[Rev. 5/20/2016 3:06:44 PM--2015]

CHAPTER 146 - SUPPORT OF FAMILY; SMALL ESTATES

GENERAL PROVISIONS

NRS 146.005†††††††††† Effect of premarital agreement between decedent and surviving spouse.

SUPPORT OF FAMILY

NRS 146.010†††††††††† Surviving spouse and minor children entitled to homestead and provisions.

NRS 146.020†††††††††† After filing of inventory, court authorized to set apart exempt personal property and required to set apart homestead.

NRS 146.025†††††††††† Recording of order setting apart homestead.

NRS 146.030†††††††††† Court authorized to make family allowance from estate if property set apart is insufficient; where persons have other support.

NRS 146.040†††††††††† Preference of family allowance.

NRS 146.050†††††††††† Vesting of homestead; debts of spouse.

DISTRIBUTION OF SMALL ESTATES

NRS 146.070†††††††††† Estates not exceeding $100,000: Procedure to set aside estate; exceptions; petition; notice; fees; reduction of estate by nonprobate transfer; hearing; findings; distribution of interest of minor.

NRS 146.080†††††††††† Estates not exceeding certain amounts: Transfer of assets without issuance of letters of administration or probate of will; affidavit showing right to assets.

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GENERAL PROVISIONS

††††† NRS 146.005  Effect of premarital agreement between decedent and surviving spouse.  The provisions of this chapter are inapplicable to the extent that they are inconsistent with the provisions of a premarital agreement between the decedent and the surviving spouse which is enforceable pursuant to chapter 123A of NRS.

††††† (Added to NRS by 1989, 1009; A 1999, 2303)

SUPPORT OF FAMILY

††††† NRS 146.010  Surviving spouse and minor children entitled to homestead and provisions.  Except as otherwise provided in this chapter or in NRS 125C.0045, if a person dies leaving a surviving spouse or a minor child or minor children, the surviving spouse, minor child or minor children are entitled to remain in possession of the homestead and of all the wearing apparel and provisions in the possession of the family, and all the household furniture, and are also entitled to a reasonable provision for their support, to be allowed by the court.

††††† [111:107:1941; 1931 NCL ß 9882.111]ó(NRS A 1973, 401; 1979, 144; 1999, 2303; 2009, 1628; 2015, 2590)

††††† NRS 146.020  After filing of inventory, court authorized to set apart exempt personal property and required to set apart homestead.  Upon the filing of the inventory or at any time thereafter during the administration of the estate, the court, on its own motion or upon petition by an interested person, may, if deemed advisable considering the needs and resources of the surviving spouse, minor child or minor children, set apart for the use of the surviving spouse, minor child or minor children of the decedent all of the personal property which is exempt by law from execution, and shall, in accordance with NRS 146.050, set apart the homestead, as designated by the general homestead law then in force, whether the homestead has theretofore previously been selected as required by law or not, and the property thus set apart is not subject to administration.

††††† [112:107:1941; 1931 NCL ß 9882.112]ó(NRS A 1999, 2303; 2009, 1628)

††††† NRS 146.025  Recording of order setting apart homestead.  If an order is entered setting apart a homestead, a certified copy of the order must be recorded in the office of the county recorder of the county in which the property is located.

††††† (Added to NRS by 1999, 2303)

††††† NRS 146.030  Court authorized to make family allowance from estate if property set apart is insufficient; where persons have other support.

††††† 1.  If the whole property exempt by law is set apart and is not sufficient for the support of the surviving spouse, minor child or minor children, the court may, if deemed advisable considering the needs and resources of the surviving spouse, minor child or minor children, make such reasonable allowance out of the estate as is necessary for the maintenance of the family according to their circumstances during the progress of the administration of the estate, which, in case of an insolvent estate, may not be longer than 1 year after granting letters of administration.

††††† 2.  If the surviving spouse or any minor child has a reasonable maintenance derived from other property, and there are other persons entitled to a family allowance, the allowance must be granted only to those who do not have such maintenance, or the allowance may be apportioned in such manner as may be just.

††††† [113:107:1941; 1931 NCL ß 9882.113] + [118:107:1941; 1931 NCL ß 9882.118]ó(NRS A 1979, 144; 1999, 2304; 2009, 1628)

††††† NRS 146.040  Preference of family allowance.  An allowance made by the court in accordance with the provisions of this chapter must be paid by the personal representative in preference to all other charges, except funeral charges, expenses of last illness and expenses of administration. This may, in the discretion of the court granting it, take effect from the death of the decedent.

