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Wills are the traditional means of passing property upon death. Other methods include use of living trusts, other kinds of lifetime giving and certain forms of joint ownership. This section focuses its discussion on wills. Elsewhere we discuss trusts and compare the use of a trust to the use of a will. Because this area of the law is complex, an attorney should always be consulted before making a decision as to whether a simple will is right for you.
By definition, a will is the legal declaration of your intentions that you will to be performed at your death. Although this definition has withstood the scrutiny of lawyers and judges for two centuries, it does not adequately portray the function of a will.
A will should be thought of as one part of an estate plan, a plan which represents the culmination of a person's life--his or her work, hopes, and dreams. It is not easy to accumulate an estate in this day of high taxes, rising costs of living and of educating children. An estate represents what is left after a lifetime of work, and generally it is accumulated in the hope of passing on some measure of support to your family.
The best way to carry out your hopes and dreams is through careful estate planning. Your will is a key part of your estate plan, and it may be the most important document you will sign in your lifetime. It is the vehicle by which you can do what you would do for your family if you were still alive.
In Nebraska, there are several requirements for making a will:
- You must be 18 years of age, except that a married person of any age may make a will.
- You must be of sound mind.
- The will must be in writing--either typewritten or handwritten.
- Your will must be signed by you; and
- Your will must be witnessed by two or more competent persons, who must sign the will in your presence and in the presence of each other. Witnesses may not be persons who have been named as beneficiaries in the will.
Nebraska allows "holographic" wills, which do not need to conform to the3 avbove requirements. These are handwritten wills which are not witnessed. To be valid, the material provisions of the will, the signature and the date of signing must all be in the handwriting of the person making the will. A holographic will can be difficult to prove and is not a recommended way of disposing of property.
A will is not required to be notarized, but a notarized statement called a "Self Proving Affidavit" can be added which makes the will easier to prove in court if the will is challenged. If there is no affidavit accomanying the will, it may be necessary to bring the witnesses into court to verify the conditions of signing.
Every adult man and woman, married or single, who owns any property or has minor children should have an estate plan, including a properly drafted will. A person does not need to have a large estate to warrant careful planning. Indeed, the smaller the estate the greater the need for care including a well-planned will, since each dollar wasted in unnecessary taxes and other expenses hurts that much more.
Even if a husband and wife are joint owners of all their property, each should have a will. This is necessary to control disposition of the property upon the death of the surviving spouse, since neither knows who may survive or if the survivor will live long enough to write a will.
It is wise not to leave to chance the selection of the person who will be left to care for your children in case of your death while they are still young. As noted below, you can make your wishes known by nominating a guardian in your will.
There is also the possibility thar a person may inherit money or property from some unexpected source. Those assets would also be subject to the terms of that individual's will. Very few people die without leaving some type of property which could be controlled by a will.
However, in constructing your estate plan, care should be taken to consider property that is not controlled by your will, such as property held in joint tenancy, property that has been placed in trust, retirement plans (IRAs and 401k plans), and life insurance.
Your lawyer should draft your will. Although you can write out own will, "do-it-yourself" wills are often the cause of litigation, will contests, and problems with the title to real estate. Developing an estate plan, including a properly drafted will, involves making and articulating decisions requiring professional skill. These capabilities are acquired through training, experience, and study of state probate laws and state and federal tax laws.
Forms and kits for making your own will do exist, but these cannot take into account your own personal circumstances and relationships. Even a minor error in a will could alter the way in which your property is disposed of, and an ambiguity could land your family in court. Worse still, confusing directions have often resulted in crushed feelings and disturbed relations among family members. Remember, your heirs would be the ones to suffer the results of a vague or confusing will, and you won't be there to make things right.
A will can be changed or revoked at any time and as often as you wish, as long as you remain competent. A will does not become final until your death. Changes might be advisable in case of marriage, birth or death of a beneficiary, a change regarding your personal representative or the guardian of your children, or the purchase or sale of a business or other property. In the event of divorce, the will is automatically revoked as to the former spouse, unless the will expressly provides otherwise. A decree of separation, which does not terminate the legal status of husband and wife, does not automatically revoke a will.
Two or more persons may own property together in such a way that upon the death of one of them, the property goes to the survivor(s) without going through probate. This form of ownership is called "joint tenancy." We discuss joint tenancy elsewhere.
We often recommend selective use of joint tenancy for certain types of assets in our clients' estate plans. In some situations and for certain kinds of property, joint tenancy is a useful legal device, but it is never a satisfactory substitute for an estate plan. In fact, serious problems may arise from its indiscriminate use. There are also tax hazards in joint tenancy which you may not be aware of, as well as other complications and expenses.
If you die without having made a will, the law--not you--provides for the disposition of your property. The disposition [proovided by the state's estate plan for you most likely is different than what you would haveplanned for your assets.
Before an estate is distributed, debts and taxes must be paid. In addition, certain allowances are made to the surviving spouse so that he or she will have sufficient funds to use while the estate is being settled. These include a Homestead Allowance of $7,500, an Exempt Property Allowance of $5,000, and a Family Allowance of up to $9,000. After these allowances and debts and taxes have been paid, if there is no will the property is distributed as follows:
- If you leave a spouse, but no children and no parents, your spouse will receive all of your property.
