It is not hard to tell when it is election time in Clark County. Everywhere you look there signs asking for your vote. While the candidates are highly publicized in advance of the election, the ballot measures often do not get as much attention. One of the ballot measures this fall asks voters to approve the addition of a Court of Appeals in the State of Nevada. Nevada is one of only a handful of States that do not have a Court of Appeals. Among the States without a Court of Appeals, Nevada has the largest population and highest caseload per justice.
As it stands right now, all appeals from the District Court go directly to the Supreme Court of the State of Nevada. Given the high rate of population growth and the increased caseloads, the limited resources of the Supreme Court are being taxed in order to sustain a timely resolution of all of the cases in the pipeline. An overburdened appellate court creates a backlog of cases on appeal waiting to be heard. In turn, individual litigant’s access to justice can be delayed for several months or even more than a year.
Under Nevada’s model, the addition of an appellate court would enable the Supreme Court to refer cases to the Court of Appeals in appropriate cases. These would typically be housekeeping cases or those that do not concern an important policy of the State of Nevada. More cases could be processed and justice will be served in a more timely manner.
Like any other civil case, a will contest, a trust contest or other litigation involving trusts and estates can be appealed from the District Court. The addition of a Court of Appeals would allow these types of cases to be more swiftly determined on appeal. This is especially important in the context of wills and trusts, since the overall objective of the probate code and trust code is to resolve such matters on a more expedited basis than an average civil case. That objective is thwarted when these cases get tied up in the appeal process since it prevents the estate and/or trust from being finally settled and distributed to the rightful parties. Having a Court of Appeals would further the overall goal of allowing the trust or estate to be ultimately administered and distributed without unnecessary delay.
Appointing a personal representative in a probate proceeding usually takes from 3 weeks to several months. In cases where litigation between parties occurs, it can take even longer. The delay in appointing a personal representative can be a major problem as assets need to be collected and preserved and other estate business needs to be completed. The appointment of a special administrator helps to resolve this problem.
In Nevada, a special administrator can be appointed quickly through an ex-parte petition and order and without a court hearing. A special administrator has several powers outlined in NRS 140.040:
NRS 140.040 Powers, duties and immunity from liability for certain claims.
2. A special administrator may:
These powers allow a special administrator to conduct necessary estate business such as gather and preserve estate assets, manage a business or participate in legal proceedings for the estate pending the appointment of a personal representative. Often, special administrators are appointed to open and inventory safe deposit boxes to look for a Last Will and Testament or other important documents. Feel free to contact our office should you have any questions regarding the appointment of a special administrator.
Attorney – Corey J. Schmutz
Leaving an estate plan can provide peace of mind that a person's wishes will be respected and carried out when they are no longer around to care for and provide for their loved ones. Indeed, many estate plans are implemented just as flawlessly as the person who created it intended. There are, however, no shortage of estate plans that become tied up in lengthy and costly litigation as a result of will or trust contest actions alleging that the testator either did not have capacity to execute the estate plan or was unduly influenced by another person in making the estate plan. In these instances, the challenges have historically been made after the testator has already passed away. This is due to the fact that the laws of most states employ purely post-death probate procedures, which only allow the testator's mental capacity to be considered after death. The inherent flaw then becomes that the person best suited to confirm his or her testamentary wishes is no longer alive to consult about it.
North Dakota, Ohio, Arkansas and Alaska have enacted pre-death or “ante-mortem” probate laws that authorize some form of lifetime will validation. These laws permit testators to proactively seek a court declaration as to the validity of their wills during their lifetimes, thereby reducing the likelihood of a will contest after their death. With the exception of Alaska these laws have been in existence for some time, having had the most frequent use in Ohio while getting little to no use in North Dakota and Arkansas. Alaska sparked a reemergence of interest in pre-death probate legislation in 2010 when it adopted a broader version of the ante-mortem probate statute. In addition to wills, the Alaska statute authorizes the court to declare the validity of trusts during the lifetime of the trustor. The validation proceedings may either be initiated by the testator or any interested person with the testator’s consent. Incidentally, Alaska will entertain pre-death probate proceedings even when the testator resides in another state or has no connection to Alaska. In 2011, the Nevada legislature considered similar ante-mortem probate legislature, but it failed to pass.
