What If My Relative Died Without a Will? (Intestate Succession)

  • May 3, 2016

If a person dies without a will or a trust, their real and personal property passes through a process known as intestate succession. Intestate succession provides a distribution to the living heirs of the decedent pursuant to the statute in the state where the decedent was a resident when s/he passed away. If the descendant left real property in another state, the intestate succession laws of that state will govern the disposition of that property.

When someone dies without a will, the estate will still have to go through a legal process. This will require filing the proper pleadings with the court in the appropriate jurisdiction. Instead of appointing an executor of the will, the court will appoint an administrator of the estate. Similar to an executor, an administrator has a fiduciary duty to act in the best interest of the estate.

The process for intestate succession follows almost exactly the same process as a probate. Depending on the estimated value of the estate, there may need to be a notice to creditors, an inventory and appraisement of value, as well as many other formalities to process the estate so that it can be properly distributed to the rightful heirs.

If you need assistance gaining legal clarity for an intestate succession, please feel free to call the attorneys at Incline Law Group.

Does a Will Cover Assets in Two States?

  • May 3, 2016

As an attorney, people often ask me what to do if a relative who had a Last Will and Testament passes away, but leaves property in more than one state.

Based on our geographic area in Lake Tahoe, it is very common for our clients and their relatives to have property in both California and Nevada. In cases such as these,California and Nevada State Line in Lake Tahoe there will usually need to be two separate probates completed. The first probate is done in the state where the decedent resided at the time of death. In this initial probate, all of the real property in that state, as well as all personal property located in any state will be probated. If there is real property in another state, a second “ancillary” probate is processed. Ancillary probates are similar to an ordinary probate but they do have some intricacies. Many times, there is only one piece of real property in another state. Depending on the value of that real property, this may allow for a shorter, more expedited ancillary probate than would otherwise be available.

Many prefer to substantially complete the probate in the home state before starting the ancillary probates. However, ancillary probates may be done concurrently with the home state probate in order to expedite the distribution of the entire estate of the decedent. As with an ordinary probate, ancillary probates are required to transfer title to any real property in any state that is not the home state of the decedent.

The attorneys at Incline Law Group are licensed in both Nevada and California and can assist with a home state or ancillary probate.

What is Probate and Why Do You Need It?

  • May 3, 2016

Probate is the legal process whereby a will is “proved” in a court and accepted as a valid public document that is the true last testament of the deceased.  The probate process varies by state and by the size of the estate of the deceased person.  In both California and Nevada, there are specific laws and defined processes for the appointment of an executor of the will and the distribution of assets to heirs.  The executor is the person who handles the affairs of the estate throughout the probate process and who ultimately distributes the property according to the terms of the will.

An attorney is not required in a probate proceeding.  However, an attorney can certainly be beneficial to an executor, especially in more complex probates. It is important that certain steps be taken in a particular order to comply with the various probate statutes. An attorney can help navigate this process which may save the estate money. Since the executor of an estate is considered a fiduciary, the executor may become liable to the beneficiaries if s/he attempts to probate the will of his/her own and ends up doing so improperly or spending extra money on steps that did not need to be taken.

The attorneys at Incline Law Group are available to assist you with probate proceedings for estates of all sizes.

Avoiding Probate in Nevada and California with a Heggstad Petition

  • April 19, 2016

The use of revocable inter vivos trusts, also known as living trusts have gained in popularity. A wide range of estate, tax and wealth planning objectives can be achieved by the use of living trusts. A primary objective of the living trust is the avoidance of probate.

Problems can arise, however, when a trust is created but assets are not transferred into the trust, whether inadvertently or because of an ineffective transfer document. When real estate assets are inadvertently not transferred to the trustee of the trust, it may still be possible to avoid a lengthy and expensive probate.

Heggstad PetitionUnder California law, a trust can be created by a written declaration by the owner that the real property in question is held subject to a trust, and no separate transfer by deed is required to fund the real property into the trust. (Estate of Heggstad (1993) 16 Cal. App. 4th 945.) This ruling provides an opportunity to have a court declare real property to be subject to a trust through the filing of a petition that has become known as a “Heggstad petition”. A successful Heggstad petition can allow the parties to avoid a more lengthy and costly probate proceeding.

Several provisions in the Nevada Revised Statutes (NRS) dating back to 1999 authorize a Heggstad-like petition in Nevada. The most recent addition to the NRS in this regard was enacted by the 2015 Nevada Legislature in Senate Bill 484, Section 64. The new amendment of NRS 164.015 confers additional explicit authority upon the Nevada District Courts in cases involving non-testamentary trusts to hear and act upon “petitions for a ruling that property not formally titled in the name of a trust or its trustee constitutes trust property…”

For more information on California or Nevada probate, and the possibility of avoiding probate, the attorneys at Incline Law Group, LLP may be able to assist.