The Law Firm of Reed & Mansfield

Jonathan Craig Reed

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PROBATE

What is Probate?

     Probate is the process of getting a court to say who owns a dead person's property. Probate is a public court proceeding. Here in Las Vegas and all of Clark County probate is handled by a specialized probate court that is actually a sub-division of Family Court which is a divison of the District Court. (In some other states the probate court may be called the Orphans' Court, or the Surrogate's Court or the Chancery Court.)

     As a practical matter, property usually goes into probate only if there is a fight among the relatives or heirs or if the property has a title and the relatives or heirs need the Court to clean up the title. In many cases, after a person dies, there is no probate. This can happen for several reasons:

     Many people plan in advance to avoid probate. A living trust avoids probate if all of the person's property is in the trust. Real estate held in joint tenancy and joint bank accounts go to the surviving party without probate. IRA accounts and life insurance policies usually name payable on death beneficiaries.

     Property without a title doesn't need a court to transfer title. Property such as jewelry, furniture etc. is often distributed among family members without a court's involvement.

     What Does a Will Do and What Happens if a Person Dies without a Will or a Trust?

     A will is designed to tell a Probate Court how property should be divided upon death. If a person dies without a will, the person's property will be divided according to the Law of Intestate Succession. For example, if a single parent died leaving 3 adult children, each child would receive a 1/3 share if there were no will.

     It is a common misconception that if you die without a will the State of Nevada gets your property. The State of Nevada only gets your property if you die without any next of kin coming forward. In that case your property escheats (goes) to the State. After than happens there is a six year deadline for next of kin to try and get the property back.  See our section: Mom Dies; Nevada Inherits

     In addition to letting you custom tailor the distribution of your assets, a will can perform these additional functions:

     First, it can allow your executor to serve without the expense of posting a bond. But if you die without a will a relative can apply to be the administrator and the relative will not have to post a bond if the application states that all funds collected will be held by in the probate attorney's trust account. At Reed & Mansfield in a case like this we will set up a special sub-account of our trust account with its own account number for the estate.

     Second, it can contain what is called a testamentary trust. For example, parents with young children can specify who would hold their money for their minor children if the parents die while the children are still minors. The parents could also specify at what age the children would get the money. Without such a "testatmentary trust" provision, the minor children would get all of their money at age 18.

     Third, a will is an appropriate place for parents of minor children to express their desires as to who will raise the children if they die before the children become adults. The issue of who has control of minor children is always determined by the "best interests of the children," but a Court in trying to decide what is in the best interest of the children may be strongly influenced by what the now dead parents wrote in their will.

How Complicated is Probate and What Does it Cost?

   It is our goal to be your high quality, low cost probate lawyer. The old model of probate billing is to charge by the hour. Most clients hate this because they can't know if the lawyer really spent the time billed, they don't know what it will cost in the end, and because it rewards inexperience and inefficiency  by the attorney. On this page we list our flat fees. We believe you will find that these fees are not only affordable, but truly low cost in comparison with what other probate attorneys charge.

The Different Kinds of Probate Proceedings:

     In Nevada there are 4 levels of probate complexity and expense:

Estates under $20,000 and No Real Estate or Contests:

     The easiest probate proceeding is for estates for under $20,000 with no real estate and no competing claims. The person seeking to administer the will (or distribute the property if there is no will) files an affidavit. As of July 1, 2009, there is no filing fee in this case to file the affidavit in Clark County, Nevada. If there is a will the filing fee for the will is $18. Many people can handle this themselves. PLEASE DO NOT CALL US FOR FREE ADVICE ON HOW TO DO THIS YOURSELF.

Estates under $100,000:

 THE FEES QUOTED HERE ARE FEES FOR UNCONTESTED PROBATES

AND PROBATES IN WHICH WE ARE NOT SEEKING TO DEFEAT

CREDITORS' CLAIMS. IF THE PROBATE IS CONTESTED OR IF

YOU WANT TO DEFEAT CREDITORS' CLAIMS SUCH AS MONEY DUE ON

MORTGAGES, ETC., CALL TO DISCUSS THE DETAILS AND THEN

WE CAN GIVE YOU A PRICE.

     The second easiest probate proceeding is for estates under $100,000 using the "set aside without administration" procedure. This can include real estate. A petition is filed and a court date is set. Notice is given to next of kin and all creditors are paid. If all of the paperwork is correct and no one objects at the hearing, the judge signs an order at the hearing and proceeding is largely finished. Our fee to do this in Clark County which includes Las Vegas, if no one contests the proposed distribution, is $1175 or $1475 which includes all costs. The lower fee is for estates under $20,000 in value because there is no filing fee and the higher fee is for estates between $20,000 and $99,999.99 because of the filing fee of $286 plus a 3% surcharge. If there is more than one parcel of real estate there will be an additional fee of $100 per parcel of real estate. And if there is a will that names more than 3 people as beneficiaries there will be an additional charge of $5 per person unless the client obtains from these additional people a re-assignment of their interest and waiver of notice which we will write up.

     Nevada law allows the probate court to defeat the claims of certain creditor or heirs in order to provide support for minor children or widows or widowers. For example, if a man died owing huge hospital and doctor bills, but had a small bank account in his name only, and left a wife, we would ask the court to allow the wife to have his bank account rather than the hospital and doctors, if the wife needed it for support.

