Nevada Probate Without a Will: An Overview
Probate is the legal process of handling a deceased person’s estate, making sure debts are paid and that the remaining assets are distributed according to the law, or according to a will if there is a valid one. In the state of Nevada, there are laws in place governing the disposition of property for those who pass away without a will or trust.
Probate is needed whether or not there is a will. In fact, the main job of probate court is to determine if there is a valid will. If it determines there is a valid will then it will distribute property according to the terms of that will . If there is no will, or the Court determined there is not a valid will, then it distributes property according to Nevada probate law.
Probate is an expensive process that goes on for years. It’s time-consuming and, unfortunately, public. At this time, there are valid reasons for having a will and for having a living trust. But there are also some misconceptions. This blog does not provide any legal advice, only information about what the law says.
A certain amount of property is exempt from probate. Those items include: life insurance policies, retirement accounts, bank accounts with POD designations, real estate with a transfer on death designation, and property held in trust.
Intestate Inheritance in Nevada
In the absence of a Will, the Nevada Revised Statutes determine who may inherit your property. Dying intestate refers to the state of having died without a valid Will and in this case, there is a hierarchy of heirs that are set forth in law. These heirs are entitled to compensation only after all debts are paid, including taxes. The hierarchy for inheritance in Nevada, according to NRS 134.040, is as follows: NRS 134.040 Priority of heirs entitled to personal estate 1. The whole of the personal estate of the intestate not otherwise disposed of descends to: (a) The issue of the intestate and their issue, in equal degree; (b) If there is no issue, then to the father and mother or to either of them in equal shares; or to their legal representatives, in equal degree. (c) If there is no issue, father, mother or legal representatives of either. (d) If there is no issue, parent or legal representatives of either parent. (e) If there is no issue, brother and sister. (f) If there is no issue, grandparents, uncles or aunts, and their issue, in equal degree. 2. In accordance with NRS 120.050, if there are no surviving relatives as set forth in subsection 1, the whole of the personal estate must be paid to the Public Administrator of the county where the decedent was domiciled at the time of death. 3. The personal estate descends in the order named, and so on, as further degrees of kindred exist, excepting that no personal estate may descend or be distributed to any person parricide, as defined in NRS 200.310, until the person convicted of being a parricide has made reparation for the portion to which he or she would otherwise have been entitled. 4. Nothing in this section affects a right of the State to recover public assistance provided to the recipient in accordance with ZB 98-153.
Who is Appointed as Administrator?
In the absence of a will, the individual or entity eligible to have an administrator appointed are those who are not disqualified under the Nevada Revised Statutes (NRS). NRS 132.005 sets forth the classes of individuals and/or entities that may be appointed as administrator:
a) When the decedent is survived by a parent, the surviving parent.
(b) When the decedent is survived by more than one parent, a surviving parent designated by a surviving child of the decedent, or if there is no surviving child, the surviving parent.
(c) When the decedent was not married at the time of death, by the parents of the decedent.
(d) If the decedent has children but no surviving parent, by the spouse of the decedent.
(e) If the decedent has no children, by the surviving spouse of the decedent.
(f) If none of the above are available, by any of the following persons in the following order:
(1) Adult child of the decedent, adult grandchild of the decedent, adult brother and sister of the decedent, adult niece and nephew of the decedent, surviving spouse of the decedent, or person who is nominated in writing by any two adult children, adult grandchildren, adult brothers or sisters, adult nieces or nephews or the surviving spouse of the decedent.
(2) If none of the persons mentioned in sub-paragraph (1) is available, any of the following:
(I) Adults who would be entitled to inherit from the decedent’s estate pursuant to paragraph (b) or (c) of subsection 1 of NRS 134.040.
(II) Adult persons who are entitled to share in the estate of the decedent under an agreement with the decedent.
(g) If none of the above are available, by any other person.
A single interested party may be appointed as administrator. All interested parties may nominate a single common administrator. NRS 132.020. Generally, an eligible applicant files a Petition for probate of intestate estate and request for appointment of administrator, with notice to all interested parties. Submitting no objection to the Petition is considered a consent to the appointment as administrator. Id.
How Long Does the Process Take?
The probate process after someone dies without a will is generally the same as the process after someone dies with a will. The process takes place in probate court, and both processes involve estate administration.
