Probate Process: What Does It Mean to Open a Probate Estate and Who Can Do It?
Most people chase the dream of owning their own home and vehicle. Additionally, we acquire many items of personal property. These items range from things as small as a pair of glasses and smaller to things as large as a television set or pool table and bigger. After acquiring this property, what happens to it after we die? If you think it can be a free for all and your loved ones and friends can simply divide up what is left, you are mistaken. Most property owned by individuals who have died has to go through a complicated process called Probate. This article will help you understand the first step to the Probate process, opening the estate and who needs to take that step. The experienced probate attorneys at Lee Kiefer & Park LLC can help you get the process started.
Lee, Kiefer, & Park, LLC, is a team of probate and estate lawyers. The firm is located in Las Vegas and provides legal services throughout Nevada. The attorneys are knowledgeable and reputable. Managing partner Kennedy E. Lee and partner Matthew W. Park have been listed as preeminent lawyers by the widely respected Martindale-Hubbell lawyer rating service. Each of the founding partners has been selected as Super Lawyers and Legal Elite. All of the attorneys received their degrees from well-respected law schools.
Opening the Estate
If a Will exists, it must be filed with the Court. In Nevada, within 30 days of learning of the death, a person in possession of a Will must deliver the Will to either the Court that has jurisdiction or the Personal Representative nominated in the Will. If the Personal Representative has the Will, they have 30 days to file the Will with the Court. This 30-day clock starts either at the death of the individual or the date of notification to the Personal Representative that they have been named in the Will. To file the Will with the Court, the documents are typically submitted to the Court Clerk.
Sometimes, the Will is lost or cannot be found. If a will is accidently lost or fraudulently destroyed, the Court has discretion to admit a copy of the Will. The person submitting the Will must prove that the Will existed at the time of the death and the individual did not take steps to invalidate it. If the Will has been proved by two or more credible witnesses and the provision are clear, a copy creates a presumption that the Will was not revoked.
Other documents are needed in addition to the Will. To open a probate proceeding and to appoint a personal representative, the Courts require a petition be submitted with a certified copy of the death certificate and a file-stamped copy of the Will that has been submitted to the clerk. It is important to order multiple copies of the death certificate as more may be needed throughout the process. If the death certificate is not available, other evidence such as an affidavit of death from a funeral home can be submitted. This affidavit will not allow assets to be distributed as a death certificate must be submitted before this can happen. After the petition is submitted, a hearing date will be set on the court calendar. The petitioner can choose what date works best for them and the Court will likely set it for that date if space exists on the calendar.
Who Can Open The Estate
A personal representative named in the Will, or any other person interested in the estate, has standing to petition for the probate of a Will. See Personal Representative Post. An interested person is a person whose right or interest in an estate may be significantly affected by a personal representative or Courts’ decision. Usually the Personal Representative named in the Will or a family member with submits the petition. There is no statute of limitations to open an estate proceeding. If a Probate process has not been open in the matter, it can be initiated.
The Petition
The petition to open probate must contain many things including and not limited to: facts pointing to which court has jurisdiction; statement concerning whether the named personal representative will serve; names, ages, relationship, and address of the heirs and beneficiaries; character and estimated value of the property; name and address of the person requesting to be personal representative along with statement of whether that person has been convicted of a felony; and the names of any beneficiary that predeceased the decedent; a copy of the will.
Providing Notice of Probate
Certain individuals are entitled to receive notice of the proceedings. These individuals include the decedent’s heirs, all beneficiaries named in the Will, any nominated personal representatives who are not joining in the petition, the Director of Health and Human Services, the public, and any other interested person. Notice of the hearing must be mailed at least ten days before the hearing date and must include the time and place of the hearing. The notice must also be published in the local newspaper three times before the hearing date with at least ten days between the first and last publication. It is a good idea to provide a copy of the petition to each interested party.
Anyone entitled to notice may waive notice in writing. This often occurs when the person does not want to follow the proceedings, or they have been missed and have no dispute with the petition.
Conclusion
As mentioned, this is the first step that needs to be taken and opens the door to a complicated path. If mistakes are made in submitting the Petition and providing notice, serious issues may arise, If you find yourself needing help navigating to Probate process, contact Lee Kiefer & Park LLC for a free consultation, either by using the online form or calling 702-333-1711.
Attorney Kennedy Lee practices in all aspects of trust and estate law. He views all legal issues from multiple angles (e.g. from litigation to administration point of view) to provide a higher quality of service to our client.
