A loved one dies and appoints you their personal representative in their will. What happens next?
This can be a stressful situation, and having a lawyer on your side who knows the probate process can be essential. We can help you carry out your duties under the will and make sure that your friend or loved one’s wishes are carried out to the letter. This sometimes means entering into complex situations, such as when a creditor wants to seize part of the estate or the heirs are fighting over the inheritance.
For help with probate, call our probate attorneys at Flake & Flake today at (702) 829-5731.
What is Probate?
Probate may be a term you have heard before but might not know much about. It is better to understand at the beginning what probate is and how the process works.
Generally speaking, probate is the process of taking a will and estate to court to get the power to put the estate together, pay debts, and distribute the estate to the decedent’s heirs.
Terminology
It may be important to understand these terms:
- Bequest – A specific grant under the will
- Decedent – The person who died
- Estate – The sum of the decedent’s assets, accounts, money, and property they owned in life
- Executor – Another name for the personal representative
- Heirs – The people (or companies/entities) who get shares of someone’s estate
- Intestate – The state of dying without a will
- Non-Probate Assets – Property that does not pass through a will. This often includes jointly owned real estate or accounts, among other things.
- Personal Representative – Also known as an executor, this is the person who takes over the estate for a decedent and carries out their wishes and distributes the estate.
- Probate Assets – Anything that passes through a will
- Probate Court – A special court that only handles estates, wills, and will challenges
- Trust – A trust is a special way of owning property so that it is managed by a “trustee” for the benefit of a “beneficiary.” Sometimes trusts are used instead of wills, and sometimes wills put the estate into a trust.
What Happens in Probate?
In probate, the family takes the will to court. The court then empowers the personal representative to gather up the decedent’s estate, assess it all, pay any debts and taxes, then distribute the estate to the heirs.
If creditors want to come forward and claim money for debts, they do so in probate. If any heirs or potential heirs want to challenge the will or distribution, they also do that in probate.
Probate vs. Non-Probate Assets
Some assets do not pass through probate. Non-probate assets often include things like jointly owned property and real estate, trusts, and life insurance policies.
Non-probate assets can often be kept out of probate, which is a public process and exposes the assets and heirs to the public. Keeping assets out of probate can also help protect them from creditors.
What Happens in Probate?
Probate typically goes through these steps, if relevant to the specific case:
Getting the Personal Representative Appointed
You need to go to court to get the court orders and authority to access the decedent’s estate. This will get you the paperwork you need to, for example, go to the bank and withdraw money from their accounts.
Assembling the Estate
Once you have the power to do so, you can go and get all of the decedent’s assets and put them into one pool – the estate.
Dealing with Creditors and Lawsuits
If the decedent had debts, it is up to the personal representative to pay them. Creditors might make claims against the estate, and it might be your responsibility to fight back against unjust claims.
There may also be lawsuits against the decedent’s estate, which the personal representative defends, a process our lawyers can help you with.
Dealing with Will Challenges
If there are questions about multiple wills or whether people “cut out” of a will can get the will overturned, those disputes will be handled in probate.
Paying the Heirs
From there, you pay out each heir according to the terms of the will.
FAQs for Probate Cases in Las Vegas
Can You Reject Being a Personal Representative?
If the personal representative named in someone’s will is unwilling or unable to carry out their duties, the will might name an alternate. Alternatively, the court can appoint one. However, think carefully before you reject this position.
If someone named you their personal representative in their will, it means they trusted you and wanted you to be the one to carry out their wishes. As your lawyers, we can help you do most of the hard work, but if you still do not want the obligation, we can discuss getting an alternate appointed.
Do You Have to Go Through Probate?
Usually, but “probate” has many forms in Nevada. Depending on the size of the estate, there are multiple levels of expedited processes that can help you get through with all of the “legal stuff” more quickly if the deceased had a small estate.
Additionally, some assets do not go through probate, such as joint accounts, jointly owned real estate, and trusts. There is usually at least some amount of assets left over that will need to go through probate, so the process typically cannot be avoided.
Can You Be an Heir and a Personal Representative at the Same Time?
Yes, and it is incredibly common. Many people name their oldest child as their personal representative and also make them an heir, for example.
However, a personal representative can also be a trusted lawyer, business partner, or friend who might not get anything under the will.
What Happens if Someone Dies Without a Will? Do They Still Have a Personal Representative?
If someone dies without a will, the “intestacy statute” in Nevada says who gets their assets instead. The probate court can also appoint a personal representative. You can request that you be appointed if you have a good reason and were close to the decedent.
Call Our Probate Lawyers in Las Vegas Today
If you need help acting as a personal representative for a friend or loved one’s estate, call (702) 829-5731 today for a free case review with Flake & Flake’s probate lawyers.
