Legal Question in Civil Litigation in Nevada

Death of Son

Son 23 years old died in car accident. Was living w/ girlfriend with whom he had 2 children 4 months and 3 years. Left his life insurance to his mother and his 401K to his 24 year old sister. Girlfriend is sueing for funds from life insurance and 401K and also to be executor of affairs. Who would be the executor - the mother / father of 23 year old or mother of his 2 children?

Asked on 1/31/08, 7:54 pm

3 Answers from Attorneys

Paul Malikowski Malikowski Law Offices, Ltd.
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Re: Death of Son

Here is the law, providing in pertinent part, that a minor child's guardian takes the statutory preference of the child as personal representative:

NRS 139.040 Order of priority for right to appointment; priority of nominee.

1. Administration of the intestate estate of a decedent must be granted to one or more of the persons mentioned in this section, and they are respectively entitled to priority for appointment in the following order:

(a) The surviving spouse.

(b) The children.

(c) The father or the mother.

(d) The brother or the sister.

(e) The grandchildren.

(f) Any other of the kindred entitled to share in the distribution of the estate.

(g) The public administrator.

(h) Creditors who have become such during the lifetime of the decedent.

(i) Any of the kindred not above enumerated, within the fourth degree of consanguinity.

(j) Any person or persons legally qualified.

2. A person in each of the foregoing classes is entitled:

(a) To appointment, if the person is:

(1) A resident of the State of Nevada or associates as coadministrator a resident of the State of Nevada; or

(2) A banking corporation which is authorized to do business in this State or which associates as coadministrator a resident of the State of Nevada or a banking corporation authorized to do business in this State.

(b) To nominate a resident of the State of Nevada or a qualified banking corporation for appointment, whether or not the nominator is a resident of the State of Nevada or a qualified banking corporation. The nominee has the same priority as the nominator. That priority is independent of the residence or corporate qualification of the nominator.

3. If any heir who is otherwise entitled to appointment is a minor or an incompetent person for whom a guardian has been appointed, the court may appoint the guardian of the minor or incompetent person as administrator.

Your attorney can explain further.

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1/31/08, 9:22 pm
Adam Breeden Breeden & Herbe, Ltd.
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Re: Death of Son

The law is as follows. Pursuant to this law, the girlfriend may be successful in arguing that she should be appointed administrator of the estate as guardian for the children (see section 3!).

NRS 139.040 Order of priority for right to appointment; priority of nominee.

1. Administration of the intestate estate of a decedent must be granted to one or more of the persons mentioned in this section, and they are respectively entitled to priority for appointment in the following order:

(a) The surviving spouse.

(b) The children.

(c) The father or the mother.

(d) The brother or the sister.

(e) The grandchildren.

(f) Any other of the kindred entitled to share in the distribution of the estate.

(g) The public administrator.

(h) Creditors who have become such during the lifetime of the decedent.

(i) Any of the kindred not above enumerated, within the fourth degree of consanguinity.

(j) Any person or persons legally qualified.

2. A person in each of the foregoing classes is entitled:

(a) To appointment, if the person is:

(1) A resident of the State of Nevada or associates as coadministrator a resident of the State of Nevada; or

(2) A banking corporation which is authorized to do business in this State or which associates as coadministrator a resident of the State of Nevada or a banking corporation authorized to do business in this State.

(b) To nominate a resident of the State of Nevada or a qualified banking corporation for appointment, whether or not the nominator is a resident of the State of Nevada or a qualified banking corporation. The nominee has the same priority as the nominator. That priority is independent of the residence or corporate qualification of the nominator.

3. If any heir who is otherwise entitled to appointment is a minor or an incompetent person for whom a guardian has been appointed, the court may appoint the guardian of the minor or incompetent person as administrator.

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1/31/08, 9:33 pm
Joseph Benson Benson & Bingham, Las Vegas Injury Lawyers
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Re: Death of Son

Dear Sir:

Typically, when a person dies with a will or named beneficiary (as as been done here) the will directs where the money will go. The Mother of the children has no right to anything. Her children, however, are the sole heirs to any property and claim of wrongful death, and therefore she has the right to pursue on their behalf. Here it sounds like the named beneficiaries will receive as stated. I would think, however, on a personal note, that the mother would leave the life insurance for the children--but this is my moral opinion.

Good luck,

Joe

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2/04/08, 5:32 pm

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