I am not attorney and in no way qualified to provide you with legal advice. However, I have had a great deal of experience in the selling of real property after someone’s death, which can be a complicated and messy process. It simply doesn’t have to be that way and I’d like to share a few thoughts to help you avoid probate court
What is probate? Probate is the official way an estate gets settled under the supervision of the court. The main purpose of probate is to prevent fraud after someone’s death. The court will ensure that all the relevant parties have been notified and that all creditors get paid before distributing the assets of the estate. While this may not sound that threatening, it is a lengthy and often expensive process.
Does it help if I’m a “joint tenant”? In Nevada there are several forms of real property ownership that offer “Right of Survivorship.” That is, the property automatically passes to the remaining owner(s) after the death of another. While it’s better than nothing, most experts would say that this is not the best way to secure your real estate assets. There are many tax and legal consequences driven by the manner in which you hold title; please consult with an attorney for those details.
Does it help if I have a will? A valid will provides guidance but it will not help you avoid probate. For example, a will almost always appoints an executor. Among other things, an executor has the authority to pay bills and taxes. This alone can take some of the stress out of an already difficult situation but realize that the court will still be involved. However, having a will is better than no will at all. Without one, the court may appoint someone from the public administrator’s office to fill the executor’s function.
Put your faith in the living trust. A revocable living trust basically creates a new entity and that entity becomes the property owner, while allowing you, the trustor, full control over the assets in the trust. You can still sell or mortgage your home or transfer it back out of the trust as you see fit. Much like a will, a living trust should spell out your wants and wishes, but the greatest benefit is that your trust will ensure that your estate and your family will avoid probate. It also keeps the process private which is not the case in probate court.
It’s estimated that just over 20% of real property owners hold title as a living trust. Many people cite the expense as the biggest reason they don’t have one. A living trust is typically quite complex and more expensive than a will. However, when you factor in the time and money spent in probate, it will likely save money for the estate in the long run. In the end, a living trust should be considered a gift to your family and/or living heirs.
I hope you’ve found this informative and I’m happy to help with a referral to a good trust attorney if you would like to explore that option. Feel free to send a note anytime.