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Welcome to Vegas Lawyer. This site is for people who were hurt in Nevada. Contact us for a free consultation. You may want to read the Las Vegas Personal Injury Law introduction on our home page. Also, you can get an overview of other claims like Wrongful Death, Auto Accidents, Slip & Fall, and Products Liability before you explore the Article below.

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Estate Administration

Prior to consideration of more complex estate planning tools, it may be helpful to address the simple and still most basic legal device to transfer wealth through methods of descent and distribution—the will. The “last will and testament” is a universal phrase in the lexicon of modern America. Indeed, the general knowledge of wills is so commonplace that it would be difficult to find a competent adult who could not express the fundamental functions of a will. Understanding of the concept diminishes once the testator has passed away and the will begins to function as the legal mechanism to effect the intentions of the decedent. To bring about those intentions, the will must meet certain formal requirements.

Before the formalities even become a concern, though, the creator of the will, the testator, must meet the underlying standards of competency. The traditional requirements for proving competency are that the testator knew the nature and extent of his or her property, knew who the natural objects of his bounty were, understood the distribution being made, and knew how these factors related to provide for the disposition of his or her property. After addressing the issue of competency, the validity of the will generally depends on satisfaction of the formal requirements. After meeting these formal requirements, the will has the legal authority to serve as the instrument for transferring assets to the desired beneficiaries.

Why does the law require such formality? Most agree that the formalities themselves are the evidence of a testator’s final intentions regarding the distribution of his or her estate.

[T]he fact that a testator's will follows a standardized form is evidence that he or she intended that the document function as a will. Similarly, we caution a testator of the seriousness and finality of the event because cautioning increases the chances that the document represents his or her final, deliberate wishes regarding the distribution of his or her estate, as opposed to some momentary whim.

Others assert that the formalities themselves are a means to an end, that is, the requirements serve as a formalized standard simplifying the probate process by enabling the document to be recognized as a will. While the establishment of the will formalities may aid this process, the will cannot effect the intentions of the testator until it is admitted to probate.

In common parlance, the term probate is often used to address both aspects incumbent in the settling of an estate —validation and administration. The term probate initially referred only to the proceedings used to validate a will. Administration , on the other hand, meant the process in which the court-appointed personal representative of a decedent was responsible for all the proceedings inherent in concluding the affairs of the estate. Notwithstanding variances in the procedural and substantive provisions between states, probate codes generally require property of the estate be subject to administration and recognize that the will is the sole means to affirmatively direct the transfer of property owned at death. If any of the probate property is not disposed of by will, the net probate estate—the amount remaining after paying any allowances required by state statute, the expenses of probate administration and any other claims—will pass under state intestacy statutes. The probate process, however, does not apply to those ass ets that transfer by some other method, such as through contract, joint ownership with right of survivorship, or by statute. These nonprobate assets transfer in accordance with the appropriate legal process governing the subject of the property. The growing use of these alternative methods of property ownership and the attendant methods of beneficiary designation has focused greater attention on probate avoidance techniques.

The majority of clients probably are not exactly sure what probate is, but they are sure that it is something they want to avoid if at all possible. This predisposition against the probate process has a long history in the annals of testate succession. Since the publication of Norman Dacey's, How to Avoid Probate, in the 1960s, there has been no shortage of commentary on this topic. Some of the fears of probate relate to the potential disadvantages in the process, such as cost, delay, and loss of privacy as a result of the public nature of the court proceedings. While the probate system itself may be somewhat responsible for this reputation, most jurisdictions have taken steps to simplify probate procedures to help reform the process.

This information came from a
JAG online article.

*** Any law, statute, regulation or other precedent is subject to change at any time ***

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