Probate is the legal process that happens after a person dies to pay lawful creditors and transfer assets to rightful beneficiaries. This can include proving the validity of a will, identifying the deceased person's property and the value of that property, transferring that property, and paying debts.
Answers to some basic questions are below. However, estate planning and figuring out how to probate an estate can be complicated. It is always advisable to check with an attorney if you have questions or need help.
Is probate necessary in Nevada?
Probate is not always necessary. Planning ahead can make sure that co-owners or beneficiaries are identified on assets, and those named are automatically entitled to property when a person dies.
However, if someone dies with property that doesn't automatically transfer upon his/her death, or there is a dispute as to who has the right to inherit property, then probate is probably necessary. If the decedent owed debts, probate might help resolve the creditors’ claims.
When is a will valid?
The laws about the validity of wills are in NRS 133. The judge will decide whether a will is valid. A will, or something that you think could be a will, should be submitted to the court when the person who wrote the will dies.
Wills must be in writing (not oral), signed by the person making the will or someone they direct, and signed by two competent witnesses. A will can contain a self-proving declaration where a notary public attests to the witnesses' signatures.
Wills that are entirely handwritten and signed only by the person who died are called holographic wills. In Nevada, holographic wills are acceptable if they are (1) dated; (2) signed; and (3) contain provisions that say who gets what (e.g., my truck should go to Jane) upon death. To prove a holographic will is valid, you might need to give the court either two affidavits from two "non-takers" (people who will not get anything under the will) saying that they knew the decedent's handwriting or a handwriting expert's testimony.
Electronic wills are sometimes valid in Nevada. They do not require witnesses. They must be:
- written, created, and stored in an electronic record;
- contain the date and electronic signature of the person making the will which includes at least one authentication characteristic of the testator; and
- be created and stored in a way that (1) only one authoritative copy exists; (2) that the copy is maintained and controlled by the testator or a custodian designated by the testator; (3) that any attempted alteration of the authoritative copy is readily identifiable; and (4) that each copy of the authoritative copy is readily identifiable as a copy.
If someone dies without a valid will, who has the right to the property?
If someone dies without a will, or if the will is considered invalid, then the estate will pass through the laws of intestate succession in Nevada. The laws of intestate succession are complicated and depend on whether there is a surviving spouse, children, parents, siblings, and/or grandchildren. These relatives may get different percentages of the estate value depending on which relatives are legally entitled to inherit.
The list of relatives and the order of priority for who inherits is in NRS 134.
Will I be responsible for debts owed by the person who died?
You will not be responsible for the debts unless you were a co-signer who is jointly obligated on the debt. For example, if the decedent was your spouse and you both signed for a credit card, you will still be responsible for that debt. Another example is if you co-signed on your deceased sibling's car loan, you will be responsible for the loan.
The probate process for larger estates may require creditors to be noticed of the death. Creditors might be entitled to some of the estate assets depending on creditors’ classification, if they participate in the probate process, and the value of the estate. The creditors could get paid from the estate first, leaving fewer assets to distribute to the heirs and those named in a will.
What are the different types of probate in Nevada?
There are four different types of probate administration (ways to distribute the decedent's estate) in Nevada. You will need to know the value of the estate to decide which probate administration is appropriate (The value of the estate is the gross value of all the decedent's assets minus debts and mortgages).
Estates less than $25,000:
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If there is no real property (houses/land), the next of kin can complete an Affidavit of Entitlement and present it to the entity holding the property you wish to take. This avoids court entirely. If the agency that has the property requires a court order, you could complete a Petition for Direct Transfer of Property to obtain a court order to transfer the property listed in the Affidavit.
Estates less than $150,000:
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If you are the surviving spouse, and the decedent died without any real property (homes or land), and the decedent's estate is less than $150,000, then you can complete an Affidavit of Entitlement and present it to the entity holding the property you wish to take. If the agency that has the property requires a court order, you could complete a Petition for Direct Transfer of Property to obtain a court order.
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If decedent left real property (homes or land) and/or if someone other than a spouse claims to be entitled to the property, you can file a Petition to Set Aside Estate Without Administration. This requires a court hearing and notice to all relatives and creditors, but the process takes less time than probates of larger estates.
Estates between $150,000.01-$500,000: A Summary Administration probate is needed for estates of this value. It is highly recommended you hire an attorney. There are no self-help forms available for this kind of estate.
Estates over $500,000: A General Administration probate is needed to distribute an estate valued at over $500,000. This is a long and complicated kind of probate, and it is highly recommended you hire an attorney. There are no self-help forms available for this kind of estate.
