Nebraska Wills

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Making a Nebraska Will

How can you make a legal will in Nebraska? It’s important to follow the formal requirements set down by the statute. The number of witnesses and other formalities are found on this page.

Nebraska Will Requirements

In order to make a valid Nebraska Will and Testament, you must:

  • Be at least eighteen years old and of sound mind. 30-2326

 

  • Have your Will set out in writing. 30-2327

 

 

  • Have your signature witnessed by at least two witnesses. 30-2330

 

What is the legislation?

The statute governing Nebraska Wills is contained in chapter 30 “Decedent’s Estates; Protection of Persons and Property”.

Can a spouse witness my signature?

It is important that your witnesses be ‘disinterested’ ie: neither they nor their spouse should receive any property under the Will. Being appointed as personal representative, conservator, guardian or trustee does not constitute receiving property. 30-2209(22)

What happens if my Nebraska Will is witnessed by an ‘interested’ person?

If the testator’s signature is attested only by interested witnesses, then any benefit to them under your Will is limited to an amount which that beneficiary would receive under the rules of intestacy. In order for interested witnesses to retain their full benefit under your Nebraska Will, there must be at least one disinterested witness. To be sure, always use independent disinterested adults as witnesses. 30-2330

Holographic Nebraska Will

If the Will does not comply with the formal execution requirements then it may still be valid if the material provisions and signature are in the testator’s handwriting. Nebraska also requires these Wills to have a date of signing, also in the testator’s handwriting. If the date of signing is not present, then it may still be valid if:

  • There is no other Will or testamentary instrument; or

 

  • There is no inconsistency with any like instrument; or

 

 

  • The date is determinable from the contents of the document, extrinsic circumstances or some other evidence. 30-2328

 

Changing a Nebraska Last Will

A testator is entitled to change his/her Nebraska Last Will and Testament at any time. The proper procedure should be followed in order to ensure the most current wishes and directions are applied. A codicil may be used to amend parts of the Will. Alternatively, a subsequent Will may revoke a prior Will expressly or by inconsistency. Attorneys suggest making a new Nebraska Will and physically revoking (canceling) the former. The new Will should expressly revoke all former Wills.

How a Nebraska Will is validly revoked

An unwanted Will can be revoked in two ways:

  • By signing a new Will which expressly revokes the old Will; and

 

  • By physically burning, tearing, canceling, obliterating or destroying the old Will. 30-2332

 

What if I purchase property after I sign my Will?

A general residual clause or a general disposition of all your property made in your Nebraska Last Will and Testament will dispose of all your testamentary property including property you acquire after execution of your Will. 30-2342

Where can I deposit my Nebraska Will?

You may deposit your Nebraska Last Will and Testament with the court in your county. The court is required to keep your Will confidential in accordance with the statute. If the testator is a protected person, his/her guardian or conservator may be allowed to examine the contents. 30-2355

Disinheriting a Spouse or Children from Your Nebraska Will

What should you do if you wish to exclude your spouse or child from the Will? Are there any statutory requirements? What wording should you use?

Excluding Your Spouse

As a resident of Nebraska, if you exclude your spouse from your Nebraska Last Will & Testament, he/she is still entitled to the following:

  • An elective share of ½ of your augmented estate, 30-2313. The right of election is in addition to any share provided under your Will or by intestate succession (if you had died without a Will). 30-2318.

 

  • A homestead allowance of $7,500 if your death is before January 1, 2011 and $20,000 if you pass away on or after this date. Unless your Nebraska Will provides otherwise, this allowance is payable in addition to any benefits going to your spouse under the Will. 30-2322

 

 

  • Exempt property – up to a value of $5,000 if you die prior to January 1, 2011 or $12,000 if you pass away on or after that date. The entitlement is for household furniture, furnishings, appliances, automobiles and personal effects. 30-2323

 

 

  • Family allowance of a reasonable amount for maintenance of the spouse and your minor and dependent children for the period of administration of your estate. 30-2324

 

If you have made a Nebraska Last Will and Testament and subsequently marry then, unless your Nebraska Will made provision for your spouse, he/she will be entitled to a share of your estate. It will be the same portion he/she would have received if you died without making a Will. 30-2320

Excluding Children from Nebraska Wills

The Nebraska Probate code provides entitlements for disinherited children in certain circumstances. For example, any children born or adopted after execution of your Nebraska Will and who were not provided for by that Will are entitled to a share of your estate. Exclusions apply to this rule. Also, if you excluded a living child at the time of making a Nebraska Last Will on the belief the child was dead they will similarly receive a share. 30-2321 Your minor and dependent children are entitled to the homestead allowance and a reasonable family allowance if there is no surviving spouse. Further, if there is no surviving spouse, every child of yours will be entitled to share the exempt property value, unless you specifically disinherit one or more of such children. Under the probate code, disinherited means “providing in one’s Will that a child shall take nothing or nominal amount of ten dollars or less from the estate”. 30-2323 Caution: Ousting children or a spouse from your Nebraska Will should never be attempted without guidance from a qualified attorney. Simply not including them in your Will may not be sufficient.

