Hiring an attorney for probate can be overwhelming. I often get asked how much families can expect to pay their attorney to go through probate in Nevada. NRS 150.060 outlines how an attorney can charge for probate.

In most cases, an attorney will charge either on an hourly basis or based on the value of the estate. This decision often depends on the complexity of the estate. If the estate is complex or there are disputes between family members, typically fees are charged on an hourly basis.

If the attorney charges based on the value of the estate, NRS 150.060(4) provides for the following compensation for ordinary probate services as follows:

“If the attorney is requesting compensation based on the value of the estate accounted for by the personal representative, the court shall allow compensation of the attorney for ordinary services as follows:

(a) For the first $100,000, at the rate of 4 percent;

(b) For the next $100,000, at the rate of 3 percent;

(d) For the next $9,000,000, at the rate of 1 percent;

(e) For the next $15,000,000, at the rate of 0.5 percent; and

(f) For all amounts above $25,000,000, a reasonable amount to be determined by the court.”

As an example, if the total estate value were $300,000, the total attorney fees for ordinary services would be $9,000.00.

In addition to the compensation for ordinary services, NRS 150.061 allows an attorney to receive compensation for extraordinary services related to the estate. Extraordinary services can include services such as the sale of property, operation of a business, or litigation related to the estate.

It is always important to not only discuss the fees ahead of time with your attorney so that you can have a clear understanding as to the fees, but also to have a signed fee agreement outlining how you are to be charged.

I often get asked how long it takes to complete a probate in Nevada. The answer is not always simple. The length of probate depends on a number of factors including, but not limited to: the size of the estate; the complexity of the assets; the family dynamics; and the caseload of the probate court.

In cases where the total estate assets are less than $100,000.00, Nevada law allows for a more streamline procedure that can be handled relatively quickly. However, even in these smaller probate estates, if a court hearing is required, there may be a long wait time before the court is available to hear your case. For example, in Clark County, hearing dates are set approximately four months from the date the court documents are filed. Other counties in Nevada with lower caseloads may have a shorter waiting period.

In estates over $100,000.00, a minimum of two court hearings are typically required in addition to a 60-90 day creditor period which runs in-between the first and second court hearing. In Clark County, a typical probate with assets over $100,000.00 will take approximately one year if everything goes smoothly. This timeframe can be extended significantly if there are delays in taxes, selling property or disputes between family members or other beneficiaries.

If you or any of your family members have questions about probate in Nevada, please reach out to our office.

We often get asked whether having a Will is sufficient to avoid probate in Nevada. The question is usually asked by children of a deceased parent who are facing the time-consuming and expensive probate process because proper estate planning did not take place during the parent’s lifetime. The answer, in short, is that in Nevada having a Will is not enough to keep a person out of probate court at their death.

A Will is a legal instrument that determines how assets are to be divided at a person’s death. Wills are an effective way to accomplish this goal. However, if a person only uses a Will, a probate will be required for the distribution of those assets that do not automatically transfer to another person, such as with real property. With only a Will, children and other beneficiaries can be stuck with a time-consuming, expensive, and public probate.

In Nevada, if the deceased person’s assets exceed $25,000, or if there is real property involved, probate is normally required. If the value of the estate does not exceed $100,000, a petition can be filed in court, requesting that the estate be “set aside.” This means that the estate's distributions can be made without the court intervening. If the property values between $100,000 and $300,000, the estate can go through probate by way of a “Summary Administration.” If the value of the property exceeds $300,000, it must go through full probate, or “General Administration.”

There are several effective estate planning techniques that can be implemented to completely avoid probate. For example, a person can create a revocable trust. This estate planning tool allows a person to not only avoid probate and designate beneficiaries of their choice, but it also helps protect a person in the case of incapacity prior to their death. One can also try to avoid probate by making arrangements for the automatic transfer of assets, such as by naming designated beneficiaries on bank and other investment accounts.

Each method of avoiding probate has advantages and disadvantages. It is important to speak with an estate planning attorney before making any decisions to make certain your planning is done correctly, and your goals are successfully met.

