2005 Nevada Revised Statutes - Chapter 155 — Notices, Orders, Procedure and Appeals

CHAPTER 155 - NOTICES, ORDERS, PROCEDUREAND APPEALS

NOTICES

NRS 155.010 Methodof giving notice; notice to certain persons required; court may dispense withnotice; proof; waiver of notice.

NRS 155.020 Methodand form for notices.

NRS 155.030 Requestfor special notice: Filing by interested person after issuance of letters;filing by interested person in testamentary trust.

NRS 155.040 Personalnotice by citation.

NRS 155.050 Serviceof citation.

NRS 155.060 Timefor service of citation.

NRS 155.070 Numberof publications; extension or shortening of time.

NRS 155.080 Methodsof proving publication or service of notice.

NRS 155.090 Clerkmay give notices and certain citations without court order.

ORDERS

NRS 155.100 Entryof minutes by clerk.

NRS 155.110 Transcripts ofminutes or copies of order and certificate of clerk have same force as letters.

NRS 155.120 Recordationof order setting apart homestead.

NRS 155.123 Temporaryrestraining orders or injunctions issued to protect assets of estate or trust.

NRS 155.127 Ordernunc pro tunc to correct previous order: Issuance; form; use of original order;manner of correction.

PROCEDURE

NRS 155.130 Proceedingsconcerning estate are proceedings of record.

NRS 155.140 General rules: Contentsof pleading; effect of certain orders binding persons; notices; appointment ofguardian ad litem or attorney.

NRS 155.150 Issuesof fact and questions of costs.

NRS 155.160 Responses andobjections to proceedings.

NRS 155.170 Depositionsof absent witnesses.

NRS 155.180 Applicability oflaws and rules regulating civil actions and appeals.

NRS 155.185 Facsimile ofpetitions, notices, objections and other papers may be filed.

APPEALS

NRS 155.190 Appealableorders.

NRS 155.195 Effectof appeal of order.

NRS 155.200 Noundertaking on appeal required of personal representative.

NRS 155.210 Powerof Supreme Court on appeal.

NRS 155.220 Reversalof order appointing personal representative.

_________

NOTICES

NRS 155.010 Methodof giving notice; notice to certain persons required; court may dispense withnotice; proof; waiver of notice.

1. Except as otherwise provided in a specific statuterelating to the kind of notice required or otherwise ordered by the court in aparticular instance, a petitioner shall cause notice of the time and place ofthe hearing of a petition to be given to each interested person and to everyother person entitled to notice pursuant to this title or his attorney if hehas appeared by attorney or requested that notice be sent to his attorney.Notice must be given:

(a) By mailing a copy thereof at least 10 days beforethe time set for the hearing by certified, registered or ordinary first-classmail addressed to the person being notified at the post office address given inhis demand for notice, if any, or at his office or place of residence, ifknown, or by personally delivering a copy thereof to the person being notifiedat least 10 days before the time set for the hearing; or

(b) If the address or identity of the person is notknown and cannot be ascertained with reasonable diligence, by publishing atleast once a week for 3 consecutive weeks a copy thereof in a newspaper havinggeneral circulation in the county where the hearing is to be held, the lastpublication of which must be at least 10 days before the date set for thehearing.

2. The court, for good cause shown, may provide for adifferent method or time of giving notice for any hearing, or may dispense withthe notice otherwise required to be given to a person under this title.

3. Proof of the giving of notice must be made on orbefore the hearing and filed in the proceeding.

4. A person entitled to notice may, in writing, waivenotice of the hearing of a petition.

[283:107:1941; 1931 NCL 9882.283](NRS A 1961, 407;1967, 352; 1969, 95; 1975, 1778; 1977, 273; 1997, 1492; 1999, 2359)

NRS 155.020 Methodand form for notices.

1. Notice of a petition for the probate of a will andthe issuance of letters and the notice to creditors must be given to:

(a) The persons respectively entitled thereto,including the Director of the Department of Health and Human Services, asprovided in NRS 155.010; and

(b) The public, including creditors whose names andaddresses are not readily ascertainable, by publication on three dates ofpublication before the hearing, and if the newspaper is published more thanonce each week, there must be at least 10 days from the first to last dates ofpublication, including both the first and last days.

