Nevada Estate Planning & Elder Law Information Blog

Over the River and Through the Woods to Grandmother’s Probate We Go!

             

Being an executor for an estate is a seriously heavy burden.  Some may say it’s like carrying the weight of the world on your shoulders!  This is one of the many good reasons to explore creating a living trust for your estate.

The executor named in a will is the person responsible for settling and finalizing a deceased person’s estate according to the deceased wishes.  Some states use the term “personal representative” instead of executor.

Here is a list of most of the tasks you are asking your executor or personal representative to do after you are gone:

                         

Find your will
Seek advice from an attorney and retain if necessary
Locate the correct probate forms and apply to appear before the probate court (See Part 2 below)
Publish a “Notice to Creditors” and mail to each known creditor
Send notices of your death to the post office, utilities, banks and credit card companies
Notify beneficiaries named in your will
Inventory all of your assets and decide which to have appraised
Collect debts owed to your estate
File for your Social Security, civil service or veteran benefits
File for your life insurance and other benefits
File applicable city, state and/or federal tax returns (Hire an accountant if necessary)
File state death and federal estate tax returns
Pay valid claims against your estate
Distribute your assets and obtain receipts from beneficiaries
File papers to finalize your estate

For protection, your personal representative should keep a copy of all records for at least two years. And your personal representative/executor should not hesitate to seek the guidance of a professional if he or she needs help in settling your estate.

And finally, all of this must be done in a timely, organized manner with government/probate court oversight, while attempting to maintain family peace and harmony. 

For more insights, the Wall Street Journal recently published a great article "The Burden of Being an Executor" and you can read it by clicking HERE.

Over the River and Through the Woods to Grandmother’s Probate We Go! Part 2

If you have a will, which is the bare minimum in estate planning, and would like more insight into the complexities of probate, here is some additional information:

The Nevada District Court, Probate Department has provided a 12 page “Synopsis of Nevada Probate Law” which you may access by clicking HERE.

Additionally, by clicking HERE and scrolling about halfway down the page you may access all of the following Nevada Probate Documents:

Affidavit of Entitlement to Estate

Affidavit of Publication

Attorney's Procedure Checklist

Certificate of Mailing

Creditor's Claim 

Inventory and Appraisal of Value MULTI PAGE (2) 

Letters of Administration 

Letters of Administration with Will Annexed 

Letters of Special Administration 

Letters Testamentary 

Notice of Hearing for Appointment of Administrator 

Notice of Hearing for Appointment of Special Administrator 

Notice of Hearing for Probate of Will and Issuance of Letters of Administration with Will Annexed 

Notice of Hearing for Probate of Will and Issuance of Letters Testamentary 

Notice of Hearing on First and Final Report and Accounting and Petition for Final Distribution and Approval of Costs and Fees 

Notice to Creditors 

Notice of Hearing to Set Aside Estate Without Administration (NRS 146.070)

Order Admitting Will to Probate and for Issuance of Letters

Order Appointing Administrator 

Order of Final Discharge 

Proof of Blocked Accounts

Avoiding the vast majority of the challenges, hassles and headaches associated with probating your estate is only one of the benefits of better estate planning, which starts with a living trust. To learn more, contact our office for our schedule of complimentary estate planning seminars, or for your personal estate planning meeting with Allison. As always, there is no charge for your initial meeting with Attorney Allison Herr.

Using Joint Ownership to Transfer Assets

Joint ownership of assets is sometimes known as the common man's estate plan.  One of the most common forms, is owning a home or other real estate in joint tenancy with rights of survivor-ship.  When a piece of property is owned in joint tenancy, full ownership of the property will transfer at death to the surviving owner without the necessity of probate.  However, before you look at this as your first and best option for avoiding probate, there are a few things you might want to consider.

First, while joint ownership may avoid probate for the first partner, it does not avoid probate for the second owner.  Unless the remaining owner perpetually adds a new owner, eventually the property will go through probate, and the heirs will still be faced with concerns about cost, time, lack of privacy and control. 

More importantly however, when you add a co-owner, you run a big risk of losing control.  Adding a child to your property after the death of your spouse may seem like an easy answer, but do you want to be at risk to your child's creditors.  What if your child goes through a divorce, or ends up in bankruptcy.  Your home is now at risk because of matters over which you have no control.

Additionally, in the case of real estate, all of the owners will need to sign off in order to sell or encumber the property.  Should you need to take money out of your property, you may find yourself at odds with your new co-owner who has different ideas about the way the property should be handled or maintained.

What is Probate?

Probate is a court process which occurs when you die, to insure that all of your debts are paid, and any assets you leave behind are distributed.  If you have a will, the court will review the document, and give the public the opportunity to contest whether the will is legally valid.  Assuming that your will is valid, the court will then supervise the executor of the will, who is charged with the responsibility of carrying out your wishes for the distribution of your assets.  If no legal will exists, then the property is distributed in accordance with state law.

The concern that I, as well as other attorneys, have about the probate process, is primarily the time and expense involved.  The executor of your will is entitled to fees for that service.  If you have nominated a family member or friend as the executor, that person may be willing to waive any fees for their services, however it is likely they will need to retain a lawyer to assist them through this legal process.  Additionally, there may be fees charged by the court, and if any assets have to be valued, it may be necessary to obtain a real estate or other type of property appraisal.

If for some reason the person you nominated as your executor is unable to serve in that capacity, the court may hired someone on your behalf.  A court appointed executor will definitely charge for their time.  An additional concern comes up if you have property located in different states, such as a primary residence here in Nevada, but a cabin or vacation home in Utah or Arizona.  The property located in each state will be distributed in accordance which each states laws.  This means that in some circumstances, it could require multiple probates for the various states involved.  Your executor might have to incur travel expense, or other costs to complete this process -- all of which must be paid first, before your assets can be fully distributed.

The probate process can also take a lot of time -- anywhere from a few months to a few years, depending upon the complexity of the estate.  During at least a part of the time that the probate is pending, it is common to have the assets "frozen" so an inventory can be taken, values can be established, and if necessary, taxes calculated and paid.  Assets cannot be distributed or sold without court and executor approval.  In the meantime, your family or heirs may need money to live on.  They can request a living allowance, however this type of request is discretionary with the court and is not automatic.  Your family incurs more cost for the request, and more time is taken to evaluate the claim.

For more information on Probate, see this free public information brochure available from the State Bar of Nevada.