Nevada Wills

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How to make a valid Nevada Will

What are the formal requirements?

Each state has its own prescribed requirements for making Wills. In Nevada, the legislation is contained in Title 12 Wills and Estates of Deceased Persons. In order for a Nevada Last Will and Testamentto be valid, the statute requires:

  • The Will must be in writing;

 

  • Signed by the testator (person making the Will). If the testator is unable to sign, then an attending person may sign on his/her behalf at the testator’s express direction; and

 

 

  • Attested by at least two competent witnesses. 133.040

 

Can witnesses receive gifts under a Nevada Last Will and Testament?

No. Any devise (gift) to a subscribing witness is void, unless there are two other competent witnesses to the Will. 133.060

Does Nevada accept Holographic Wills?

Yes. If the signature, date and material provisions are written by the hand of the testator, then the Holographic Nevada Will does not need witnessing or notarization. However, it is always advisable to comply with the formal execution requirements to ensure the Will is probated. 133.090

What is an electronic Will?

A Nevada Will may be in electronic form, meaning it is written, created and stored in an electronic record. Strict formalities apply. If the requirements are complied with, the electronic Last Will is valid and has the same force and affect as if it was formally executed. 133.085

Is a nuncupative or oral Will valid in Nevada?

No.

What happens to my Nevada Will if I get divorced?

If you make a Nevada Last Will & Testament and subsequently divorced (or have your marriage annulled) then your former spouse cannot benefit under the Will. Any devise, beneficial interest or designation to serve as personal representative given to your former spouse becomes revoked (cancelled). The revocation applies unless otherwise specified in a property or separation agreement approved by the court or provided by the court itself in the divorce or annulment proceedings. 133.115

Should I update my Nevada Will if I marry?

Yes. You should review your Will regularly, especially when a life changing event occurs such as marriage, having a child or getting divorced. If you made a Nevada Last Will and Testament prior to your marriage and did not provide for your spouse, then your spouse is still entitled to a portion of your estate. The share is calculated according to the rules of intestacy (ie: your spouse will receive the same portion as though you had died without making a Will at all). The rest of your Will remains intact. 133.110

How can I cancel my Nevada Last Will and Testament?

  • By burning, tearing, cancelling or obliterating the Will; and

 

  • By making another Will or codicil. 133.120

 

Remember not to physically destroy your Nevada Will until you have formally executed a new one. The new Will should expressly revoke all your former Wills.

Probate a Nevada Will and Testament

This section provides vital information and resources on probating a Will in Nevada. When is probate required? Is summary administration available? Find out which process is applicable.

Estates worth $20,000 or Less

If the estate assets do not exceed $20,000 and do not consist of any real property in Nevada, they may be transferred without probate of the Nevada Last Will or issuance of letters of administration. The person entitled to the estate under the Last Will may receive or collect the property or money by signing an affidavit. The affidavit can only be used after 40 days of the date of death. 146.080

Summary Administration of a Nevada Last Will and Testament – Estates not exceeding $200,000

A petition for letters testamentary or letters of administration must be filed with the court. 145.020 Notice (of the petition for the probate of a Nevada Will and the issuance of letters) must be given to all interested persons 145.030. No publication is required. Summary administration may be granted if deemed advisable and if the gross value of the estate (after deducting any encumbrances) does not exceed $200,000.

General Administration of a Nevada Will – Estates over $200,000

A petition for the probate of a Will and issuance of letters must be filed with the appropriate court.

Who can Petition for Probate of the Will?

The following persons may petition the court for probate (whether or not they have the Nevada Last Will and Testamentin their possession):

  • Personal representatives named in the Will;

 

  • A Devisee under the Will;

 

 

  • Any other interested person. 136.070

 

If there is no personal representative named in the Nevada Will or if there is no Will, the personal representative must be a resident of Nevada.

What happens once the petition is filed?

The clerk of court will set the petition for hearing. The petitioner will be required to give notice of the hearing to the heirs, devisees named in the Will, to all persons named as personal representatives (who are not petitioning) and to the Director of the Department of Health and Human Services. 136.100 It must also be served on all personal representatives who are not a party to the petition. 136.120 Notice of the time for hearing the initial petition for probate of the Nevada Will must be published. 155.020

Do the witnesses need to attend Court?