2. Every publication required by this section must bemade in a newspaper published in the county where the proceedings are pending,but if there is not such a newspaper, then in one having general circulation inthat county.

3. The notice of the hearing upon the petition toadminister the estate must be in substantially the following form:

 

NOTICE OF THE HEARINGUPON THE PETITION TO

ADMINISTER THE ESTATE

 

Notice is hereby given that................................ has filed in this court a petition for theprobate of a will and for letters testamentary, or for letters ofadministration, of the estate of ................................, deceased,and a hearing has been set for the .......... day of the monthof................, of the year......, at .......... (a.m. or p.m.) at thecourthouse of the above-entitled court. All persons interested in the estateare notified to appear and show cause why the petition should not be granted.

Dated .............................................

 

4. As soon as practicable after appointment, apersonal representative shall, in addition to publishing the notice tocreditors, mail a copy of the notice to those creditors whose names andaddresses are readily ascertainable as of the date of first publication of thenotice and who have not already filed a claim. The notice must be insubstantially the following form:

 

NOTICE TO CREDITORS

 

Notice is hereby given that the undersigned has beenappointed and qualified by the (giving the title of the court and the date ofappointment) as personal representative of the estate of................................, deceased. All creditors having claims againstthe estate are required to file the claims with the clerk of the court within.......... (60 or 90) days after the mailing or the first publication (as thecase may be) of this notice.

Dated .............................................

 

5. If before the last day for the filing of acreditors claim under NRS 147.040, thepersonal representative discovers the existence of a creditor who was notreadily ascertainable at the time of first publication of the notice tocreditors, the personal representative shall immediately mail a copy of thenotice to the creditor.

[284:107:1941; 1931 NCL 9882.284](NRS A 1961, 408;1975, 1779; 1985, 2037; 1987, 782; 1995, 2577; 1997, 1493; 1999, 2359; 2001, 164; 2003, 885)

NRS 155.030 Requestfor special notice: Filing by interested person after issuance of letters;filing by interested person in testamentary trust.

1. At any time after the issuance of letters in theestate of a decedent, an interested person or his attorney may serve upon thepersonal representative or his attorney, and file with the clerk of the courtwherein administration of the estate is pending, a written request stating thathe desires special notice and a copy of any further filings, steps orproceedings in the administration of the estate.

2. The request must state the post office address ofthe requester or his attorney, and thereafter a brief notice of the filing ofany returns, petitions, accounts, reports or other proceedings, together with acopy of the filing, must be addressed to that person or his attorney, at hisstated mailing address, and deposited with the United States Postal Servicewith the postage thereon prepaid, within 2 days after each is filed, orpersonal service of the notice may be made on the person or his attorney withinthe 2 days, and the personal service is equivalent to deposit in the postoffice, and proof of mailing or of personal service must be filed with theclerk before the hearing of the proceeding.

3. If, upon the hearing, it appears to thesatisfaction of the court that the notice has been regularly given, the courtshall so find in its order and the order is final and conclusive upon allpersons.

4. An interested person in a testamentary trust or itsproperty, or the attorney for that person, may serve upon the trustee or hisattorney, and file with the clerk of the court wherein administration of thetrust is pending, a written request stating that he desires notice of thefiling of accounts and petitions in connection with the trust. The provisionsof subsections 2 and 3 apply to such a request.

5. On the filing of an inventory or a inventory or asupplementary inventory, the personal representative shall mail a copy to eachperson who has requested special notice.

[Part 119:107:1941; A 1951, 464](NRS A 1975, 1780;1987, 702; 1999, 2360)

NRS 155.040 Personalnotice by citation. If personal notice isrequired by this title to be given to any person in the matter of an estate ortestamentary trust, and no other mode of giving notice is prescribed, it mustbe given by citation, issued by the clerk and directed to the person to beserved, and must command the person to appear before the court at a time andplace to be named in the citation. The nature or character of the proceedingsmust be briefly stated in the citation, and a copy of the petition, if any,must be attached.

