The Will Leaves Me a House. Do I Need to Probate the Will?
The need to enter a will in a Nevada court so that it goes through the probate process will depend on a few factors.
Nevada is a community property jurisdiction, which means that assets such as real estate are understood to be equally owned by married couples. Each spouse is entitled to 50 percent interest on a home that is acquired after marriage, and there is a statute that dictates how property should be handled after a spouse passes away. According to 123.250 of the Nevada Revised Statutes, the surviving spouse retains his or her 50 percent share and the rest can be transferred in a testamentary manner or automatically if there is no will. Considering this statutory situation, it is possible to avoid probate in Nevada.
If the will leaves a house that is held with transfer-on-death deed, there is no need to go through the full probate process. You can ask an estate planning attorney to help you draft, execute and register one of these deeds. Upon your death, your loved ones can record the appropriate documents to gain title without resorting to probate.
It is important to note that the real estate may be burdened with a mortgage; if this is the case, the balance still owed is treated as a liability. The person receiving the home can assume the mortgage with the terms that were agreed upon by the decedent. However, it is important that the receiving person continue to pay the mortgage or may be subject to foreclosure. You cannot avoid a mortgage obligation when you receive a home at someone’s passing.
There is a better way to transfer real estate in Nevada without having to go through Nevada probate, and it involves a legal instrument that is more effective than a will. That instrument is a trust, and it works by shifting ownership from the property owner to a legal entity managed by a trustee for the benefit of others. The trustee can be designated in life or after the grantor passes away. Essentially, the trust survives the grantor and life goes on for the beneficiaries.
Certain Nevada trusts can be structured in such a way that the trustee appointed is a legal professional who will protect all legal claims made against the trust. If the testator who plans on bequeathing a house to you is still with us, ask him or her to consult a Las Vegas estate planning attorney about a trust. Probate attorney Rob Telles can help you navigate the law and make the best decisions for you and your family. Call (702) 337-3000 today to set up your free consultation.