What Is a Set Aside?

By January 17, 2017Probate
Gavel in set aside proceeding

This is part of our blog series on the types of probate proceedings in Nevada.

In a previous blog article, we looked at probate in Nevada and learned there are four different levels of probate depending on the value of the Estate. This article will focus on the second-lowest level of probate, which is known as a “Set Aside” proceeding.

Our Reno probate attorney represents clients in Set Aside proceedings for a flat rate of $1,800. Unlike many other probate attorneys in Nevada, we do not require this fee to be paid up front. Instead, we will accept payment out of the assets of the estate once the Set Aside proceeding is complete.

We can help clients throughout Nevada, not just Reno. If you’ve lost a loved one and need to do a Set Aside in Nevada, use this link to schedule a free consultation or call our office.

What is a Set Aside?

Nevada has a simplified probate proceeding for small estates, known as a “Set Aside.”  A Set Aside foregoes many of the formalities of a normal probate proceeding, which makes the process much quicker and simpler. Most Set Aside proceedings can be done 4-6 weeks, as opposed to 6-9 months for a normal probate proceeding.

Requirements for a Set Aside in Nevada

The Set Aside proceeding is only available to small estates that have less than $100,000 of assets. In determining the value of the estate’s assets,  you are allowed to subjtract liens and other encumbrances (such as mortgages are car loans). So, a $170,000 house that is subject to a $90,000 mortgage only has a value of $80,000 for purposes of the Set Aside proceeding.

The court will generally accept your valuation of personal property, such as household goods and furniture, but will require some proof of value for other types of assets. Recent statements are sufficient to establish the value of bank and other financial accounts. For real estate, an appraisal might be necessary depending on the probate court where the proceeding is being conducted. The Probate Commissioner in Washoe County will accept a print-out from Zillow or Trulia as reasonable proof of the real estate’s value.

Nevada Set Aside Procedure

The procedure for obtaining a Set Aside in Nevada starts with filing a “Petition to Set Aside Estate Without Administration” in the local probate court.  This petition must include, among other things, whether the Decedent was married and/or had minor children. If so, the Court can disregard debts of the estate or the Decedent’s will and “set aside” the estate to the surviving spouse or minor children (discussed more below).

After the Petition to Set Aside the estate is filed, the Court will hold a hearing and give any “interested person” an opportunity to object to the set aside. This generally includes heirs of the decedent (i.e. immediate family members) and and creditors of the decedent. It also includes The Nevada Department of Health and Human Sciences Medicaid Recovery Unit, who can file a claim with the probate court to recover the cost of any Medicaid benefits the decedent received prior to death.

If no one object to the Set Aside,  the Court will grant the Petition and the assets of the estate will be immediately distributed without further court involvement.

Note that a Set Aside proceeding cannot be initiated until  30 days have passed since the Decedent’s death.

Set Aside In Nevada For Surviving Spouses And Minor Children

Nevada law provides some special protections under the Set Aside for the decedent’s surviving spouse and minor children.  Most importantly, it’s actually possible for the Court to disregard the decedent’s debt and give all of his or her property to the surviving spouse or minor children.  This includes any claims by the Nevada Department of Health and Human Science for reimbursement of Medicaid benefits.

It’s also possible for the court to disregard the Decedent’s will. The Nevada legislature has determined that it’s more important to protect the financial interest of a surviving spouse or minor children than the Decedent’s will.

So, surviving spouses or minor children have very strong protections under Nevada’s probate code.

UPDATE: Effective January 1, 2015

Effective January 1, 2015, the surviving spouse of a decedent can use the much simpler “Affidavit of Entitlement” instead of the Set Aside if there is no real property in the estate.  Go here for more information on the Affidavit of Entitlement.  If the probate estate includes real property, though, the surviving spouse wills till need to use the Set Aside procedure.

Nevada Set Aside Attorney

If you need assistance with filing a Set Aside in Nevada, contact us to schedule a free consultation. We conduct Set Asides for a flat fee of $1,800 and will accept payment from the assets of the estate after the proceeding is complete. The only up front cost you’re required to pay is the court filing fee, which is $274.50 in Washoe County. We can help clients with Set Aside proceedings throughout Nevada.

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