[Rev. 11/21/2013 9:45:08 AM--2013]

CHAPTER 136 - PROBATE OF WILLS AND PETITIONS FOR LETTERS

JURISDICTION

NRS 136.010           Resident decedent; nonresident decedent.

NRS 136.020           Disqualified judge.

NRS 136.030           Disqualified judge required to transfer proceedings to qualified judge; duties, powers and jurisdiction of qualified judge.

NRS 136.040           Transfer of proceedings back to original court.

PROBATE OF WILLS

NRS 136.050           Delivery of will after death; liability for nondelivery.

NRS 136.060           Order to produce will; penalty for failure to comply with order.

NRS 136.070           Persons qualified to petition for probate.

NRS 136.090           Petition for probate: Requirements; effect of defect.

NRS 136.100           Petition for probate: Clerk to set for hearing; notice of hearing.

NRS 136.120           Service of petition when petition presented by person other than named personal representative or by fewer than all named personal representatives.

NRS 136.130           Attesting witnesses to will subpoenaed; unnecessary where self-proving affidavits.

NRS 136.140           Proof of notice; witnesses to testify orally.

NRS 136.150           Evidence of subscribing witnesses: Affidavits ex parte.

NRS 136.160           Proof of will by affidavits of attesting witnesses.

NRS 136.170           Proof of will when subscribing witnesses are unavailable.

NRS 136.180           Proof of will by copy.

NRS 136.185           Proof of electronic will.

NRS 136.190           Proof of holographic will.

NRS 136.200           Appointment of attorney to represent minors, unborn members of interested class or nonresidents; retention of other counsel.

NRS 136.210           Translation and recording of will in foreign language.

NRS 136.220           Admissibility of certified copy of will and order admitting will to probate.

NRS 136.225           Applicability of provisions concerning revocation of certain transfers of real property based upon divorce or annulment to transfers of property pursuant to will.

LOST OR DESTROYED WILLS

NRS 136.230           Jurisdiction of court to take proof of execution and validity of lost or destroyed will.

NRS 136.240           Petition for probate; same requirement of proof as other wills; testimony of witnesses; rebuttable presumption concerning certain wills; prima facie showing that will was not revoked; order.

NRS 136.250           Restraint of administration pending petition.

FOREIGN WILLS

NRS 136.260           Probate of foreign wills: Procedure.

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JURISDICTION

      NRS 136.010  Resident decedent; nonresident decedent.

      1.  Wills may be proved and letters granted in the county where the decedent was a resident at the time of death, whether death occurred in that county or elsewhere, and the district court of that county has exclusive jurisdiction of the settlement of such estates, whether the estate is in one or more counties.

      2.  The estate of a nonresident decedent may be settled by the district court of any county in which any part of the estate is located. The district court to which application is first made has exclusive jurisdiction of the settlement of estates of nonresidents.

      [1:107:1941; 1931 NCL § 9882.01]—(NRS A 1999, 2262)

      NRS 136.020  Disqualified judge.  A district judge shall not admit any will to probate, or grant letters in any case where the judge is:

      1.  Interested as next of kin to the decedent.

      2.  A devisee under the will.

      3.  Named as personal representative or trustee in the will.

      4.  A witness to the will.

      [96:107:1941; 1931 NCL § 9882.96]—(NRS A 1999, 2262)

      NRS 136.030  Disqualified judge required to transfer proceedings to qualified judge; duties, powers and jurisdiction of qualified judge.

      1.  If a district judge, who would otherwise be authorized to act, is precluded from acting from the causes mentioned in NRS 136.020, or if the judge is interested in any manner, the judge shall transfer all proceedings in the matter of the estate to another judge of the same county, if there is one, who is not disqualified to act in the settlement of the estate, or the judge shall request a judge of another district to hold the court in the other county.

      2.  The judge to whom the matter is transferred or the other district judge shall hold court and is vested with all the powers of the court and judge so disqualified, and retains jurisdiction as to all subsequent proceedings in regard to the estate.

      [Part 97:107:1941; 1931 NCL § 9882.97]—(NRS A 1999, 2262)

      NRS 136.040  Transfer of proceedings back to original court.  If, before the administration of any estate transferred as provided in NRS 136.030 is closed, another person becomes judge of the court in which the proceeding was originally commenced who is not disqualified to act in the settlement of the estate, and the causes for which the proceeding was transferred no longer exist, any interested person may have the proceeding returned to the judge who succeeded the disqualified judge, by filing a petition setting forth these facts and moving the court to grant the petition. If these facts are satisfactorily shown, the court must make an order transferring the proceeding back to the judge who is not disqualified.

