Adkt 377.Supreme Court of Nevada.
November 3, 2004.
Before DEBORAH A. AGOSTI, Associate Justice, NANCY A. BECKER Associate Justice, MARK GIBBONS, Associate Justice, ROBERT E. ROSE, Associate Justice, A. WILLIAM MAUPIN, Associate Justice, MICHAEL L. DOUGLAS, Associate Justice.
ORDER REPEALING RULE 57 AND ADOPTING NEW RULE 57 OF THE LOCAL RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
MIRIAM SHEARING, Chief Justice.
Pursuant to a petition filed October 19, 2004, by the judges of the Second Judicial District Court, County of Washoe, State of Nevada, to amend the local rules governing practice in the Second Judicial District Court by repealing Rule 57 of those rules and adopting new Rule 57 to provide detailed practice and procedure in the area of probate, trusts and the administration of estates;
IT IS HEREBY ORDERED that Rule 57 of the Local Rules of Practice for the Second Judicial District Court of the State of Nevada shall be repealed and that new Rule 57 shall be adopted and shall read as set forth in Exhibit A.
IT IS FURTHER ORDERED that these rule amendments shall become effective 30 days from the date of this order. The amended rules shall govern all proceedings brought after that date and all further proceedings in actions pending on that date, unless in the opinion of the district court their application in a particular pending action would not be feasible or would work an injustice, in which event the former procedure applies.
IT IS FURTHER ORDERED that the clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendments.
Dated this 3rd day of November, 2004.
EXHIBIT A NEW RULE 57 OF THE LOCAL RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA Rule 57. Probate; trusts; and the administration of estates.
Rule 57.1. Scope of rules. This rule governs the practice and procedure of all proceedings under Title 12 and chapters 162 through 167 of Title 13 of NRS.
Rule 57.2. Calendars. Subject to change by order of the chief judge, the probate calendar will be heard every Thursday at 8:00 a.m. If a legal holiday falls on a Thursday, the probate calendar for that week will be heard at such time as set by the probate judge or probate commissioner, as approved by the probate judge. All papers filed in a proceeding governed by Rule 57 shall indicate directly below the department designation, the hearing date noticed, e.g., “Hearing date: mm/dd/yy.”
Rule 57.3. Probate commissioner.
1. The Second Judicial District Court has approved automatic referral of all probate and trust proceedings under Title 12 and chapters 162 through 167 of Title 13 of the NRS to a master, designated in Rule 57 as the “probate commissioner.”
2. A district judge may refer any other matter to the probate commissioner for recommendation unless prohibited by law. Such referral may be by application of a party to the action or on the judge’s own initiative.
3. The probate commissioner shall hear and make recommendations on all matters assigned to the probate commissioner, except those matters that require disqualification. The probate commissioner may disclose on the record the basis of the probate commissioner’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the probate commissioner, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers all agree that the probate commissioner should not be disqualified, and the probate commissioner is willing to participate, the probate commissioner may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.
4. The probate commissioner:
(a) Shall receive oral, documentary and tangible evidence and establish a record;
(b) Shall make findings of fact, conclusions of law and recommendations for the provisions and enforcement of any order; and
(c) Shall have any other power or duty contained in an order of reference issued by the court.
5. The probate commissioner may request a district judge to make an immediate determination of appropriate sanctions for contemptuous behavior, issue a bench warrant, quash a warrant, or release persons arrested thereon.
6. Within a reasonable time after the evidence presented in a contested matter is closed, the probate commissioner shall file written findings of fact and recommendations, which shall also be served on parties entitled to notice.
7. Within 10 days after the probate commissioner serves and files findings of fact, conclusions of law and recommendations in any contested probate matter, any party adversely affected by the recommendation may file with the clerk of the court and serve on the other parties and the probate commissioner, a written request for judicial review of the matter by the probate judge. Failure to file a written request for review within the 10-day period will result in adoption of the probate commissioner’s recommendation by the probate judge and preclusion of limited judicial review by the probate judge.
8. Upon filing of a timely request for judicial review, the matter will be transferred to the probate judge. Such judicial review will be subject to limited review by the probate judge. Judicial review of a final recommendation of the probate commissioner will be confined to the record, except as provided below.
