A Probate Attorney Explains What Happens If There’s No Will

If a person dies, and he or she does not have a will or a trust, and there is a property with a title, like a bank account, a house, or a car, and the property is only in his or her name, the property will need to be probated. This means a probate attorney will work with a probate court to transfer the property to a spouse or relative.

How Does a Probate Attorney Help When a Loved One Dies Without a Will?

A common misconception that Nevada residents have is that if they don’t have a will and they die, the state of Nevada gets the right to their property. The truth is that the state will only get a deceased individual’s property if they die and no next of kin come forward. Even then, the next of kin has six years to come forward and try to get that property back.

In most cases where a person dies without a will, their closest relatives will hire a probate lawyer, and they will begin what is called an intestate probate proceeding. Once the probate proceeding is completed, the property will be distributed based on the guidelines laid out in NRS chapter 134.

It is interesting to note that Nevada law does not give a judge the right to consider the relationship between the deceased individual and the heir. For example, a single mother dies and leaves behind a large estate. She has two adult children. The first child had a horrible relationship with the mother and was considered abusive to her and had no communication with her for decades before her death. The second child had a phenomenal relationship with the mother and was her only caretaker in the latter years of her life. If the mother did not leave behind a will, both kids would receive an equal share of the inheritance.

Who Is the Administrator of the Estate If There Is No Will?

When no will is left behind, a person must petition for the administrator role. The administrator has the same duties and responsibilities as an executor who was named in the will.

The probate court is responsible for designating the executor or administrator of the estate that does not have a will. To do this, it must follow Nevada state law that sets out a priority that judges will follow when appointing an executor. In Nevada, according to NRS 139.040, the priority list for serving as an executor is the following.

• The surviving spouse

• Surviving children

• Mother or father

• Sister or brother

• Grandchildren

• Any kin entitled to share in the estate’s distribution

• A public administrator

• Creditors who became creditors during the life of the deceased individual

As highlighted in the above list, when a Nevada resident dies, and they don’t have an executor, the surviving spouse is the first to be appointed. If the spouse cannot or does not want to do the job, the spouse has the right to nominate someone else. If no spouse exists, the court moves to the children, parents, and down the line. The oldest child is not automatically appointed as an executor. An estate planning attorney in Las Vegas can work with the executor providing essential information on the best way to handle questions that will arise regarding the deceased individual’s estate.

What Are Some Other Factors Courts May Consider When Selecting an Executor?

In Nevada, the courts will only select someone as an executor if they are 18 years of age and deemed to be of sound mind. The latter point means that a court has not considered them incompetent.

In Nevada, you cannot be an executor and have been convicted of a felony. The only exception is if the court deems that the conviction would not be enough to disqualify a person from serving.

Other factors the courts will consider when selecting an executor include whether there is a conflict of interest, drunkenness, or a lack of integrity or understanding.

In some states, out-of-state executors are restricted. This is not the case in Nevada. That being said, if a person who lives out of state was selected as the executor, it could present several logistical problems because an estate executor must handle day-to-day matters for many weeks, months, or years.

How Will Guardianship Be Decided If There Is No Will?

Having a will is extremely important for parents who have children under the age of 18. A will allows parents to establish legal guardianship of minors. Informal statements in the letter or an email typically are not enough. No matter how clearly the guardianship choices are spelled out in these ways, they are not legally binding in court. A judge might take an informal statement into consideration, but they will have to wade through several issues of credibility, especially if someone challenges the appointment.

Guardianship in Las Vegas would be made by the probate court without any input from the parents if no will was left behind. The judge wants to make decisions that are in the children’s best interest. However, the judge’s decision may not coincide with the deceased individual’s wishes. That is why working with estate planning lawyers in Las Vegas in advance is an important decision for families with minor children to make.

How Are Assets Distributed If a Person Dies Without a Will?

After appointing an administrator and identifying the heirs to the estate, a probate court will determine which assets should be distributed and how they should be distributed. The appointed administrator collects the deceased individual’s real estate property, bank accounts, life insurance policies, real estate deeds, vehicles, and personal property. Once the assets are documented, the estate’s value must be determined.

The administrator is also responsible for gathering information on any debts owed by the deceased individual. Before assets can be distributed, all debts and taxes must be paid. A probate attorney will work with the administrator during this phase to ensure all applicable laws are followed.

In most cases, the remaining assets are distributed among the relatives. The court will hold a hearing before the final distribution and accounting. And then, the court will issue an order approving the final accounting and distribution.

Take the Time to Plan Your Estate Now

Working with an experienced estate planning attorney allows you to create a comprehensive plan that includes a will, trusts, powers of attorney, and other necessary documents. An attorney can also help you navigate the complexities of estate taxes and other legal matters.

Planning your estate now is crucial by collaborating with an estate planning attorney in Las Vegas. This is an effective way to ensure that your loved ones won’t have to spend their time dividing your estate or arguing over who gets what after you pass away. With a well-crafted plan, your family members can focus on the important task of grieving and supporting each other’s emotional well-being.