We all would like to pass a little on to our children, loved ones, or perhaps to an organization that is important to us. You worked hard to build your legacy. The last thing anyone wants is to give a large percentage of their estate to pay probate fees.

When a person dies, they often times leave real property to their beneficiaries. So long as there are sufficient assets to pay off any creditors, the beneficiaries can choose whether to keep the property or sell it.

If the beneficiaries choose to sell the property and the property has to go through the probate process, there are three ways to deal with selling the property:

The beneficiaries can wait until the probate process is complete and the title has transferred into the beneficiaries’ name. At that point, because the title is held by the beneficiaries, they can sell the property and sign all of the closing documents individually. The only downside to this option is that the beneficiaries have to wait for the probate to be completed which can often take 6 months or more.
The property can be sold during the probate process through a court’s confirmation of sale. In this process, the executor or administrator of the estate signs the documents to sell the property. Once a buyer is found, there is a court hearing to confirm the sale. At the court hearing, the property is placed up for auction by the court and any member of the public may overbid the buyer and purchase the property. This helps to make sure that the estate gets the highest price possible for the property.
In some cases, the property may be sold during the probate process without a court confirmation hearing through the Independent Administration of Estate Act. This act, passed in 2011, allows property to be sold where all of the beneficiaries of the estate receive notice of the sale and the price received is not less than 90% of the appraisal price.

In most cases, any of the three methods described above can be used to sell real property. Methods two and three allow for a much quicker sale as they are done before the probate concludes. Should you have any questions regarding the sale of real property in probate, please contact our office.

Attorney – Corey J. Sch mutz

As an estate planning attorney, I often find it of interest to read about a celebrity’s estate plan. Celebrity estate plans can provide both good and poor examples of what should and should not be done by all of us. Recently, I came across an interesting article entitled “7 Estate Planning Lessons from Celebrities” which brought focus to this very topic. I would recommend reading it as the lessons provided are applicable to those with significantly less wealth than the celebrity examples found in the article. To bring focus to just two of the seven lessons provided in the article, I would like to focus on the estate plans of Philip Seymour Hoffman and Heath Ledger.

Philip Seymour Hoffman didn’t want his children to become “trust-fund kids.” However, it is reasonable to conclude that Hoffman had a desire that his children’s reasonable needs be met with his wealth. Against the advice of his attorneys, Hoffman’s estate plan was to leave his entire estate to his long-time girlfriend Mimi O’Donnell. It was Hoffman and O’Donnell’s mutual understanding that she would use his wealth to provide financially for the children, in her absolute discretion. This plan had two significant flaws. First, because Hoffman and O’Donnell were not married, the transfer of Hoffman’s estate to O’Donnell was taxable for estate tax purposes. Second, without proper instructions and guidelines as would typically be found in a trust agreement, there is no guarantee that O’Donnell will use Hoffman’s wealth in a manner that Hoffman would have approved of in relation to the upbringing of his children. Lesson to be learned from Hoffman’s estate plan is to not leave your estate to one person without proper guidelines and instruction in a legally enforceable document like a trust.

Although quite young at the time of his death, the 28 year-old actor Heath Ledger had a will when he died in 2008. Apparently, Ledger had drafted his will previous to the birth of Ledger’s daughter leaving his entire estate to his parents and sisters. Fortunately, Ledger’s family did the right thing by allowing the entire estate to pass to his daughter. The result of Ledger not taking the time to update his will after the birth of his child could have been ugly with the worst case scenario of Ledger’s daughter receiving nothing from her father’s estate. The lesson to be learned from Ledger’s estate is that as certain life events occur, a review and update of your estate plan should take place.

-Attorney Collins Hunsaker

Friends and family often ask me if they really need an attorney to prepare the estate planning documents. There are many forms on the Internet or online services that offer do-it-yourself planning.

I admit, these forms are services are much cheaper than paying for an attorney…at least on the front end.

The problem with doing your own estate planning documents is that you lack the legal advice that comes with estate planning documents. This legal advice is an important part of your estate plan; it ties all the legal documents and assets together into an integral, working plan. If you make a mistake in your estate planning documents or in how your assets are held, those mistakes cannot be fixed once you are deceased.