     Many of our filings in this category are for timeshares. Typically a person from out of state has a probate proceeding in his or her home state. But the person bought a Nevada timeshare, say, Tahiti Village in Las Vegas. Because the timeshare is Nevada real estate, title must be transferred to the heir in a Nevada ancillary probate proceeding. If you can get good evidence that the timeshare is worth less than $20,000, we can usually avoid the $286 filing fee, in which case our fee will be $1175 everything included, except that, most timeshare companies add their own fee of about $50-$399 to transfer title. 

      Our fees for these probates are very low cost and affordable; more typically the charge is $1,500 for legal fees alone. Are services are first rate and you will work directly with an attorney, not with office staff.

      If there are no complications, this process can be completed about 3 weeks after we file the Petition and all necessary paperwork.

      It often happens that a husband and wife own real estate as joint tenants. One of them dies and the other does nothing to clean up the title. Then the second dies and there has to be a probate to pass the property to the children or other heirs. In this case, it is necessary to file an affidavit of death of joint tenant in addition to the regular probate. If this has to be done we charge an extra $100 which includes the filing fee. You will have to supply both death certificates. For estates over $100,000, if we charge a flat fee, we don't charge extra in this case other than for the filing fee.

Estates between $100,000 and $200,000:

     This is intermediate in complexity between the under $100,000 case and the over $200,000. If the case  is uncontested and there are no unusual complications, our fee will be $3,150 for the first $100,000 of the estate and 2% of any amount over $100,000 without regard to debts of the estate including mortgages. Costs are additional and will be $286 for filing. Expect $70 in publication costs. There will be additional e-filing fees of about $50, give or take, if the probate is in Clark County which includes the greater Las Vegas area. Our fees for these probates are quite low cost and our work is first rate. You will work directly with an attorney, not office staff. 

      In this proceeding if the administrator is out of state there will have to be a Nevada co-administrator. If desired, one of our attorneys can serve as co-administrator without pay if the out of state administrator is willing to do the typical work of an administrator. See Executor/Administrator

      If there are no complications this process can be completed in as little as about three months after we file the Petition with all necessary paperwork. This probate requires a 60 day notice to known and unknown creditors. However, the facts of a specific estate, including sale of assets under the Court's  supervision, could cause the process to take longer.  When we say we offer "fast" probate we mean we are diligent in moving things along as fast as we can consistent with the legal requirements. 

      This procedure is called  summary administration. Occasionally, we recommend using this procedure for estates under $100,000 if there is an issue of creditors whom the estate wants to try and cut out.

Estates Over $200,000:

     This is a fairly complex procedure with a number of expenses in additions to the $539 (Clark County) filing fee. Expect $140 in publication fees giving notice to potential creditors and other claimants. There will be additional e-filing fees of about $75, give or take, if the probate is in Clark County which includes the greater Las Vegas area. If there is real estate expect to pay to have it appraised as the appraisal will have to be filed with the court. Expect a lot of "red tape." Most attorneys charge by the hour for an estate in this category. We realize that the idea of hourly billing is scary to most people who worry that that hourly billing encourages slow work. We will be happy to discuss a flat rate for this category or probate. To give you a flat rate we would have to discuss with you all of the estate assets, the heirs, the creditors, etc. Our flat rate would be good assuming that there were no will contests or contests with creditors etc. Our flat rate is $3,150 for the first $100,000 of the estate and 2% of the estate over that, without regard to debts of the estate including mortgages, plus costs. For estates over $500,000 we will consider a lesser flat rate on a case by case basis. Again, we believe we are the affordable, discount, low-cost, high quality probate attorneys. Please see the last two paragraphs of the previous section.

      If there are no complications, this process could be completed in about 4 or 5 months after we file the initial petition with all necessary paperwork. This process involves a 90 day notice to known and unknown creditors. However, specific facts, such as sale of assets under the Court's supervision, could cause the process to take longer. When we say we offer "fast" probate we mean we are diligent in moving things along as fast as we can consistent with the legal requirements.

     This procedure is called general administration.

     Because of the expense of probate we recommend the use of a trust rather than a will for estate planning.

 Ancillary Probate:

     Real estate must always be probated in the state it is located in. Suppose a person in Las Vegas dies owning property Nevada, California and Hawaii. The main probate would be in Nevada. Ancillary probate proceedings would have to be done in California and Hawaii to probate the property in those states. See Ancillary Probate.

     This is another reason for a trust. In the example above a trust would save the expense of three probates.

Do You Need an Attorney for Probate?

      It is your constitutional right to represent yourself in almost all court proceedings. However, probate courts require that a number of documents be filed and written up in very specific ways. There are also specific procedures such as giving notice to creditors. The proceedings are complicated in a way that is designed to provide as much protection as possible to creditors and also to heirs in cases in which the administrator or executor handling the estate may be in conflict with and hostile to some of the heirs. Most probates are "friendly" in that the executor or administrator gets along just fine with the other heirs. However, the probate procedure is a "one procedure fits all procedure" that seeks to offer protection to creditors and heirs by making sure that the probate is done in a certain way. Even many lawyers find these probate procedures difficult. This is why most lawyers don't do probates and this is why most people either begin or end up hiring a Nevada probate attorney for their Nevada probate.

How Do We Know What the Value of the Estate Is?