Common Types of Probate
Probate is a judicial process used for the transfer of property owned by a deceased person. Probate courts also resolve disputes involving wills and trusts. These are the four most common types of probates:
When a person dies with a will, the probate court verifies that the will is valid and appoints a personal representative to distribute the property and settle the affairs of the decedent’s estate. The estate is valued, and creditors are given a final opportunity to present their claim for payment. The probate court oversees the distribution of the estate as provided in the will.
If the decedent has not left a will, the judicial process is similar to the probate of a will and is known as “intestate succession.” Rather than a will, state laws of intestate succession determine who inherits the property. As with the probate of a will, the estate is valued, creditors of the decedent’s estate are given a final opportunity to present a claim, and the court appoints an administrator to distribute the property and settle the affairs of the decedent’s estate.
The probate court also hears cases involving disputes over trusts. These claims most often contain allegations of an invalid trust, that the person who executed the trust lacked capacity, there was fraud, or undue influence.
Property Left Outside the Trust
Real and personal property placed in a trust can usually avoid probate. It’s common, however, that property is not formally transferred to the trust during the decedent’s lifetime. When this happens the probate court can often transfer the property to the trust. After this transfer the trustee can distribute the property to the beneficiaries.
Cost of Probate
Nevada state law controls what attorneys charge for probate services. NRS 150.060 provides that attorney fees may be based on the estate’s total value. This ranges from 2% – 4%. Nevada law also allows attorneys to bill by the hour. The probate court approves the attorney fees under both of these methods to ensure they are reasonable and comply with limitations. In some situations extra work is necessary and the probate court can allow extra fees for extraordinary services.
The Probate Source will discuss various fee arrangements and establish a fair and reasonable fee for handling your estate. Probate legal fees are generally due at the end of the probate and are paid out of the estate.
The length of time required to complete a probate depends on the type of probate involved and whether there are any complications.
Small estates can often avoid probate. The transfer of property in small estates cases can often be completed in two months. A skilled attorney can properly value an estate and in many borderline cases avoid crossing the estate value probate threshold.
Estates with a value at $100,000 to $300,000 generally require four to six months to administer, depending on complexity.
Estates over $300,000 in value take approximately eight to twelve months to administer.
Disputes and complex legal matters can cause probate to require more than a year to resolve. Some litigation continues for years, and in the case of the Howard Hughes estate, decades. These types of disputes are relatively uncommon and involve exceedingly large estates. Parties can often avoid litigation by using a third-party mediator to facilitate an out-of-court settlement.
Can probate be avoided following a death?
Death is inevitable, but probate is not. Many estates avoid probate regardless of whether or not there is a will. Probates can be avoided in cases where there are properly executed transfer on death designations, beneficiary designations, joint tenancy titles, property held a trust, small estates, and other circumstances. Our probate specialists can tell you if you can avoid probate.