Unless the Nevada Last Will and Testament is self-proved, the clerk will issue subpoenas to the subscribing witness if they reside in the county. 136.130. This means they will either need to attend court and testify orally or provide affidavits. 136.140 If the Last Will and Testament is self-proved, witnesses won’t be subpoenaed as long as the self-proving affidavits are filed with the court. 136.130 If the Nevada Will is not contested, then the court may issue probate on the testimony (oral or affidavit) of only one of the subscribing witnesses. 136.150

Delivering the Nevada Will

Any person who has possession of the testator’s Will must deliver it to the appropriate court or to the personal representative named in the Will within 30 days of being advised of the testator’s death. The personal representative named in the Nevada Last Will and Testament must deliver the original Will to the clerk of court within 30 days of the death or within 30 days of finding out about being named. 136.050

Estate Taxes

A Nevada Estate Tax Return (Form 4768) is required to be filed if the decedent left property located in Nevada and if the estate value equals or exceeds the level requiring a Federal estate tax return (Form 706). NRS 375A Nevada Estate tax is based solely on the credit allowable against the Federal Estate tax for the payment of State death taxes.

Contesting a Nevada Last Will & Testament

How can you contest a Will in Nevada? Do you have any standing to challenge someone’s Last Will and Testament? See what the requirements are and the process.

Who may contest?

Any of the following persons may contest a Nevada Willprior to probate:

  • The Attorney General

 

  • Any interested person*

 

 

  • Devisee under a former Will. 137.010

 

*An ‘interested person’ includes an heir, devisee, child, spouse, creditor, beneficiary and any other person having a property right in or claim against the estate. It also includes a person having priority for appointment as personal representative. 132.185

What is the process?

  • The person challenging the Nevada Will must file written grounds of opposition to the probate at any time before the hearing of the petition for probate. 137.010

 

  • Personal notice must be given to the heirs and to all interested persons (including minors and incapacitated persons).

 

 

  • Persons receiving notice must plead to the contest within 30 days after service of the notice.

 

 

  • A party served may interpose any defence or objection to the contest by an authorized motion. If the motion is granted, the court may allow the contestant 10 days to amend the contest.

 

 

  • Questions of fact will be tried by the court, unless one of the parties demands a jury.

 

 

  • After taking evidence or upon being handed the jury’s verdict, the court must render a judgment either admitting the Will to probate or rejecting it. 137.050

 

Grounds for challenging a Will

The Will may be contested on various grounds including:

  • That the testator was not legally competent to make a Will;

 

  • That the testator was under duress, menace, fraud or undue influence;

 

 

  • That the will was not executed or attested as required by law;

 

 

  • Any other question substantially affecting the validity of the Will.

 

Contest Clause in the Nevada Will

If the Nevada Last Will and Testamentcontains a ‘no-contest’ clause, the court is obliged to enforce the testator’s intentions behind the clause. A no-contest clause is one which reduces or eliminates a beneficiary’s share if that beneficiary challenges the Will. The clause will not be enforced where the beneficiary only seeks to:

  • Enforce the terms of the Nevada Will;

 

  • Enforce his/her rights in the probate proceedings;

 

 

  • Obtain a ruling as to the construction or legal effect of the Will; or

 

 

  • Invalidate the Will (if instituted in good faith and based on probable cause). 137.005

 

Excluding Family Members from a Nevada Will

Like most states, Nevada provides statutory entitlements to a spouse and in some circumstances children who are not mentioned in the Will. Excluding a spouse or child from your Nevada Last Will and Testament is not recommended without guidance from an attorney. A qualified lawyer can help you draft your Will correctly and advise any other course of action you need to take.

Disinheriting Children

When you omit a child or grandchild (if your child has predeceased) from your Last Will, the court presumes the omission is intentional. However, this presumption can be rebutted with contrary evidence. If the court finds that the omission was unintentional, that child (or grandchild) receives a share of your estate. The portion will be on the basis that you had died intestate (without making a Will). 133.170 Also, any child born after your Nevada Willis entitled to the same share of your estate unless:

  • It’s apparent from the Will that it was your intention not to provide for that child; or

 

  • You have provided for the child by transfer of property outside the Will and it appears that you intended the transfer to be in lieu of a testamentary provision. 133.160

 

This is why it’s important to update your Will each time you have a child (unless future children are provided for in that Will). If during your lifetime, you made advancements to an excluded child to the extent that the child has had an equal portion of your estate bestowed upon him/her, then that child cannot benefit again under these provisions. 133.190

Disinheriting Your Spouse

The Nevada probate code is intended to be family friendly. It aims to provide continued care for the surviving spouse and minor children of a deceased. Here are some of the entitlements your spouse could receive even if you exclude him/her from your Nevada Last Will and Testament:

Estates worth $100,000 or less

If the net value of the estate does not exceed $100,000 and the decedent left a surviving spouse or minor child(ren), then the estate must not be administered. The court may direct at its discretion that the estate must be set aside for the support of the surviving spouse and/or minor children. The net value is determined by taking the market value of the property (real and personal) and deducting any encumbrances. A petition for this order may be filed after 30 days have elapsed since the death. Notice must be given to all interested persons and to the Nevada Department of Health and Human Services. If there is no surviving spouse or minor children, then the balance may be distributed in accordance with the decedent’s Nevada Will after payment of necessary funeral and medical expenses. 146.070

