The Probate Code and how it affects Your Estate

April 15, 2016

probate codeNevada's probate statutes are a set of laws pertaining to issues relating to wills and estates.  There is a Uniform Probate Code (UPC) which is meant to simply the probate process and standardize the laws regarding wills, trusts, and intestacy.  The Uniform Probate Code also deals with gifts as well.  Since the probate code is likely to impact your estate plan in some way here is an overview of several of its important aspects.
Why is a standardized set of laws necessary?
Both federal and state governments have the authority to enact their own law as long as those laws conform to the mandates of the U.S. Constitution.  When the UPC was first drafted, the intent was that all states would adopt its requirements.  However, since the original version was first enacted in 1969, only a few states have adopted it in its entirety.  Nevada has not.  Many states have adopted parts of the UPC. However, there remains substantial differences in those state's laws.

What does the probate process involve?

"Probate" is the legal process in which the assets and debts left behind after someone dies are handled by the court. Your estate is distributed to your heirs, after paying your creditors.  The probate process is supervised by the probate court.  The probate process involves the components of estate administration, including the following:

  • Proving the validity of a will, if there is one
  • Selecting and appointing an estate administrator, executor, or personal representative
  • Accumulating all assets
  • Paying all legitimate debts and applicable estate taxes
  • Identifying all heirs and devisees
  • Distributing any remaining assets to those heirs and devisees

Each state has its own laws or statutes that deal with probate administration.  In Nevada, there are basically four different procedures of probate administration in Nevada.

Nevada’s Laws of Intestate Succession

When it is time to settle your estate, typically the only assets that are involved are those that you own in your name only.  Those are the assets that will pass to your heirs through the laws of intestate succession. If you own property in joint tenancy it will not be included, but will instead pass to the surviving joint tenant.  There are also other types of property that are not affected by the laws of intestate succession in Reno:

  • property you transferred into a living trust,
  • life insurance proceeds with a designated beneficiary,
  • funds in an IRA, 401(k), or another retirement account, with a designated beneficiary,
  • securities or funds held in a transfer-on-death account,
  • vehicles held by transfer-on-death registration,
  • real property subject to transfer on death language on the deed.

Who will inherit my property?

In most states, including Nevada, if you decease without a will and there is no beneficiary designation attached to your assets upon your death then ownership of your property will transfer to your spouse, children, parents or siblings, pursuant to Nevada's intestacy statutes.  For example, if your spouse and one child survive you, your spouse will inherit half of your property and the child will inherit the other half.  If you are survived by a spouse and more than 1 child then 1/3 of your estate will be inherited by your spouse and your children will inherit the other two-thirds in equal shares.

Avoiding the laws of intestate succession

In order to avoid the laws of intestate succession distributing your property for you, after your death, you must create an estate plan.  A comprehensive estate plan will see that your debts are paid and designated how and to whom the remainder of your estate will be distributed. The most basic estate planning instrument is a last will and testament.  A will is your written instructions as to how you want your estate to be handled when you die.

Avoiding Probate

If you execute a will, all of your property must pass through probate, which is an expensive, time-consuming and public process.  Contrary to what many people think, it is not difficult to avoid probate.  Some simple methods of making sure your property passes to the heirs you choose, without going through probate, include establishing a revocable living trust, pay-on-death accounts and registrations and joint ownership of property and gifts.  Consult with a Nevada estate planning attorney to explore which options are best for you.
If you have questions regarding probate court, or any other probate issues, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.

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