Nevada Revised Statutes 146.070 – Estates not exceeding $100,000 and estates to be distributed to trustee of nontestamentary trust: Procedure to set aside estate; exceptions; petition; notice; fees; reduction of estate by nonprobate transfer; hearing…
1. All or part of the estate of a decedent may be set aside without administration by the order of the court as follows:
Terms Used In Nevada Revised Statutes 146.070
- Allegation: something that someone says happened.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Decedent: A deceased person.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Intestate: Dying without leaving a will.
- Trustee: A person or institution holding and administering property in trust.
(a) If the value of a decedent’s estate does not exceed $100,000, the estate may be set aside without administration by the order of the court; or
(b) If a decedent’s will directs that all or part of the decedent’s estate is to be distributed to the trustee of a nontestamentary trust established by the decedent and in existence at the decedent’s death, the portion of the estate subject to such direction may be set aside without administration. Any portion of a decedent’s estate set aside to the nontestamentary trust pursuant to this paragraph is subject to creditors of the estate unless the petitioner provides proof to the court that the trustee has published or mailed the requisite notice to such creditors on behalf of the nontestamentary trust and settlor pursuant to NRS 164.025.
2. Except as otherwise provided in subsection 3, the whole estate set aside pursuant to paragraph (a) of subsection 1 must be assigned and set apart in the following order:
(a) To the payment of the petitioner’s attorney’s fees and costs incurred relative to the proceeding under this section;
(b) To the payment of funeral expenses, expenses of last illness, money owed to the Department of Health and Human Services as a result of payment of benefits for Medicaid and creditors, if there are any;
(c) To the payment of other creditors, if any; and
(d) Any balance remaining to the claimant or claimants entitled thereto pursuant to a valid will of the decedent, and if there is no valid will, pursuant to intestate succession in accordance with chapter 134 of NRS.
3. If the value of the estate does not exceed $100,000 and the decedent is survived by a spouse or one or more minor children, the court must set aside the estate for the benefit of the surviving spouse or the minor child or minor children of the decedent, subject to any reduction made pursuant to subsection 4 or 5. The court may allocate the entire estate to the surviving spouse, the entire amount to the minor child or minor children, or may divide the estate among the surviving spouse and minor child or minor children.
4. As to any amount set aside to or for the benefit of the surviving spouse or minor child or minor children of the decedent pursuant to subsection 3, the court must set aside the estate without the payment of creditors except as the court finds necessary to prevent a manifest injustice.
5. To prevent an injustice to creditors when there are nonprobate transfers that already benefit the surviving spouse or minor child or minor children of the decedent, the court has the discretion to reduce the amount set aside under subsection 3 to the extent that the value of the estate, when combined with the value of nonprobate transfers, as defined in NRS 111.721, from the decedent to or for the benefit of the surviving spouse or minor child or minor children of the decedent exceeds $100,000.
6. In exercising the discretion granted in this section, the court shall consider the needs and resources of the surviving spouse and minor child or minor children, including any assets received by or for the benefit of the surviving spouse or minor child or minor children from the decedent by nonprobate transfers.
7. For the purpose of this section, a nonprobate transfer from the decedent to one or more trusts or custodial accounts for the benefit of the surviving spouse or minor child or minor children shall be considered a transfer for the benefit of such spouse or minor child or minor children.
8. Proceedings taken under this section must not begin until at least 30 days after the death of the decedent and must be originated by a petition containing:
(a) A specific description of all property in the decedent’s estate;
(b) A list of all known liens and encumbrances against estate property at the date of the decedent’s death, with a description of any that the petitioner believes may be unenforceable;
(c) An estimate of the value of the property, together with an explanation of how the estimated value was determined;
(d) A statement of the debts of the decedent so far as known to the petitioner;
(e) The names and residences of the heirs and devisees of the decedent and the age of any who is a minor and the relationship of the heirs and devisees to the decedent, so far as known to the petitioner; and
(f) If the decedent left a will, a statement concerning all evidence known to the petitioner that tends to prove that the will is valid.
9. If the petition seeks to have the estate set aside for the benefit of the decedent’s surviving spouse or minor child or minor children without payment to creditors, the petition must also contain:
(a) A specific description and estimated value of property passing by one or more nonprobate transfers from the decedent to the surviving spouse or minor child or minor children; or
(b) An allegation that the estimated value of the property sought to be set aside, combined with the value of all nonprobate transfers from the decedent to the surviving spouse or minor child or minor children who are seeking to receive property pursuant to this section, is less than $100,000.
10. When property is distributed pursuant to an order granted under this section, the court may allocate the property on a pro rata basis or a non-pro rata basis.
11. The clerk shall set the petition for hearing and the petitioner shall give notice of the petition and hearing in the manner provided in NRS 155.010 to the decedent’s heirs and devisees and to the Director of the Department of Health and Human Services. If a complete copy of the petition is not enclosed with the notice, the notice must include a statement setting forth to whom the estate is being set aside.
12. No court or clerk’s fees may be charged for the filing of any petition in, or order of court thereon, or for any certified copy of the petition or order in an estate not exceeding $2,500 in value.
13. At the hearing on a petition under this section, the court may require such additional evidence as the court deems necessary to make the findings required under subsection 14.
14. The order granting the petition shall include:
(a) The court’s finding as to the validity of any will presented;
(b) The court’s finding as to the value of the estate and, if relevant for the purposes of subsection 5, the value of any property subject to nonprobate transfers;
(c) The court’s determination of any property set aside under subsection 2;
(d) The court’s determination of any property set aside under subsection 3, including, without limitation, the court’s determination as to any reduction made pursuant to subsection 4 or 5; and
(e) The name of each distributee and the property to be distributed to the distributee.
15. As to the distribution of the share of a minor child set aside pursuant to this section, the court may direct the manner in which the money may be used for the benefit of the minor child as is deemed in the court’s discretion to be in the best interests of the minor child, and the distribution of the minor child’s share shall be made as permitted for the minor child’s share under the terms of the decedent’s will or to one or more of the following:
(a) A parent of such minor child, with or without the filing of any bond;
(b) A custodian under chapter 167 of NRS; or
(c) A court-appointed guardian of the estate, with or without bond.
16. For the purposes of this section, the value of property must be the fair market value of that property, reduced by the value of all enforceable liens and encumbrances. Property values and the values of liens and encumbrances must be determined as of the date of the decedent’s death.