Probate Words & Terms

A legal term to mean that a gift in a will fails.

For example, Dad leaves his beach house in his will to his daughter Mary. But Dad sold the beach house before he died. Usually, depending on the wording and circumstances, the will is treated as if this part of the will didn't exist.

A person who is appointed by the court, but not named in a will, to collect and sell and distribute with court approval the assets of an estate. In modern usage an administrator can be male or female; in older usage an administrator was male.

In contrast, an executor does the same thing as an administrator but is chosen by the person who wrote the will (testator) to do this. An executor's appointment must also be made by the Court. If a person dies without a will, the person who collects and sells and distributes the assets of an estate will be the administrator.

An old term for a female administrator

To initiate a probate proceeding there must be some proof that the person died. Usually this is a death certificate. However, a death certificate usually lists a cause of death and if the coroner spends some time investigating the cause of death it will take a while--perhaps, months, to get a death certificate. In such a case the coroner may issue an affidavit of death proving that the person died.

In Nevada, if the estate is under 25,000 (or under $100,000 if the only heir is a spouse) and does not contain real estate (a timeshare is considered real estate) the whole probate process can be done on an affidavit.

See joint tenancy below

If circumstances change an amendment to a trust can be written. since the trust may already have property in it, it is easier to write an amendment than to create a whole new trust and then re-title the property into the new trust. If a Will needs to be changed, the better practice is to tear up the old Will and write a new one so everything is in one document.

Normally probate is done in the state in which the decedent (person who died) resided. However, if the person owned real estate in another state, then there will have to be an ancillary probate in any other state where the person owned real estate. See Ancillary Probate.

A statute in trusts and estate law that if a gift is left to a person but the person who was to receive the gift dies before the person who made the will dies then the gift is distributed to the receivers descendants.

For example: Suppose a will says, "I give my summer home to Mary Sue," but Mary Sue died after the will was written and before the will writer died. Does this gift "lapse" (fail) or does it go to Mary Sue's descendants? N.R.S. 133.200 says yes only if Mary Sue is a descendant of the will writer.

A certification by a government agency other than the issuing government agency that the document is authentic. These can be difficult to get, are not usually required by the probate court, and if demanded by a bank or other financial institution, we can often get an order from the probate court that an apostille is not necessary.

Sometimes property is titled to Jack and Jill "as husband and wife." The intent is that they hold the property as joint tenants so that if one dies, the other automatically owns the property, but in Nevada this DOES NOT WORK. A deed to a husband and wife must deed the property to them as joint tenants if a joint tenancy is intended.

A legally qualified and licensed person who represents an individual in a legal matter. In Nevada and the United States the word "attorney" is used interchangeably with the word "lawyer." There is no difference between "lawyers" and "attorneys."

A gift in a will such as money or an item. Generally a bequest is not real estate. For example, "I give my 2010 Ford Truck to John Doe" or "I give $5,000 to Mary Roe. Bequests are further divided into specific bequests and general bequests. There are also other bequest types. The type of bequest is important if there is a shortfall in the estate.

A Specific Bequest is one with a specific item such as the 2010 Ford Truck. If the specific bequest is gone, that gift generally fails (adeems).

A General Bequest is one that is general such as the $5,000. General bequests such as cash do not fail and may take precedence over specific bequests

A person under 18 is not considered an adult and therefore if money should go to that person through probate, life insurance proceeds, or a personal injury case, the money cannot be given directly to the person under 18. The "default" way to handle this problem is to get a court order saying that the money will be put in a bank account subject to a court order that neither principal nor interest can be taken out until the minor reaches the age of 18 at which point the minor can go to the bank and collect all of the money.

A relative who shares a common ancestor. Except for spouses and the parent child relationship formed by a formal adoption, or a parent child relationship presumed as a matter of law (because the child was born during the marriage), in the absence of a will, only blood relatives can inherit.

It often happens that when a person, particularly an elderly person, dies with a Will or Trust leaving substantial property to a non-relative, the relatives claim that the person who died was unduly influenced by the non-relative or lacked testamentary capacity. Courts are most willing to accept this argument if the non-relative being benefited (or the relative being treated in the Will more favorably than other relatives) is the Decedent's Care Giver at the time the Will or Trust was written.

