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What is Probate?
Probate is the process of proving the validity of a will, transferring property, and settling the affairs of the deceased’s estate. If there is no will, a similar process known as Administration is used to settle the deceased’s affairs.
When should a Probate be opened?
As soon as practical following the person’s death. In Nevada, if the total amount of the deceased
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person’s assets exceed $20,000, or if real estate is involved, probate will be required and there is normally no reason to delay starting the process. In any case, a person in possession of the deceased person’s will must file it with the court within 30 days of the death.
If
a probate or administration of an estate is not required, how do I
inherit a deceased person’s assets?
If there are no real estate holdings and the value of the estate is
under $20,000, the surviving family member(s) or a sole beneficiary
entitled to inherit the property in question may initiate
proceedings 40 days after the death. These parties may use a form
called affidavit of survivorship to apply for release of the asset(s)
from any person or business holding those assets (such as a bank,
stock brokerage company or pension plan administrator).
Who can withdraw funds from a deceased person’s bank account?
If the account is held jointly, the surviving owner is entitled to
withdraw the money or delete the deceased person’s name from the
account. If the account is held “in trust for” a beneficiary, the
funds may be paid directly to that beneficiary when the appropriate
documents are presented to the financial institution. For example,
you may need a certified copy of the death certificate, proof that
the deceased is the same person who owned the account and proof that
the person requesting release of the funds is the named beneficiary.
What if the estate is worth more than $20,000?
If the deceased person’s assets exceed $20,000 or real estate is
part of the estate, probate or administration must be used. However,
if the value of the deceased person’s assets subject to probate is
less than $50,000 exclusive of liens, a special petition to the
court by the beneficiaries or heirs may allow distribution without
further proceedings. The only person allowed access to the deceased
person’s assets will be the court-appointed Administrator or
Executor of the estate. The Administrator or Executor will receive a
document called “Letters of Testmentary” or “Articles of
Administration” which will be issued by the court, and outlines the
Administrator’s or Executor’s authority and responsibility.
Do
I need an attorney to open a probate or administration?
Although you can maintain a probate or administration yourself, it
is strongly recommended that you seek the assistance of an
attorney who has experience with estate matters. A qualified
attorney can guide you through the probate or administration process
(including proper notification of other potential beneficiaries of
the estate) and can be helpful if a dispute arises with creditors or
other potential heirs.
Will the Executor need to obtain a separate Tax Identification
Number for the Estate?
Yes. A Tax Identification Number for an estate normally is required.
You should not use the deceased person’s social security number in
most cases. A Tax Identification Number for the estate can be
obtained from the Internal Revenue Service.
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Is the Administrator or Executor of an estate personally liable for the deceased person’s debts?
No, not normally. However, the Executor or Administrator is obligated to act in the best interests of the estate and its beneficiaries. It is advisable to consult with an attorney regarding the duties and obligations of an Executor or Administrator prior to accepting that responsibility.
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Can I become the Executor or Administrator of an Estate if I do not live in Nevada?
Yes. The State of Nevada does not impose restrictions on residency of an Executor, but does require a non-resident administrator to associate a Nevada bank as co-administrator.
How long does Probate or Administration normally take?
In a routine probate proceeding, you can expect a minimum probate
period of from 120 to 180 days. This allows for publication of
creditor notices and gives creditors time to file claims. However,
probate and estate administration often take much longer if
complications arise.
Is
there a time limit for starting Probate or Administration
proceedings?
No. However, it is important to begin as soon as possible so assets
can be protected and inventoried, final tax returns can be filed and
the debts of the estate paid.
How do I start Probate or Administration proceedings?
You petition the court to commence probate or administration through
formal court documents.
How much will it cost to hire an attorney to process a Probate or
Administration?
The cost of probate or administration will vary depending upon the
complexity of the estate. A basic probate may take between 10 and 20
hours of any attorney’s time. Complex probates or administration may
involve hundreds of hours of time. You will need to compare rates of
attorneys in your area.
How do I find an attorney with experience in estate matters?
You can contact the State Bar of Nevada’s Lawyer Referral &
Information Service at 702-382-0504 (toll free in Nevada at
800-789-5747) or look in the Yellow Pages of your telephone
directory. You can also ask friends and/or relatives if they can
recommend a good lawyer. The State Bar can tell you whether or not
an attorney is licensed in Nevada and in good standing.
