Your Probate Guide

The first step in the probate process is to find all of the property owned by the person who has died.  Unfortunately, most people do not leave a detailed list of everything they own.  Instead, we need to go on a treasure hunt to find the clues that reveal what a person owned:

1) Personal property items  — These can be found where the person lived, in safe deposit boxes, and in mini-storage units.  To discover if a safe deposit box exists, search for a key to the box.  Also, the annual fee for the box may appear on the person’s bank statement once a year.  For mini-storage units, look for a key to the unit, and check credit card statements and bank statements to see if a monthly fee is deducted or paid by check.

2) Motor vehicles — Search for the Certificate of Title for all trucks, automobiles, trailers, or ATVs.  For vehicles that are financed, the Certificate of Title will be with the lender until the loan is paid off.  After a person dies, the lender still needs to be paid.  If the Decedent purchased credit life insurance, the premium for this insurance will appear in the paperwork signed at the time of purchase, or as an extra charge may appear on the monthly statements for the vehicle.  If credit life insurance does exist, it is not paid automatically — a claim form needs to be filed with the insurance company, so that the lender can receive the insurance proceeds.

3) Real property — Search for Deeds, Mortgage Statements, and Real Property Tax bills.  If you cannot locate the Deed, it is simple to search on the internet to determine if the Decedent owned real property in Nevada.  It becomes more difficult to locate real property out of state because you need to know the state and the county where the property is located.  Real property records are maintained on a county by county basis, so it is not easy to perform a nationwide search for real property.

4) Bank Accounts — Search for bank books and monthly statements.  For Certificates of Deposit, look for the paperwork issued when the account was created or a recent notice showing the next date on which the Certificate of Deposit is scheduled to expire.

5) Stocks — Search for monthly or quarterly statements from Stock Brokers.  For Certificates issued in the name of the person, search for the Stock Certificates.  Sometimes, we can discover that a stock exists because the person receives dividend checks in the mail after he or she dies.  Dividend checks may also show up as deposits on the person’s bank statements.

In Las Vegas, probate hearings are always held on Friday at 9:30 a.m.  A “hearing” is when the probate commissioner hears arguments from the different sides in a probate case.  For every significant action that you want to take in a probate case, Nevada law requires that you provide written Notice of a hearing to all interested parties, so that each side has a chance to speak to the probate commissioner.

To speed the process up, in Las Vegas, the probate commissioner creates an “approved” list of those cases where all the paperwork appears correct.  The judge has also signed the written Order approving the request by the person requesting the Order, but the probate commissioner will not release the Order until he announces the case at a “hearing” and gives all interested parties a chance to stand up and object.

On Friday, February 5, I had two cases on calendar where the other parties were trying to “do it on their own.”  In the first case, one of the Decedent’s six grandchildren wanted to be appointed as Co-Administrator of his grandfather’s Estate, but he left out a required paragraph in his Petition to be appointed (the one where he is required to state that he has never been convicted of a felony).  I knew that this Paragraph was missing when I saw his paperwork, but he apparently did not.  As a result, when he appeared at the hearing, his matter was not “on calendar” [which means the probate commissioner would not consider it].  His Petition had instead been “continued” to next Friday’s hearing to give him a chance to fix his paperwork.  If he does not figure out how to fix his paperwork, his Petition will eventually be taken off calendar and denied.

In the second case, the Decedent’s son was attempting to have the Court enter an Order distributing his father’s property to himself and his sister [to the exclusion of his two half-sisters who share the same father, but have a different mother].   At a prior hearing three weeks before, the Court had denied the son’s initial Petition because he had not mailed written Notice of the hearing to the two half-sisters at least 10 days [which according to the way lawyers "count" days in Nevada may require either 14 or 15 "calendar" days] before the hearing.  For the hearing on February 5, he did provide written Notice of the hearing to his two half-sisters, so they had the chance to hire me to appear and point out to the Court that all four children were entitled to equal shares of their father’s estate, but only after all creditors are paid — one of which is the Decedent’s unpaid child support obligation to his former wife.  [Even though an ex-spouse is not an "heir," the ex-spouse can still be a creditor of the Estate, and creditors get paid before heirs].

Needless to say, both the grandson in the first case and the son in the second case are upset with the probate Court system, but they both made the mistake of wandering into the probate maze without a guide.

Michael Gerber, author of the E-Myth, talks about getting a “helicopter” view of a business in order to better design how it operates.  This post will give you a “helicopter” view looking down from above on the probate maze — looking down from above displays the path you will follow once you enter the maze.