Orders, Letters Testamentary or Letters of Administration that have BOTH a Court's filing stamp AND a certification stamp and often a court seal in which a court official certifies that the copy is an accurate copy of what is in the actual court file. In Canada, public notaries can certify court copies but American courts want the certification to be by the Court, not a public notary

If a probate proceeding is filed in Nevada but a probate proceeding was filed earlier in another state, the Nevada court will want to see certified copies of the will (if there is one) and of the Order appointing an Executor or Administrator and of the Letters Testamentary or Letters of Administration.

Prior to covid, certified copies often had a glued on foil seal or a raised imprint seal. However, many courts, such as the Clark County District Court serving Las Vegas, now do "e-certification," in which there is just another stamp added to a PDF copy which is mailed to the requesting party. This makes an e-certified copy as easy to forge as a regular file-stamped copy and there is less of a tendency to demand a certified copy.

In the US, civil law typically describes court cases not involving a criminal prosecution.

N.R.S. 134.150 provides that the "degree of kinship" shall be determined by civil law. See degree of kinship.

Nevada's most populous county that includes the metropolitan area of Las Vegas, Boulder City, Henderson, and North Las Vegas, as well the growing city of Mesquite on the Utah border.

When there are two or more administrators. Under Nevada law an administrator who resides out of state must have a Nevada resident co-administrator.

A fancy legal term for an amendment to a will. Most lawyers consider it better to tear up the old will and write a new one instead of having amendments to a will. Just to illustrate, we had a case where the Decedent wrote a Will in Florida--the attorney kept the original--and moved to Nevada and wrote a Codicil in Nevada. When notified of the death, the Florida attorney insisted it was his duty to the file the Will in Florida and then our duty to get a certified copy from the Florida Court. We also had to file the Codicil in Nevada. This created obvious delay.

Defined in N.R.S. 123.220, Community Property is basically property acquired during marriage with the exceptions set out in N.R.S 123.130 defining separate property.

With some exceptions, a spouse can will his or her half of community property to whoever the spouse wants, but if there is no will and there is a surviving spouse, the surviving spouse, in some circumstances, gets all of the community property passing through probate, N.R.S. 123.250. Occasionally a real estate deed is made out to Jon and Mary, husband and wife as community property. There is no such recognized property form in Nevada and it will be considered property held as tenants in common, not joint tenancy so if one of the spouses dies, the surviving spouse will have to a probate to get title to the property.

A Will can name more than one person to serve as Executor, for example, Dad has two kids and his Will say both shall serve as Executors, unless one cannot or will not serve. Or, an Executor can ask that another person be named as Co-executor to help them with the job.

This term is the same as kinship. See, also, "Degrees of Kinship or Consanguinity," below.

A county official who is called when a dead body is found; the coroner will make a determination of the cause of death if the person died while not being medically supervised and issue the death certificate.

In the United States this are usually a document issued by a County or Health District or Mortuary using a State form and is the most common document used to prove death when initiating a probate proceeding.

The European Union issues death certificates, each of which contains more than a dozen languages, including English. The U.S. State Department will issue a "Report of Death of a U.S. Citizen or U.S. Non-Citizen National Abroad" which can be used instead of a death certificate. Death certificates that are not in English present special problems.

A deceased person, usually the person whose assets go through probate

The Degrees of kinship or consanguinity between two people is the number of steps from one person to another thru bloodlines, adoptions, or presumption of paternity. Grandad and Granddaughter are kindred of the second degree; Great Grandfather and Great Granddaughter or kindred of the third degree.

NRS 134.030, 134.040, NRS 134.050, and NRS 134.060 set out in easy to understand terms who gets what if a person dies without a Will and has reasonably close family members. If the person who died has only very distant relatives, NRS.070 says: [In the case of] No issue, surviving spouse or immediate family. If the decedent leaves no issue, surviving spouse, parent, brother or sister living at the time of death, the estate goes to the next of kin in equal degree, except that if there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestors are preferred to those who claim through ancestors more remote.