      [Part 97:107:1941; 1931 NCL § 9882.97]—(NRS A 1999, 2263)

PROBATE OF WILLS

      NRS 136.050  Delivery of will after death; liability for nondelivery.

      1.  Any person having possession of a will shall, within 30 days after knowledge of the death of the person who executed the will, deliver it to the clerk of the district court which has jurisdiction of the case or to the personal representative named in the will.

      2.  Any person named as personal representative in a will shall, within 30 days after the death of the testator, or within 30 days after knowledge of being named, present the will, if in possession of it, to the clerk of the court.

      3.  Every person who neglects to perform any of the duties required in subsections 1 and 2 without reasonable cause is liable to every person interested in the will for the damages the interested person may sustain by reason of the neglect.

      [2:107:1941; 1931 NCL § 9882.02] + [3:107:1941; 1931 NCL § 9882.03] + [4:107:1941; 1931 NCL § 9882.04]—(NRS A 1999, 2263)

      NRS 136.060  Order to produce will; penalty for failure to comply with order.

      1.  If it is alleged in any petition that the will of a decedent is in the possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring that person to produce it at a time to be named in the order.

      2.  Any person having the possession of a will who neglects or refuses to produce it in obedience to such an order may, by warrant from the court, be committed to the county jail, and be kept in close confinement until the person produces the will. The court may make all other necessary orders at chambers to enforce the production of the will.

      [8:107:1941; 1931 NCL § 9882.08] + [9:107:1941; 1931 NCL § 9882.09]—(NRS A 1999, 2263)

      NRS 136.070  Persons qualified to petition for probate.

      1.  A personal representative or devisee named in a will, or any other interested person, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the will is in the possession of that person or not, or is lost or destroyed, or is beyond the jurisdiction of the State.

      2.  A personal representative named in a will, though not in possession of the will, may present a petition to the district court having jurisdiction, requesting that the person in possession of the will be required to produce it so that it may be admitted to probate and letters may be issued.

      [6:107:1941; 1931 NCL § 9882.06] + [7:107:1941; 1931 NCL § 9882.07]—(NRS A 1999, 2263)

      NRS 136.090  Petition for probate: Requirements; effect of defect.

      1.  A petition for the probate of a will and issuance of letters must state:

      (a) The jurisdictional facts;

      (b) Whether the person named as personal representative consents to act or renounces the right to letters;

      (c) The names and residences of the heirs, next of kin and devisees of the decedent, the age of any heir, next of kin or devisee who is a minor, and the relationship of the heirs and next of kin to the decedent, so far as known to the petitioner;

      (d) The character and estimated value of the property of the estate;

      (e) The name of the person for whom letters are requested, and whether the person has been convicted of a felony; and

      (f) The name of any devisee who is deceased.

      2.  No defect of form or in the statement of jurisdictional facts actually existing voids the probate of a will.

      [5:107:1941; 1931 NCL § 9882.05]—(NRS A 1975, 1766; 1985, 2036; 1999, 2264; 2009, 1624)

      NRS 136.100  Petition for probate: Clerk to set for hearing; notice of hearing.

      1.  A petition for the probate of a will and for the issuance of letters must be signed by the party petitioning, or the attorney for the petitioner, and filed with the clerk of the court, who shall set the petition for hearing.

      2.  The petitioner shall give notice of the hearing for the period and in the manner provided in NRS 155.020 to the heirs of the testator and the devisees named in the will, to all persons named as personal representatives who are not petitioning and to the Director of the Department of Health and Human Services. The notice must be substantially in the form provided in that section.

      [11:107:1941; 1931 NCL § 9882.11]—(NRS A 1975, 1767; 1995, 2571; 1999, 2264; 2003, 880)

      NRS 136.120  Service of petition when petition presented by person other than named personal representative or by fewer than all named personal representatives.  If a petition for probate is presented by any person other than the personal representative named in the will, or if it is presented by fewer than all of the personal representatives named in the will, the petition must be served upon the personal representatives not joining in the petition.

      [13:107:1941; 1931 NCL § 9882.13]—(NRS A 1999, 2264)

      NRS 136.130  Attesting witnesses to will subpoenaed; unnecessary where self-proving affidavits.

      1.  The clerk shall issue subpoenas to the subscribing witnesses to a will if they reside in the county.

      2.  No subpoenas to subscribing witnesses need be issued if the affidavits mentioned in NRS 136.160 are filed with the clerk.

      [14:107:1941; 1931 NCL § 9882.14]

      NRS 136.140  Proof of notice; witnesses to testify orally.