Whether Nevada and the other currently “post-mortem” probate states will ultimately enact pre-death probate legislation remains to be seen. In such states, there continue to be a range of methods that may be invoked when setting up the estate plan to lessen the potential for a will or trust contest later. Included in these methods are: self-proving wills, no-contest or "in terrorem" clauses, and videotaped execution ceremonies, to name a few. Individuals who are concerned that a will or trust contest might interfere with his or her carefully crafted estate plan should speak candidly to the attorney about the options available to safeguard it from unwanted attacks.
-Attorney Kari L. Stephens
The state of Nevada has a strong policy interest in protecting the surviving spouse and minor children of a decedent. Nevada law has a special provision that provides protection for a surviving spouse and/or minor children where estate assets are less than $100,000. NRS 146.070 provides:
This statute permits the entire estate to be set aside and distributed to the surviving spouse and/or minor children for their support. Further, if the court deems it just, the funds can pass to the surviving spouse and/or minor children prior to creditors being paid and regardless of how the funds are distributed pursuant to the decedent’s will.
One of the reasons for this Nevada law is to make sure that if a deceased leaves a small estate and a surviving spouse or minor children, the funds may be used to support the decedent’s survivors and avoid the need for state aid. Feel free to contact our office should you have any questions about transferring a small estate to a surviving spouse or minor children.
Attorney – Corey J. Schmutz
An attorney cannot reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation of the client. This duty of non-disclosure is often referred to as the attorney-client privilege. But what happens to this privilege when the client dies? For example, an attorney assists a client in his or her estate planning, specifically the preparation and execution of the client’s revocable trust agreement, last will and testament and related estate planning documents. During the course of the representation, disclosures are made by the client to the attorney regarding the assets and liabilities of the client, the family dynamics, and the intent of the client. Does the confidentiality of this information survive the death of the client and continue on? The short answer is yes, with certain exceptions.
The general rule in Nevada is that the attorney-client privilege survives the death of a client. However, the personal representative of the estate of the deceased client is entitled to any information from the attorney as a matter of necessity since the personal representative is charged with duties that include the carrying out the terms of the last will and testament, preserving and safeguarding the assets of the estate, and filing a written inventory of the estate assets. Essentially, the personal representative steps into the shoes of the deceased client. The attorney-client privilege passes to the personal representative of the estate of the deceased client and can be asserted by the personal representative.
The attorney-client privilege also passes to the successor trustee of the revocable trust of the deceased client and can be asserted by the successor trustee. The successor trustee is again entitled to any information from the attorney as a matter of necessity. Also under Nevada law, a beneficiary of a trust is entitled to a copy of the relevant portions of a trust agreement regarding his or her bequest in most cases.
One very common exception is when the validity of the terms of the last will and testament or of a revocable trust is challenged. For example, a party brings an action alleging that the last will and testament or the revocable trust is invalid because the decedent was unduly influenced in the making of the will or trust. There is no privilege as to a communication relevant to an issue between parties who claim through the same deceased client. A related exception is that there is no privilege as to a communication relevant to an issue concerning an attested document such as a last will and testament to which the attorney is an attesting witness. These exceptions are practical necessities to enable a party to establish the validity or invalidity of a will or trust of a decedent.
In summary, an estate planning client can rest assured that information furnished to an attorney remains confidential after his or her death with certain, practical exceptions.
I'm often asked why certain assets have to be probated and, correspondingly, what happens to the assets if no probate is opened. With limited exceptions, when a person dies owning assets in his or her name alone, those assets cannot be transferred to the intended beneficiaries without involving the Courts in a process known as probate. Probate is in fact the legal procedure through which the title to assets is transferred out the name of the deceased person and into the names of the beneficiaries. Consequently, probate is often unavoidable where a deceased person holds sole title to specific assets. If no action is taken with respect to such assets, they will in essence remain frozen. No one has authority to collect the asset or to direct the disposition of it. Ultimately, unclaimed assets may be escheated to the State by the third party holding any such asset on account of a deceased person.