In Nevada N.R.S. 150.060(4) authorizes an attorney to contract with a client, subject to ultimate court approval, for a probate fee of 4% of the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000. Any lesser fee is arguably a discount probate attorney fee or discount probate lawyer fee. Our fees are substantially less. See Probate.

The transfer of money or other property of a decedent to the state when after a long time, for whatever reason, no probate is filed and the custodian of the property decides to turn it over to the state. 

Often, if a bank or other institution holds a dead person's money and no estate is opened up, the bank may simply turn the money over to the County Treasurer or to the State of Nevada Unclaimed Property Fund

Escheated money requires a complicated procedure to get; money that is merely in an unclaimed property fund is easier and cheaper for the heirs to get. (Escheated money involves a lawsuit against the State of Nevada filed in Carson City plus a probate proceeding.)

A person named in the will to handle the estate in probate. In modern use this person can be of either sex. In order usage, an executor was male.

An old term for female executor

In most cases in which a financial institution wants proof that a court document is authentic, they will accept a certified copy. But certified copies typically show only the date of first issue. So, if a personal representative presents in 2022 a certified copy of paperwork that was originally issued in 2020, the financial institution may want proof that the probate is still ongoing. In that case they ask for exemplified copies which in essence contain seals indicating that the Court has reviewed the case and these documents are still in effect on the date of issue of the exemplified copy.

A Latin term meaning that one person applies to the Court for something without having to give notice to other interested parties. A good example of this is an ex parte application to inventory a safe deposit box. See Safe Deposit Boxes

This phrase means "parent-child" and "husband-wife."

It comes from N.R.S. 375.090(5); under this section if there is a transfer of Nevada real estate there will be a transfer tax due, except if the transfer is between parent and child or husband and wife, or another exception applies. There are 13 other exceptions in N.R.S. 375.090 to having to pay a real estate transfer tax, including transferring in or out of a trust if there is no real change in ownership and inheritance under a will.

The person who puts money or property into a trust; also, the person on a deed who sells or gives away real estate

A will in which the signature, date and material provisions are hand written (not typed) by the testator (person making the will); a holographic will need not be witnessed to be valid. A fill in the blank form with handwritten fill ins is not a holographic Will, but a scrap of paper entirely in handwriting that says, "I John Smith leave my entire estate to Mary Doe," and is signed by John Smith is a valid holographic Will if authentic.

An archaic legal term meaning to offer property as collateral, usually for a loan.

When you buy a house with a mortgage you hypothecate the house to insure payment of your mortgage obligations. This is a term found in many trusts as some financial institutions like to see certain boilerplate in a trust.

Occasionally real estate is deeded to Jon and Mary as husband and wife. The intent is that if one dies the other automatically owns it all as if the property were held in joint tenancy. This is a mistake in Nevada and the property is considered to be held by them as tenants in common so that when the first dies, the survivor must probate half the property.

A 2011 Nevada probate law that simplifies the process of selling real estate during the probate process. See N.R.S 143.300 et. seq. (This process avoids the necessity to have a court hearing in which any one in the world can offer more money for real estate in probate about to be sold.)

A person who dies without a will.

When a person dies without a Will, the laws of intestate succession determine how assets of the estate are passed on to the spouse and/or heirs. Each state has statutes that say who gets what in the absence of a Will.

A legal term meaning the same thing as descendants. For example, your children, grandchildren and great grandchildren are your descendants and issue.

A way for two or more people to hold property so that if one of them dies the survivors automatically are entitled to the share of the dead owner.

This method avoids probate. Typically spouses hold real estate is held in joint tenancy and upon the death of one tenant the surviving tenant(s) files with the County Recorder an Affidavit of Death of Joint Tenant with attached Death Certificate.

Two people with a common ancestor or who are married.

In most cases if a person dies without a will only kin can inherit. Your kin are related to you by blood except for your spouse or by adoption or by presumption of paternity. Your mother's sister's husband may be your "uncle" but he is not a blood relative and is not your kin. A biological parent of a child and the child share a common ancestor. However, if the child is formally adopted or is presumed as a matter of law to be a child of the marriage then the child and parent are kin even if there is no biological tie. The importance of being kin is that people who are not kin of the decedent can not inherit in the absence of a Will.

