Thursday, August 15, 2013

Mandatory Delivery of Last Will and Testament After Death


Probate is a court-supervised estate proceeding under which the probate assets of the decedent are controlled by the terms of the last will and testament of the decedent.  Probate is a lengthy, complicated and expensive procedure that is a matter of public record.  Probate should be avoided if possible.  The most common way to avoid probate is for the decedent during his or her lifetime to establish a revocable living trust and transfer his or her assets that would trigger a probate proceeding into the trust.  When the decedent dies, probate is avoided.  Administration of the trust is not court supervised, and is much quicker, simpler, far less expensive and confidential.  In such a case, the trust agreement, not the last will and testament of the decedent, is the key document that controls the ultimate disposition of the trust assets. The last will and testament of an individual who has created a revocable living trust is merely a “pour over will” that bequeaths (“pours over”) any probate asset into the trust and is administered pursuant to the terms of the trust.  Nonetheless, there is a law in Nevada that requires any person having possession of the last will and testament of a person they know is deceased to deliver it to the Clerk of the District Court which would have jurisdiction of the matter within thirty (30) days after learning of the death of the decedent.  The Clerk of the District Court currently charges an eighteen dollar ($18.00) last will and testament filing fee. 

Most individuals are not aware of this law.  An individual such as a surviving spouse or child who has possession of the decedent’s last will and testament and has failed to file the will within the thirty (30) day period usually becomes very concerned when they learn of the law. What are the consequences?  The good news is there are no criminal or civil penalties or fines for failure to timely file the last will and testament with the Clerk of the District Court, and there are no “last will and testament filing police” actively enforcing the law and pursuing a person who violates the law. Also the Clerk of the District Court will not inquire as to when the person filing the last will and testament learned of the death of the decedent.  The law states that any person who fails to comply with the law without reasonable cause is liable to any person interested in the will for damages the interested person may sustain by reason of the failure to file the will. Accordingly, a person having possession of the last will and testament of a person they know is deceased should always deliver it to the Clerk of the District Court even if it is past the thirty (30) day period.
 
 










Attorney John Mugan

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