What to Do When Your Property Is in Probate

If you have been left a property in someone’s last will and testament, this can be a difficult time. Most people will want to sell the house quickly for emotional reasons or to prevent future high maintenance costs. Although selling a house in “probate” is a little more complicated than a regular sale.

Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no will or nominated by the deceased person’s will. Once appointed, this person, called an executor or Personal Representative has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.

The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed.

You cannot sell your property before Probate is granted. Unless your name is already on the deed (if you are the spouse of the deceased for example), then you will have to wait for the Grant of Probate to be completed. In Nevada, probate generally takes from 40 to 180 days but occasionally extending longer and many people will put the house on the market during this time, but be aware that if someone makes an offer, you’ll have to delay completion until you’ve received the Grant of Probate. This timeframe allows for publication of creditor notices and it gives creditors time to file claims against the estate. However, when complications arise probate can take much longer.

There are different levels of probate in Nevada depending on the dollar value of the decedent’s estate. Smaller estates get to go through simplified probate proceedings that cost less and close much faster than the full-blown probate process that larger estates have to go through.

What do all these probate words mean?

Several words are commonly used during the probate process and knowing their meanings will help you identify what your probate needs are. Here is a breakdown of the most commonly used:

• Decedent: The person who died.
• Estate: The estate is the net worth of the decedent’s property after death. In other words, it is the sum of the decedent’s assets (things decedent owned) minus his/her liabilities (what decedent owed).
• Will: A will is a written document that the decedent prepared before dying that expresses how the decedent wanted his/her estate handled after death.
• Testate: A person dies testate when he/she dies with a will.
• Testator: The deceased person who wrote the will.
• Intestate: A person dies intestate when he/she dies without a will.
• Intestate succession: These are the rules that govern which family members are entitled to the estate when a person dies without a will.
• Devisees: The devisees are the people who are named in the will to get a part of the decedent’s estate.
• Heirs: These are the people designated under state laws of intestate succession to inherit the decedent’s estate when there is no will.
• Executor: The executor is the person named in the will to manage the estate and distribute the decedent’s assets.
• Administrator: The administrator is the person appointed to manage the decedent’s estate and distribute assets when there is no will.
• Personal representative: This is a general term for an executor or administrator who is appointed to manage decedent’s estate and distribute assets when there is a will.

A complete list of the probate definitions used in Nevada law can be found in the Nevada Revised Statutes, Title 12, Chapter 132.

Here are the five types of probate proceedings in Nevada:

Affidavit of Entitlement

Estate’s worth less than $25,000 and does not include real estate and all debts are taken care, the property may be transferred by an affidavit of entitlement without lawyer involvement. If you are the surviving spouse, this Small Estate Affidavit may use for assets totalling $100,000 or less. You must wait at least 40 days from the decedent’s death to use this method of transferring title.

Set Aside without Administration

This procedure is for estates involving no more than $100,000 in value. In calculating this limit, a mortgage on real estate may be deducted from the value of the real estate. In the simplest case, this procedure is done within a month.

Summary Administration

Estates not exceeding $200,000 in value. In this procedure a personal representative, either an executor or administrator is appointed, a 60-day notice to creditors is published, and in the fastest case, this procedure takes four months.

General Administration

The final level of complexity is “General Administration,” for estates worth more than $200,000. This procedure requires both publications of the hearing to appoint the personal representative and publication of a 90-day notice to creditors. In the fastest scenario, this procedure takes 5-6 months.

Ancillary Administration

When the decedent does not live in Nevada but leaves the real property in Nevada, the property must be administered in Nevada.  Another state’s probate court does not have jurisdiction over real property in Nevada.  If the value of the real estate located in Nevada exceeds $100,000, a Nevada probate is required, which would be either a summary administration or full administration as explained above.  If the value is less than $100,000, taking into consideration hindrances, then the set-aside procedure described above may be used.  Usually, the ancillary probate in Nevada is started after the probate administration is started in the state where the decedent was a resident at the time of death.

Overview of the Nevada Probate Process

• Filing of a petition with the proper probate court;
• Notice to heirs under the will or to statutory heirs (if no will exists);
• Petition to appoint a Personal Representative (sometimes referred to as an “Executor” in other states);
• Inventory and appraisal of estate assets by the Personal Representative;
• Payment of estate debt to rightful creditors;
• Payment of estate and income taxes, if applicable;
• Sale of estate assets if necessary; and
• Final distribution of assets to heirs/beneficiaries.

How to start the probate process?