How to Probate a Nebraska Will

Once a person dies, their Will needs to be validated by the court in order to transfer property. This is called probate. Nebraska has simplified probate procedures available for estates of smaller value.

Collecting Personal Property by Affidavit – up to $50,000

If the estate does not exceed fifty thousand dollars in personal property, then a person entitled to the deceased’s assets (called a successor) may collect the property by presenting the appropriate affidavit. 30-24,125. A person can be entitled as a successor by way of a Nebraska Last Will and Testament or by way of intestate succession.

Collecting Real Property by Affidavit – up to $30,000

If the estate is $30,000 or less in real property, then a successor may collect such property by presenting an affidavit to that effect 30 days after the decedent’s death. 30-24,129

Informal Probate by Registrar

A Nebraska Will may be submitted for probate to the registrar of the court. This simplified procedure enables the Will to be proved by simply filing an application together with the original Last Will of the decedent. The registrar has the power to informally probate the Will and to appoint a personal representative on the face of the application. At least 120 hours must have elapsed since the death. 30-2415 The personal representative is the person who administers the estate. It is usually the person appointed as executor by the decedent’s Nebraska Will.

Nebraska Estate Tax

The Nebraska estate tax has now been repealed and no estate tax return needs to be filed if the date of death occurred on or after January 1, 2007. If the death occurred prior to this date and after July 1, 2003, then a Nebraska estate tax return (Form 706N) needs to be filed with the Department of Revenue if the estate has a federal taxable estate of $1,000,000 or more. The return is due 12 months after the date of death.

Challenging a Nebraska Last Will and Testament

Any interested person who wishes to contest a Nebraska Will must commence formal testacy proceedings to prove undue influence, fraud, duress, mistake, revocation or improper execution. 30-2431 The person contesting a Nebraska Will and Testament must state his/her objections to probate of the Will in the pleadings. 30-2428 The probate court will set down a hearing date and notice will be required to be given to the spouse, children, other heirs of the decedent, devisees under the Nebraska Last Will, executors, appointed administrators and any other person who has filed a demand for notice. 30-2427 After the hearing, the court will determine:

  • The decedent’s domicile at death

 

  • His/her heirs

 

 

  • Whether the testator died testate or intestate (without a valid Last Will).

 

If the Will is found valid and unrevoked, it will be formally probated. 30-2433

What happens if I die without a Nebraska Will?

Generally your spouse is entitled to the first cut of your estate; the remaining heirs receive the remainder not inherited by your spouse. The amount received by your spouse will depend on which members of your family survive you.

How much does my spouse receive?

  • If you have no issue or parents who survive you – your whole estate;

 

  • If you have surviving issue (all of whom are also issue of the spouse) or if you are survived by a parent(s) – first $100,000 plus ½ of the balance;

 

 

  • If you have surviving issue (one or more of whom are not issue of the surviving spouse) – ½ of the intestate estate.

 

Who receives the balance?

  • Your children or grandchildren by representation;

 

  • If there are no surviving children or grandchildren – your parents equally (or the survivor if one has predeceased)

 

 

  • If no issue or parents survive you – your brothers and sisters or their children by representation

 

 

  • If there are no other relatives – then the state of Nebraska takes your estate (called escheat).

 

How does intestate succession work?

Here are some case studies of how a resident’s assets are distributed without a Nebraska Last Will and Testament: Wife passed away, no will, share of husband & children: Tamra passed away without a will. She had two children to her husband Karl. Karl had no other children. Her estate is worth $200,000. Who gets what? Karl: $150,000, Karl & Tamra’s children: $25,000 each. Husband died intestate, no valid will, left wife, two children and stepchild: Ted died leaving an estate of $200,000. He had no will. He has two children to his wife Deena. Deena has a child from a former partner. Who gets what? Deena: $150,000, Deena & Ted’s 2 children: $25,000 each, Deena’s child from former partner: Nil. Intestacy distribution when husband dies, leaving spouse, children and child from former partner: Cory died leaving a $200,000 estate. He had no will. He had two children to his wife Wendi. Cory also has a child from a former partner. Who gets what? Wendi: $100,000, Cory & Wendi’s 2 children: $33,333, (1/3 of the balance) each, Cory’s child from former partner: $33,333 (1/3 of the balance). Wife died, no Will, how much passes to husband, children and grandchildren? Marci died without a will. Her estate is worth $200,000. She had 3 children to her husband Clint. Two died before her, leaving a grandson from one child and two granddaughters from the other deceased child. Who gets what? Clint: $150,000, Surviving Child: $16,666 (1/3 balance), Grandson (single child): $16,666 (1/3 balance), Granddaughters (sisters) – $8,333 each (totaling 1/3 balance).

Nebraska Will Forms

Note: Before making a Nebraska Will, you need to know the requirements for preparing, signing and witnessing a Last Will and Testament. Also, research information on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample will forms available as free downloads (printable PDF documents):

Nebraska Will Form: Married with adult children
Nebraska Will Form: Married with adult and/or minor children, includes a trust for minor children
Nebraska Will Form: Married with no children

Nebraska Will Form: Single with adult children
Nebraska Will Form: Single with adult and/or minor children, includes a trust for minor children
Nebraska Will Form: Single with no children

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