How a Set Aside Without Administration works
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 subtract 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. All other types of debts, such as credit cards or medical bills, generally need to be paid before going through the set aside proceeding unless there is sufficient cash in the estate to pay these debts after the set aside is granted.
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 estimate 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 objects to the Set Aside, the Court will grant the Petition and issue an order transferring the assets of the estate to the decedent’s heirs. This court order will then need be recorded at the county recorders office (if the decedent’s estate included real property) or otherwise delivered to any party holding assets of the estate (such as a bank or other financial institution). The assets will then be transferred according to the court order without further proceedings.
Note that a Set Aside proceeding cannot be initiated until 30 days have passed since the Decedent’s death.
Protections For Surviving Spouses And Minor Children
As mentioned above, the decedent’s debts generally need to be paid before a set aside proceeding can commence. However, in the case of surviving spouses or minor children, the Court can disregard the decedent’s debts and order the set aside without payment of outstanding creditors. Similarly, it’s also possible for the probate court to ignore the decedent’s will if necessary to make sure all of the decedent’s assets are transferred to his or her surviving spouse or minor children. Essentially, the Nevada legislature considered it a matter of public policy to make sure that the surviving spouse and minor children are provided for by the decedent’s estate.
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, not just in Reno.
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