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THE PROBATE PROCESS

If you die intestate (without a will), or if you die with a will, your estate would need to be probated through the courts. What is probate? Probate is the court process by which the property you owned is distributed to your heirs upon your death. The probate judge gives your personal representative, either the executor or administrator of the estate, the power to transfer your property to your heirs.

One of the biggest disadvantages of having to probate your estate is the lengthy delays. The average time for a probate estate to be completed in both Nevada and California of, is approximately six to eighteen months. More complicated estates can take years to settle. This could make it very difficult on your heirs, especially if they depended upon your support while you were alive.

I have personally handled probates that have greatly exceeded five years

One of the other major disadvantages of having to probate your estate are the substantial costs associated with the probate. Both the attorney and the executor involved in the probate are entitled to receive a generous fee for the work performed.

Nevada

In the State of Nevada, pursuant to the Nevada Revised Statutes, the attorney will receive a “reasonable” fee for all services performed. When the petition for fees is filed with the court by the attorney, the court will determine the reasonable fee based upon a variety of factors, such as the experience of the attorney, his or her regular hourly fee, the amount of time spent by the attorney, and the difficulty of the probate in question. In most instances, the attorney’s fees can be as high as five percent of the value of the estate. This could be quite costly.

The executor, on the other hand, receives a “statutory” fee as set forth in the Nevada Revised Statutes. In most cases, the executor will receive a fee of approximately three percent of the value of the estate.

California

In California, however, pursuant to the California Probate Code both the attorney and the executor receive a statutory fee for services rendered in the probate. On a modest estate of $500,000.00 or more, the attorney and the executor will each receive fees in excess of $13,000.00.

In conclusion, you should remember, that if you die with a will there are significant disadvantages, most important of which is that your estate will need to be probated. A probate is an unnecessary expense to your heirs, there are lengthy delays, and lastly, since probate is a public proceeding, anyone can have access to your court file. In fact, the probate clerk’s office makes it very simple to research the court records. As a result such persons will be able to ascertain the size of your estate and exactly who will receive a distribution from your estate and when.

As will be discussed further on this website, if your assets are owned by a living trust, a probate will not be required in order to pass your assets to your heirs. Therefore, there are no court costs or attorneys fees necessary to pass your estate to your heirs. There are no delays in making any distributions to your heirs. Your trust document is also completely private. No one will know the size of your estate when you die, nor who the beneficiaries are who will receive your estate.

Lastly your trust is very flexible. During your life time, you can amend or revoke your trust at any time.

 

 

 





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