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PROBATE - So What's the Big Deal?

Probate is the court process in which a deceased person's estate is administered and distributed. It generally includes:

Proving in court that a deceased person’s will is valid (usually a routine matter)
Gathering and inventorying the deceased person’s property
Valuing and appraising the decedent’s property
Identifying and paying creditors and taxes (and cutting off the claims of creditors who fail to file timely claims)
Distributing the remaining property as provided for in the person’s will (or as provided by state law if there is no will)

A will by itself does not transfer property from the deceased person's name to his beneficiaries. What really transfers title to the property is the Court Order at the end of the court process.

This process is sometimes characterized as being expensive, complicated, and time consuming. While these descriptions are sometimes accurate, most of the time they simply aren't true.

Here's how it works:

When a person dies, his or her original Will is lodged (filed) with the Court.

The person named as "personal representative" (also known as the "executor") files a Petition for Probate with the Court. This Petition is prepared with the help of an attorney. The Petition recites the facts about the person's death, identifies the names and addresses of the heirs or beneficiaries, briefly describes the size and nature of the Estate property, identifies the Will and vouches for its authenticity, and asks that the Will be admitted to probate.

A hearing is scheduled for the Court to determine the truth of the Petition, and all interested parties are given notice of when and where the hearing will be held. Anyone who wants to contest the Will can do so at the hearing.

At the hearing, if the Court finds the allegations of the Petition to be true, the Court enters an order admitting the Will to probate and appointing the proper person to be the Personal Representative. The Personal Representative is usually named as such in the Will.

The Personal Representative then publishes a Notice to Creditors. The Notice requires any creditors to file a proof of claim within either 60 or 90 days depending on the size of the Estate. If the creditor doesn't file with the Court within the allowed period, the creditor's claim is cut off forever.

The Personal Representative is required to file an Inventory of the Estate Assets within the first 60 days. Often the Inventory is accompanied by an appraisal.
In most estates the Personal Representative can start wrapping things up as soon as the time for filing creditors' claims has expired, i.e. within 60 to 90 days. This includes preparing and filing an accounting of the assets which have been received, the disbursements which have been made, and the value of assets then on hand. The accounting is usually accompanied by a Petition for Distribution, which requests authority to distribute the remaining assets according to the Will. The Petition also asks for authority to pay creditors claims, to reimburse the Personal Representative for any costs he has advanced, to pay compensation to the Personal Representative (which is often waived by family members), and to pay attorney's fees and costs. The attorney's fees and costs must be justified to the Court and supported by time records.

A hearing is set for the Court to consider and approve the Accounting and Petition for Distribution. All heirs and other interested parties are given notice of the hearing. They can appear at the hearing to register any objections which they may have to the Accounting or the Petition.

If the Court finds the Accounting and Petition to be in order, the Court enters an Order approving the Accounting, authorizing the payment of funds requested in the Petition, and authorizing the remaining property to be distributed according to the Will.

In most estates the Court process can be completed within 6 months.

The things that could delay the close of the process include complications arising from ongoing businesses, the necessity to file Estate Tax Returns, and the inability to sell assets which must be liquidated to fund the payment of tax or creditor claims.

Sometimes probate can be avoided for small estates . . .

If an estate is valued at $20,000 or less and does not include real estate, it may be possible to transfer the estate assets by using an affidavit meeting the requirements of NRS 146.080.

If an estate is valued at $100,000 or less, it may be possible to set aside the administration of the estate without probate as provided in NRS 146.070.

To learn more about the handling of small estates without formal probate, see Chapter 146 of Nevada Revised Statutes.

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Our firm is well skilled and knowledgeable about Probate. In the absence of complicating issues, we are often able to conclude probates within 6 months! For a 1/2 hour no-charge consultation with Dave Guinan, please click here.

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