      1.  At the time appointed, or at any other time to which the hearing may be continued, upon proof being made by affidavit or otherwise to the satisfaction of the court that notice has been given as required by this chapter, the court shall proceed to hear the testimony in proof of the will.

      2.  All witnesses who appear and are sworn shall testify orally.

      [15:107:1941; 1931 NCL § 9882.15]

      NRS 136.150  Evidence of subscribing witnesses: Affidavits ex parte.

      1.  If no person appears to contest the probate of a will, the court may admit it to probate on the testimony of only one of the subscribing witnesses, if that testimony shows that the will was executed in all particulars as required by law, and that the testator was of sound mind and had attained the age of 18 years at the time of its execution.

      2.  An ex parte affidavit of the witness, showing that the will was executed in all particulars as required by law, and that the testator was of sound mind and had attained the age of 18 years at the time of its execution, must be received in evidence and has the same force and effect as if the witness were present and testified orally.

      [17:107:1941; 1931 NCL § 9882.17]—(NRS A 1999, 2264)

      NRS 136.160  Proof of will by affidavits of attesting witnesses.

      1.  Any or all of the attesting witnesses to any will may, after the death of the testator and at the request of the executor or any interested person, make and sign an affidavit stating such facts as a witness would be required to testify to in court to prove the will. The sworn statement of any witness so taken must be accepted by the court as if it had been taken before the court.

      2.  The affidavit described in subsection 1 may be substantially in form as set forth in NRS 133.050.

      [Part 1:21:1953] + [Part 2:21:1953]—(NRS A 1985, 1213; 1999, 2265)

      NRS 136.170  Proof of will when subscribing witnesses are unavailable.

      1.  If it appears to the court that a will cannot be proven as otherwise provided by law because one or more or all the subscribing witnesses to the will, at the time the will is offered for probate, are dead or mentally or physically incapable of testifying or otherwise unavailable, the court may admit the will to probate upon the testimony in person, by deposition or by affidavit of at least two credible disinterested persons that the signature to the will is genuine, or upon other sufficient proof that the signature is genuine.

      2.  The provisions of subsection 1 do not preclude the court, in its discretion, from requiring in addition, the testimony in person, by deposition or by affidavit of any available subscribing witness, or proof of such other pertinent facts and circumstances as the court deems necessary to admit the will to probate.

      [1:192:1945; 1943 NCL § 9931.01]—(NRS A 1975, 1767; 1999, 2265; 2003, 2509)

      NRS 136.180  Proof of will by copy.

      1.  If the will of a person is detained beyond the jurisdiction of the State, in a court of any other state, country or jurisdiction, and cannot be produced for probate in this State, a copy of the will may be admitted to probate in this State in lieu thereof and has the same force and effect as would be required if the original will were produced.

      2.  Unless otherwise ordered by the court, a subscribing witness may testify in person, by deposition or by affidavit with respect to a copy of the executed will, and with respect to the handwriting of the affiant as a witness, or the handwriting of the testator or another witness, in the same way as he or she would if the original will were available.

      [29:107:1941; 1931 NCL § 9882.29]—(NRS A 1983, 199; 1999, 2265)

      NRS 136.185  Proof of electronic will.  An electronic will may be proved by authentication satisfactory to the court.

      (Added to NRS by 2001, 2343)

      NRS 136.190  Proof of holographic will.  A holographic will may be proved by authentication satisfactory to the court.

      [3:111:1895; C § 3094; RL § 6225; NCL § 9928] + [30:107:1941; 1931 NCL § 9882.30]—(NRS A 1999, 2266)

      NRS 136.200  Appointment of attorney to represent minors, unborn members of interested class or nonresidents; retention of other counsel.

      1.  If a will is offered for probate and it appears there are minors or unborn members of a class who are interested, or if it appears there are other interested persons who reside out of the county and are unrepresented, the court may, whether there is a contest or not, appoint an attorney for them.

      2.  If a person for whom an attorney has been appointed, pursuant to subsection 1, retains counsel and notifies the court of the retention, the court shall enter an order relieving the court-appointed attorney of further obligation to represent the person.

      [16:107:1941; 1931 NCL § 9882.16]—(NRS A 1961, 409; 1967, 213; 1999, 2266)

      NRS 136.210  Translation and recording of will in foreign language.  If the will is in a foreign language the court shall certify to a correct translation thereof into English and the certified translation shall be recorded in lieu of the original.

      [28:107:1941; 1931 NCL § 9882.28]

      NRS 136.220  Admissibility of certified copy of will and order admitting will to probate.  A copy of the will and order admitting it to probate, certified by the clerk in whose custody it may be, must be received in evidence and be as effectual in all cases as the original will would be if proved.

