Jennifer Mahe: What is an Agreement of Heirs?
It’s not uncommon for the family members of a recently deceased individual to run into concerns regarding the proposed distribution of the deceased’s assets. The concerns range from an heir preferring not to inherit, for any number of reasons, to all of the heirs desiring to inherit assets different than those designated by the deceased.
For example, the children of a recently deceased parent may want to ensure one sibling inherits the home of the deceased since that’s where the sibling resides and the rest of the siblings are agreeable. If the deceased parents’ Last Will and Testament indicated all of the children should receive an equal share of the estate the children would have a concern with distributing the assets equally when in reality they want one child to inherit a greater share, the entire home.
When a situation arises that involves the heirs of a deceased individual modifying the disposition of the deceased’s estate, the heirs enter into what is commonly referred to as an Agreement of Heirs. The Agreement of Heirs is a written signed agreement between the parties that acknowledges their rights to inherit and directs an inheritance different then the distribution that would occur without the agreement. Such an agreement altering the distribution structure is recognized by Nevada statute and allows the personal representative or administrator to distribute pursuant to the terms of the agreement. Thus the law ensures the personal representative or administrator is protected from liability for distributing in a fashion other then what was designated by law or the deceased’s Last Will and Testament. Nonetheless, in order to be effective the agreement of heirs must be signed by all of the parties whose distribution is affected by the agreement.
Additionally, an agreement of heirs can be effective whether or not a deceased individual had a Last Will and Testament. In the event a deceased’s Last Will and Testament indicates a distribution structure which the devisees desire to modify after the deceased’s death, an agreement of heirs can alter that distribution structure. Further, if an individual dies without a Last Will and Testament and the heirs of the individual don’t agree with the distribution that would occur pursuant to the laws of intestacy, the laws dictating the distribution of estates for those who die without a Last Will and Testament, then the heirs can dictate the distribution themselves by executing an agreement of heirs.
Finally, it’s worth noting simply executing an agreement of heirs doesn’t allow the parties to avoid the probate process. Assuming the deceased owned assets which require probate, a Court proceeding will still need to be initiated and all of the appropriate probate steps completed. The effect of the agreement of heirs will simply be to allow the Court to enter an order for distribution of the estate that complies with the terms of the Agreement of Heirs rather than the Last Will and Testament or the laws of intestacy.
Jennifer Mahe has practiced law in the Northern Nevada area since 2005 focusing on general civil matters such as real estate, business, litigation and estate planning. She can be reached via the Mahe Law, Ltd. website, http://www.mahelaw.com, or at 775-461-0992. If you have a legal topic related to general civil law which you would like to see addressed in this column in the future, please send that topic to the Nevada Appeal.