What Is Probate?

By Joel W. Locke, Allison MacKenzie, Ltd.

Black’s Law Dictionary defines “Probate” as the judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.

If a decedent dies without a will, that person is said to have died intestate. When a person dies intestate and leaves assets subject to administration, those assets will be subject to court administration and will be distributed pursuant to the laws of intestate succession outlined in NRS Chapter 134. The probate and intestate administration process is nearly identical and depending on the size of the estate, will have different time-lines and requirements.

There are four (4) levels of probate in Nevada that are categorized by the size of the estate and the type of assets contained in the estate: $1-$20,000; $20,001-$100,000; $100,001-$200,000; and $200,001 and above.

If a decedent leaves no real property and their personal property subject to probate does not exceed $20,000, no formal probate is necessary and the estate can be distributed pursuant to an Affidavit showing the right to the personal property.

The next level of probate is called a “Set-Aside” and applies to estates that do not exceed $100,000. This is an informal type of probate where no Personal Representative is appointed, and instead, the Court will set-aside the decedent’s assets to the appropriate beneficiaries by issuing an order. If the decedent leaves minor children or a surviving spouse, the entire estate will be set aside to them, without paying creditors of the decedent. If there are no minor children or surviving spouse, the creditors will be paid a pro-rata share of any claims and the rest of the estate will be distributed to the beneficiaries.

The next type of probate is called a “Summary Administration” and applies when the decedent’s estate does not exceed $200,000. This is a more formal probate and a Personal Representative is appointed and creditors are notified and have sixty (60) days to file a claim against the estate, or the claim is barred. The Personal Representative is required to file an inventory of the estate, and after the notice to creditors time period has expired, is required to file an account of the estate and request distribution pursuant to the will, or intestate succession.

The final form of probate is known as a “Full Administration.” The same requirements for the Summary Administration must be met, except that the notice to creditors is a ninety (90) day period.

Probate is a time consuming and costly process. A full administration usually takes at least nine (9) months, but often takes longer than a year. Court fees, publication fees, and attorney fees for a full administration often exceed $10,000, and based upon the value of the estate, can be much, much more. There are many ways to avoid probate, but it requires careful planning based upon each individual’s assets and desires.

If you have any questions or are interested in speaking with me about creating an estate plan that reflects your desires, please feel free to E-mail me at [email protected] and I will set up a consultation with you.