What Does a Nevada Probate Involve?
A loved one has died. Do I need to probate? The first question you need to answer is: Are there any assets titled in the decedent’s name alone? If so, the next question that you need to answer is: Was there a beneficiary named on this asset? If you answer is then no, then you need to be aware of the various steps of probate under the Nevada Revised Statutes (NRS), as follows:
a. Affidavit of Entitlement. If the probate estate is valued at $25,000 or less and does not include any interest in real property (including a mortgage, lien, or trust deed), the assets can be claimed by an affidavit, and a court proceeding is not required. A surviving spouse can claim an estate value up to $100,000. Under the statute (NRS 146.080), the claimant must be entitled to the assets by intestate succession or under the decedent's will. An affidavit is not valid until 40 days have elapsed since the decedent's death, and it does not work if there is a probate proceeding in any other jurisdiction. Filing a false affidavit is a felony in Nevada.
b. Setting Aside Assets without Administration. If the probate estate is valued at $100,000 or less, the assets can be set aside without administration by court order. In determining the value of the estate, liens and encumbrances are deducted, so that an estate consisting solely of a $170,000 home with an $80,000 mortgage would qualify for this procedure. This requires the filing of a petition and a court hearing, but a personal representative (executor or administrator) is not appointed and a formal probate proceeding is not required. If there is a spouse or one or more minor children, the court has the discretion to disregard creditors and will provisions.
c. Summary Administration. An estate of $300,000 or less can qualify for Nevada's "summary administration". This is a formal probate procedure where the notice of the hearing on the initial petition need not be published, and the creditors' claim period is shortened from 90 to 60 days. Other than the shortened creditors' claim period and relief from some notice requirements, there is no significant benefit from this procedure, and if assets are shown to exceed $300,000, then extra steps are needed to cancel the summary administration and proceed with a standard administration proceeding.
d. Regular Administration. For estates over $300,000, a regular probate administration procedure is the usual course of action. The process is outlined as follows (with optional items marked with an asterisk):
*Petition for opening of safe deposit box.
*Petition for appointment of special administrator if there is an urgency or if there will be a contest relating to the probate of the will or the appointment of a permanent personal representative.
*Petition for appointment of a personal representative and for probate (court acceptance) of the will.
Notice of hearing on initial petition is mailed to heirs and will beneficiaries.
*Contests are filed opposing appointment of the personal representative and/or probate of will.
Hearing on initial petition; Court appoints a personal representative.
During the estate-administration period, which begins when the court grants the order formally appointing the personal representative and ends when the court issues an order formally discharging the personal representative:
(1) Notice to creditors is published. (The creditors' claim period is 90 days unless summary administration is allowed, in which case there is a 60-day creditors' claim period.)
(2) The personal representative obtains appraisals, gathers assets, and prepares an inventory of the estate. The inventory contains a list of all assets and their respective values (as of the decedent's date of death).
(3) The personal representative pays priority claims and reviews other claims.
(4) The personal representative makes sure that all estate property is properly protected and prudently invested. As needed, the personal representative petitions for instructions, for confirmation of the sale of assets, for authorization to continue or conduct businesses, and for permission to make specific investments.
After 6 months (or 18 months, if an estate tax return is required), the personal representative files an explanation why the estate is not closed.
An accounting is required annually until the court orders the final distribution.
After the court orders a final distribution:
(1) The personal representative makes the approved distribution of the estate's assets and obtains receipts.
(2) Upon the filing of all distributees' receipts, the court issues an order of final discharge.
e. Independent Administration. Since October 1, 2011, Nevada law has permitted a personal representative to ask for the “independent administration” of the estate. This is not appropriate if there are expected to be controversies or disputes, but it can be appropriate if all of those involved — the will beneficiaries (or the decedent’s heirs if there is no will) and the personal representative — can work together without having to resort to the court to resolve disputes. When independent administration is granted, the number of things that require court approval is significantly reduced, and that should reduce the attorneys’ fees (assuming that the attorney and his staff are billing for their time by the hour). For some actions, such as the sale of real property, the personal representative will give a “notice of proposed action” to the heirs or will beneficiaries, and if no one objects to the proposed action, the personal representative can proceed without court approval. If someone objects, the personal representative should not proceed without first obtaining court approval.