When representing a client in trust and estate proceedings in the Eighth Judicial District Court, it is important to be aware of and understand the statutory rules for serving process because they are substantially different than the Nevada Rules of Civil Procedure.
No plaintiffs or defendants – only “interested persons.”
Unlike traditional civil actions where there are plaintiffs and defendants, trust and estate proceedings are initiated by an “interested person” filing a petition in the probate court for certain relief. Nevada defines an “interested person” very broadly as one “whose right or interest under an estate or trust may be materially affected by a decision of a fiduciary or a decision of the court.” NRS 132.185. Because such proceedings are typically in rem or quasi in rem, there are usually no defendants in the classical sense. Accordingly, while Nevada law recognizes that “interested persons” are entitled to notice of a petition so that they can object to the relief sought or otherwise respond, personal service is almost never required. Further, “interested persons” can change from time to time depending on the particular proceeding. As such, practitioners are advised to check the statutory circumstances in which a person is an “interested person,” under NRS 132.390, to determine to whom service is required.
Service of a probate petition on an “interested person.”
NRS 155.010 governs how and when trust and estate petitions are served on those entitled to notice. In most cases, service by ordinary first-class mail is sufficient provided that the notice of the petition is mailed at least ten days before the time set for hearing. It should be noted, however, that best practice is to use certified or registered mail to mitigate the risk of an objector later claiming that he or she never received notice.
There are certain circumstances where first-class mail and a standard notice of hearing are insufficient. For example, when a petitioner seeks declaratory relief concerning an estate’s interest in real property, the petitioner is required to obtain a citation (the probate equivalent of a summons) for each person claiming an interest in the property and serving the same either by certified mail, return receipt requested, or personal service. NRS 148.410. Service of a citation is also required for a show cause hearing to revoke letters of administration. NRS 141.110. Because of these exceptions and others, it is advisable to make sure that the relief your client seeks in his or her petition is not subject to heightened service requirements.
While it is understandable that such relaxed service requirements could cause a Constitutional lawyer some heartburn, the Supreme Court of Nevada has rejected an argument that mailed notice under NRS 155.010 does not comport with due process. See Matter of Beatrice B. Davis Family Heritage Trust, 133 Nev. 190, 394 P.3d 1203, at n. 3 (2017).
When to publish notice.
It is also important to know when and how to serve interested persons by publication. Certain proceedings require publication while other proceedings permit publication under certain circumstances.
For example, if the address or identity of an interested person is not known and cannot be ascertained with reasonable diligence, notice of the petition is required to be served with publication provided that the notice is published at least once a week for three consecutive weeks in a newspaper having general circulation in the county where the hearing is to be held, with the last publication being at least ten days before the hearing. NRS 155.010(1)(b). Probate petitions to sell real property also usually require publication of notice. NRS 148.220. Service of a citation, however, cannot be served by publication unless there is first a showing that “after due diligence, service cannot be made upon the person to be served[.]” NRS 155.050.
Court may waive service or order alternative means.
Consistent with the recent amendments to the Nevada Rules of Civil Procedure, judges sitting in probate have discretion to provide for a different method or time of giving notice for any hearing “for good cause shown.” NRS 155.010(3). This includes decreasing the number of publications otherwise required and the standard minimum of ten days of notice before the hearing.
This article was originally published in the “Local Courts” issue of Communiqué, the official publication of the Clark County Bar Association, (October 2020). See https://clarkcountybar.org/about/member-benefits/communique-2020/communique-october-2020/.
© 2020 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
About the author:
Alexander G. LeVeque, Esq. is a partner at Solomon Dwiggins & Freer, Ltd., where he primarily practices trust and estate litigation, and serves as an arbitrator for the State Bar of Nevada’s Fee Dispute Committee.