If your Mom divorces your biological father and marries a new man who adopts you than you are the kin of the man who adopted you but you are not the kin of your biological father.

A legally qualified and licensed person who represents an individual in a legal matter.

In Nevada and the United States the word "lawyer" is used interchangeably with the word "attorney." "Lawyers" are the same as "attorneys." In the United Kingdom and some other English speaking countries lawyers are divided in "solicitors" who don't appear in court and "barristers" who have the exclusive privilege to appear in court.

A court document appointing an executor or administrator which gives the person power to determine and collect assets of the estate of a dead person.

In most states, including Nevada, a person who wants to collect assets for the estate as executor or administrator must have a certified copy of both the Order appointing that person plus Letters of Administration or Letters Testamentary. Also, most banks want to see a certified copy of the death certificate.

A person can leave real estate to another person for as long as that person lives; after that the real estate goes to other people who own the remainder interest.

This term is sometimes confused with a Trust.

This usually refers to a document which states your wishes for health care choices if you are unconscious or otherwise unable to make health care decisions and the same document can also appoint relatives or friends to make health care choices for you if you are unconscious or can't make the choices. Sometime people call a Trust (which is really a Will substitute) a Living Will.

Within large limits the probate court lets clients and lawyers agree on a probate fee. We believe we are the high quality low cost probate attorneys in Nevada and we list our fees for uncontested probates on our website to make it easy for you to verify this claim. Probate

A non-conforming fee is sometimes charged to record a document for a number of reasons that can be avoided.

A will made verbally to others. Nevada does not recognize an oral or nuncupative will.

A will made verbally to others. Oral wills are invalid in Nevada and are sometimes called a "nuncupative will".

A bank account or brokerage account that is paid to a specified beneficiary when that beneficiary produces proof that the account holder has died

A slang term for a Transfer on Death Deed (authorized by N.R.S 111.109) which must be filed before the death of any grantor. It provides for the transfer of the property to a specified beneficiary upon the death of the grantors. This deed avoids the subject real estate having to be probated. It has two characteristics which may be disadvantageous: 1) title insurance companies will not issue a policy of title insurance until 18 months after the grantor died, and 2) When the new owner files to claim ownership upon proof of death of the grantor, there may be a real estate transfer tax that could have been avoided by using a trust.

The modern term that includes both executors and administrators

A child or spouse the court believe was accidentally omitted from the will. See Spouses and Children

All Court filings asking the Court to do something end with a statement of what the lawyer and client want the court to do. This used to be called the "Prayer for Relief," because in older English, the word "pray" had the broader meaning of a request to anyone. In modern times this is called the "Wherefore Clause," because this signals the paragraph where the lawyer and client sum up what they want the Court to do for them.

The court procedure in which a dead person's property is distributed

In Clark County (home to Las Vegas and nearby cities), the Probate Court hears probate matters on Friday. In many cases the Petitions are pre-approved and the Order signed and ready for pick-up from the baliff, but, if when the case is called, anyone makes an objection, the approved order will be withheld and a hearing conducted

Many people expect a "deed" from the probate court when they inherit property but "the deed" is actually a copy of the probate court's order saying who gets the real estate which is filed in the County Recorder's office.

The Nevada State Bar does not currently certify lawyers or attorneys who have demonstrated extra knowledge of probate matters and therefore it does not allow Nevada lawyers to call themselves "probate specialists", or to allow lawyers to say that they "specialize" in probate.

A person, usually not a lawyer, who tries to find unclaimed property of a dead person and then tries to get the heir to give that person a cut of the property in exchange for revealing the property and possibly helping the person claim the property. Some of these people are very ethical; some are shady.

A person experienced in selling estate assets; often a professional administrator is appointed if a lot of personal property must be sold or there is conflict among the heirs and no heir wants to serve as executor or administrator. For more information see Executor / Administrator / Personal Representative.

an elected official who acts as the administrator when people die leaving property in the county and no heirs can be found; the public administrator can also be hired by heirs who could but don't want to serve as executor or administrator. For more information see Executor / Administrator / Personal Representative.