- If you leave a spouse and no children, but you have a surviving parent or parents, your spouse will receive the first $50,000 of your estate plus one-half of your remaining property. Your parent or parents will receive the other half.
- If you leave a spouse and one or more children, and your spouse is the parent of all of the children, your spouse will receive the first $50,000 plus one-half of your remaining property. Your children will receive the other one-half in equal shares.
- If your spouse is not the parent of all of your children, your spouse will receive one-half of your estate and your children will receive the other one-half in equal shares.
- If you leave children but no spouse, your children will receive all of your property in equal shares. If you leave no spouse and no children, your grandchildren will receive your property in equal shares; if you have no grandchildren, your parents will receive your property.
- If you leave no spouse, children, grandchildren or parents, your estate would go to your "next of kin," as defined in Nebraska law. The portion of your estate that a relative would receive would depend upon how closely he or she was related to you.
Despite the fact that it is unlikely that you would have chosen to dispose of your property in this way, these "intestacy" laws provide a rigid formula, and they make no exceptions. The failure to make a will could mean hardships and added expense for your immediate family and may benefit some relatives you do not even know.
The intestacy laws are inadequate in that they make no provisions for friends, business associates, charitable institutions, schools or churches and because they treat all types of property the same. There are no special provisions for family heirlooms or jewelry or a family business, for example. They also fail to consider the different needs of different beneficiaries, some of whom may need protection against their own spending habits or exorbitant demands of a husband or wife.
The only way to handle these special situations is through careful estate planning and preparation of a well-considered will.
You may designate in your will the person or persons you would like the court to appoint as guardian of your minor children. While this is not binding on the court, the wishes expressed in a will are usually followed, provided that the persons named are willing to serve as guardians and if the court finds the appointment to be in the best interests of the children. If you die without a will, the court may appoint a guardian for your minor children without knowing your wishes, and the appointed guardian may be the last person you would have chosen.
"Personal representative" is the name now used in Nebraska for what is termed called an "executor" or an "administrator" elsewhere. The personal representative is the person appointed by the court to gather you assets, pay yany debts and distribute the remaininder according to the directions provided in you will or the state's intestacy law. You can designate in your will who is to act as the personal representative of your estate. If you do not designate a personal representative, your surviving spouse has first priority for appointment as your personal representative. Next in order of priority would be other heirs. If no personal representative has been appointed within 45 days after your death, any creditor can apply for appointment. Any person appointed as personal representative must be at least 19 years of age.
It is not required by law that the personal representative be a resident of Nebraska, as long as the person named is otherwise qualified by age and suitability.
In general, the duty of the personal representative is to settle and distribute the estate of the decedent. More specifically, the personal representative must give notice of his or her appointment to interested persons, prepare an inventory of property owned by the "decedent" (the person who died), take possession and control of the decedent's property, pay the taxes, claims and expenses of administration and distribute the property according to the will or according to the laws if there is no will.
You may appoint one or more persons as co-personal representatives or you can appoint successors to take over in the event your first choice for some reason cannot perform the duties of the personal representative. Except in unusual circumstances, we recommend that one person at a time be designated as personal representative, to avoid the problems associated with "management by committee."
Yes, except that, unless you have a prenuptial agreement, you cannot prevent your spouse from receiving a portion of your estate. Additionally, a joint tenant cannot prevent the surviving joint tenants from becoming owners of jointly owned property by rights of survivorship.
You can leave a separate list, dated and signed, disposing of personal property. To make that separate list effective, however, you must have a will, and the will must make specific reference to that separate list. The advantage of such a list is that it can easily be changed without having to go thrpough the formalities of changing the will.
A will contest is commenced by an interested person filing objections to the probate of the will with the court. The will contest must be commenced within three years after death or within year after distribution, whichever is later. These time limits do not apply in cases of fraud.
A properly written will can reduce death taxes, thereby leaving more of your estate for your family. It also gives you the choice of appointing a competent person as the personal representative. In addition, your will can provide that the personal representative need not post bond, which saves the estate the expense of qualifying for a bond and paying the premium on the bond. A will can authorize your personal representative to sell real estate without the necessity of going through a court hearing to get authority to sell, which is required where there is no will.
This is a popular misconception. There is no requirement in the law for a "reading of the will." When a will is filed with the court, it becomes a public record and anyone may see it. The law does require that notice be given to all "interested persons" of the probate of a will, so that they may have an opportunity to protect their interests. Interested persons may request advance notice of any order entered by the court or of the filing of any document pertaining to an estate.
Upon your death, your debts must be paid out of the property you leave. There must be a determination of whether there are debts due to creditors or taxes due to the state or federal government. The law provides for time limits in which creditors may make claims against an estate and claims not timely filed are no longer a legal debt. Finally the court process exists to assure that your directions (or the state's if there is no will) are carried out.
You should make a will now. A prudent person does not wait for a catastrophe or other compelling reason to begin planning his or her estate. You can always make changes in your will should circumstances so dictate.
It is wise to review your estate plan with your attorney periodically. Changes in your property holdings, your family (marriage, birth, death, divorce) and simply inflation in values can change the results of your intent which has been expressed in the will. Changes in the tax laws can substantially affect the intent that you had when making the will. Review your own will annually; review it with an attorney when family changes occur and at least every three years.