[285:107:1941; 1931 NCL 9882.285](NRS A 1999, 2361)

NRS 155.050 Serviceof citation. The citation described in NRS 155.040 is to be served in the samemanner as the personal service of summons. If personal service cannot be madeupon the person to be served, the citation may be served by leaving a copy withhis attorney of record or in such other manner as the court may direct.

[286:107:1941; 1931 NCL 9882.286]

NRS 155.060 Timefor service of citation. If no other time isspecially prescribed, a citation must be served at least 10 days before the dayof the hearing, but the court may, for good cause shown, shorten the time to noless than 1 full judicial day before the day of the hearing.

[288:107:1941; 1931 NCL 9882.288](NRS A 1999, 2361)

NRS 155.070 Numberof publications; extension or shortening of time. Ifpublication is required, the publication must be made daily, or otherwise, asoften during the prescribed period as the newspaper is regularly issued, unlessotherwise provided in this title. The court, however, may prescribe lesspublications during the period for publication, and the court may, for goodcause shown, extend or shorten any of the times prescribed in this title.

[Part 282:107:1941; 1931 NCL 9882.282](NRS A 1999, 2361)

NRS 155.080 Methodsof proving publication or service of notice. Allproofs of publication or other mode or modes of giving notice or serving papersmay be made by the certificate or affidavit of any person competent to be awitness. The certificate or affidavit must be filed, and constitutes primafacie evidence of publication or service. Proof of service may also be made inany manner permitted by the Nevada Rules of Civil Procedure.

[287:107:1941; 1931 NCL 9882.287](NRS A 1979, 450;1999, 2362)

NRS 155.090 Clerkmay give notices and certain citations without court order. All notices required to be given by this title may begiven by the clerk of the court without an order from the court, and, when sogiven, for the time and in the manner required by law, they are as legal andvalid as though made upon an order from the court. If use of a citation isauthorized or required by statute, the citation may be issued by the clerk ofthe court on the request of a party or his attorney, without a court order,unless an order is expressly required by the statute.

[322:107:1941; 1931 NCL 9882.322](NRS A 1999, 2362)

ORDERS

NRS 155.100 Entryof minutes by clerk. The clerk shall enter aminute of all proceedings in matters of estates, as in other actions.

[Part 282:107:1941; 1931 NCL 9882.282]

NRS 155.110 Transcriptsof minutes or copies of order and certificate of clerk have same force asletters.

1. A transcript from the minutes of court, or a copyof the signed order of the court, showing the appointment of any person aspersonal representative, together with the certificate of the clerk that theperson has given bond, if required, and has been qualified, and that lettershave been issued to him, and have not been revoked, has the same effect inevidence as the letters themselves.

2. A copy of the letters, with like certificate, hasthe same effect.

[95:107:1941; 1931 NCL 9882.95](NRS A 1999, 2362)

NRS 155.120 Recordationof order setting apart homestead. If an orderis entered setting apart a homestead, a certified copy of the order shall berecorded in the office of the county recorder of the county where the propertyis located.

[292:107:1941; 1931 NCL 9882.292](NRS A 1999, 2362)

NRS 155.123 Temporaryrestraining orders or injunctions issued to protect assets of estate or trust. In accordance with the provisions of NRS 33.010 and the Nevada Rules of CivilProcedure, and upon such terms and conditions as the court deems just andappropriate, the court may issue a temporary restraining order or an injunctionto preserve and protect assets of the estate or trust.

(Added to NRS by 1999, 2358)

NRS 155.127 Ordernunc pro tunc to correct previous order: Issuance; form; use of original order;manner of correction.

1. If through inadvertence or mistake an order enteredfails to state correctly the order made by the court, and the inadvertence ormistake is brought to the attention of the court by petition or the court actson its own motion, the court may enter an order nunc pro tunc correcting theprevious order.

2. The order nunc pro tunc must be in the form of anamended order and bear the caption Amended Order of ..... The body of theamended order must be identical to the order being corrected, except for thecorrection, and conclude with language substantially as follows: This is anorder nunc pro tunc correcting the previous order of ...., dated .....