Probate can rear its head in a number of situations. First, probate will likely come into play when a person neglects to do any planning for the transfer of his or her assets upon death. Probate issues can also pop up even when a person has engaged in some sort of planning. For example, problems frequently arise in the case where a person undertakes to make lifetime transfers or prepare estate planning documents without the guidance of a qualified legal practitioner. Additionally, if a person dies having a Will but no living trust, then the Will normally requires probate. Setting up a living trust usually involves the goal of avoiding probate. In this case, an unanticipated probate could still result when a person neglects to title one or more assets into the name of the living trust either at the point the trust is established or later when additional assets are acquired.
Many of you have already been exposed to a probate horror story or two. Probate has been depicted as slow, expensive and outdated. Complications such as owning property in other States or having interested persons who disagree over the disposition of the estate, can easily cause the costs to rise and delay the time it takes to complete the process.
What some people may fail to realize, however, is that probate is entirely a voluntary process. It only arises in connection with the estates of persons who have not taken appropriate steps to avoid probate. Indeed, there are plenty of good reasons to consider avoiding probate, whenever possible, including privacy matters, reduction of costs, and efficiency in the distribution of assets. Our team of estate planning attorneys can advise you as to effective strategies to avoid probate that are tailored to your unique situation. We can further counsel you on various methods available to facilitate post-death transfers of assets in certain circumstances without necessitating a full blown probate. The bottom line is that no one ought to be taken by surprise with unintended consequences affecting the disposition of his or her property.
Going to court is an expensive proposition in almost all situations because of attorney fees and court costs. Court is also often time-consuming as reflected in the adage “Justice grinds slowly”. Probate Court is no exception. One of the main advantages of creating a revocable living trust during your lifetime is to avoid probate when you die.
When one dies with a revocable living trust that has been properly funded, the probate process can be avoided. Normally, a court is never involved with the supervision of a revocable trust when the creator of the trust dies. However, there may be times when a court will become involved in a trust administration (i.e. there is a dispute among the parties, the trust agreement is ambiguous, the trustee is acting improperly, et cetera). If there is a possible disagreement on a trustee’s desired course of action, is it always necessary to go to court even though you would like to avoid the cost of doing so? The answer is no.
A possible alternative is a Notice of Proposed Action. Under Nevada law, a trustee can mail out a written Notice of Proposed Action to certain prescribed adult beneficiaries of the trust. The Notice must state certain things, including but not limited to a description of the proposed action, an explanation of the reason for taking the action, and the time within which objection to the proposed action may be made. The time provided for objecting cannot be less than 30 days after the notice of proposed action is mailed to the beneficiaries. A beneficiary may object to the proposed action by mailing a written objection to the trustee within the time stated in the notice. If no beneficiary timely objects to the proposed action, the trustee can proceed with the proposed action and is not liable to any present or future beneficiaries with respect to that proposed action. Accordingly, the mailing of a Notice of Proposed Action by a trustee is usually far preferable than immediately going to court to have a disagreement settled by the court. If no timely objection is made to the Notice of Proposed Action, the dispute over the proposed action has been settled without incurring the court costs and attorneys fee of going to court.
- Attorney John Mugan
Probate is a court-supervised estate proceeding under which the probate assets of the decedent are controlled by the terms of the last will and testament of the decedent. Probate is a lengthy, complicated and expensive procedure that is a matter of public record. Probate should be avoided if possible. The most common way to avoid probate is for the decedent during his or her lifetime to establish a revocable living trust and transfer his or her assets that would trigger a probate proceeding into the trust. When the decedent dies, probate is avoided. Administration of the trust is not court supervised, and is much quicker, simpler, far less expensive and confidential. In such a case, the trust agreement, not the last will and testament of the decedent, is the key document that controls the ultimate disposition of the trust assets. The last will and testament of an individual who has created a revocable living trust is merely a “pour over will” that bequeaths (“pours over”) any probate asset into the trust and is administered pursuant to the terms of the trust. Nonetheless, there is a law in Nevada that requires any person having possession of the last will and testament of a person they know is deceased to deliver it to the Clerk of the District Court which would have jurisdiction of the matter within thirty (30) days after learning of the death of the decedent. The Clerk of the District Court currently charges an eighteen dollar ($18.00) last will and testament filing fee.
