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Question:

A friend of mine passed away and had it in her will for her longtime friend who lives in Germany would be her executor and inherit her mobile home and belongings. But now someone from the Nevada Housing Division is telling her that it will have to go to probate because she is not a family member and is not a U.S. citizen. Is that correct? And is there anything we can do about it other than hire an expensive probate attorney?

Another issue we are having is that our friend who passed had notarized a Disposition of Remains but because the address line of the friend receiving her ashes has his address listed correctly but also includes his date of birth is also on the address line, the funeral home now says that she cannot be cremated for 30 days and it will have to go through probate as well. Is there anything that can be done about this delay and the extra cost it entails?

Response:

The advice you have received about probate sounds correct, but it probably is not related to the fact that the executor lives in Germany. (However, there may be an exception for mobile homes to the normal rules requiring probate if in Nevada they are treated more like an automobiles than like real estate.) There is a common misperception that wills avoid probate, but in fact they can only be implemented through the probate process. In theory, it should be possible to negotiate the probate process without hiring an attorney, but it will certainly go more smoothly if the executor does hire one. This is especially the case since he lives overseas and won’t be able to go to the probate court himself where he might get advice on the proper steps.The fact that the executor and beneficiary is not a U.S. citizen should have no effect on the process.

The whole probate process, its cost and its delay can be avoided through steps to avoid probate. The usual ones are by naming beneficiaries to accounts and through the use of revocable trusts. For a revocable trust to have worked in your friend’s case, she would have had to transfer the mobile home into it during her life. This would have meant some work and expense on her part, but probably less than is being incurred now. I should note that while a non-U.S. citizen or resident can act as trustee of a revocable trust, it often works better if the trust resides in the United States. This can make it easier to carry out their functions and if there is an account at an investment firm, they can be very difficult with respect to non-U.S. resident trustees. Citizenship doesn’t seem to matter one way or other, just residence.

I can’t advise you on the issue with the funeral home since that is based on local Nevada law, but it certainly does sound like they’re overdoing it in terms of being sticklers for the details. It may be worth contacting the appropriate agency in Nevada that regulates funeral homes to see if you can get some relief.

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