3. If the order to be amended is many pages in length,the court may cause to be filed a document captioned Amendment to Order of.... which addresses only the correction, together with sufficient language toidentify the correction, and concludes with the same language as an amendedorder. Such an amendment to an order must be accompanied by a verifiedpetition, or an affidavit of counsel, specifying the reasons for thecorrection.

4. The original order may not be physically changed,but must be used in conjunction with the order nunc pro tunc correcting it. Inmaking corrections in the amendment document, a complete clause or sentencemust be stricken and replaced, even if the only change is to correct a singleword or figure.

(Added to NRS by 1999, 2358; A 2001, 164)

PROCEDURE

NRS 155.130 Proceedingsconcerning estate are proceedings of record. Allproceedings in matters of estate shall be proceedings of record as otheractions and proceedings.

[Part 307:107:1941; 1931 NCL 9882.307]

NRS 155.140 Generalrules: Contents of pleading; effect of certain orders binding persons; notices;appointment of guardian ad litem or attorney.

1. In a proceeding involving the estate of a decedentor a testamentary trust:

(a) Interests to be affected must be described inpleadings that give reasonable information to owners by name or class, byreference to the instrument creating the interest or in another appropriatemanner.

(b) An order binding the sole holder or all co-holdersof a power of revocation or presently exercisable general power of appointment,including a power of amendment, binds other persons to the extent theirinterests, as objects, takers in default or otherwise, are subject to thepower.

(c) To the extent there is no conflict of interestbetween them or among persons represented:

(1) An order binding a guardian of the estatebinds the person whose estate he controls.

(2) An order binding a guardian of the personbinds the ward if no separate guardian of his estate has been appointed.

(3) An order binding a trustee bindsbeneficiaries of the trust in a proceeding to probate a will establishing oradding to the trust, to review the acts or accounts of a previous fiduciary, orinvolving creditors or other third parties.

(4) An order binding a personal representative bindspersons interested in the undistributed assets of the estate of a decedent inan action or proceeding by or against the estate.

(d) If there is no conflict of interest and no guardianof the estate has been appointed, a parent may represent his minor child.

(e) An unborn or unascertained person who is nototherwise represented is bound by an order to the extent his interest isadequately represented by another person having a substantially identicalinterest in the proceeding.

(f) Notice as prescribed by this title must be given toevery interested person or to one who can bind an interested person undersubsection (b), (c) or (d). Notice may be given both to a person and to anotherwho can bind him.

(g) Notice is given to unborn or unascertained personswho are not represented under subsection (b), (c) or (d) by giving notice toall known persons whose interest in the proceeding is substantially identicalto that of the unborn or unascertained persons.

(h) At any stage of a proceeding, the court may appointa guardian ad litem or an attorney to represent the interest of a minor, anincapacitated, unborn or unascertained person, or a person whose identity oraddress is unknown, if the court determines that representation of the interestwould otherwise be inadequate. If not precluded by conflict of interest, aguardian ad litem or an attorney may be appointed to represent several personsor interests. The court shall set out its reasons for appointing a guardian adlitem or an attorney as a part of the record of the proceeding.

2. If an attorney has been appointed for minors orother interested persons, the attorney, until another may be appointed, shallrepresent the person or persons for whom he has been appointed in allsubsequent proceedings.

[Part 291:107:1941; 1931 NCL 9882.291](NRS A 1999, 2362)

NRS 155.150 Issuesof fact and questions of costs.

1. All issues of fact in matters of an estate must bedisposed of in the same manner as is by law provided upon the trial of issuesof fact in a common-law action, but all matters must be tried by the courtexcept as otherwise provided in NRS 137.020.

2. All questions of cost may be determined by thecourt, and execution may issue therefor in accordance with the order of thecourt.

[290:107:1941; 1931 NCL 9882.290](NRS A 1999, 2363)

NRS 155.160 Responsesand objections to proceedings.

1. An interested person may appear and make a responseor objection in writing at or before the hearing.

2. An interested person may appear and make a responseor objection orally at the hearing. The court may hear and determine theresponse or objection at the hearing or grant a continuance to allow theresponse or objection to be made in writing.

