|
What is Probate?
Probate is the court process whereby a deceased person's Will is established as his/her valid last Will. Once a Will is proven, it is admitted to probate and the court-supervised administration of the decedent's estate is commenced. The probate of a Will and the administration of a decedent's estate require the filing of particularized and complicated court pleadings and other legal documents. Attorney J. Robert Parke has particular expertise and experience in the area of probate and estate administration, can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return (Form 706) is required, Mr. Parke has the expertise and ability to assist with taking care of this important tax requirement. The probate matters as to which Mr. Parke can provide assistance include, but are not limited to, the following:
- Probate of Wills and Administration
- Intestate Administration
- Guardianships
- Preparation of Estate Tax Return (Form 706)
- Preparation of Fiduciary Income Tax Return (Form 1041)
- Will and Trust Contests
- Trust Administrations
How is a Will probated?
The following is a simplified outline of the general probate process:
- The original Will is deposited with the Court.
- An interested person, usually the person designated in the Will to act as Executor, files a Petition for Probate of the Will. If the decedent died intestate (ie. without a Will), an interested person, usually an heir of the estate, files a Petition for Intestate Administration.
- The Executor named in the Will is confirmed by the court or, for a person who dies without a Will, an Administrator is appointed by the court. Executors and Administrators are commonly referred to as Personal Representatives.
- Creditors of the decedent can file claims against the Estate. This includes anyone to whom the decedent was indebted (such as credit card companies, mortgage holders, judgment holders, persons owed fees and costs from providing medical services, taxing authorities, etc).
- During the administration of the Estate, the Personal Representative must identify, collect and value the assets of the Estate. To do this, the Personal Representative locates all of the decedent's bank and investment accounts, real property, vehicles, etc. and determines all amounts owed to the decedent at the date of the decedent's death. The Personal Representative also must maintain the assets in good condition, which consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real property, etc. during this time, but court approval is often necessary to sell assets of the Estate.
- When the period within which creditors may file a claim against the Estate has expired (60 to 90 days from the date of notice to creditors), and when all assets have been collected, property sold (if necessary), and assuming no problems have arisen (such as the Will being contested, disputed creditor claims, etc.), the Personal Representative then files a petition with the probate court to request the court's approval to pay certain administrative expenses and to distribute all remaining assets to the beneficiaries/heirs. With that petition, the Personal Representative also files a detailed accounting with the court setting forth all monies received, monies disbursed, how assets were invested and the proposed plan for distribution.
- If the court approves the plan for distribution, the Personal Representative then divides and distributes the remaining assets of the Estate as instructed in the Will, or as required by statute if no Will exists.
The probate process can be complicated. The amount of time that is necessary to settle an Estate can range from approximately four months to several years. Reasons for delays include Will contests, the complexity of the assets comprising the estate, contentious beneficiaries, property cannot be sold, tax-related matters, creditor issues, etc.
Are there different types of Wills?
There are many types of Wills:
- A Formal Will is typed or on a preprinted form, signed by the testator and properly witnessed.
- A Holographic Will is entirely handwritten, dated and signed by the testator.
- A Living Will, Medical Directive or Health Care Directive authorizes the continuance or cessation of life-sustaining medical treatments for an individual who is incapable of making decisions due to being incapacitated.
Who should make a Will?
Every adult person should consider making a Will. Each year a large number of people die without a Will, leaving major decisions in the hands of the State of Nevada. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be directed by the parent in the parent's Will. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect the child's inheritance. Also, depending on whether property is characterized as community property or separate property, if a deceased person was married and childless at his/her death, the decedent's parents or other relatives could split the decedent's property with the decedent's spouse if not alternatively predetermined in a Will.
How does a Trust work?
A Trust is an arrangement by which a person as grantor transfers legal ownership of property to himself/herself as trustee (or to another a person or institution as trustee) to manage the property for the benefit of the grantor (or another person) as beneficiary of the Trust. Trusts create a fiduciary relationship between the trustee and the beneficiary, and the trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to the beneficiary's interests.
What about Health Care Provisions and Powers of Attorney?
Nevada allows for the delegation of decision-making power to cover health care issues, including the withholding or withdrawal of life support treatment, by means of a Power of Attorney for health care. Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where you cannot make your own decisions because of a medical or mental condition.
In addition to health care considerations, it is also important to have a Power of Attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle his/her incompetent spouse's salary checks, social security benefits and to make other legal and financial decisions.
What are Estate (Death) Taxes?
Estate taxes may apply to your estate at your death if you have a taxable estate for estate tax purposes. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. In addition to bank accounts, investment accounts, retirement accounts, real property and tangible personal property, your gross estate will also include the value of other property interests such as the following:
- Life insurance proceeds on your life if you owned the policy or have enough control over the policy to be deemed to own the policy
- The value of certain annuities owned by you and made payable to your estate or persons you designate as beneficiaries
- The value of certain property you transferred within 3 years before your death
- The value of property held in a Trust (established by you or, in some instances, others) as to which you have certain powers at your date of death
The allowable deductions used in determining your taxable estate include:
- Funeral expenses paid out of your estate
- Debts you owed at the time of death
- The marital deduction (generally, the value of property that passes from your estate to your surviving spouse)
If you (or someone you know) in Reno or Sparks, Nevada, or within the surrounding areas in Washoe County, or in other parts of Northern Nevada (including, but not limited to Carson City, Douglas County, Churchill County, Storey County, Lyon County, Pershing County or Humboldt County) need the assistance or legal counsel of an experienced estate and trust lawyer, contact Attorney J. Robert Parke today at 775-786-5046, or use the contact form provided on this site to schedule your initial consultation.
|
