Probate of a Will From Another State

The most common situation of, say, a California Will, coming into Nevada's Probate Court is Ancillary Probate. In Ancillary Probate the out of state Will is accepted by the probate court of another state, most of the probate takes place in that state and the Nevada Probate Court accepts the validation of the will by the court in the other state which accepted the will. The need for an Ancillary Probate is usually due to the fact that real estate must always be probated in the state in which it is located. In Nevada timeshares are considered real estate. Thus there will need to be a Nevada probate if a resident of another state who dies owning a Nevada timeshare or other Nevada real estate (and the Nevada property is not in a trust and there is no Deed Upon Death).

However, it occasionally happens that there is no probate in the other state. Say a resident of  Wisconsin puts all of their property into a trust written up a Wisconsin lawyer, but the person and their lawyer don't think about adding a Nevada timeshare to the trust. Now the only probate will be in Nevada for that timeshare. 

This creates a problem for the Nevada Probate Court. How does the Nevada Probate Court know if a Will written in another state is valid since that Will was never submitted to a Court in that other state. If the out of state Will meets the Nevada requirements for a Will to be valid, the Nevada Court will accept it as valid. But the Will might not meet the Nevada requirements but still be valid, in say South Dakota when written and executed in South Dakota. In that case the Nevada probate lawyer will need a letter from a South Dakota lawyer saying the Will was valid under South Dakota law when written and executed. 

Often the results will be the same under a Will or the laws of intestate succession--the law which says who gets what if someone dies without a Will. See If You Die without a Will. In such a case we submit a Petition asking for distribution under the intestate laws, but attach the out of state (or even Nevada) Will that doesn't meet Nevada requirements. In that situation we basically say, "Judge, it's easier to just treat this case as if there was no Will and no harm is done since we get the same result whether or not we use the Will."

Sometimes the question is: "I used to live in Kentucky and had a will written there; now that I am living in Nevada do I need to re-write the will?" If the will was valid when written in Kentucky, Nevada has a legal obligation to honor the Kentucky law. However, as a practical matter, if the Will was not witnessed by two witnesses who signed the will and had their signatures notarized (or made an equivalent statement under penalty of perjury), it would be a good idea to have the Will re-written in Nevada.

So far in this discussion I have assumed the will is typed in whole or part. A Will that is written entirely by the Will writer in his or her own hand and signed by that person is called a holographic will. No witness signatures are necessary.

Assuming a valid out of state Will, the Nevada probate court will require either:

  1. The original will be filed in the Nevada court, and, if the out of state will would not be valid under Nevada, there must be some proof that the out of state will was valid in the state where it was written when it was written, or
  2. A certified copy of the will filed in a different state along with a certified copy of a court order from the different state admitting the will to probate along with a certified copy of the different state's Letters Testamentary or Letters of Administration.