What is Probate?What is Probate?

You have likely heard the term “probate” used in the context of handling a person’s affairs upon their death.  Probate is indeed the administering of a decedent’s estate through a formal legal process usually under the jurisdiction of a specific court.  For example, in Nevada that court is simply called probate court.  

Here are a few things you may want to know about the probate process:

1. Probate is not for everyone.  Specifically, those individuals who have created and properly funded a trust during their lives may be able to avoid the formal probate process.  Don’t think creating a trust is enough though. We had a client call today and tell us that his parents created a trust to avoid probate so he just needed help handling the assets that were in his deceased mom’s name.  Unfortunately, since those assets were in the mom’s individual name and not transferred to the trust, a probate will be required to administer those assets.  Some assets, such as payable on death assets, joint accounts or property held with rights of survivorship will also avoid probate but are not always advisable for many reasons that we are happy to discuss with you should you wish to give us a call.

2. Your Will is nice but not for avoiding probate.  Many people believe that if they have created a will that their estate will not be subject to probate when the bell tolls for them.  That is simply not the case.  A will is helpful for naming a personal representative (Executor / trix), for granting certain authority to sell real property and for waiving the requirement of bond but whether a person dies with a will (testate) or without a will (intestate) if they have property in their name alone it is likely that probate court is the next stop.

3. One size does not fit all estates.  Many states, including Nevada, allow smaller estates to be handled with little or no court oversight.  For example, certain estates under $25,000 ($100,000 for surviving spouses) may be transferred based on a small estate affidavit (affidavit of entitlement) if other factors are met.  Similarly, if there is no surviving spouse, estates may be set aside to the intestate heirs or will beneficiaries with a single petition to the court if other factors have been met.  Estates between $100,000 -$300,000 may qualify for a summary form of administration and there may be certain instances where an administration under the independent administration of estates act might be applicable.  

4. Probate is not only for you as a beneficiary or heir.  The main purpose behind the probate process is to accomplish the speedy settlement of the estate at the least expense to the parties.  Part of settling the estate is making sure that the decedent’s outstanding debts and obligations are provided for.  For this reason, creditors of the decedent are giving a certain period of time and a certain manner in which their claims may be presented and addressed.  A beneficiary or heir who short-circuits this process may find themselves personally liable for these obligations.  Similarly, there are provisions in the law that would allow assets that may legally be considered non-probate assets to be drawn back into the estate to satisfy the obligations of the decedent if the estate assets are insufficient.

5. There are some creative solutions that may be available to you.  When dealing with a probate issue it is worthwhile to seek out competent legal advice.  The probate process itself is probably not something you have dealt with in great detail and there may be some options that you are not aware of that can save you time, money and aggravation.  For example, some assets may be transferred to a trust after the death of the creator of the trust if certain evidence of intent is present.  Also, some assets may be transferred to surviving spouses or minor children despite the existence of debts and obligations of the decedent.  Certain allowances may be made for support of the family during the pending probate process.  There are many reasons why it is not in your best interest to go it alone in probate matters.  Call our experienced probate attorneys in Las Vegas at Grant Morris Dodds if you would like more information regarding your options when it comes to probate. Free probate consultation available!  

GMD Legal