I will admit that, as an attorney, I am biased in writing this post; however, as the attorney in the office that handles most of the probate cases, this year I have seen an increase in awful estate planning documents. Its only August and I have already seen a large number of invalid or incorrect wills, incorrect deeds and invalid trusts. I may be biased, but when mistakes are made, I end up fixing them on the back-end. These errors lead to very expensive probates and often times assets passing to unintended beneficiaries.

Here is a list of the top mistakes I have seen this year:

Improper witnessing of the will (missing language the Nevada law requires to admit the will to probate)
Improper titling of real property between spouses
Failure to designate beneficiaries in the will or trust
Beneficiaries acting as the witnesses the will
Failure to fund a trust

When a person has a serious illness, they go to a doctor. Everyone accepts that fact that you need medical advice (not from google) to make sure you get the proper medical treatment. Estate planning is similar, if you choose to do-it-yourself you may end up doing more harm than good. You need an attorney to draft proper documents, integrate assets into those documents and to make sure all the pieces fit together properly. Make sure your documents can speak for you when you can no longer speak for yourself.

Attorney – Corey J. Schmutz

The main component of the estate plan for most people is a revocable living trust that they establish during their lifetime. A properly drawn and funded revocable living trust will enable the surviving spouse and family members to avoid probate, the formal court supervision of an estate proceeding. The most common reason given for wanting to avoid probate is the cost of a probate proceeding. Since the court supervises the probate process from start to finish, significant administrative costs and fees are incurred. These fees and costs include fees of the personal representative, fees of the attorney, filing fees and court costs. However even when a person establishes a revocable living trust, periodically one or more assets such as a vehicle or a bank account does not get properly re-titled into the revocable living trust. In this situation, when the trustor dies the vehicle or bank account is in the name of the deceased trustor alone. Can probate still be avoided? The answer is maybe, depending on the value of the asset or assets.

Under existing Nevada law, specifically NRS 146.080, if the gross value of such asset does not exceed $20,000.00 and does not include an interest in real estate, the person entitled to succeed to the property may execute an Affidavit showing the right to such property. This person, the claimant, is usually the trustee of the revocable living trust or the surviving spouse. The Affidavit, along with a death certificate, is furnished to the institution having custody and control of the asset no sooner than 40 days after the date of death, and the institution is required to change ownership of the asset accordingly without the necessity of probate. For example, a vehicle or bank account titled in the name of the decedent at the time of death will be re-titled by the DMV or the financial institution per the terms of the Affidavit.

The gross value limitation amount of $20,000.00 under NRS 146.040 was increased in the most recent Nevada 2015 legislative session. The law was amended to raise the gross value limitation amount to $100,000.00 if the claimant is the surviving spouse and to $25,000.00 for any other claimant. Also under the amendment, the value of a vehicle is not counted against the new gross value limitation. This amendment is effective October 1, 2015.

Also under existing Nevada law, specifically NRS 145.110, if the gross value of an estate after deducting any encumbrances does not exceed $200,000.00, the Court may order summary administration of the estate as opposed to a complete probate proceeding. This amount was increased to $300,000.00 in the Nevada 2015 legislative session. Again, this amendment is effective October 1, 2015.

In summary, a probate proceeding may in some situations be avoided in Nevada even if the trustor dies with an asset or assets that normally would require a probate proceeding. However, the best and safest way to avoid probate is to establish and properly fund a revocable living trust during one’s lifetime.

-Attorney John R. Mugan

Another major reason to avoid the probate process is confidentiality. An estate file is a matter of public record. A review of someone’s estate file will reveal the terms of the Last Will And Testament of the decedent including:

who the beneficiaries are (and are not … such as disinherited children),
an inventory of the assets and their estimated value on the date of death,
any claims of creditors,
an accounting of the income and disbursements during administration,
the fees of the personal representative and attorney,
any litigation contesting the validity of the Will, and
the proposed distribution of the estate assets to the beneficiaries, among other information.

