Probate in Las Vegas, Nevada
Probate is a court process to transfer money and property to heirs after a person dies.
During life, when a person wants to give away or sell their home, car, money, and personal items, they can simply sign documents to make those transfers to the intended recipient. For example, a vehicle is transferred by signing a title. A home is transferred by signing a deed. Money can be transferred by a check, or even adding someone to a bank account.
When a person dies, they are - of course- not available to sign documents to transfer their property. Further, they are not present to say who the recipients of the property should be. The probate court steps in to transfer the property to the people who inherit.
Read on for commonly asked questions about probate in Las Vegas, Nevada.
Who inherits in Nevada?
If the deceased left written instructions, the people identified in those instructions will inherit.
There are many ways to leave written instructions.
Instructions can be provided in a beneficiary designation on a bank account, retirement account, or life insurance policy. Joint ownership of a bank account is also an instruction to the bank. The surviving owner of the bank account gets to keep it.
Instructions can be left in the deed to a home or on the title to a car.
If the written instructions are left in a trust, the person in charge of the trust, called a trustee, will distribute money and property according to the instructions in the trust.
Instructions can be left in a last will and testament. The probate court will decide whether the will is valid and who inherits. Learn more about going to probate court in Las Vegas.
If no written instructions are left, then the probate court will determine who inherits based on Nevada laws of intestate succession. Intestate means “without a will.”
If the will is valid, the court will appoint an executor to sign documents and take other steps for the deceased person to transfer the property to the intended beneficiaries. The executor must notify certain people about the probate case.
Is the will valid in Nevada?
A will is valid in Nevada if it is signed by the person making the will (called the “testator”), and signed by two witnesses who are not beneficiaries, so long as the person making the will was over the age of eighteen and of sound mind when making it. No notary is required.
If a notary is used, the notary must notarize the witnesses’ signatures, not the testator’s signature. It is very common to see a typewritten will signed by the testator and notarized. If there are no witnesses, this is not a valid will in Nevada.
If the notary did not notarize the witnesses’ signatures, the probate court will require affidavits showing that the witnesses cannot be found or are unavailable, and that the handwriting on the will appears to be the testator’s signature.
This rule applies to wills made in Nevada by a person who was in Nevada at the time. However, if a person made a will in a different state before moving to Nevada, different rules apply.
Sometimes, probate in another state will also be required.
Does Nevada recognize out of state wills?
Nevada recognizes out of state wills, so long as the will was valid under the laws of the state where it was made at the time it was made. A certification will be required to notify the Clark County probate court that the will is valid under the other state’s law.
Another common problem with wills is that they are sometimes lost or accidentally destroyed.
The will is lost.
If the will is lost, there are procedures to prove to the Clark County probate court that it is still effective. In other words, the court has to be satisfied that the will is not missing because it was torn up or revoked, but simply misplaced or accidentally destroyed. Sometimes, a family member refuses to show the will to anyone else. This is handled differently.
Who gets a copy of the will?
Nevada law requires that, within 30 days of the death of the testator, that the original will be delivered to the court clerk. In other words, wills are not private after a person has died. The public - and other family members - are entitled to see the document.
We often receive calls to our office asking if wills are recorded.
Are Nevada wills recorded?
Nevada wills are not recorded. Filing the will after death is different than recording a will during life so that it can be found later.
Nevada law gives a person privacy during their life about the contents of their Last Will and Testament. Then, after death, the will must be filed so that interested parties can come forward to contest the will.
How to Contest a Will in Nevada
Contesting a will is a complex process that could lead to a trial. Common reasons that a will is contested are:
Family pressured the deceased to change a will
We commonly see that a person who is elderly or suffering from a last illness becomes close with one child in particular. The testator changes his or her will to exclude the rest of the children and bequeath (give after death) all of the money and property to that one child.
The rest of the family may object on the grounds that the testator was not of sound mind at the time of making this change.
Nevada law favors allowing a person to make a will at any time, even disinheriting family members or doing other unexpected things. Therefore, unless a doctor has written that the testator is not capable of making or changing a will, most likely the probate court will find that the testator was of sound mind.
This determination is referred to as “testamentary capacity.” Still, there are other laws that apply if a change is made to a will on a person’s death bed.
What is testamentary capacity?
Testamentary capacity is the legal standard that determines whether a person is of sound mind to make a change to a will or trust.