Most individuals are not aware of this law. An individual such as a surviving spouse or child who has possession of the decedent’s last will and testament and has failed to file the will within the thirty (30) day period usually becomes very concerned when they learn of the law. What are the consequences? The good news is there are no criminal or civil penalties or fines for failure to timely file the last will and testament with the Clerk of the District Court, and there are no “last will and testament filing police” actively enforcing the law and pursuing a person who violates the law. Also the Clerk of the District Court will not inquire as to when the person filing the last will and testament learned of the death of the decedent. The law states that any person who fails to comply with the law without reasonable cause is liable to any person interested in the will for damages the interested person may sustain by reason of the failure to file the will. Accordingly, a person having possession of the last will and testament of a person they know is deceased should always deliver it to the Clerk of the District Court even if it is past the thirty (30) day period.
In previous blog articles, I wrote about the importance of avoiding probate. However, where probate is unavoidable, there are several provisions in Title 12 of the Nevada Revised Statutes that can alleviate the burden of a full probate proceeding where the estate is less than $500,000:
1. Affidavit of Entitlement - NRS 146.080 allows estates with a total value of less than $25,000 (not including any real property) to be distributed directly to beneficiaries through the use of an affidavit. The affidavit does not require court supervision and can be presented to any person who holds estate property. The property is then distributed directly to the rightful beneficiaries of the estate without going through a formal probate. This amount increases from $25,000 to $100,000 for a surviving spouse of the decedent.
There are certain requirements outlined in NRS 146.080 that must be adhered to for the affidavit to work. For example, among other things, the affidavit may not be filed until 40 days after the date of death and the affidavit must state that all funeral expenses and debts have been paid or provided for.
2. Set Aside - NRS 146.070 provides for the “set-aside” of small estates in two situations. The first is where "the gross value of [the estate], after deducting any encumbrances does not exceed $150,000" and the estate assets are distributed to the surviving spouse and/or minor children. The court, at its discretion, can direct that the entire estate be set-aside for their support and the decedent’s debts, if any, are discharged.
The second situation is where there is no surviving spouse or minor children. The court can set aside the estate to the intestate heirs or beneficiaries of a last will and testament provided that the gross value of the estate is less than $150,000. In the second situation, the creditors of the estate must be paid. Although NRS 146.070 requires that a petition be filed with the court, the procedure is much faster and easier than a full probate administration.
3. Summary Administration – NRS Chapter 145 provides that if the gross value of the estate after deducting encumbrances is less than $500,000, then summary administration is appropriate. Although the steps for a summary administration are similar to a full probate administration, the provisions of NRS Chapter 145 provide for some relief in a summary administration. For instance, the creditor claims period is shortened to 60 days and the initial petition for issuance of letters does not need to be published.
Should you have any questions regarding probate, feel free to contact our office.
Revised: 2025
According to the most recent estimates from the U. S Census Bureau, Nevada ranked fifteenth (15th) in state population growth. Many residents of Nevada are transplants, having lived and worked in other states before relocating to Nevada. Most states are “separate property states”; however, Nevada is a “community property state”, one of only nine (9) such states. Generally speaking, in a community property state such as Nevada, each spouse owns an undivided one-half interest in all property acquired during the course of a marriage regardless of how the property is titled. (Exceptions to this rule are property acquired during marriage by gift or inheritance and an award of personal injury damages, which are the separate property of the recipient only.) Contrast community property law with separate property state law under which ownership is determined by how the asset is titled. For example, assume two hundred (200) shares of Apple stock are purchased during the course of a marriage and are titled in the individual name of the husband. In a separate property state, ownership of all of the stock is vested in the husband, while in a community property state such as Nevada the husband has a one-half ownership interest in the stock and the wife has a one-half ownership interest in the stock.
However, what happens if property is acquired during the course of a marriage while the couple are residents of a separate property state, they then move to a community property state such as Nevada, and are residents of Nevada when the first spouse dies? This is a very common occurrence in Nevada. At the time of death of the first spouse, is the property the separate property of the spouse in which the property is titled per separate property state law or is the property owned one-half by each spouse per community property law? In Nevada, ownership of an asset acquired during the course of a marriage is determined under the laws of the state in which the couple was domiciled when the asset was acquired, and the ownership is not altered if the couple moves to another state. Accordingly, since the asset was acquired when the couple were residents of a separate property state, the asset is the separate property of the spouse in which the property is titled per separate property state law.
Understanding community property law, separate property law, and how and when they are applied is essential in the proper determination of what assets the deceased spouse owned for death tax, allocation of assets and administration purposes.
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