A tax when real estate is transferred. Depending on which Nevada County the tax is typically plus or minus ½% of the real estate value. In some probates the person who gets the real estate has to pay this tax; with proper estate planning it can be avoided

A Will typically contains specific gifts called bequests. The residuary clause is part of the will that says who gets all the rest.

If a Will lacks a residuary clause and the Decedent dies with property not assigned to a particular heir, that unassigned property passes under the laws of intestate inheritance--as if there were no Will.

This usually refers to a payment given by a client to a lawyer when the lawyer is hired. The payment could be a payment of part of the fees or it could be in advance of money for costs.

In probate cases there is a lot of variety from one lawyer to another with respect to retainers.

A term used to mean that if two or more people hold property and one dies the survivor or survivor(s) take the dead person's share.

Some County Recorders (such as the Clark County Recorder) on their websites use the abbreviation "RS" on the "vesting" line of the property entry to indicate that the two or more persons holding the property are effectively holding the property as "joint tenants." In Nevada if a deed grants property to A and B as "Joint tenants" it is unnecessary to add the phrase, "with right of survivorship," although some people do so.

In a nutshell, this is property owned by a spouse before marriage or acquired afterward by gift or an award for personal injury damages (defined in N.R.S 123.130) If a person enters into a marriage and wants to keep their separate property as their own, they should consult a marriage lawyer and require the other spouse to sign a pre-nuptial agreement. 

Separate property is distinguished from community property defined in N.R.S. 123.220. Under some circumstances, if there is no Will, and there is a surviving spouse, the surviving spouse gets all of the community property with only the separate property being distributed according to the law of intestate succession.

A type of expedited probate procedure used in Nevada for estates with a value of less than $100,000 and where there is no advantage to appointing a personal representative.

An administrator who is appointed by the court to conserve or determine the estate assets; usually this person is appointed because it isn't yet appropriate to appoint a personal representative.

(Also known as Statutory Attorneys' Fees For Probate). N.R.S. 150.060(4) provides that attorneys and clients may enter into a fee agreement in which the attorney's probate fee is 4% on the first $100,000, 3% on the second $100,000, 2% on the next $800,000 of the probate estate and so on. However, attorneys and clients are free to enter into many other arrangements, some of them cheaper to the client and some of them more expensive to the client. Our fees average much less. See Probate Likewise, the similar statutory probate fee in California is NOT the minimum fee that can be charged.

A probate that is a slightly shorter and slightly cheaper process than general administration. In Nevada it is available to estates that are not over $300,000 in value.

A form of joint ownership such that if one owner dies, the share of the dead owner does NOT automatically go to the other owners. Instead the share of the dead owner passes to his or her estate. Tenants in common is the default mode.

For example a deed to "John Doe and Mary Doe, husband and wife," is a deed to them as tenants as common because it does not contain the magic words, "as joint tenants," or, "with rights of survivorship."

The minimum mental ability to write a valid Will.

This is generally a lower standard than the mental capacity necessary to write binding contracts or to write a trust. This relaxed standard may be due to the fact "that you can't take it with you when you die." Testamentary capacity, for example, requires that Dad, a widow with a much younger girlfriend, knows leaving his money to his adult children might be "natural" but as long as he understands that, he probably has testamentary capacity to leave his money to anyone he chooses, but see "Care Giver," above.

A persons dies testate if they left a valid Will and intestate if they died without a Will.

The person who writes a will; in modern usage this can be a person of either sex, but traditionally a testator was male.

An old term for a female who writes a will.

Under N.R.S. 111.655 and related sections, Nevada's Real Property Transfer On Death Uniform Act, a deed (for example from parents to adult children) is filed before death but only becomes effective upon the death of all grantors. This deed avoids probate.

A device which avoids the probate process and provides for the property of a dead person to pass to his or her family and friends without a court process; trusts are generally preferable to wills.

The person who administers or controls property in a trust. Usually the person who sets up the trust is the original trustee. After the original trustee dies or becomes disabled there is a successor trustee

Probate laws adopted by about half of the states. Nevada and California have not adopted the Uniform Probate Code complete; Arizona has.

A document describing to whom a person's property should go when the person dies. For a will to be given effect it must be probated which is generally time consuming and expensive