By Troy Flake, Attorney at Law
Troy, his kids, and some of his probate clients
What is probate?
When someone dies, people don’t just get to take their stuff. We want to make sure everything is handled fairly — their money, their house, their car, and all the things in their home. Probate is a court process where a judge makes sure that everything is done fairly: fairly for the people the deceased person wanted their belongings to go to, and fairly for anyone the person owed money to before they died.
Who is in charge during probate?
When a person dies, they can’t take care of their own belongings anymore. So they need a helper — and that helper is called a personal representative.
Sometimes, before a person dies, they leave a document called a will that tells the court who the personal representative should be. But sometimes a person doesn’t leave a will, and in that case a family member or friend can ask the court to appoint them. The personal representative’s job is to make sure the deceased person’s house is locked up and secure, that no one takes anything without the court’s permission, that money is collected from the bank, and that everything is handled the way the deceased person would have wanted. Sometimes they are in charge of the funeral.
Who gets the dead person’s money and belongings?
The personal representative also has the job of finding the people the dead person’s stuff is supposed to go to. These people are called heirs. Heirs are usually family members, but sometimes a will directs that things go to someone outside the family — or even to a pet, a church, a college, or a charity.
What if there’s no will — who gets the money then?
If there’s no will, the dead person’s stuff goes to family members according to Nevada law. Usually that means a husband or wife first, then children or grandkids. But if they aren’t married, or there are no children, it can go to brothers and sisters. If they’re gone too, it can pass to nieces and nephews, aunts and uncles, or even cousins.
I’ll tell you something that surprises people: sometimes I call someone to tell them they’ve inherited money from a relative they barely knew. People sometimes receive money from family members they didn’t even realize they were related to. That doesn’t happen every day, but it does happen. And sometimes I will call someone and they will say “I HATED Bill. He was a jerk and I haven’t talked to him for 20 years” but they still get his money!
What if the person in charge tries to steal?
Unfortunately, it does happen. A personal representative might go into the dead person’s home, find something valuable — say, a collection of gold coins — and pocket them instead of reporting them to the court.
When that happens, the heirs can go to court and say: the personal representative stole those coins and they weren’t theirs to take. The court will remove that person as personal representative, appoint someone new, and that new person’s job is to go recover what was taken.
What if the person who died owed someone money?
A person the dead person owed money to is called a creditor. Creditors can file a claim with the court. A claim is just a paper that says: before you give this money to the heirs, you need to pay me, because this person owed me money.
That’s fair. If you lent someone money and they passed away unexpectedly, you should have a chance to be repaid from whatever money they left behind.
Once the personal representative has collected all of the dead person’s money and stuff, the court looks at everything that came in and all the claims filed by creditors, and the judge decides how much each creditor gets paid.
Sometimes creditors don’t get paid anything, especially if the person who died had young children. In that case, the court may decide that making sure the kids have some money takes priority. That’s another example of fairness built into the system.
If there is plenty of money, creditors get paid, and whatever is left over goes to the heirs.
What happens to the house?
If the dead person owned a house, it usually goes to the heirs. But here’s a practical problem: what if there’s one house and ten children? Ten people can’t all live in one house.
So in many probate cases, we sell the house, and the money we get gets divided among the heirs.
What happens to everything inside the house?
Most of what’s inside a house — old clothes, dishes, everyday items — doesn’t have much value. Nobody is buying grandma’s hair curlers. So we typically have someone come in and clean out the house. Things that are junk get thrown away; things that are usable often go to charity.
But sometimes there are valuable items — a rare coin collection, a piece of artwork, antique furniture. In that case, we first ask the heirs if anyone wants it. If no one does, we sell it and split the money among the heirs.
What happens to the car?
A car is handled like any other asset. The personal representative goes to the DMV, notifies them that the owner has passed, and obtains a new title in the name of the estate. Then the estate can sell the car and distribute the proceeds to the heirs.
(Yes, this does involve waiting in a long line at the DMV.)
What if someone shows up with a fake will?
It happens. Sometimes someone produces a will that isn’t genuine. More common is someone pressured or manipulated the dead person into signing a will when they didn’t fully understand what they were signing. Remember at the end when grandpa got a bit funny and confused? Well, that would not have been a good time for him to be writing a will!
If the family thinks the will is fake or shouldn’t have been made, we can go to court and a judge or jury decides whether the will is real. You have to find evidence, interview witnesses, and piece together what really happened. It’s a little like a mystery case, except maybe slightly less exciting than Scooby-Doo.
These cases can be very sad, because if the bad guy succeeds with a fraudulent will, the people the deceased actually cared about may end up with nothing.
Who pays the lawyers?
Attorney fees in a probate case are usually paid out of the dead person’s money. If I help manage the sale of a house, handle the paperwork, appear in court, and make sure everything gets to the right people, the court authorizes a fee from the dead person’s money for that work. So if you think about it, I am getting paid by a dead person!
If you have questions about probate in Nevada, contact our office to schedule a free consultation. You can also learn more about how a Nevada trust can help your family avoid probate.