Gathering Important Documents

1. Find the will.

If the decedent has a will, you will need to locate it right away because it says who will inherit the decedent’s property. The will also name an executor. Gather any codicils (amendments to the will) as well.

• Be aware that in some states, the “custodian of the will,” or the person who has the will at the time of the testator’s death, must take the will to the probate court or the executor named in the will within 30 days of the testator’s death. In states that have this requirement, the custodian can be sued for damages for failing to do this.
• If there is no custodian, search for the will in places such as filing cabinets and desk drawers. If you are unable to find the will after looking in obvious places, look for the will in safe deposit boxes, with the decedent’s lawyer, or at the local probate court.
• If you cannot locate a will, either because the decedent did not have one or because it is lost, proceed under state intestacy laws. Intestacy laws provide a way to distribute a decedent’s property without a will, according to a state statutory scheme.

2. Order copies of the death certificate.

• As you go through the probate process, you will need a number of certified copies of the death certificate to serve as official evidence of the death. Ask for at least ten copies.
• The mortuary that handles the decedent’s funeral may provide some certified copies of the death certificate. You can also order death certificates from your state’s department of vital records.
• To order death certificates from the department of vital records, you will need to provide a valid government-issued photo ID and two of the following documents that include your name and address: telephone bill, utility bill, or letter from a government agency dated within the last 6 months.
• Be aware that in some states, the only people who can order copies of the death certificate are family members or the executor of the will.

3. Gather other required documents.

In addition to the will and death certificates, there are several other miscellaneous documents that you may need. Gather these documents before you begin the probate process.

• paperwork related to the decedent’s insurance policies
• appraisals
• bank account information
• property inventory papers
• stocks and bonds
• tax returns for the estate
• tax returns for the decedent’s property

4. Organize all of the documents.

After you have gathered all of the required documents, take some time to organize them. You may want to invest in an accordion style file folder to keep the documents separated and easy to find. Label the tabs to indicate what documents are in each section.

If you are missing any of the documents that you will need, you will have to do some searching. Contact the decedent’s accountant, the manager of the decedent’s bank, and any other professionals who may be able to provide you with the documents that you need.

Understanding the Probate Process

1. Determine if probate is required.

Sometimes, it is possible to completely avoid probate or participate in a simplified probate process. Make sure to check your state’s laws for specifics.

• If the estate is valued at less than $100,000, there’s a chance probate is not required.
• No probate may be required if the decedent created mechanisms for passing his or her property outside of probate. Some common assets that do not go through probate include:
• joint tenancy property
• property placed in a living trust
• household goods and other property that goes to immediate family members under state law
• payable-on-death bank accounts
• life insurance proceeds
• retirement accounts (IRAs, 401k’s and others)
• securities registered in transfer-on-death form
• personal property in “small estates”

2. Determine if you should use a simple probate procedure.

Many states offer an informal probate process that is much easier and faster than formal probate. In most states, this simple probate procedure is also known as “summary administration.” States use a certain dollar amount to determine whether an estate is eligible to be probated through a summary administration.

Some states have other requirements for simple probate, so make sure to check the laws in your state before proceeding.

3. Determine if you should use formal probate.

This is the best option for estates that are more complicated or have a value that is too high to qualify for summary administration. You will need to use a formal probate procedure if the decedent’s property exceeds the limits for simple probate in your state, or if there are disputes between beneficiaries or challenges to the will.

4. Be aware of probate deadlines in your state.

In most states, there is no deadline for starting a probate proceeding, but some states require probate to begin within three or four years. If you plan to use a simple probate procedure, some states require that probate begins within three years after the death.

5. Be aware that the court must appoint an executor or administrator.

In most cases, courts will honor a testator’s wishes and appoint an executor that was named in the will. If there is no will, state law determines who has priority to serve as executor. The executor who is named in the will can begin probate, but family members or other named in the will can also begin the probate process.

Starting the Probate Process

1. Petition the court to name an executor.

The executor of a will is responsible for distributing assets, maintaining the property, and paying bills and taxes during the execution of the will. The executor must also make court appearances as needed. If you are named in the will, or if the will does not name an executor, you may petition the court to name an executor.

In order to be named an executor, you will need to file the following documents with the court:

• an application
• a death certificate
• the original will

2. Attend the first hearing.

When someone requests to be appointed as executor, the court will schedule a hearing to give interested parties (parties who could inherit something from the estate) a chance to object to the appointment. Before the hearing, all interested parties must be informed of the date and time.

