How Probate Works

How probate plays out is largely determined by whether or not you had a valid will in place at the time of death. However, even in cases where no will exists, or the will is deemed invalid, the probate process is quite similar. Indeed, once the court appoints someone to oversee the probate process on your behalf, the process unfolds in a nearly identical manner, regardless if you had a will or not.

Authenticating The Validity Of A Will:

Following your death, your executor is responsible for filing your will and death certificate with the court, and this initiates the probate process. From there, the court must authenticate your will to ensure it was properly created and executed in accordance with state law, and this may involve a court hearing. In Nevada all original wills must be filed with the court.

Notice of the hearing must be given to all of the beneficiaries named in your will, along with all potential heirs who would stand to inherit under state law in the absence of a will. This hearing gives these individuals the opportunity to contest the validity of your will in order to prevent the document from being admitted to probate.

For example, someone might contest your will on the grounds that it was improperly executed (signed, witnessed, and/or notarized) as required by state law, or someone might claim that you were unduly influenced or coerced to change your will. If such a contest is successful, the court declares your will invalid, which effectively means the document never existed in the first place.

Appointing The Executor Or Administrator:

If you created a will, the court must formally appoint the person you named in your will as your executor before they can legally act on your behalf. If you died without a will, the court will appoint someone—typically your closest living relative—to serve in this role, known as your personal representative or administrator.

In some cases, the court might require your executor to post a bond before they can serve. The bond functions as an insurance policy to reimburse the estate in the event the executor makes a serious error during probate that financially damages the estate.

Locating & Valuing Your Assets:

Once probate begins, the executor must identify, locate, and take possession of all of your assets, so they can be appraised to determine the total value of your estate. This includes not only those assets listed in your will and other estate planning documents, but also those you may have not included in your estate plan. This is why keeping a regularly updated inventory of your assets is so important.

Any assets the executor is unable to locate will end up in our state's Department of Unclaimed Property. Across the U.S., there is more than $58 billion (yes, that's billion with a ‘b') of assets stuck in state Departments of Unclaimed Property.  Fortunately, this is easy to prevent when you work with us. 

In the case of real estate, although the executor is not expected to actually move into your home or other residence, he or she is required to ensure that your mortgage, homeowners insurance, and property taxes are paid while probate is ongoing. These and all other debts can be paid from your estate. 

Once all of your assets have been located, the executor must determine their value, which is typically done using financial statements and/or appraisals. From there, the combined value of all of your assets is used to estimate the total value of your estate.

Notifying & Paying Your Creditors:

To ensure all of your outstanding debts are paid before your assets are distributed, the executor must notify all of your creditors of your death. In most states, any unknown creditors can be notified by publishing a death notice with your local newspaper.

Creditors typically have a limited period of time—usually one year—after being notified to make claims against your estate. The executor can challenge any creditor claims he or she considers invalid, and in turn, the creditor can petition the court to rule on whether the claim must be paid. From there, valid creditor claims are then paid. The executor will use your estate funds to pay all of your final bills, including any outstanding medical and funeral expenses.

Filing & Paying Your Taxes:

In addition to paying all of your outstanding private debts, the executor is also responsible for filing and paying any outstanding taxes you owe to the government at the time of death. This includes personal income and capital-gains taxes, as well as state and federal estate taxes, if your estate is valuable enough to qualify. 

That said, the federal estate tax exemption is currently set at $11.7 million for individuals and $23.4 million for married couples, so most families won't have to worry about estate taxes. And for those who do exceed that threshold, there are several strategies you can use to reduce the size of your estate to avoid these taxes.

Distribution Of Your Remaining Assets:

Once the court confirms all of your debts and taxes have been paid—which typically requires the executor to file an accounting of all transactions he or she engaged in during the probate process—the executor can petition the court for authorization to distribute the remaining assets in your estate to the beneficiaries named in your will, or according to state intestate succession laws, if you didn't have a will.

Once all assets have been distributed, the executor must file a petition with the court to close probate. If all creditors and taxes have been paid, your assets have been distributed, and there are no other outstanding issues to be addressed, the court will issue an order formally closing the estate and terminating the executor's appointment.

 

HOW LONG DOES PROBATE TAKE & HOW MUCH DOES IT COST?

 

The length and cost for a probate case depends on the level of probate court administration that is required. 

  • The HIGHER the estate's value, the longer it's going to take to get through probate and the more money it's going to cost you in attorney's fees.

  • The LOWER the value, the less time less expensive the process will be.

 

WHAT ARE THE DIFFERENT LEVELS OF PROBATE COURT ADMINISTRATION IN CLARK COUNTY, NV?

 

  1.  "Set Aside without Administration" This is for estates that are worth under $100,000 total. These usually take three months or less and cost the least.

  2. "Summary Administration", is for assets that are valued between $100,000 and $300,000. Many probate cases fall under this level, and it usually takes six to nine months, depending on the circumstances.

  3. Estates above $300,000 are called "General Administration". This level will take you nine months or longer to get through and will be the most expensive.

 

If you want to talk about probate or estate planning to avoid the probate process in Nevada, please feel free to give our office a call. We offer complimentary 15 minute phone consults.