9. In cases concerning alleged irregularities in procedure before the probate commissioner that are not shown in the record, the probate judge may receive evidence concerning the irregularities.
10. The final recommendation of the probate commissioner shall be deemed reasonable and lawful until reversed or set aside in whole or in part by the probate judge. The burden of proof is on the party attacking or resisting the recommendation to show that the final decision is invalid pursuant to section 11 below.
11. Except as to matters of law, the findings of fact and recommendation of the probate commissioner will not be disturbed, unless they are clearly erroneous.
12. The parties may stipulate to immediate entry of order on the probate commissioner’s recommendation.
13. For good cause, the probate judge may enforce the probate commissioner’s recommendation pending appeal.
14. The probate commissioner may direct counsel for a party to prepare findings of fact, conclusions of law and recommendation, which shall be delivered to the probate commissioner no later than 10 judicial days after the probate commissioner so directs.
15. The probate commissioner may perform the duties of any other duly appointed master or commissioner as the administration of justice may require.
16. All proceedings before the probate commissioner shall be conducted with appropriate decorum and procedure to ensure respect and obedience to the court and its rules.
17. The probate commissioner may make appropriate sanctions for failure to comply with the appropriate statutes or rules of the court.
Rule 57.4. Approved matters.
1. The probate commissioner must prepare an approved list each week of probate matters that may be heard without further testimony or appearance.
2. In order to be on the approved list, the following must be strictly observed:
(a) All petitions must be verified.
(b) Death certificates must be filed at the same time as the initial petition, or as soon as available from vital statistics.
(c) Where a bond is required, the petition must set forth with particularity the personal property of the estate together with the estimated amount of annual income from all sources.
(d) The original order, together with any copies to be conformed, must be delivered to the probate commissioner no later than 12:00 noon on Friday of the week before the matter is to be heard. Without a showing to the court of good cause, proposed orders not submitted within the time provided for in this rule will, on the noticed hearing date, be continued for one week or longer at the request of counsel to enable compliance.
(e) An affidavit of mailing must be filed immediately after the actual mailing has taken place. The affidavit of mailing and any required proof of publication must be filed by 12:00 noon on Friday of the week before the matter is set for hearing. A courtesy copy must be delivered to the probate commissioner’s office at the time of filing.
(f) A copy of the notice of hearing must be provided to the probate commissioner at the time of filing.
Rule 57.5. Contested matters. The probate commissioner shall hear all approved/uncontested matters on the weekly probate court calendar. The probate commissioner may schedule all contested matters at the convenience of the probate commissioner or probate judge’s calendar.
Rule 57.6. Continuances.
1. For good cause, the probate commissioner may vacate or continue matters.
2. If objection or exception is taken to any matter on the approved list, and the petitioner or petitioner’s counsel is not present, the probate commissioner may continue the matter to allow the filing of written objections or exceptions and giving notice thereof to petitioner.
Rule 57.7. Petitions for probate of wills and/or codicils.
1. When a petition for probate of will and/or codicil is filed and the original of the document being offered for probate is not already filed with the filing office, it must be filed concurrently with the petition. If the will is holographic, a typewritten copy of the document must also accompany the petition. The caption must clearly indicate the nature of the petition filed, e.g., Petition for Probate of Will and for Issuance of Letters Testamentary; Petition for Probate of Will and for Issuance of Letters of Administration with the Will Annexed; Petition for Letters of Administration.
2. In addition to filing the original document with the filing office, copies of any documents offered for probate must be attached to the petition for examination by the probate commissioner.
Rule 57.8. Contents of probate orders. All orders or decrees in probate or trust matters shall set forth completely all matters actually passed on by the court and shall not merely refer to corresponding provisions of the petition. Probate or trust orders should be so drawn that their general effect may be determined without reference to the petition on which they are based. Orders must contain a line for the probate commissioner’s signature in addition to a signature line for the judge. Orders must not be drawn so that only the signature of the court, or the date and signature, appear on a page, nor may any matter appear after the signature of the court. The name, address and signature of the submitting attorney must appear on all orders. If the order distributes or otherwise affects real property, the legal description and the assessor’s parcel number of the property shall be included in the order or an exhibit to the order. If the order distributes or otherwise affects a vehicle, the vehicle identification number shall be included in the order.