The standard is generally easy to meet. The person must know who the family members are, what their own property is, and they must understand that they are giving that property to those family members.
The deceased made changes to the will on his deathbed.
Even if the testator technically was of sound mind and therefore legally able change his or her will, there are other laws that apply to last minute, death bed changes to a will.
Nevada law recognizes that a person who gives care during a last illness is in a unique position of influence over the testator. The testator may be relying completely on the caregiver for food and other necessities.
Therefore, it is presumed, until proven otherwise, that changes to a will in favor of the caregiver on the testator’s death bed were made through undue influence. In other words, the testator was pressured to make the change and therefore the change should be invalid.
A complex legal proceeding is required to resolve an undue influence allegation.
How does probate start in Clark County?
After the original will is filed, if there is one, the probate process begins with the filing of a Petition. This asks the probate court to open a probate case, appoint someone Executor or Personal Representative, and prove the will is valid.
Along with the Petition, the Clark County probate court will require additional documents, including a death certificate (with the Social Security number removed), a verification, and proof of value of certain assets.
Prior to the court hearing, the Probate Court will notify the public whether the case is approved. Learn more about the approved list here.
Obtaining a death certificate in Las Vegas
Typically a death certificate takes two weeks to prepare. If there are suspicious circumstances surrounding the death, or the deceased died from certain diseases or a suspected drug overdose, the death certificate may be delayed.
Who handles the estate?
An executor is the person named in a will to handle the estate. If the deceased died without a will, the person in charge is called the Personal Representative or Administrator.
Only certain individuals may act as the Administrator. Nevada law states that the surviving spouse has priority over children, who have priority over other family members, and non-family members.
If the spouse is not alive, a child can petition the court to be appointed Administrator, so long as he or she does not have felony convictions and can meet other criteria.
If the spouse is alive, but a child wants to act as Administrator, the spouse will have to sign a declination form which tells the court the spouse does not want to act.
Can the executor change the will?
In 99.9% of cases, the executor cannot change the will. The probate court serves an important function to ensure that the deceased’s wishes are fulfilled. Therefore, before the executor distributes the inheritances, the family gets notified of a court date. On that court date, the executor will have to explain how the money and property will be distributed, and if it does not match the instructions left in the will, the court will not approve it.
If gifts were made during life, that can sometimes change how the distributions are made during probate.
The executor, once appointed, does have powers to sell vehicles, pay debts of the estate, pay estate taxes, remove family members living in the deceased’s house, and recover property taken from the deceased’s house improperly.
Who inherits if there is no will?
If the deceased died intestate, Nevada law dictates who inherits.
Marital property will go to the surviving spouse.
If the deceased had less than $100,000 in assets, and those assets were owned in his or her name only (no spouse listed), that property will go to the surviving spouse. Learn more about estates under $100,000.
If the deceased had more than $100,000 in assets, and those assets were owned in his or her name only (no spouse listed), that property will be split between the surviving spouse and the deceased’s children. If there is one child, they split 50-50. If there are two or more children, the spouse gets ⅓ and the children split the rest.
If the deceased died without a spouse, the property will be split among the children.
If there were no children and no spouse, the parents will inherit. If they are deceased, the law looks for siblings, nieces and nephews, and other distant relatives.
If, after a diligent search, there is no known family, the state will eventually take possession of the property.
How long does probate take?
Clark County handles probate differently than most other places. The probate court only hears cases on Friday mornings, and typically it takes about four to six weeks to schedule a hearing. Hearings are where the judge makes decisions on the case.
The length of time a probate case takes in Las Vegas will depend on how soon hearing dates can be set, which in turn relies on the executor or administrator providing information to the attorney.
It will also depend on what type of probate case is filed.
For small estates under $100,000, the process typically takes no more than eight weeks, but often as little as four weeks.
For cases between $100,000 and $300,000 in assets, the process takes a minimum of five months. This can increase significantly if there is real estate to be sold or if a family member contests the will.
For cases over $300,000 in assets, probate will be complete in a minimum of nine months, but again, it can increase significantly for a variety of reasons.
The value of an estate is calculated by adding the value of all of the assets and subtracting the secured debts, like mortgages.
Probate does not stop the foreclosure process. If the property is sold or kept, the mortgage will have to be paid or assumed.