Avoid Probate Surprises
I was recently contacted by someone whose mother had just passed away. Her mother lived in Las Vegas and owned two interests in real estate located in Clark County – the home she resided in at the time of her death, as well as a ten percent interest in another property with her daughter.
The mothers home was ready to be sold and the daughter requested a deed to transfer the property to herself, pursuant to her mother’s Last Will and Testament . Unfortunately, I had to explain the home would need to be subject to a probate administration and it required us to file a petition to admit the will.
The daughter was surprised she couldn’t sell her mother’s home immediately and wanted to know what would happen if she had her real estate agent proceed with a sale. The problem is that since the mother was the only person on the title, no one had authority to sign a deed transferring the property. Moreover, the daughter didn’t even have authority to sign a listing contract.
Probate is the court supervised procedure of appointing a person, known as the “personal representative,” to handle the affairs of the decedent’s estate. Notices must be sent to creditors, as well as published, informing creditors that if a debt is owed to them to them, a claim must be filed with the court within a certain time. Eventually, an accounting is presented to the court seeking approval for payment of any timely filed claims and distribution of the remainder of the estate to the beneficiaries.
Joint tenancy provides for the transfer of an interest in property upon the death of an owner to the surviving joint owner and is not subject to probate administration. This is not the case with a tenancy in common. Since the mother held her interest with her daughter as tenants in common, the ten percent interest was subject to probate as well.
Real Estate can be sold during the course of a probate proceeding; however, a petition must be filed with the court to approve the sale. The personal representative, as the authorized agent of the estate, has authority to execute the listing agreement, disclosure form, residential purchase agreement, counter offer, and any addendum relating to the sale.
Unfortunately, had the daughter recommended her mother contact us ahead of time, we could have been able to advise her of numerous ways she could have avoided the delays and costs of probate.
To learn more about probate avoidance, please don’t hesitate to contact us or download our Estate Planning ebook.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
You can also find us on: