2005 Nevada Revised Statutes - Chapter 136 — Probate of Wills and Petitions for Letters

CHAPTER 136 - PROBATE OF WILLS ANDPETITIONS FOR LETTERS

JURISDICTION

NRS 136.010 Residentdecedent; nonresident decedent.

NRS 136.020 Disqualifiedjudge.

NRS 136.030 Disqualifiedjudge required to transfer proceedings to qualified judge; duties, powers andjurisdiction of qualified judge.

NRS 136.040 Transferof proceedings back to original court.

PROBATE OF WILLS

NRS 136.050 Deliveryof will after death; liability for nondelivery.

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

NRS 136.070 Personsqualified to petition for probate.

NRS 136.090 Petitionfor probate: Requirements; effect of defect.

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

NRS 136.120 Serviceof petition when petition presented by person other than named personalrepresentative or by fewer than all named personal representatives.

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

NRS 136.140 Proofof notice; witnesses to testify orally.

NRS 136.150 Evidenceof subscribing witnesses: Affidavits ex parte.

NRS 136.160 Proofof will by affidavits of attesting witnesses.

NRS 136.170 Proofof will when subscribing witnesses are unavailable.

NRS 136.180 Proofof will by copy.

NRS 136.185 Proofof electronic will.

NRS 136.190 Proofof holographic will.

NRS 136.200 Appointmentof attorney to represent minors, unborn members of interested class ornonresidents; retention of other counsel.

NRS 136.210 Translationand recording of will in foreign language.

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

LOST OR DESTROYED WILLS

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

NRS 136.240 Petitionfor probate; same requirements of proof as other wills; testimony of witnesses;order.

NRS 136.250 Restraintof administration pending petition.

FOREIGN WILLS

NRS 136.260 Probateof foreign wills: Procedure.

_________

JURISDICTION

NRS 136.010 Residentdecedent; nonresident decedent.

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

2. The estate of a nonresident decedent may be settledby 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 exclusivejurisdiction of the settlement of estates of nonresidents.

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

NRS 136.020 Disqualifiedjudge. A district judge shall not admit anywill 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 thewill.

4. A witness to the will.

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

NRS 136.030 Disqualifiedjudge required to transfer proceedings to qualified judge; duties, powers andjurisdiction of qualified judge.

1. If a district judge, who would otherwise beauthorized to act, is precluded from acting from the causes mentioned in NRS 136.020, or if the judge is interestedin any manner, the judge shall transfer all proceedings in the matter of theestate to another judge of the same county, if there is one, who is notdisqualified to act in the settlement of the estate, or the judge shall requesta judge of another district to hold the court in the other county.

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

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

NRS 136.040 Transferof proceedings back to original court. If,before the administration of any estate transferred as provided in NRS 136.030 is closed, another personbecomes judge of the court in which the proceeding was originally commenced whois not disqualified to act in the settlement of the estate, and the causes forwhich the proceeding was transferred no longer exist, any interested person mayhave 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 thepetition. If these facts are satisfactorily shown, the court must make an ordertransferring 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 Deliveryof 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 thewill, deliver it to the clerk of the district court which has jurisdiction ofthe case or to the personal representative named in the will.

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

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

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

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

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

2. Any person having the possession of a will whoneglects or refuses to produce it in obedience to such an order may, by warrantfrom the court, be committed to the county jail, and be kept in closeconfinement until the person produces the will. The court may make all othernecessary orders at chambers to enforce the production of the will.

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

NRS 136.070 Personsqualified to petition for probate.

1. A personal representative or devisee named in awill, or any other interested person, may, at any time after the death of thetestator, 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 ordestroyed, or is beyond the jurisdiction of the State.

2. A personal representative named in a will, thoughnot in possession of the will, may present a petition to the district courthaving jurisdiction, requesting that the person in possession of the will berequired to produce it so that it may be admitted to probate and letters may beissued.

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

NRS 136.090 Petitionfor probate: Requirements; effect of defect.

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

(a) The jurisdictional facts;

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

(c) The names and residences of the heirs, next of kinand devisees of the decedent, the age of any heir, next of kin or devisee whois 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 propertyof the estate;

(e) The name of the person for whom letters arerequested, and that the person has never been convicted of a felony; and.

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

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

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

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

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

2. The petitioner shall give notice of the hearing forthe period and in the manner provided in NRS155.020 to the heirs of the testator and the devisees named in the will, toall persons named as personal representatives who are not petitioning and tothe Director of the Department of Health and Human Services. The notice must besubstantially 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 Serviceof petition when petition presented by person other than named personalrepresentative or by fewer than all named personal representatives. If a petition for probate is presented by any person otherthan the personal representative named in the will, or if it is presented byfewer than all of the personal representatives named in the will, the petitionmust 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 Attestingwitnesses to will subpoenaed; unnecessary where self-proving affidavits.

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

2. No subpoenas to subscribing witnesses need beissued if the affidavits mentioned in NRS136.160 are filed with the clerk.

[14:107:1941; 1931 NCL 9882.14]

NRS 136.140 Proofof notice; witnesses to testify orally.

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

2. All witnesses who appear and are sworn shalltestify orally.

[15:107:1941; 1931 NCL 9882.15]

NRS 136.150 Evidenceof subscribing witnesses: Affidavits ex parte.

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

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

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

NRS 136.160 Proofof will by affidavits of attesting witnesses.

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

2. The affidavit described in subsection 1 may besubstantially in form as set forth in NRS133.050.

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

NRS 136.170 Proofof will when subscribing witnesses are unavailable.

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

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

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

NRS 136.180 Proofof will by copy.

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

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

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

NRS 136.185 Proofof electronic will. An electronic will may beproved by authentication satisfactory to the court.

(Added to NRS by 2001, 2343)

NRS 136.190 Proofof holographic will. A holographic will may beproved 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 Appointmentof attorney to represent minors, unborn members of interested class ornonresidents; retention of other counsel.

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

2. If a person for whom an attorney has beenappointed, pursuant to subsection 1, retains counsel and notifies the court ofthe retention, the court shall enter an order relieving the court-appointedattorney 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 Translationand recording of will in foreign language. Ifthe will is in a foreign language the court shall certify to a correcttranslation thereof into English and the certified translation shall berecorded in lieu of the original.

[28:107:1941; 1931 NCL 9882.28]

NRS 136.220 Admissibilityof 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 evidenceand 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)

LOST OR DESTROYED WILLS

NRS 136.230 Jurisdictionof court to take proof of execution and validity of lost or destroyed will. If a will is lost by accident or destroyed by fraudwithout the knowledge of the testator, the court may take proof of theexecution and validity of the will and establish it, after notice is given toall persons, as prescribed for proof of wills in other cases.

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

NRS 136.240 Petitionfor probate; same requirements of proof as other wills; testimony of witnesses;order.

1. The petition for the probate of a lost or destroyedwill must include a copy of the will, or if no copy is available state, or beaccompanied by a written statement of, the testamentary words, or the substancethereof.

2. If offered for probate, a lost or destroyed willmust 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 ordestroyed will unless it is proved to have been in existence at the death ofthe person whose will it is claimed to be, or is shown to have beenfraudulently destroyed in the lifetime of that person, nor unless itsprovisions are clearly and distinctly proved by at least two credible witnesses.

4. The testimony of each witness must be reduced towriting, signed by the witness and filed, and is admissible in evidence in anycontest of the will if the witness has died or permanently moved from theState.

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

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

NRS 136.250 Restraintof administration pending petition. If, beforeor 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, orletters testamentary of any previous will of the decedent, the court mayrestrain the administration if necessary to protect the interests of deviseesclaiming under the lost or destroyed will.

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

FOREIGN WILLS

NRS 136.260 Probateof foreign wills: Procedure.

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

2. When a copy of the will and the order admitting itto probate, duly certified, are presented by the personal representative, anominee or any other interested person, with a petition for probate, the orderand 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 originalprobate of a domestic will pursuant to NRS136.100.

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

4. If a certified copy of a will from any jurisdictionwhere probate is not required by the laws of that jurisdiction, with thecertificate of the legal custodian of the original will that the certified copyis a true copy and that the will has become operative by the laws of thatjurisdiction, or a copy of a notarial will in possession of a notary in aforeign jurisdiction entitled to the custody of the will and required by thelaws of that jurisdiction to retain custody of it, duly certified by thenotary, is presented by the personal representative, his nominee or anotherinterested person to the proper court in this State, the clerk shall set a timefor a hearing thereon, and notice must be given as required by law on apetition for the original probate of a domestic will.

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

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

 

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