Keep in mind that most of the time, the hearing is a formality and no one objects to the executor’s appointment. If the executor is approved, the court will issue documents allowing the executor to act on behalf of the estate. These are usually called “Letters of Administration” or “Letters Testamentary” if there is no will. After approving the executor, the court will issue an order opening the probate case.

3. Publish and send notices.

If you are named an executor, then you will be responsible for sending out notices of probate to all of the decedent’s creditors and beneficiaries. In most states, a notice should also be published in the local newspaper to alert any other unknown creditors.

4. Post the bond.

The court may require the executor to post bond, which is an insurance policy that protects the estate beneficiaries from any losses to their inheritance caused by the executor.

If the will states that no bond is required, the court will often waive the requirement. But if a bond is required, the amount will depend on the size of the estate.

5. Prove that the will is valid.

If there is a will, proving that the will is valid is a part of probate. Until the will has been proven to be valid, the executor cannot begin distributing the estate. To prove that the will is valid, you will need the statements of one or more witnesses who signed the will at its execution.

In general, probate courts allow the following types of witness statements:

• A sworn statement called a “self-proving affidavit” that was signed by the witness in front of a notary when they witnessed the will
• A sworn statement signed by the witness at the time probate is opened
• A personal statement made by the witness to the court

As an alternative, the court may accept other evidence of the will’s validity, such as the testimony of someone who is familiar with the testator’s signature.

After all of the processes, you been through you would see real estate investors as angels to help you out. Below we go into the details of how an investor can help you when your property is in probate.

How probate investors can help probate sellers settle

Investors can help them navigate this process of the legal aspects of settling an estate.

As a probate seller, you might be perplexed with the legal aspects of the entire estate settling procedure. In case you choose to deal with a probate real estate investor you can bail your way out and the investor will navigate the entire process without any problem.

Once investors have a house under contract, they will run the title and determine if everything is in order to close the sale of the house. If not, they know exactly what must be done early on.

Often executors and their representatives have no idea about when they can sell the property. A probate real estate investor can best guide those under the matters of settling an estate about how they can sell the property early in the estate settling process.

Most Executors and Personal Representatives don’t know the exact time they are able to sell the house.

These probate sellers aren’t aware that they can sell the house early in the process of settling an estate. As probate investors, they should be to educate them on how they can assist them.

Family members may take months and months sorting through paperwork, photographs and other personal items looking for things of importance.

If you choose your family to help you with the probate property selling, be certain that you’d be discouraged. The family might take a lot of time sorting through paperwork and personal belongings and in the end, decide against selling the house because you have a lot of sentiments attached to the place. A probate real estate investor can help you sort through the paperwork without involving the family and thus hastening the entire procedure.

There’s a large possibility that one day they look up and realize that they haven’t actually made any progress cleaning out the interior and exterior of the house and they get discouraged.

The people settling the estate are often embarrassed by the appearance and condition of the property, and they hesitate to even call a probate investor for this reason.

In these cases, they will often put off doing anything.  When a seller mentions the condition of the house when probate investors first speak to them if they can put their mind at ease by saying this is pretty typical (which it is) they can often remove the final stumbling block for the person settling an estate to move forward.

No matter what the condition of the estate you want to sell is, a probate investor even invests in run-down estates as long as he/she can see the potential. So regardless of the appearance and condition of the estate you want off your hands, a probate real estate investor is the easiest way out.

When they are nearing the end of the probate process and they still have a mess, they often lock the door and walk away.

You know the old saying, “Out of sight, out of mind”. They just can’t face having to finish the job of cleaning out the house. This is one of the most common problems that probate investors will find in probates and one of the easiest to solve. The investors mostly offer to finish cleaning out the house as part of their offer.

You will not have to do anything. No cleaning up or showcasing the house. Probate estates are the easiest to get off your hands in case you deal with a good probate real estate investor.

Probate sellers have no idea that probate investors can take care of liens, back taxes, house payments that are in arrears and other types of issues like these.

You, as an executor, need to understand that a probate real estate investor will not only buy your estate but also take care of back taxes, liens, arrears of house payments and a whole lot of similar issues that you want off your hands fast.

Once the Executor understands that these costs can be rolled into the closing, this is one more roadblock that investors can remove.

Executors and Personal Representatives that are trying to save money with the probate attorney and do most of the work themselves, often miss one of the things that need to be done before the estate can be settled.

Again, investors know what they’re doing. A probate real estate investor and an attorney can get a lot of mess off your head and save you money in the process too. Also, they keep their eyes and ears open for strategies that can settle the estate fast and get cash rolling for you swiftly.