What Is Probate?

Probate is a court proceeding where a decedent's estate is administered and assets are distributed to the proper beneficiaries. The court is required to rule on the validity of the decedent's will, appoint a qualified personal representative (executor) of the estate, ascertain the beneficiaries, ensure that all legitimate debts have been paid and that assets have been distributed to the proper beneficiaries.

The personal representative must:

  1. File the original will with the court.
  2. File a petition to admit the will into probate and appoint the personal representative.
  3. Notify all beneficiaries and heirs of the decedent of the court hearing.

Upon approval of the petition by the court, the personal representative must then:

  1. Publish a notice to creditors for four consecutive weeks in a proper newspaper.
  2. Obtain appraisals on all real property.
  3. Prepare and file an inventory of all estate assets within 60 days of being appointed.
  4. Ascertain legitimate debts of the estate.
  5. Liquidate estate assets as required to pay all legitimate debts.
  6. Hire an accountant to prepare and file an income tax return for the decedent for the partial tax year from January 1 through the date of the decedent's death.
  7. File a tax return, if required on income earned by the estate during administration.
  8. Prepare and file an accounting of all income and expenses of the estate.
  9. Prepare and file a report of the administration of the estate and set a time for a hearing.
  10. Notify all heirs and beneficiaries of the hearing.

Upon approval of the accounting and report of administration, the personal representative then:

  1. Distributes the assets to the proper beneficiaries.
  2. Obtains receipts from the beneficiaries and files these with the court.
  3. Submits an order to the court for a discharge of the personal representative from his or her administration of the estate.

Sounds easy? Not really. Therefore we encourage our clients to create and fund a living trust. Doing so will save your loved ones a great deal of time, money and hassle involved in probating an estate.

Contact Robert L. Bolick to schedule a consultation today. With more than 30 years of experience as an estate planning attorney, Mr. Bolick knows how to effectively serve your individual needs. Reach him at 702-690-9090.

What Are The Requirements For Probate?

Very simply, there are three requirements for probate. If all three are met, your estate must be probated.

These are: (1) your total assets exceed $20,000; (2) the assets are titled in your name only; and (3) you pass away.

How Can I Avoid Probate?

Very simple: (1) own less than $20,000 of assets; (2) make sure the assets are not titled in your name only; or (3) don't die. Since the first and third options are not viable, the best way to avoid is with proper estate planning.

Does a will avoid probate?

No. A will is your direction to the probate court on how you want your estate administered.

Doesn't joint tenancy avoid probate?

Joint tenancy is a deferral rather than a probate avoidance. Probate is merely deferred until the surviving joint tenant passes away.

Can't I simply add my children on my property and accounts as joint tenants after my spouse passes away?

You can, but it's not recommended. Why? By adding anyone on title to any of your assets you subject yourself to any creditor of theirs here and now. If your child gets divorced, has an accident or is sued for anything, you may have just had your home liened or your bank account cleaned out, etc.

What about POD designations?

A POD (payable on death) option is typically available for bank and brokerage accounts. When the owner died, the assets in such account transfer without probate directly to the named beneficiary. The good news is that this avoids probate. The bad news is that it opens the door for the potentially disastrous events.

A major drawback of a POD designation is that it cannot provide for any extenuating circumstances. Some example of potential problem are:

  • Death. If the beneficiary died first, the assets now are subject to probate in the beneficiary's estate.
  • Divorce. If the beneficiary is in the middle of a divorce, it likely is not the ideal time to recieve money.
  • Accident. If the beneficiary was at fault in a car wreak and is being sued, it would not be a good time to receive funds.
  • Illness. If the beneficiary has had or is facing large medical expences, that would not be an opportune time to receive funds.
  • Drug or Alcohol Abuse. If the beneficiary is addicted to drugs or alcohol, it would not be ideal to receive funds to support a habit.
  • Disabled Beneficiary on Government Assistance. If the beneficiary is disabled and on government assistance receiving any type of inheritance would remove them from the assistance they were receiving

All these problems can be avoided with a properly drafted trust. We include provisions that allow the trustee to withhold any distribution to a beneficiary if the funds would go to an adverse party or if the beneficiary simply isn't responsible enough to use the funds wisely, or worse yet, would use the money in such a way that would be harmful to him or her

Supporting You During Difficult Times

Schedule a free consultation with Robert L. Bolick, a supportive, well-respected probate and asset protection lawyer. Mr. Bolick represents individuals, families, business owners and private professional in Summerlin and throughout Las Vegas.

Contact our firm online or call our office at 702-690-9090.