There are seven (7) basic functions we have to accomplish before a probate ends and the probated property can be distributed (i.e. given) to the heirs.

1.  Find the Decedent’s property, and determine what property has to go through probate.

2.  Determine who will be appointed to run the probate (i.e. who will serve as the Executor, Administrator, or Personal Representative).

3.  Determine who will receive the property left at the end of the probate process (i.e. whether there is a valid Will or not).

4.  Place a “date of death” value on each item of property going through probate (The form that we file with the Court is called the “Inventory, Appraisal, and Record of Value”).

5.  Provide Notice to all creditors of the Decedent, and settle and pay all timely filed creditor claims (i.e. creditor claims filed with the Court by a particular deadline).

6.  Provide an accounting to the heirs of all monies collected and all monies spent by the Executor/Administrator/Personal Representative.  We also include a request for payment of any “commission” earned by the Executor/Administrator/Personal Representative and any attorney’s fees and costs earned by the probate attorney chosen by the Executor/Administrator/Personal Representative.

7.  Pay the “commission” and the attorney’s fees and costs approved by the Court, and distribute the remaining property to the heirs and obtain a receipt from each heir.

I will comment on each of the seven steps in separate posts to follow.

The probate process becomes confusing because only property “owned” by a Decedent “in the Decedent’s name alone” has to go through the probate process.

Because someone can “own” property in several different ways, normal people often cannot figure out what particular items need to go through the Court process and what particular items can be transferred to an heir or beneficiary without going to Court.

An “heir” is a person who is named by statute to inherit a person’s property if the person dies intestate.

A “beneficiary” is a person chosen in a Will or in a benficiary designation form to receive particular property.

I have created the following video to explain the different ways that a person can “own” his or her property and how each form of “ownership” changes what happens to the property after a person dies.

The word probate means “of proof” and more particularly “proof of Wills.”

The probate process is the set of rules and laws that govern how the Court will appoint someone to take control of the property owned by someone who has died.  Lawyers call the person who has died the “Decedent.”

The person who is appointed by the Court  to take control of a Decedent’s property is known by many labels, including Personal Representative, Executor, and Administrator.

In addition to picking who will take control of the Decedent’s property, the Court will also determine whether or not a person died with a validly signed Will.

If a person dies with a will, the person dies “testate,” and the Will will determine who receives the Decedent’s property at the end of the probate process.

If a person dies without a will, the person dies “intestate,” and state law will determine who receives the Decedent’s property at the end of the probate process.

Welcome to your probate guide — a guidebook written in simple English to help you find your way through the probate maze.  Let me introduce myself.

My name is Mark A. Kemp, and I have practiced probate law in Las Vegas, Nevada since 1982.

Mark A. Kemp, Esq.

I am licensed to practice law only in the State of Nevada, and my practice has always been in the State of Nevada, so the knowledge and experiences that I will share with you are based upon the probate system that has been created in Nevada.

Many of the general concepts that I will discuss will  help you understand the probate maze as it exists in other states, but you will need to consult an attorney in your particular state or review the state laws in your particular state to be sure you are taking the right steps.

My law office is located in the View Pointe Executive Suites at 8275 South Eastern Avenue, Suite 200, Las Vegas, Nevada 89123 which is located on Eastern Avenue just South of the Smith’s shopping center located at Eastern Avenue and Windmill in the Green Valley area.

My telephone number is (702) 794-2821.  My fax number is (702) 990-8681.

DISCLAIMER:  The information presented in this blog site does not constitute legal advice, which can only be rendered after the full consideration of the specific facts in your case.  This blog site is instead intended only to educate the general public regarding the structure of the probate system in an effort to let readers better understand their probate experience and better relate to the attorney or paralegal that they hire to assist them in completing their probate experience.  The posts on this blog site do not establish an attorney-client relationship, which can only be done after you and an attorney meet to agree on the terms of representation.  As noted above, the author of these blog posts is licensed to practice law only in the State of Nevada, and none of the information contained on this blog site is intended to represent the probate system and laws adopted in any other state.  For probates in states other than Nevada, an experienced probate attorney should be consulted in that state in order to properly receive legal advice.

Because this site is a WordPress blog, it is possible for readers to leave comments in response to each post.  Any such comments shall not be considered to be confidential and may be published for all to see.  Any reader who wants to receive advice in confidence in an attorney-client relationship must contact the author of this blog to arrange a personal consultation.