Authored by Kristin Gifford
Long, expensive, public. These are just a few words that describe probate. While probate is a process many people try to avoid, you may have experience with probate after the passing of family member or friend who did not complete their estate planning.
Probate is a court-monitored process to settle the affairs and transfer assets belonging to a deceased person (the “decedent”) that do not pass directly by law or under the terms of a contract. Examples of assets passing directly by law would be assets held by two or more persons in joint tenancy or with rights of survivorship, or assets with a beneficiary designation including those held in trust. Examples of assets passing under the terms of a contract include life insurance, retirement accounts, and entities. These assets comprise the decedent’s probate estate. In Nevada, the value of the probate estate minus any liens and encumbrances will determine the type of probate required. The chart below provides a general overview of the Nevada probate requirements.
|Probate Type||Value of Estate||Proceeding Requirement|
|Small Estate Affidavit||Estate under $100,000 if claimed by a spouse or $25,000 if claimed by non-spouse and the estate contains no real property.||Court proceeding not required.|
|Set Aside||Estate under $100,000||Court proceeding but personal representative not appointed, and no formal probate proceeding required.|
|Summary Administration||Estate between $100,000 to $300,000||Formal probate proceeding; 60 day creditor claim period.|
|General Administration||Estate over $300,000||Formal probate proceeding; 90 day creditor claim period.|
Depending on the type of probate required, the nature of the assets and liabilities, the cooperation of the heirs and the applicable tax law, the formal probate proceeding typically takes 6-9 months to complete.
Contrary to popular belief, having a will does not avoid probate but rather provides nomination of the executor and the heirs of the estate. If the decedent passes without a will, he or she has died intestate, and the administrator and heirs of the estate will be determined under state law.
While most attorneys charge their hourly rate to assist with the probate process, if the attorney instead agrees to be compensated based on the value of the estate, NRS 150.060(4) allows the attorney to receive 4% on the first $100,000, 3% on the next $100,000, 2% for the next $800,000, 1% for the next $9,000,000 and .5% for the next $15,000,000. For example, if a decedent’s probate estate was limited to a house worth $450,000 with a $200,000 mortgage, a $250,000 probate estate, the attorney’s fee under NRS 150.060(4) would be $8,000.
Whether you need assistance reviewing your estate planning to be sure it is up to date and properly funded, assistance establishing your estate planning to be sure your assets avoid probate upon your passing, or need assistance with the probate process, the attorneys at Lobb & Plewe are happy to assist you.