3. If the court is not in session at the time set forthe hearing of any matter concerning the settlement of the estate of adecedent, anyone opposing the petition therein made may file objections theretowith the clerk.

[323:107:1941; 1931 NCL 9882.323](NRS A 1999, 2363)

NRS 155.170 Depositionsof absent witnesses. The testimony of awitness or witnesses in other counties of this State, or in other jurisdictionsof the United States, or in foreign countries, may be taken by deposition asprovided in the Nevada Rules of Civil Procedure.

[289:107:1941; 1931 NCL 9882.289](NRS A 1999, 2364)

NRS 155.180 Applicabilityof laws and rules regulating civil actions and appeals. Except as otherwise specially provided in this title, allthe provisions of law and the Nevada Rules of Civil Procedure regulatingproceedings in civil cases apply in matters of probate, when appropriate, ormay be applied as auxiliary to the provisions of this title. The Nevada Rulesof Appellate Procedure regulating appeals in civil cases apply to appeals takenpursuant to NRS 155.190.

[319:107:1941; 1931 NCL 9882.319](NRS A 1999, 2364)

NRS 155.185 Facsimileof petitions, notices, objections and other papers may be filed. If a petition, notice, objection, consent, waiver or otherpaper may be filed, a true and correct facsimile of it may be filed, if theoriginal is filed within a reasonable time.

(Added to NRS by 1999, 2358)

APPEALS

NRS 155.190 Appealableorders. In addition to any order from which anappeal is expressly permitted by this title, an appeal may be taken to theSupreme Court within 30 days after the notice of entry of an order:

1. Granting or revoking letters testamentary orletters of administration.

2. Admitting a will to probate or revoking the probatethereof.

3. Setting aside an estate claimed not to exceed$50,000 in value.

4. Setting apart property as a homestead, or claimedto be exempt from execution.

5. Granting or modifying a family allowance.

6. Directing or authorizing the sale or conveyance orconfirming the sale of property.

7. Settling an account of a personal representative ortrustee.

8. Instructing or appointing a trustee.

9. Instructing or directing a personal representative.

10. Directing or allowing the payment of a debt,claim, devise or attorneys fee.

11. Determining heirship or the persons to whomdistribution must be made or trust property must pass.

12. Distributing property.

13. Refusing to make any order mentioned in thissection or any decision wherein the amount in controversy equals or exceeds,exclusive of costs, $5,000.

14. Granting or denying a motion to enforce theliability of a surety filed pursuant to NRS142.035.

15. Granting an order for conveyance or transferpursuant to NRS 148.410.

[293:107:1941; 1931 NCL 9882.293](NRS A 1981, 463;1983, 670; 1995, 19; 1997, 1494; 1999, 2364; 2001, 2349)

NRS 155.195 Effectof appeal of order. Unless otherwise orderedby the court, an appeal pursuant to NRS155.190 does not stay any order or proceeding in the estate or trust. Thecourt may grant a stay, pending the appeal, of an order from which the appealwas taken, upon such bond, undertaking or conditions as it deems just orappropriate.

(Added to NRS by 1999, 2358)

NRS 155.200 Noundertaking on appeal required of personal representative. An appeal by a personal representative who has given anofficial bond as provided in this title is complete and effectual without anundertaking on appeal.

[295:107:1941; 1931 NCL 9882.295](NRS A 1999, 2365)

NRS 155.210 Powerof Supreme Court on appeal.

1. Upon an appeal, the Supreme Court may reverse,affirm or modify the order appealed from, and as to any or all of the parties,and order a remittitur as in other cases, and may order costs to be paid by anyparty to the proceeding, or out of the estate, as justice may require.

2. Execution for costs may issue out of the districtcourt.

[294a:107:1941; 1931 NCL 9882.294a](NRS A 1999, 2365)

NRS 155.220 Reversalof order appointing personal representative. Ifan order appointing a personal representative is reversed on appeal, all lawfulacts in administration of the estate performed by him are as valid as if theorder had been affirmed.

[Part 296:107:1941; 1931 NCL 9882.296](NRS A 1999, 2365)

 

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