TRUST ATTORNEY LAS VEGAS | PROBATE COURT PROCESS
TRUST ATTORNEY LAS VEGAS | PROBATE COURT PROCESS
All right. Hello everyone and welcome to the trusted podcasts. This is Blake Johnson, your host. I am the estate planning attorney at trusted estate planning attorneys. And I am also, I’m a father, a golfer, and just a, someone who likes to help educate people about tra, uh, people you have to trust, especially attorneys. So today we’re going to talk about probate court Trust Attorney Las Vegas. So what happens when you don’t plan ahead and, uh, we have to go through probate court or even if you did plan ahead? Sometimes it’s just inevitable. Uh, for example, I had a client one time, uh, they did all their planning right? You know, had everything set up the way it was supposed to. And then, uh, when, uh, before he, about three months before he died, he was to receive an inheritance from his aunt’s estate. Well, because he died before the distribution was made, we had to open up a probate, uh, buffer, those funds that he was receiving an inheritance to go to, um, to his estate.
And that way it could go to the right people. And because we had the poor over will, which is a backup provision. And for most estate planning tools to the trust, it says if there was any reason to do probate, the probate court is to give everything back to the trust. So it was unfortunate we had to do probate court, but it was still, I’m able to eventually get his wishes granted and there was no really way that we could avoid that. So sometimes it’s inevitable. So let’s talk about what probate is, how it happens and what to expect in that general rule of thumb with probate court is you’re gonna lose at least, uh, you know, we say 5% just depends statutory, uh, with the laws in each state say as far as what the attorney’s fees are going to be with the personal representative fees are the filing fees and the court costs and all that add up.
Uh, we like to say 5% as a minimum. Uh, sometimes it’s going to be more than that, sometimes less, just depends on the size of the state and what’s all going on. Uh, so plan on at least 5% for the cost. And the other thing is plan on, you know, typically at least six months. Now in Nevada, if you’re, uh, if the probate is between $25,000, and the value of the state is $25,000 and $100,000, that’s called a set aside, a state that can be done in about a three month period because there’s only one hearing that has to be done. And, uh, that’s net. So let’s say you have a house that’s worth, uh, you know, 200,000, but you owe 150 on it, so that only 50,000 of equity that would be, uh, set aside. And basically the idea is instead of, you know, dragging it out and selling it through the pro court process, we’re just gonna set that at state aside, give it to the rightful heirs and then let them do what they need to do.
Now, if there’s a lot of creditors claims that need to be done and other fees, it may make sense even though it’s less than a hundred thousand to do the, to do a different kind of probate. Um, but it is possible. And, uh, you know, there’s a lot of times where we don’t want to necessarily sell the property through the estate because it’s a long process to do that. And I’ll talk about that in a different podcast. Um, but today’s let’s talk about what, you know, how can we get just, you know, Trust Attorney Las Vegas everything’s going to go to the kids. They don’t want to sell anything. So how do we do that? Well, the next type of probate between a hundred thousand and 300,000 in Nevada is called a summary administration. And basically what it is, is saying that we don’t have to do the full probate. So there’s a few less notices that we have to publish.
And, uh, it’s a shorter notice to creditor, period. It’s only 60 days that we have to notify creditors and let them make a claim versus a regular probate is 90 days. So it helps start that clock and make it a little bit quicker. So after that, a 60 day period, if a creditor hasn’t made their claim against the estate too bad, they lose out. They don’t get to make, they don’t get any payment or any claim to any of the property in the estate. So that’s a really good thing about a summary administration. And once that notice to creditor period is done. Um, so the process is first, uh, we’ve petitioned the court to appoint an administrator if you don’t have a will or it’s called a personal representative or an executor, if you do have a will. And once we get that person appointed, we file that notice to creditors.
We wait the 60 days, and if there’s no creditors claims where there’s enough money in the estate to pay those creditors claims, and then whatever’s leftover, we petition the court to distribute that to the rightful heirs. So if it’s, there’s a will, it’s whoever the will says gets the money in the house and all those things. If it’s, um, if it’s not, if there’s not a will, then we go to, uh, typically the next closest family member. Now there is a difference between a community property state and a separate property state. Basically a community property state in which Nevada is, um, says that anything that is acquired to the, during the marriage is presumed to be owned jointly by the couple Trust Attorney Las Vegas. So, and then also upon death, everything that was community property goes automatically to the surviving spouse. Take that with a separate property state where everything that’s owned in your individual name is presumed to be your separate property.
And so the other party has to prove that it was actually joint property. And even then, it may not be that way if, if the title is just says it’s specifically in that person’s name. So the community property, even if it’s in one person’s name, but it was acquired during the marriage, that’s presumed to be community property, all the surviving spouse. Now if it is separate property, the assets are going to go first. If you have kids and a surviving spouse Trust Attorney Las Vegas, it goes, um, and you have at least two kids. It’s one third to surviving spouse, two-thirds to the kids. If it’s just one child, it’s 50, 50. If there’s no kids, but there’s a surviving spouse and then you have living parents, then it’s 50% of surviving spouse, 50% to surviving parents or whatever. If the parents are around, then we go to siblings and then nieces and nephews and then, you know, if they’re not around, then we go to grandparents, aunts and uncles, cousins and so on.
So there is a hierarchy to it and that’s all written out in the state laws. Uh, but usually we don’t get too much further past, um, you know, brothers and sisters and nieces and nephews. Now, uh, if you are doing a full probate, which is anything with an estate value over 300,000, as I already mentioned before, the notice of credit or period is 90 days. So same process we get to an administrator or a personal representative appointed, we start that 90 day notice to creditor period. If at the end of that there’s money to pay, Trust Attorney Las Vegas um, you know, from cash all the creditors and pay the personal representative and the attorney’s fees, then we petition to close the state and to pay those fees and to give everything else out to the rightful heirs. So, uh, there’s a few more notices that we have to give with a full probate.
But for the most part, if we’re just distributing property, there’s not a whole lot of creditors claims. It’s just a matter of two hearings. The first one to get the administrator appointed, the second one to distribute the estate. And then we just check the box and say that we did all the administration things that we were supposed to do. And then the judge is going to sign off on that order, give the property and the money to the right people and then the state’s closed. So if we’re just doing it that way and we don’t have any hiccups with that, you’re looking about six months to get that done Trust Attorney Las Vegas. Whether it’s the summer, a summary administration, maybe five months, cause we have 30 less days of no stir accreditor period. Uh, but usually six months is a good minimum on that. So that’s to how to do a probate. If you’re just distributing assets, we’re not selling anything through the probate court. Uh, hopefully that helps you out. Next time we’re going to talk about, um, probate court if you have to sell assets during, uh, through the estate. Thanks for listening and we’ll talk to you next time.