Why Do I Have To Go Through Probate?
The probate process is important to ensure your loved one’s property is distributed properly and final affairs are settled completely. If your loved one had a will, probate is the court process whereby a deceased person’s will is established as his or her valid last will. Once a will is proven, it is admitted to probate and the 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.
If your loved one did not have a will, Nevada’s intestacy laws will be used to determine how to distribute your loved one’s real property and other assets.
What is the Timeframe and Cost of Probate?
The probate process can be complicated. The amount of time that is necessary to settle an estate can range from months to several years. Reasons for delays include will contests, the complexity of the assets comprising the estate, contentious beneficiaries, inability to sell property, tax-related matters or creditor issues.
The cost of probate varies widely, depending on the size of the estate and the solutions required to address the delays in probate.
Can I Avoid Probate?
If your loved one had a trust as part of his/her estate plan, you may be able to avoid the probate process. When a trust has been established, a person’s real estate holdings and other assets which are part of the trust are subject to terms of the trust. Administration of your loved one’s estate would be determined by the provisions included in the trust created by your loved one outside the probate process.
Avoiding probate can also accomplished if your loved one completed proper beneficiary designations. Such beneficiary designations include a recorded deed effective upon death for real property, a document signed in accordance with certain formalities which directs the disposition of tangible personal property effective upon death, beneficiary designation forms for checking, savings and money-market accounts so such accounts are payable upon death (i.e. POD accounts), beneficiary designation forms for taxable investment accounts so such accounts are transferable upon death (i.e. TOD accounts) and beneficiary designation forms for retirement accounts, life insurance and annuities. Also, title to vehicles can be made transferable effective upon death by submitting the correct DMV form to DMV for the certificate of title to be issued in TOD form.
Should my Probate Lawyer be Licensed in a Particular State?
Typically, a your probate lawyer should be licensed in the state where your deceased loved one resided. If your loved one resided in Nevada but owned real property in another state, the property is subject to the probate laws of that state. If your loved one resided in a state other than Nevada but owned real property in Nevada, then a court in Nevada will have jurisdiction over the probate of that parcel of real property. So, there may be probate proceedings in multiple states.
My Family Cannot Agree on Attorneys. Can We Have Multiple Probate Lawyers?
Unfortunately, family disputes when a loved one passes are common. Hiring multiple probate lawyers may cause unnecessary confusion and expenses for your family. However, for some estates, multiple lawyers may be necessary.
Attorney J. Robert Parke has particular expertise and experience in the area of probate and estate administration, and he will promptly respond to your questions 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 estate administration
- Intestate estate administration
- Preparation/review of estate tax return (Form 706)
- Preparation/review of fiduciary income tax return (Form 1041)
- Will and trust contests
- Trust administration
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 (i.e., without a will), an interested person, usually an heir of the decedent, 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 or other services, taxing authorities and others.
- During the administration of the estate, the personal representative must identify, collect and value the assets of the estate and file an inventory and appraisement with the court. To do this, the personal representative locates all of the decedent’s bank and investment accounts, real property holding, vehicles, etc. and determines all amounts owed to the decedent at the date of the decedent’s death. The personal representative also must preserve and protect the assets of the estate. This is done by maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The personal representative may also liquidate assets such as cars, real property and other assets 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 and the property has been 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 typically 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, pursuant to the court’s order for distribution.
Call 775-786-5046 Today for the Help You Need with Probate
The Law Office of J. Robert Parke, LLC, in Reno, provides comprehensive probate representation to help you through this difficult time. Individuals and families have trusted attorney Parke since 1990. You may also contact the firm online.