What is Probate?

Probate is the legal process that happens after a person dies in order 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. Continue reading to learn the probate basics and the answers to some frequently asked questions.

 

The recent death of a friend or family member might have put you in the position of managing the affairs of your deceased loved one. Probate is the process by which the deceased's property is handled--from making payments, to selling homes, to paying creditors, to distributing money to people entitled to inherit it. Understanding the vocabulary and the probate basics below will help you decide which probate process is right for your situation.

 

Nevada probates are governed by the law written in Title 12 of the Nevada Revised Statutes ("NRS"), which contains 26 chapters (Chapters 132-156). While this page includes information on certain probate procedures, before you initiate any probate matters, you should review these laws and consider consulting with an attorney.

 

What do these probate words mean?

Several words are commonly used during the probate process, and knowing their meanings will help you identify what your probate needs are. Here are some words to know:

  1.  Decedent: The person who died.

  2. Estate: The estate is the net worth of the decedent's property after death. In other words, it is the sum of the decedent's assets (things decedent owned) minus his/her liabilities (what decedent owed).

  3. Will: A will is a written document that the decedent prepared before dying that expresses how the decedent wanted his/her estate handled after death.

  4. Testate: A person dies testate when he/she dies with a will.

  5. Testator: The deceased person who wrote the will.

  6. Intestate: A person dies intestate when he/she dies without a will.

  7. Intestate succession: These are the rules that govern which family members are entitled to the estate when a person dies without a will.

  8. Devisees: The devisees are the people who are named in the will to get a part of the decedent's estate.

  9. Heirs: These are the people designated under state laws of intestate succession to inherit the decedent's estate when there is no will.

  10. Executor: The executor is the person named in the will to manage the estate and distribute the decedent's assets.

  11. Administrator: The administrator is the person appointed to manage the decedent's estate and distribute assets when there is no will.

  12. Personal representative: This is a general term for an executor or administrator who is appointed to manage decedent's estate and distribute assets when there is a will.

 

A complete list of the probate definitions used in Nevada law can be found in the Nevada Revised Statutes, Title 12, Chapter 132.

 

Are Nevada courts the right courts to use?

To decide if you should go through probate in Nevada, you should ask the following questions:

  1. Did the decedent live in Nevada?

  2. Did the decedent own property in Nevada at the time of death?

  3. Did the decedent die in Nevada?

 

If the answer is "yes" to any of the above questions, Nevada probably has jurisdiction, and you can go through the probate process in Nevada. If the answer is "no" to all three questions above, then Nevada likely does not have jurisdiction.

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It is important to know that Nevada courts only have jurisdiction over real property in Nevada. This means that if the decedent lived or died in Nevada, Nevada courts only have jurisdiction over the property or estate located in Nevada. But if there is property in another state, that state's laws determine how the real property in that state will be distributed. An ancillary probate (meaning supplementary or additional) will have to be done to change title on that property located out of state.

(NRS 136.010.)

 

What property passes through probate?

Only certain property passes through probate. This means that certain assets that the decedent owned before death do not become part of the probate estate. Non-probate assets pass to another person by the law or under the terms of a contract. For example, if a couple owns a house in "joint tenancy with a right of survivorship" (this means that when one spouse dies, the deceased spouse's share passes automatically to the living spouse), that house does not have to go through probate. Other property, like life insurance and retirement accounts, pass to the beneficiary who the decedent chose to receive the benefits when the decedent was living.

Common examples of non-probate assets are:

  • Assets owned or held in a trust.

  • Payable on death accounts, where the beneficiary is named and alive.

  • Community property with rights of survivorship.

  • Property held in joint tenancy, where there is a surviving joint owner.

  • Insurance, retirement plans, or annuities with beneficiary designations.

 

Is probate necessary?

If the decedent had property that didn't automatically transfer upon his/her death then probate is probably necessary. Also, if the decedent owed debts, probate might help resolve the creditors. Lastly, if there is a dispute as to who has the right to inherit property, then probate should be opened.Otherwise, if the decedent left no property to transfer, then probate might not be necessary.

 

For more information about the homestead exemption, and how it fits in with your estate planning needs, call us at 702-909-2462 or contact us by email to arrange an initial consultation.