When is Probate Required in Nevada

A fellow and his wife were in today for a new will. We talked a bit at first, so I could find the proper form. They told me that their estate was about a million dollars, including their Reno area home. They had about $10k in cash in the bank, and told me that their home was owned by the two of them as joint tenants. Their bank account was a joint tenant POD account, meaning that they had told the bank that on the death of the first spouse, the survivor would own the account and that on the death of the surviving spouse, their adult son would own the account. They mentioned that their largest asset was the husband’s 401k retirement account, which was owned jointly, and that they had told the account manager to pay their son on the death of the survivor of them. All but one of their cars was owned by the two of them, as joint tenants.

I explained to them that theirs was a fairly typical situation and that on the death of the first spouse, the other would own everything without need of probate. The exception to this was their car, which was owned by the husband alone. I explained that so long as the size of their probate estate was less than $100,000, their estate would not be probated but rather would be set aside to the survivor. They said that another attorney had told them that their estate would be probated unless their assets were owned by a living trust and I explained that the other attorney was just trying to sell them a living trust…that if their desire was to avoid probate, that no probate would be needed on the death of the first of them to die.

They were quite concerned about the possibility that both of them might die in a common accident or some such and I told them that in that remote eventuality, there would probably be need for probate. However, I wondered aloud whether the hassle and expense of a living trust would be justified just to avoid probate in the event of that remote possibility. Far better, I explained would be for the surviving spouse to come in and do up another will after the first spouse died. At that time, she could change or update the POD accounts, do up a “death deed” on the house, and still avoid probate. Despite all this, I told them that they should have a will. Everybody should have a will. You just never know what might end up being in your probate estate.

Joint Tenancy

Most real estate professionals seem to recommend that married buyers take title to their new home as joint tenancy with right of survivorship. Not all that bad. But it is generally advisable for a Nevada couple to take title as “community property with right of survivorship.” Though we are not tax experts, we understand that the reason for this is a tax reason: when one joint-tenant spouse dies, the deceased spouse’s half interest in the property gets a stepped-up basis. The surviving spouse’s interest keeps the date of purchase basis. If the couple has owned the home for many years, the tax consequence can be significant.

If, instead of joint tenancy, the couple held their home in community property with right of survivorship, the basis in BOTH the deceased and the surviving spouse’s interest in the home is stepped up to the date of death of the deceased spouse.

Another thing. If, say, to avoid probate you put one of your kids on title to your property as a joint tenant, thinking that will avoid probate, you are right. But if your kid is sued, you risk losing your house. That is because each joint tenant owns 100% of the house, via a legal fiction. It is generally better, therefore, to keep the kids off of the title and, if you want to avoid probate, deed it to your kid via a Nevada deed conditioned on death. That way the kid has no ownership interest in the home until you die. You can change your mind, give it to someone else or sell it without your kid’s permission. And, if the kid gets into serious financial trouble, you can always change your mind (if still competent) and give it to him or her by way of a spend-thrift trust, which will protect it from his creditors.

What’s More Important, Your Will or Your Living Will?

A will, often referred to as a Last Will and Testament, is a pretty important document, as explained elsewhere on this site.   But it only passes assets to your heirs AFTER your creditors have been paid and often, the expenses of a last illness are so massive that all of the estate goes for medical expenses.

This is why a living will, or, more property, a Durable Power of Attorney for Health Care Decisions, is often the more important document.   Who cares who takes under a will if there is nothing left to take after expenses of last illness are paid?  And the sad part about it is that those expenses often are incurred to preserve a life, the quality of which is such that the patient would far prefer to be dead.  He didn’t work hard all his life to leave his estate to Renown, St. Mary’s or some stranger doctor.

And this isn’t intended to criticize doctors or hospitals, for their job is to save lives and they do a darn good job of it.  BUT, If the quality of your life is so bad, if you are so miserable, wouldn’t you at least consider asking the doctor to pull the plug?  Especially if the chances of recovering to the point of enjoying life again were very remote.  If you could talk to your doctor, intelligently . . . if the doctor knew you were in your right mind, he or she would, no doubt, honor your reasonable DNR wishes.   But what if you are in a coma?  What if Alzheimers has taken control of your mind?  In those circumstances, the doctor needs a bit of help and, though you might not be able to help her then, you can help her NOW, while you are not in a coma and before Alzheimers takes over.   You do this by executing a living will.  A living will is sort of a schizophrenic document…it does two things: First it tells your doctor what your wishes are if you are in a terrible way with no prospect of recovery.  Secondly, it authorize a trusted person to tell the doctor what you want done in regards to DNR matters.

If, on the other hand, there is some possibility that some miracle cure might show up and you are the type of person who wants your life prolonged for as long as possible, your living will can do that too.

Since you might be the only one who knows where your living will is, and since that won’t help much if you are not able to speak when the living will is needed, Nevada’s secretary of state has kindly agreed to store your living will for you.  Just get on to her web site and follow the directions to the “Living Will Drop-Box.”

So, is your will more important than your living will?  I don’t know.  You tell me.  Probably depends on the circumstances.  But as we see it, you need them both.

5 Reasons You Need a Will

  1. If you die unmarried and without children, a will is needed to avoid disputes among your heirs and, occasionally, to prevent your assets from escheating to the State.
  2. If you die with children or a spouse, a will is needed to ensure that your heirs don’t fight over who is going to be your personal administrator.  Also, a will enables you to disinherit heirs who have proved themselves undeserving of your largess.
  3. If you want to tell anybody anything concerning the disposition of your assets after you die, you must have a will.  A living trust does not do this as it deals with assets owned by the trust and not with your assets.
  4. A will can save on probate costs if it authorizes your Personal Administrator to administer your estate under Nevada’s Independent Administration of Estates Act (NRS 143.300 et. seq.).
  5. Unlike most living trusts, a will preserves your right to have a guardianship court determine, after notice and a hearing, when you have become unable to handle your person or affairs.