OVERVIEW OF PROBATE

What is Probate?

Probate is the legal process by which assets that are owned in a person’s individual name at their death are transferred to their heirs or beneficiaries, typically in the manner prescribed by the decedent’s will.

A probate is necessary any time a person passes away owning property in their individual name that does not have a mechanism already in place for transfer (such as Rights of Survivorship, Pay on Death (POD) or Transfer on Death (TOD) designations). A will does not automatically transfer legal title of assets to beneficiaries; it merely directs a court as to who should receive the decedent’s property. A court order makes the transfer of a decedent’s property to a beneficiary legally binding.

If a person dies with no property held in their name (e.g., has a living trust which owns all their property), no probate proceeding is necessary.

Probate involves several steps:

Appointing an executor/administrator to handle the probate

Gathering property owned by the person who died

Notifying creditors and beneficiaries or heirs

Handling debts and taxes

Wrapping up business affairs

Transferring legal title of the property owned by the decedent to heirs or beneficiaries

Filing state, federal, or any other necessary court documents

How Much Does Probate Cost?

It depends. Some probate expenses include court filing fees, accounting fees, administrative fees, executor/administrator fees and legal fees. The amount of each depends on the size of the estate, the kind of assets owned by the decedent, whether any beneficiaries or heirs contest the proceeding, etc.

Will A Person’s Property And Assets Go To The State If They Don’t Have a Will? 

Only in very rare circumstances. When a person dies without a will or other estate planning documents, they die “intestate,” which means that the person’s property will be distributed according to the applicable state’s “succession” statutes. These so‑called “succession” statutes provide for the passage of a decedent’s property and assets to the decedent’s heirs according to the heirs’ relationship to the decedent.

In Nevada, for example, if a person dies without a will or other estate planning documents, the probate court will distribute the decedent’s separate property as follows:

If the decedent dies with a spouse and one child, his property will go half to the surviving spouse and half to the child.

If the decedent dies with a spouse and more than one child, the surviving spouse will receive one‑third and the remainder will be split between the children and the issue of any deceased children by right of representation.

If the decedent dies with a spouse and no children, the estate will go half to the surviving spouse, one‑fourth to the father of the decedent and one‑fourth to the mother of the decedent if they are both living. If both parents are not living, one‑half will go to either the father or mother then living.

• If the decedent dies with a spouse, no children and no parents, the estate will go half to the surviving spouse and the other half will go in equal shares to the brothers and sisters of the decedent.

• If the decedent dies leaving no spouse or lineal descendants, the estate will go half to the father of the decedent and half to the mother of the decedent, if both are living. If both parents are not living, the whole estate goes to either the father or mother then living.

• If the decedent leaves no lineal descendents, father, mother, brother or sister, then all the estate will pass to the surviving spouse.

• If the decedent dies with no spouse, no lineal descendents, or father or mother, then the estate goes in equal shares to the brothers and sisters of the decedent and to the lawful issue of any deceased brother or sister by right of representation.

• If the decedent leaves no lineal descendants, surviving spouse, father or mother, and no brother or sister living at the time of death, the estate goes to the next of kin in equal degree.

• If the decedent dies leaving no surviving spouse but has children, the estate will be divided among them by right of representation.

• Then, only if the decedent leaves no surviving spouse or kindred, the estate escheats to the state for educational purposes.

How Long Does a Probate Take?

How long a probate takes depends on a number of factors, including:

• The value, nature and type of property owned by the decedent at his or her death

• If there is any conflict or disagreement between heirs, beneficiaries or potential heirs or beneficiaries

• Whether there is a will or whether the decedent passed away intestate.

Thus, a probate can take a day, or it can take months or years if the estate has a high value or beneficiaries and heirs fight over who gets what.

Types Of Administrations

• Affidavit of Entitlement for Estates Less than $25,000 (no real property)

This Affidavit of Entitlement process requires an Affidavit of Entitlement to be filled out and signed in front of a notary at least 40 days after the decedent’s death. If there are people of equal or higher priority than you who are entitled to the estate, then you have to give them 14 days notice before signing the affidavit.

 • Set Aside Without Administration for Estates Less than $100,000

There are two options for the administration of the estate:

(1) Affidavit of Entitlement By Spouse and

(2) Set Aside Without Administration. If you are the surviving spouse of the decedent, and the decedent died without any real property (homes or land), and the decedent’s estate is less than $100,000.00 in value, then you can use the Affidavit of Entitlement By Spouse.

If the decedent’s estate is less than $100,000.00 (whether there is real estate or not), then you can use a process called the “Set Aside” (whether or not you are the surviving spouse or not). There are two types of “set asides”; one where the decedent died with a will (testate), and one where the decedent died without a will (intestate).

Nevada law allows a process called the “set aside” for estates that are less than $100,000.00 in value (the sum of the decedent’s assets minus his/her liabilities). (NRS 146.070.) The “set aside” process can begin 30 days after the decedent’s death and requires mailed notice to the decedent’s heirs, devisees, and creditors. The “set aside” process does require a court hearing, but generally requires fewer hearings than the probate administration processes of larger estates.

 • Summary Administration for Estates Less than $300,000

Summary Administration is a type of probate proceeding in Nevada that exists as an alternative to the General Administration. It’s purpose is to help lessen the time and costs of a General Administration.

• General Administration for Estates Over $300,000

This is the most complex level of probate and typically takes the most amount of time.

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