If You Die Without A Will

(Dying Intestate)

Leaving Titled Property Without A Will or Trust

If you die without a will (called dying intestate) or trust leaving property with a title (such as a house or a car or bank account) in your name only, that property will have to be probated which means the Probate Court will transfer the property to a spouse or relative if a probate proceeding is started.

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 that happens there is a six year deadline for next of kin to try and get the property back. See our section: Parent Dies, Nevada Inherits However, in the huge majority of cases involving a person dying without a will, the nearest relatives hire a lawyer to do what is called an intestate probate proceeding, and the property is distributed according the laws set out in NRS Chapter 134.

Nevada Law (NRS Chapter 134)

Here is a brief summary of Nevada law on this subject. This law is the same for all Nevada residents, whether they live in Las Vegas, or Searchlight.

NRS Chapter 134 deals with who get the property when a person dies without a will. "Intestate" is the legal term to describe dying without a will.

The separate property of a person who dies without a will is distributed as follows:

If the person has a spouse and one child, each gets half. N.R.S. 134.040(1).
If the person has a spouse and two or more children, the spouse gets a third. The other two thirds go to the children in equal shares, except that if one of the children has died, but left descendants, the descendants take the dead child's share. N.R.S. 134.040(2).
If the person leaves a spouse, no descendants, and at least one parent, the spouse gets half and the other half goes equally to the two parents, or all to the surviving parent. N.R.S. 134.050(1).
If the person leaves no descendants or parents, but is survived a spouse and siblings (brothers and sisters), one half goes to the spouse and the other half goes in equal shares to the siblings. N.R.S. 134.050(2).
If the person leaves no spouse or descendants, everything goes to the parents or the survivor of them. N.R.S. 134.050(3).
If the person leaves a spouse, but no parents, descendants, or siblings, the spouse gets it all. N.R.S. 134.050(4).
If the person leaves no spouse, parents, or descendants, the it all goes to the siblings, or if a sibling has died to that sibling's children. N.R.S.134.060.
According to March 5, 2015 opinion of the Nevada Supreme Court, In the Matter of the Estate of Robert C. Murray, Deceased..." a child is defined for inheritance purposes by N.R.S. Chapter 126, the Nevada Parentage Act, not by the definition of child given under N.R.S. 132.055. Essentially this means that a non-biological child who meets the Chapter 126 definition of a child, is a child for intestate inheritance purposes.

Additional rules for who gets what if a person dies without a will are found at other sections of N.R.S. Chapter 134.

It is very important to understand that these laws saying who gets what if there is no Will do not allow the probate judge to give any consideration to the relationship between the Decedent and the intestate heir as defined by these statutes. For example, Dad dies as a single man and leaves 2 adult kids. Kid#1 is totally rotten and has been abusive toward Dad his whole adut life and hasn't seen Dad for 15 years prior to Dad's death. Kid#2 had a great relationship with Dad and brought great joy to Dad's life. But if Dad didn't leave a Will, both kids inherit equally.

Special Preference for Minors & Spouse If The Estate Does Not Exceed $100,000

However, if the gross value of the estate, after deducting mortgages and other security interests, does not exceed $100,000, special preference is given to minor children and/or the surviving spouse regardless of whether or not there is a will. N.R.S. 146.070 in these cases can trump the above statutes as well at the right of estate creditors. We can say that in Clark County (which includes Las Vegas, Boulder City, Henderson and North Las Vegas) the special provisions for minor children and/or the surviving spouse do not depend on how poor or how wealthy the minor children or surviving spouse are. Likewise, N.R.S. 146.050 provides homestead protection to surviving spouses and minor children.

Property Goes To the State of Nevada (Escheat)

If a person dies without a will, their property will only go the State of Nevada if no surviving spouse or relative comes forward to claim it. N.R.S. 134.120. (That process is called escheat.) Only once in our many years of experience as lawyers have we been asked to assist a client in claiming money that had escheated to the State of Nevada. There is a six year statute of limitations for claiming the money; the process is not difficult but somewhat time consuming.

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Probating An Estate Without A Will

Sometimes the big difference between there being a Will, or not being is Will is who gets what. With a Will, a single man can leave his entire estate to a charity or a girl friend even if he has children. Without a Will, the statutes of who inherited without a Will control. In most cases, though, what the Decedent wants will be the same with or without a Will. For example, a single man dies leaving 3 adult children (and he never had any children who died and left their own children): If the man wants his 3 adult children to share his estate equally, that is what will happen with or without a Will. But even in this case here are the three major differences between probating an estate with a will and without a Will:

A Will usually names an executor to serve without bond.

This means the executor, once appointed by the court, can set up their own checking account in the name of the estate. The probate attorney does not have to control the checking account. However, even in some cases in which there is an executor who can serve without bond, the executor prefers to have us as their lawyers set up the checking account for the estate and control it as it saves them time. Since we offer to do almost all probates for a set rate, our clients don't have to pay for our extra time doing this. See our low, discount, affordable fees for uncontested probates.

If there is no Will, a relative can serve as the administrator. But this person must either live in Nevada or work with a Nevada resident co-administrator.

Unless the Nevada resident co-administrator is doing a favor, the Nevada resident co-administrator will be entitled to a share of the statutory administrator's fee which is 4% of the estate on the first $15,000, 3% of the estate on the next $85,000, and 2% of the estate over $100,000. If you have an estate to probate and there is no will and you live out of state and don't have a Nevada resident family member or friend willing to serve as Nevada resident co-administrator, and if you are willing and able to do all of the work of administration, and the probate is uncontested, we can get you a responsible Nevada resident (not one of our employees) to be co-administrator for a fee of $500 for estates under $200,000 or a fee of $1000 for estates over $200,000. On the other hand, if there is a contest or if you want the Nevada person to do the heavy lifting of closing the estate, we recommend a professional administrator, either the county public administrator or a private administrator. Either will charge the statutory fee, although in certain cases extra fees may apply.

If the real estate is inherited without a Will, the recipient will have to pay a real estate tax unless the recipient is a parent, spouse, or child of the person who died.

In Clark County home to Las Vegas, is about ½% of the value. Unfortunately, the real estate transfer tax will be assessed on the full value of the real estate, even if it is mortgaged. For example, a man dies without a Will and his closest relative is a brother. The man leaves a $250,000 home with a $220,000 mortgage and no other debts. Let's say nothing else is in the estate. The brother could get the house through a "Set-Aside without Administration" for which we would charge $2000, but the real estate transfer tax would be about $1,250. Had the man left a will, his brother could have avoided the real estate transfer tax.

If real estate is inherited with a will the recipient does not have to pay a real estate transfer tax.