††††† [114:107:1941; 1931 NCL ß 9882.114]ó(NRS A 1999, 2304)

††††† NRS 146.050  Vesting of homestead; debts of spouse.

††††† 1.  If the homestead was selected by the spouses, or either of them, during their marriage, and recorded while both were living, as provided in chapter 115 of NRS, it vests, on the death of either spouse, absolutely in the survivor, unless vesting is otherwise required pursuant to subsection 2 of NRS 115.060.

††††† 2.  If no homestead was so selected, a homestead may be set apart by the court to the surviving spouse, minor child or minor children of the decedent for a limited period if deemed advisable considering the needs and resources of the family and the nature, character and obligations of the estate. The duration of the homestead must be designated in the order setting it apart and may not extend beyond the lifetime of the surviving spouse or the minority of any child of the decedent, whichever is longer. A homestead so set apart then vests, subject to the setting apart:

††††† (a) If set apart from the separate property of the decedent, in the heirs or devisees of the decedent.

††††† (b) If set apart from community property, one-half in the surviving spouse and one-half in the devisees of the decedent, or if no disposition is made, then entirely in the surviving spouse.

††††† 3.  In either case referred to in subsection 1 or 2, the homestead is not subject to the payment of any debt or liability existing against the spouses, or either of them, at the time of death of either, unless the debt or liability is secured by a mortgage or lien.

††††† [115:107:1941; 1931 NCL ß 9882.115]ó(NRS A 1965, 60; 1973, 191; 1983, 667; 1999, 2304; 2009, 1629)

DISTRIBUTION OF SMALL ESTATES

††††† NRS 146.070  Estates not exceeding $100,000: Procedure to set aside estate; exceptions; petition; notice; fees; reduction of estate by nonprobate transfer; hearing; findings; distribution of interest of minor.

††††† 1.  If the value of a decedentís estate does not exceed $100,000, the estate may be set aside without administration by the order of the court.

††††† 2.  Except as otherwise provided in subsection 3, the whole estate must be assigned and set apart in the following order:

††††† (a) To the payment of the petitionerís attorneyís fees and costs incurred relative to the proceeding under this section;

††††† (b) To the payment of funeral expenses, expenses of last illness, money owed to the Department of Health and Human Services as a result of payment of benefits for Medicaid and creditors, if there are any;

††††† (c) To the payment of other creditors, if any; and

††††† (d) Any balance remaining to the claimant or claimants entitled thereto pursuant to a valid will of the decedent, and if there is no valid will, pursuant to intestate succession in accordance with chapter 134 of NRS.

††††† 3.  If the decedent is survived by a spouse or one or more minor children, the court must set aside the estate for the benefit of the surviving spouse or the minor child or minor children of the decedent, subject to any reduction made pursuant to subsection 4 or 5. The court may allocate the entire estate to the surviving spouse, the entire amount to the minor child or minor children, or may divide the estate among the surviving spouse and minor child or minor children.

††††† 4.  As to any amount set aside to or for the benefit of the surviving spouse or minor child or minor children of the decedent pursuant to subsection 3, the court must set aside the estate without the payment of creditors except as the court finds necessary to prevent a manifest injustice.

††††† 5.  To prevent an injustice to creditors when there are nonprobate transfers that already benefit the surviving spouse or minor child or minor children of the decedent, the court has the discretion to reduce the amount set aside under subsection 3 to the extent that the value of the estate, when combined with the value of nonprobate transfers, as defined in NRS 111.721, from the decedent to or for the benefit of the surviving spouse or minor child or minor children of the decedent exceeds $100,000.

††††† 6.  In exercising the discretion granted in this section, the court shall consider the needs and resources of the surviving spouse and minor child or minor children, including any assets received by or for the benefit of the surviving spouse or minor child or minor children from the decedent by nonprobate transfers.

††††† 7.  For the purpose of this section, a nonprobate transfer from the decedent to one or more trusts or custodial accounts for the benefit of the surviving spouse or minor child or minor children shall be considered a transfer for the benefit of such spouse or minor child or minor children.