      [31:107:1941; 1931 NCL § 9882.31]—(NRS A 1999, 2266)

      NRS 136.225  Applicability of provisions concerning revocation of certain transfers of real property based upon divorce or annulment to transfers of property pursuant to will.  The provisions of NRS 111.781 concerning the revocation of certain transfers based upon divorce or annulment apply to transfers of property made pursuant to a will.

      (Added to NRS by 2011, 1436)

LOST OR DESTROYED WILLS

      NRS 136.230  Jurisdiction of court to take proof of execution and validity of lost or destroyed will.  If a will is lost by accident or destroyed by fraud without the knowledge of the testator, the court may take proof of the execution and validity of the will and establish it, after notice is given to all persons, as prescribed for proof of wills in other cases.

      [34:107:1941; 1931 NCL § 9882.34]—(NRS A 1999, 2266)

      NRS 136.240  Petition for probate; same requirement of proof as other wills; testimony of witnesses; rebuttable presumption concerning certain wills; prima facie showing that will was not revoked; order.

      1.  The petition for the probate of a lost or destroyed will must include a copy of the will, or if no copy is available state, or be accompanied by a written statement of, the testamentary words, or the substance thereof.

      2.  If offered for probate, a lost or destroyed will must be proved in the same manner as other wills are proved under this chapter.

      3.  In addition, no will may be proved as a lost or destroyed will unless it is proved to have been in existence at the death of the person whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime of that person, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.

      4.  The testimony of each witness must be reduced to writing, signed by the witness and filed, and is admissible in evidence in any contest of the will if the witness has died or permanently moved from the State.

      5.  Notwithstanding any provision of this section to the contrary:

      (a) The production of a person’s lost or destroyed will, whose primary beneficiary is a nontestamentary trust established by the person and in existence at his or her death, creates a rebuttable presumption that the will had not been revoked.

      (b) If the proponent of a lost or destroyed will makes a prima facie showing that it was more likely than not left unrevoked by the person whose will it is claimed to be before his or her death, then the will must be admitted to probate in absence of an objection. If such prima facie showing has been made, the court shall accept a copy of such a will as sufficient proof of the terms thereof without requiring further evidence in the absence of any objection.

      6.  If the will is established, its provisions must be set forth specifically in the order admitting it to probate, or a copy of the will must be attached to the order.

      [35:107:1941; 1931 NCL § 9882.35]—(NRS A 1999, 2266; 2009, 1624)

      NRS 136.250  Restraint of administration pending petition.  If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration have been granted upon the estate of the decedent, or letters testamentary of any previous will of the decedent, the court may restrain the administration if necessary to protect the interests of devisees claiming under the lost or destroyed will.

      [36:107:1941; 1931 NCL § 9882.36]—(NRS A 1999, 2267)

FOREIGN WILLS

      NRS 136.260  Probate of foreign wills: Procedure.

      1.  A will duly proved, allowed and admitted to probate outside of this State may be admitted to probate and recorded in the proper court of any county in this State in which the testator left any estate.

      2.  When a copy of the will and the order admitting it to probate, duly certified, are presented by the personal representative, a nominee or any other interested person, with a petition for probate, the order and copy must be filed, and the clerk shall set a time for a hearing thereon, and notice must be given as required by law on a petition for the original probate of a domestic will pursuant to NRS 136.100.

      3.  If, upon the hearing, it appears to the satisfaction of the court that the will has been duly proved and admitted to probate outside this State, and that it was executed according to the law of the place in which it was made, or in which the testator was at the time domiciled, or in conformity with the laws of this State, it must be admitted to probate with the same force and effect as the original probate of a domestic will.

      4.  If a certified copy of a will from any jurisdiction where probate is not required by the laws of that jurisdiction, with the certificate of the legal custodian of the original will that the certified copy is a true copy and that the will has become operative by the laws of that jurisdiction, or a copy of a notarial will in possession of a notary in a foreign jurisdiction entitled to the custody of the will and required by the laws of that jurisdiction to retain custody of it, duly certified by the notary, is presented by the personal representative, a nominee of the personal representative or another interested person to the proper court in this State, the clerk shall set a time for a hearing thereon, and notice must be given as required by law on a petition for the original probate of a domestic will.

      5.  If it appears to the court that the will should be admitted to probate in this State, as the last will and testament of the decedent, the copy must be filed with the clerk, and the will has the same effect as if originally proved and admitted to probate in the court of this State.

      [32:107:1941; 1931 NCL § 9882.32]—(NRS A 1973, 392; 1999, 2267)