In Nevada, the person who petitioned the court to open the probate case must give notice to all persons who would inherit from the decedent if he or she had died without a will. This does not include all heirs, which refers to people who are related to the decedent. Instead, the people who must be notified are those who are described in Nevada Revised Statutes section 132.320. These are common relatives and people who were named in a previous will as well as those who would inherit from the decedent under intestacy law governing that situation. If the decedent was not married and had no children, those described by Nevada Revised Statutes section 116 will receive notice. If the decedent did not name anyone in a will but had descendants, those who would inherit under intestacy laws will receive notice. Those heirs include each living parent of the decedent, siblings and their descendants, grandparents and their descendants, and great-grandparents and their descendants.
The deadline for filing a petition to appoint a personal representative is 40 days after the death of the decedent, but court procedures take time. After the petition is filed, an order appointing the personal representative is requested. Once the personal representative receives the order, notice to all heirs must be given within 30 days. Once the heirs receive notice, they have 30 days to file a written objection, or their claims will be barred.
Common Issues Associated with Intestate Estates
Even when minimal issues occur, probate without a will can present numerous challenges and complications. Family disputes may arise over which heirs are entitled to which assets. In some cases, other relatives may seek to be named as the executor, while in others, creditors may come out of the woodwork. Intestate probate also often brings to light unprotected property that may not be known to the family. In some instances, such as a lifetime estate, the decedent might try to sell a portion of the residence before death. In such a case, the income from the sale would go into the estate, which would upset any expected partition. Likewise , jointly-titled assets can create issues when the person to whom the asset belongs passes away. If one spouse has a home, mortgage, and personal property, the surviving spouse may expect to receive all of it, and neglect to inform the executor. However, the executor will be charged with locating the rightful beneficiaries, and even smaller debts owed to the decedent will require extensive proof. When individuals have not been previously notified, they may refuse to turn over property that was supposed to belong to the decedent, or refuse to allow access to personal property for the purpose of appraisal and inventory.
Avoiding Issues With Probate
Even in the best of circumstances, working with a will can be complicated. Taking a will written in another state and enforcing it in Nevada can be a frustrating experience. The complications increase significantly when the person whose estate is in question has no will at all when they pass. This means someone will have to petition the court to receive a legal right in the estate. If not handled properly, this can lead to disputes that lengthen and complicate the process.
The best way to lessen complications and conflicts is to engage in estate planning. Leaving no will in Nevada is generally bad business. When a will has not been left for the court to consider, Nevada’s probate laws control how the estate will be divided. Not having a will is an invitation for disputes and challenges. Not only will the estate take longer to settle, but it could cost more to settle as well. That means family members might wait a long time to receive their inheritance and, depending on how long the process takes, their inheritance could be worth less since it won’t keep up with inflation.
Legal guidance will also make the process easier. An attorney will understand how the legal language works in the court system and can point out any potential hurdles that may be encountered.
When to Seek Professional Help
As with many areas of estate planning, engaging a Nevada probate attorney early on may save more time and money in the long run. If you have no idea how to proceed with a probate or know little about probate in Nevada, a consultation with a probate attorney will help point you in the right direction. If you are a personal representative, you should be aware of the many responsibilities and deadlines that come with the position. A knowledgeable probate attorney can help ensure that you meet those requirements and navigate the process smoothly.
In addition to helping with the administration of the probate estate, an attorney may also help you avoid the expense of having to go to court if you are a creditor of the estate or have concerns about the manner in which the probate estate is being handled. In the unfortunate circumstance where you expect litigation over the estate , you will want an attorney on your side who is experienced in Nevada estate law.
Choosing the right legal expert can save you time and money. Finding a local attorney will support your estate planning needs. While you may be tempted to try to retain an attorney via the internet, that may not be a good fit for your local needs. Nevada estate planning laws vary from state to state, and you will want a lawyer to be familiar with your local court and estate administration process. Finding the right lawyer may be a challenge, but it can be well worth the effort. Ask friends or family members for references if this is possible. Check online for reviews by prior clients. Schedule an appointment with a few firms first, and don’t be afraid to ask pointed questions. What is the attorney’s communication style? What about fees? How much experience does the attorney have, and how many similar cases has he/she handled? A firm that works with many clients can often give you information about Nevada estate and probate that you may find useful even before you hire them.