††††† 8.  Proceedings taken under this section must not begin until at least 30 days after the death of the decedent and must be originated by a petition containing:

††††† (a) A specific description of all property in the decedentís estate;

††††† (b) A list of all known liens and encumbrances against estate property at the date of the decedentís death, with a description of any that the petitioner believes may be unenforceable;

††††† (c) An estimate of the value of the property, together with an explanation of how the estimated value was determined;

††††† (d) A statement of the debts of the decedent so far as known to the petitioner;

††††† (e) The names and residences of the heirs and devisees of the decedent and the age of any who is a minor and the relationship of the heirs and devisees to the decedent, so far as known to the petitioner; and

††††† (f) If the decedent left a will, a statement concerning all evidence known to the petitioner that tends to prove that the will is valid.

††††† 9.  If the petition seeks to have the estate set aside for the benefit of the decedentís surviving spouse or minor child or minor children without payment to creditors, the petition must also contain:

††††† (a) A specific description and estimated value of property passing by one or more nonprobate transfers from the decedent to the surviving spouse or minor child or minor children; or

††††† (b) An allegation that the estimated value of the property sought to be set aside, combined with the value of all nonprobate transfers from the decedent to the surviving spouse or minor child or minor children who are seeking to receive property pursuant to this section, is less than $100,000.

††††† 10.  When property is distributed pursuant to an order granted under this section, the court may allocate the property on a pro rata basis or a non-pro rata basis.

††††† 11.  The clerk shall set the petition for hearing and the petitioner shall give notice of the petition and hearing in the manner provided in NRS 155.010 to the decedentís heirs and devisees and to the Director of the Department of Health and Human Services. If a complete copy of the petition is not enclosed with the notice, the notice must include a statement setting forth to whom the estate is being set aside.

††††† 12.  No court or clerkís fees may be charged for the filing of any petition in, or order of court thereon, or for any certified copy of the petition or order in an estate not exceeding $2,500 in value.

††††† 13.  At the hearing on a petition under this section, the court may require such additional evidence as the court deems necessary to make the findings required under subsection 14.

††††† 14.  The order granting the petition shall include:

††††† (a) The courtís finding as to the validity of any will presented;

††††† (b) The courtís finding as to the value of the estate and, if relevant for the purposes of subsection 5, the value of any property subject to nonprobate transfers;

††††† (c) The courtís determination of any property set aside under subsection 2;

††††† (d) The courtís determination of any property set aside under subsection 3, including, without limitation, the courtís determination as to any reduction made pursuant to subsection 4 or 5; and

††††† (e) The name of each distributee and the property to be distributed to the distributee.

††††† 15.  As to the distribution of the share of a minor child set aside pursuant to this section, the court may direct the manner in which the money may be used for the benefit of the minor child as is deemed in the courtís discretion to be in the best interests of the minor child, and the distribution of the minor childís share shall be made as permitted for the minor childís share under the terms of the decedentís will or to one or more of the following:

††††† (a) A parent of such minor child, with or without the filing of any bond;

††††† (b) A custodian under chapter 167 of NRS; or

††††† (c) A court-appointed guardian of the estate, with or without bond.

††††† 16.  For the purposes of this section, the value of property must be the fair market value of that property, reduced by the value of all enforceable liens and encumbrances. Property values and the values of liens and encumbrances must be determined as of the date of the decedentís death.

††††† [117:107:1941; A 1941, 130; 1931 NCL ß 9882.117]ó(NRS A 1963, 1271; 1965, 171; 1973, 431; 1975, 1772; 1981, 1794; 1983, 193; 1989, 647; 1995, 2573; 1997, 113, 1249, 1487; 1999, 2305; 2003, 881, 2512; 2007, 896; 2015, 3530)

††††† NRS 146.080  Estates not exceeding certain amounts: Transfer of assets without issuance of letters of administration or probate of will; affidavit showing right to assets.

††††† 1.  If a decedent leaves no real property, nor interest therein, nor mortgage or lien thereon, in this State, and the gross value of the decedentís property in this State, over and above any amounts due to the decedent for services in the Armed Forces of the United States and the value of any motor vehicles registered to the decedent, does not exceed the applicable amount, a person who has a right to succeed to the property of the decedent pursuant to the laws of succession for a decedent who died intestate or pursuant to the valid will of a decedent who died testate, on behalf of all persons entitled to succeed to the property claimed, or the Director of the Department of Health and Human Services or public administrator on behalf of the State or others entitled to the property, may, 40 days after the death of the decedent, without procuring letters of administration or awaiting the probate of the will, collect any money due the decedent, receive the property of the decedent, and have any evidences of interest, indebtedness or right transferred to the claimant upon furnishing the person, representative, corporation, officer or body owing the money, having custody of the property or acting as registrar or transfer agent of the evidences of interest, indebtedness or right, with an affidavit showing the right of the affiant or affiants to receive the money or property or to have the evidence transferred.