Homestead

Being a community property state, Nevada allows spouses to record a homestead on their residence during their marriage. If recorded, the home vests “absolutely” in the surviving spouse on the other’s death. Even if you don’t record a homestead, the probate court has the power to set a homestead aside to the surviving spouse and/or minor children. The duration depends on the needs and resources of the family and the nature, character and obligations of the estate. However, the right cannot extend beyond the surviving spouse’s death or the children reaching the age of majority (whichever is the later). 146.050 Once the homestead expires, it will vest in:

  • If set apart from the deceased’s separate property: his/her heirs or devisees;

 

  • If set apart from community property: ½ in the surviving spouse and ½ in the deceased’s devisees. If the deceased did not make a Nevada Will, then it vests entirely in the surviving spouse. 146.050

 

Community Property

If there is no premarital or post nuptial agreement to state otherwise, then the surviving spouse automatically inherits one half of the community property. The balance of the community is distributed to the decedent’s estate pursuant to his/her Will. If the decedent did not leave a valid Nevada Last Will and Testament, then all of the deceased’s community goes to the surviving spouse. 123.250

Property Exempt from Execution

If the court deems advisable, it may set apart all the deceased’s property which is exempt by law from execution for the use of the surviving spouse and/or minor children. 146.020. An example of exempt property is the decedent’s necessary household goods, electronics, furnishings and other personal effects up to $12,000 in value. 21.090

Family Allowance

If the exempt property set aside is not sufficient to support the surviving spouse and minor children the court may also make a reasonable allowance out of the estate for their maintenance during the administration process. If the estate is insolvent, the allowance cannot continue for longer than one year. 146.030

What Happens If I Die without a Will?

If you pass away without making a valid Nevada Will, then distribution of your property is determined by the state succession Laws. In Nevada, these laws will not apply to the extent they are inconsistent with the provisions of an enforceable premarital agreement you signed with your spouse. 134.005 Otherwise, your spouse receives the first portion of your estate and the balance goes to other heirs.

Who gets my estate?

Separate Property
    • If you leave a spouse and only one child (or issue of that child):
      • ½ spouse

       

  • ½ child or the issue of the child

 

  • If you leave a spouse and more than one child (or their issue):
    • 1/3 spouse

     

  • 2/3 shared equally between your children (or grandchildren by representation)

 

 

  • If there are no surviving issue:
    • ½ spouse

     

  • ¼ mother & ¼ father (or ½ to the survivor)

 

 

  • If there is no issue or mother or father:
    • ½ spouse

     

  • ½ brothers & sisters in equal shares

 

 

  • If you have no surviving spouse or issue:
    • ½ mother & ½ father (or whole estate to the survivor)

 

 

  • If there is no issue, children of any issue, father, mother, brother or sister:
    • All to spouse

 

 

  • If you don’t have a surviving spouse, but leave issue or their children:
    • If there is only one child – all goes to that child

     

  • If there is more than once child – all children share and share alike
  • If a child has predeceased, that child’s issue will receive his/her by right of representation.

 

Community Property
  • The spouse inherits your share of the community property (unless someone else has right to survivorship) 134.010 & 123.250

Nevada Intestacy Examples

Case studies to help illustrate what happens to a Nevada resident’s property if they die without a Nevada Last Will and Testament: How property passes when wife dies without a Will, leaving husband and child: Lisa passed away without a Will. She had a child to her husband Jeff. Her estate is worth $30,000 in separate property and $100,000 in community property. Who gets what? Jeff: $15,000 separate property + all community property, Jeff & Lisa’s child: $15,000 separate property. Husband died, didn’t have a Will, left wife, children and child from former spouse: Brian died leaving an estate of $30,000 of separate property & $100,000 community property. He had no will. He had two children to his wife Ruth. Brian also has a child from a former partner. Who gets what? Ruth: $10,000 in separate property + all community property, Ruth & Brian’s 2 children: $6,666 separate property each, Brian’s child from former partner: $6,666. Rules of intestacy when wife dies, no Will, leaving husband, children & stepchild: Donna died leaving $30,000 in separate property and $100,000 in community property. She had no will. She has two children to her husband Jason. Jason also has a child from a former partner. Who gets what? Jason: $10,000 in separate property + all community property, Jason & Donna’s 2 children: $10,000 separate property each, Jason’s child from former partner: Nil. Intestate succession, widow dies without a Will, share of children & grandchildren: David died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (only child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Nevada Will Forms

Note: Before making a Nevada Will, you need to be familiar with 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):

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

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

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