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Having a Will Does Not Avoid Probate

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.