††††† 2.  An affidavit made pursuant to this section must state:

††††† (a) The affiantís name and address, and that the affiant is entitled by law to succeed to the property claimed;

††††† (b) The date and place of death of the decedent;

††††† (c) That the gross value of the decedentís property in this State, except amounts due the decedent for services in the Armed Forces of the United States or the value of any motor vehicles registered to the decedent, does not exceed the applicable amount, and that the property does not include any real property nor interest therein, nor mortgage or lien thereon;

††††† (d) That at least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the certificate of death of the decedent attached to the affidavit;

††††† (e) That no petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;

††††† (f) That all debts of the decedent, including funeral and burial expenses, and money owed to the Department of Health and Human Services as a result of the payment of benefits for Medicaid, have been paid or provided for;

††††† (g) A description of the personal property and the portion claimed;

††††† (h) That the affiant has given written notice, by personal service or by certified mail, identifying the affiantís claim and describing the property claimed, to every person whose right to succeed to the decedentís property is equal or superior to that of the affiant, and that at least 14 days have elapsed since the notice was served or mailed;

††††† (i) That the affiant is personally entitled, or the Department of Health and Human Services is entitled, to full payment or delivery of the property claimed or is entitled to payment or delivery on behalf of and with the written authority of all other successors who have an interest in the property;

††††† (j) That the affiant has no knowledge of any existing claims for personal injury or tort damages against the decedent; and

††††† (k) That the affiant acknowledges an understanding that filing a false affidavit constitutes a felony in this State.

††††† 3.  If the affiant:

††††† (a) Submits an affidavit which does not meet the requirements of subsection 2 or which contains statements which are not entirely true, any money or property the affiant receives is subject to all debts of the decedent.

††††† (b) Fails to give notice to other successors as required by subsection 2, any money or property the affiant receives is held by the affiant in trust for all other successors who have an interest in the property.

††††† 4.  A person who receives an affidavit containing the information required by subsection 2 is entitled to rely upon that information, and if the person relies in good faith, the person is immune from civil liability for actions based on that reliance.

††††† 5.  Upon receiving proof of the death of the decedent and an affidavit containing the information required by this section:

††††† (a) A transfer agent of any security shall change the registered ownership of the security claimed from the decedent to the person claiming to succeed to ownership of that security.

††††† (b) A governmental agency required to issue certificates of title, ownership or registration to personal property shall issue a new certificate of title, ownership or registration to the person claiming to succeed to ownership of the property. The governmental agency may not refuse to accept an affidavit containing the information required by this section, regardless of the form of the affidavit.

††††† 6.  If any property of the estate not exceeding the applicable amount is located in a state which requires an order of a court for the transfer of the property, or if the estate consists of stocks or bonds which must be transferred by an agent outside this State, any person qualified pursuant to the provisions of subsection 1 to have the stocks or bonds or other property transferred may do so by obtaining a court order directing the transfer. The person desiring the transfer must file a petition, which may be ex parte, containing:

††††† (a) A specific description of all the property of the decedent.

††††† (b) A list of all the liens and mortgages of record at the date of the decedentís death.

††††† (c) An estimate of the value of the property of the decedent.

††††† (d) The names, ages of any minors and residences of the decedentís heirs and devisees.

††††† (e) A request for the court to issue an order directing the transfer of the stocks or bonds or other property if the court finds the gross value of the estate does not exceed the applicable amount.

††††† (f) An attached copy of the executed affidavit made pursuant to subsection 2.

  If the court finds that the gross value of the estate does not exceed the applicable amount and the person requesting the transfer is entitled to it, the court may enter an order directing the transfer.

††††† 7.  As used in this section, ďapplicable amountĒ means:

††††† (a) If the claimant is the surviving spouse of the decedent, $100,000.

††††† (b) For any other claimant, $25,000.

††††† (Added to NRS by 1957, 130; A 1975, 1773; 1979, 478; 1983, 194; 1995, 2574; 1997, 1250, 1488; 1999, 2306; 2001, 2346; 2003, 476, 882; 2015, 789)