Although one can seek an Order sealing an estate file, obtaining such an Order is difficult and is somewhat unusual in estates in recent years.

Contrast the non-confidentiality of a probate proceeding with the confidentiality of a trust administration. A court does not supervise a trust administration. Accordingly, there are no filings with the clerk that become a matter of public record. Under Nevada law, the Will of a decedent is required to be lodged with the Clerk and becomes a matter of public record; however, the dispositive provisions of a Will in a revocable living trust situation merely provide that any estate asset is “poured over” into the trust. The trust agreement itself is not made a matter of public record. For a court in Nevada to become involved with a trust administration, the court has to formally agree to assume jurisdiction of a trust via court order. Courts in Nevada have more than enough to do, and do not want to assume jurisdiction of a trust unless it is absolutely necessary to do so. Examples of this would be for the court to construe the terms of a trust agreement that are ambiguous and open to more than one interpretation, misconduct by a trustee, and a challenge to the validity of the terms of the trust agreement.

John Mugan height="200" />In summary, a primary reason for utilizing a revocable living trust in order to avoid the probate process is to maintain the confidentiality of one’s estate plan.

-Attorney John R. Mugan

Jurisdiction is the power of a legal body (a court) to hear and make a judgment or ruling on a case. The Nevada Probate Courts are only able to hear and adjudicate probate cases that come within its jurisdiction. The Nevada Probate Court’s jurisdiction is outlined in NRS 136.010:

Wills may be proved and letters granted in the county where the decedent was a resident at the time of death, whether death occurred in that county or elsewhere, and the district court of that county has exclusive jurisdiction of the settlement of such estates, whether the estate is in one or more counties.
The estate of a nonresident decedent may be settled by the district court of any county in which any part of the estate is located. The district court to which the application is first made has exclusive jurisdiction of the settlement of estates of nonresidents.

In other words, the Nevada Probate Court may hear and make rulings on cases where (1) the Decedent was a resident of Nevada at the date of death or (2) the Decedent was a non-resident but owns property located within the State of Nevada.

Three simple examples illustrate the Nevada Probate Court’s jurisdiction:

Decedent A was a resident of Colorado and owned a vacation home in Las Vegas, Nevada. The Nevada Probate Court has jurisdiction over Decedent A’s probate because the Decedent owned real property in Nevada.
Decedent B is a resident of Nevada at the date of Death. The Nevada Probate Court has jurisdiction over Decedent B’s probate because Decedent B was a Nevada resident.
Decedent C is a resident of Texas and has no assets in the state of Nevada. However, Decedent C’s children are Nevada residents. The Nevada Probate Court does not have jurisdiction over Decedent C’s probate because Decedent C was not a Nevada resident and did not own any property in the state of Nevada.

Should you have any questions regarding the Nevada Probate Court’s jurisdiction, feel free to contact our office.

Attorney – Corey J. Schmutz

In previous blog posts I have discussed the benefits of avoiding probate in the State of Nevada. One of the most common assets to land you in probate is real property. Real property is generally a probate trap because unlike financial assets, beneficiaries are not commonly named on real property assets. There are several ways to keep your real property out of probate:

Creating a properly funded revocable trust;
Recording a beneficiary deed naming beneficiaries to the property; or
Holding title to the property in joint-tenancy.

Determining the best option depends on several factors such as the size of the estate, the age and relationship of the beneficiaries and your overall estate planning goals. It is important to note that there are risks involved with some of the options listed above, such as being subject to liability as a result of owning property in joint-tenancy with someone other than a spouse.

Avoiding probate with real property assets can be easy. However, avoiding probate generally requires filing the correct documentation with the Recorder’s office in the county in which the property is located. I often times meet with clients who do not realize that the current titling of their real property could be causing undesired probate consequences for their spouse or beneficiaries. If you have any questions regarding whether your real property assets may be subject to probate, contact your estate planning attorney to find out more.

Attorney – Corey J. Schmutz

Las Vegas Office

Henderson Office

Subscribe to Our Newsletter