Probate and Administration of Estates

WHAT IS PROBATE?

Probate is the process of proving the validity of a will, transferring property, and settling the affairs of the deceased's estate. If there is no Will, a similar process known as Administration is used to settle the deceased's affairs. A Probate should be opened as soon as practical following the person's death. In Nevada, if the total amount of the deceased person's assets exceed $10,000, or if real estate is involved, probate will be required and there is normally no reason to delay starting the process.

If there are no real estate holdings and the value of the estate is under $10,000, the surviving family member (s) or a sole beneficiary entitled to inherit the property in question may initiate proceedings forty days after the death. These parties may use a form called an affidavit of survivorship to apply for release of the asset(s) from any person or business holding those assets (such as a bank, stock brokerage company or pension plan administrator).

WHEN IS PROBATE NECESSARY?

If the deceased person's assets exceed $10,000 or real estate is part of the estate, probate or administration must be used. The only person allowed access to the deceased person's assets would be the court-appointed Administrator or Executor of the estate. The Administrator or Executor will receive a document called "Letters of Testamentary" or "Articles of Administration" which will be issued by the Court and outlines the Administrator's or Executor's authority and responsibility.

DO I HAVE TO LIVE IN NEVADA TO BE THE EXECUTOR?

The State of Nevada does not impose restrictions on residency of an Executor or Administrator. In a routine probate proceeding you can expect a minimum probate period of 120 days. This allows for publication of creditor notices and gives creditors time to file claims. However, probate and estate administration often take much longer if complications arise.

WHO CAN WITHDRAW FUNDS FROM A DECEASED PERSON'S BANK ACCOUNT?

If the account is held jointly, the surviving owner is entitled to withdraw the money or delete the deceased person's name from the account. If the account is held "in trust for" a beneficiary, the funds may be paid directly to that beneficiary when the appropriate documents are presented to the financial institution. For example, you may need a certified copy of the death certificate, proof that the deceased is the same person who owned the account and proof that the person requesting release of the funds is the named beneficiary.

AS THE EXECUTOR, AM I LIABLE FOR THE DECEASED PERSON'S DEBTS?

The Administrator or Executor of an estate is not normally personally liable for the deceased person's debts. However, the Executor or Administrator is obligated to act in the best interests of the estate and its beneficiaries. We advise that you consult with an attorney regarding the duties and obligations of an Executor or Administrator prior to accepting that responsibility.

WHAT DO I DO ONCE I KNOW PROBATE IS NECESSARY?

Although you can maintain a probate or administration yourself, we strongly recommended that you seek the assistance of an attorney who has experience with estate matters. A qualified attorney can guide you through the probate or administration process (including proper notification of other potential beneficiaries of the estate) and can be helpful if a dispute arises with creditors or other potential heirs.

The Executor will need to obtain a separate Tax Identification Number for the Estate. You should not use the deceased persons social security number in most cases. A Tax Identification Number for the estate can be obtained from the Internal Revenue Service by filing a Form SS-4.

WHEN MUST I START THE PROCEEDING?

There is no time limit for starting Probate or Administration proceedings. However, it is important to begin as soon as possible so assets can be protected and inventoried, final tax returns can be filed, and the debts of the estate paid. A Probate or Administration proceedings is begun by petitioning the Court to commence probate or administration through formal Court documents. The cost of probate or administration will vary depending upon the complexity of the estate. Complex probates or administration may involve hundreds of hours of time. Rates are usually a percentage of the estate's assets that are being Probated.