What is Probate?

Probate, put simply, is the legal method by which your assets are distributed upon your death. If your estate meets certain qualifications, it triggers probate – that is, it sets in motion the probate process. The court will begin the proceedings to distribute your estate, which is called probate court. If you don’t have a will, then a similar process, which is called “Administration” in Nevada, is used to settle your affairs.

Will My Assets Go to Probate?

In Nevada, if the value of your combined assets is $25,000 or more,

or you own real estate of any value, then your assets will go to probate – it doesn’t matter how much the real estate is worth. There are some exceptions to this, such as when real estate is jointly owned or on bank accounts with Pay-On-Death designations, but most of the time, if your estate is worth $25,000 or you own any real estate, then the state will convene probate court to distribute your assets.

How Long Does Probate Take?

Probate usually lasts a minimum of 4-6 months. Keep in mind, that’s a minimum. Most probate in Nevada lasts for about a year, but it sometimes takes much longer, up to several years. The more complicated the estate, the longer probate will last. Furthermore, if there are any disputes over the distribution of your estate then this will lengthen probate, often quite significantly. During probate, all your assets are frozen until they’re settled, so your heirs won’t have access to your money and assets until probate is finished.

How Much Does Probate Cost?

Probate fees are usually set by the state and can vary greatly. Even if the state you live in doesn’t have probate court fees, a state that you own property in might. If you have property in more than one state, your estate will actually undergo two or more probate – at least one for each state in which you own property. This makes the process even more complicated (and expensive). For example, if you own property in California and Nevada, probate must be opened in both states. Probate should then be closed in California, and then Nevada. 

Because probate court is complex and often confusing, it’s strongly recommended that beneficiaries hire an attorney to help navigate the complicated probate process. There are three ways probate lawyers charge for their services:

• They take a commission on the value of the estate at the end of probate.
• They charge an hourly fee.
• They charge a flat rate.

As you can imagine, the costs can vary quite a bit. That said, beneficiaries can reasonably expect to pay 5-7% of the value of your assets. Remember, they won’t have access to those assets until probate is completed, so they’ll often first have to pay the legal fees out-of-pocket.

I Don’t Have a Lot of Money. Should I Be Worried About Probate?

This is an excellent question. The short is: it depends. Here’s some reasons why you might still want to avoid probate.

All real estate, regardless of value, triggers probate in Nevada, and almost all other states for that matter. Suppose all you own is a small home – not a complicated estate! Upon your death, the home will be frozen in probate for months to years, and your heirs won’t be able to access its value by selling or renting it out until probate is completed. 

Furthermore, your will is at risk of being challenged at any point until the assets are distributed. Any disputes could mean that your assets won’t be distributed the way you want them to. Disputes can also still ensure a court proceeding, even if your estate doesn’t necessarily meet the requirements to trigger probate. Keep in mind that there is still a process for your heirs to go through, including filling out a form called an Affidavit of Entitlement and submitting it to wherever your assets are held, like banks. They won’t have access to your assets until this process is complete, which can take up to 40 days. As you can see, you could consider your estate planning options carefully.

Probate’s Effect on Family

Sometimes the worst part about probate isn’t the finances, but the impact it can have on your family. What might start as a small squabble between family members can erupt into a huge schism when money is on the line. These family feuds are made worse by the fact that they’re legal disputes, not just familial disagreements. Probate court is 100% public record, which makes the process even worse. Even if there isn’t (very public) fighting, the information revealed in court is available for anyone to look up, and there are many examples of people’s home addresses and social security numbers being made public. Even in the best-case scenario, this is best avoided.

How Can I Avoid Probate?

In our opinion, living trusts – often called revocable trusts – are the best tool available to plan your estate, particularly in regards to avoiding probate. To learn more about living trusts, check out our articles about living trusts, and sign up for our free webinar where we talk about how a living trust can help you avoid probate and prevent an estate blowup for you and your family. Or take a look at some other options [linked] for estate planning.