Summarizes What has to be probated in Nevada and the Nevada Court procedures.
When Do You Need to File in a Nevada Probate Court?
All real estate in Nevada, including timeshares, has to be probated in Nevada, unless title upon death passes outside of probate because, for example, property is held in a trust, in joint tenancy, or there is a transfer on death deed. In addition, if the person who died was a Nevada resident, then all personal property of that person must be probated in Nevada, unless the property is held in a joint account, or in pay on death account. Unfortunately, this rule along with the rules of other states means that sometimes an estate must be probated in more than one state.
What are the Nevada Probate Procedures?
Nevada has four levels of complexity for probate procedures. If the probate estate is worth no more than $20,000 and does not include real estate and all debts are taken care, property may be transferred by an affidavit of entitlement without lawyer involvement. (To see a sample affidavit form, Google "Clark County, Nevada, District Court," navigate to the district court then to the family court and then to probate and you will see sample forms.) The next level of complexity, which requires a lawyer for most people, is called a "Set Aside without Administration." This procedure is for estates involving no more than $100,000 in value. In calculating this limit, a mortgage on real estate may be deducted from the value of the real estate. In the simplest case, this procedure is done within a month. The third level of complexity is "Summary Administration" for estates not exceeding $200,000 in value. In this procedure a personal representative, either an administrator or executor is appointed, a 60 day notice to creditors is published, and in the fastest case, this procedure takes four months. The final level of complexity is "General Administration," for estates worth more than $200,000. This procedure requires both publication of the hearing to appoint the personal representative and publication of a 90 day notice to creditors. In the fastest scenario, this procedure takes 5-6 months.
What Do Lawyers Charge to do Probate in Nevada?
There is a huge variation in what different lawyers will charge to probate the same estate. For example, if the estate has a gross value of more than $100,000, lawyers may legally charge 4% of the first $100,000, 3% of the second $100,000, and 2% of the next $800,000 if the client agrees. And these figures are based on the gross value of real estate without regard to any mortgages. In contrast, my firm charges $3150 for the first $100,000 and 2% on anything over and we calculate on net value: the value of the real estate minus any mortgages. Even more amazingly, lawyers are allowed to charge by the hour and to charge their paralegals' time at their own rate and some lawyers even get clients to sign retainer agreements providing that the lawyer gets the HIGHER of an hourly rate OR the statutory fee. THERE IS ON SUCH THING AS A STANDARD PROBATE FEE FOR ATTORNEYS IN NEVADA
What are the other Costs of Probate in Nevada?
The personal representative, either the executor or administrator may charge $3150 on the first $100,000 of value and 2% on anything over. These amounts are based on the net value of real estate (value minus mortgage). Also there will be filing fees and publication fees which vary by county and size of the estate. In Clark County, home to Las Vegas, figure on filing and publication fees of about $400 for estates under $200,000 and about $750 for estates over $200,000.
Is a Will Necessary for Probate?
A lot of people think that if they just get their will written, they have taken care of things when they die. This is often not the case. A valid will simply says who gets what whent he person dies, but for the will to be effective, it must be probated. If a person dies without a will Nevada law sets out a priority list of next of kin who get the dead person's property. In many cases the distribution would be same whether or not there is a will. For example, Mom, who is unmarried because Dad died earlier and Mom never re-married, wants her three adult children to inherit equally. They will, with or without a will.
What is the Advantage of Having a Will in the Above Example?
If, in the above example, Mom writes a valid will, she can name one of the adult children to serve as Executor without bond. That child can then be the personal representative of the estate whether or not the child is a Nevada resident. If Mom were to die w/o a will, and if none of her three adult children resided in Nevada, they would still inherit but would have to work with a Nevada resident Co-administrator. Also, if real estate is given in a will to a person other than a child, parent, or spouse, the real estate transfer tax is avoided with a will but not without a will. But, before a person writes a will they should think about doing a trust to avoid the expense of probate, as discussed above.
When is a Nevada will Invalid?
There are three types of challenges to a Nevada will. The first is that there is a defect in the way the will was written. For example, either a will must be written entirely in handwriting (holographic will) or it must be signed by the writer and two persons who witnesses the signing must execute on the will specific affidavits or declarations. A second type of problem with a will is that a surviving spouse may claim a community property interest in property supposedly given to someone else. For example, Mom and Dad buy a house with community property money and take title only in Dad's name. Dad dies and wills the whole house to Son. Mom can say half was hers. Or, under N.R.S. 146.070 if the probate estate is worth not more than $100,000, minor children and the surviving spouse get the estate regardless of the will. Finally, a will can be challenged on grounds of undue influence. For example, an old man changes his will on his deathbed to give everything to a caretaker he hired six months ago. This last type of challenge is a complex issue, hard to address in a quick guide.
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