PROBATE

Probate is a mystery to most people. As a whole, we attorneys do not do a very good job of educating the public about probate and its processes. In its most basic terms, Probate is a "court-supervised transfer of title." The goal is to take title out of a deceased person's name and to put it into a living person's name. Who exactly the recipient may be of a particular probate asset depends upon a variety of factors; i.e. whether or not the deceased left instructions in a Will identifying the recipient, State statutes, degree of kinship, character of the assets, etc.

Though this explanation of Probate may seem simple, the process usually is not. In a typical Probate there are a number of different persons interested in the Probate estate, complicating the process. The most common interested persons are creditors of the deceased, family members, beneficiaries, a surviving spouse, attorneys, the judge, and the personal representative for the estate. Each person has a different interest in the Probate that is addressed by statute. Because of these interests, the steps undertaken to complete a Probate can be lengthy, time-consuming, and costly. Before beginning a Probate, one should always familiarize themselves with the applicable statutes and rules of procedure.

What To Do When A Family Member Dies-This is probably the most critical time of the Probate process. At this point, your goal should be to locate the decedent's Will and marshal his or her assets to prevent any dissipation of the estate. The following steps are suggested:

o Search for and preserve the Will and other estate planning documents. If there is a Will, identify and contact the Executor named in the Will. You should make arrangements to have the original Will filed with the clerk of the court within 30 days of the decedent's date of death.

o If there is no Will, then an Administrator needs to be approved by the court in order to proceed with the Probate. Typically, the heirs of the decedent will nominate and approve a person to be Administrator. The Administrator may be an individual or a corporate fiduciary. In some state, like Nevada, if an individual is nominated to serve as Administrator, that person must be a Nevada resident, at least 18 years of age, and must not have been convicted of a felony. If a corporate fiduciary is chosen, like a bank or trust company, the fiduciary must be licensed to carry on such business in the State of Nevada. Montana is more flexible in its Probate process, affording a wider range on persons to so serve.

o The Personal Representative should next retain legal counsel to file the necessary probate pleadings, begin securing the probate assets, and take measures to prevent their dissipation.

o At this time, the Personal Representative should begin inventorying the assets, investigating potential creditors of the estate, marshal and secure valuable assets, obtain several death certificates for asset transfers, and notify the heirs that the probate process has begun.

Not All Assets Require Probate-Only the assets that were titled in the name of the decedent at the time of his or her death need to be probated. Assets held in joint tenancy, owned by a trust, or which have a beneficiary designation thereon, such as life insurance policies or retirement accounts, normally will not be subject to probate. These types of assets are typically transferred by operation of law to the new owners. The transfer process is usually fairly simple, involving submission of the decedent's death certificate, and completion of the financial institution's internal documents.

Types of Probates-Not all Probates are the same, and the Probate process will vary, sometimes greatly, from State of State. What appears to be a common thread among the States is that generally the greater the size of the probate estate, the more in depth the probate process will be.

Probate in Nevada-Estates of very modest value can be probated in a matter of days following the decedent's death. The more formal process for a modest means estate can be accomplished in as little as three weeks. Listed below are the types of probate administrations that occur in Nevada with a typical estimate for time of completion:

• Estates valued less than $_____0,000 require an Affidavit of Entitlement, which can be prepared within a couple of days of meeting with the attorney.

• Estates valued less than $100,000 with no creditors (except for mortgage or deed of trust holders) may be set aside to the surviving spouse, children, or designated heirs, whatever the case may be, without administration. This process usually takes three to four weeks.

• Estates valued at $200,000 or less require a Summary Administration. This process usually takes three to six months.

• Estates valued in excess of $200,000 require a Full Administration. This is the most lengthy and complex Probate process and it typically takes four to nine months to complete.