The Price of Probate Procrastination

Probate Procrastination Probate can be a difficult and confusing process to handle. Dealing with the loss of a loved one is often so overwhelming that you can’t bring yourself to address the decedent’s financial affairs. Unfortunately, this type of delay often makes a difficult situation worse.

Understanding the Probate Process

Probate is the legal procedure your estate goes through after you pass away. During this legal proceeding, a court will oversee the process of appointing someone to be in charge (known as the “personal representative”), ensuring creditors of the decedent file timely claims and are paid. Also, they ensure the assets of the estate are distributed to the proper heirs of beneficiaries.

Myths About Probate

There’s a misunderstanding that if you die without a will, (known as “intestate”) the State of Nevada gets everything. This is wrong and should never be a reason to avoid moving forward with the probate process. Under the circumstances the Nevada Revised Statutes determine who will inherit your assets. For example, when there’s no surviving spouse, the assets of the estate are distributed between the surviving children and predeceased children survived by children, in equal shares.
Another reason that you may not probate an estate right away is because you think the attorney’s fees will exceed the value of the estate. However, attorney’s fees are generally less than five percent (5%) of the value of the estate.

Business as Usual is a Bad Solution With Real Estate

If your surviving parent dies and you take over the mortgage payments and move into or rent out your parent’s home, disastrous results can occur. Typically, when a mortgaged property transfers ownership, a due-on-sale clause, or alienation clause, requires that the full loan amount be repaid right away. However, there are laws in place to protect certain heirs that allows you to take over the title of the home (meaning that you became the legal owner of the home) without triggering the due-on-sale clause.

If you don’t fall into this category, you will encounter problems because you’re not the legal owner of the property. It could give rise to tax issues if you attempt to deduct the mortgage payments made by you. In addition, you don’t have the authority to rent out a property since you aren’t the owner. More importantly, when you want to sell the property, you will be prohibited from doing so.

The Clark County Public Administrator

Another potential problem with putting off the commencement of the probate process is you may be surprised when someone else starts the process. When no family member proceeds with opening a probate, a petition may be filed by the Clark County Public Administrator (the “CCPA”). The CCPA serves two important functions for residents of Clark County. The Public Administrator secures property of people who pass away in Clark County while a search for family or the decedent’s executor is performed. The Public Administrator also administers estates in court when the otherwise legally entitled person cannot. 

CCPA’s office does an excellent job (and is entitled to a fee for doing so) but the probate is now being handled by a third party and you will not be in control of how the probate proceedings are administered. Due to the volume of estates being handled by the Clark County Public Administrator, there can be significant delays. Probate can be avoided through careful planning. However, if a loved one has passed away and probate is needed, it shouldn’t be avoided. Hiring an attorney is the safest way to ensure your family’s estate is properly handled through the probate process.
The probate attorney at 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.


Probate Attorney Lee A. Drizin

Lee is an experienced Nevada Attorney. He focuses on probate, wills, trusts, guardianship and real estate for a wide range of clients.

Mr. Drizin been representing families for more than 30 years. He has represented families in all aspects of probate, trust and guardianship administration including, but not limited to, commencement of proceedings, will and trust contests, accountings, and sales of real estate.