Ask a Lawyer: The importance of having a will

Have you ever thought about getting a will? Maybe you aren’t sure if you even need one. Perhaps you think that you don’t have enough assets for it to even matter. However, if you want any say as to who gets what after you are gone, you may want to consider creating a will.

Passing away without a will is referred to as dying “intestate.” When someone dies intestate, the State of Nevada, by operation of law, essentially gets to decide who gets what, and how much. Under Nevada law (NRS 134), the property of a deceased person is distributed to different family members. It is very interesting to read how the law in Nevada essentially rank-orders the importance of the familial relationships. Here are a few examples:

NRS 134.040 states that if the deceased leaves behind a surviving spouse and one child, then all of the deceased’s property is divided into two halves. One-half goes to the surviving spouse and the other half to the deceased’s child. Additionally, under NRS 134.040, if the deceased leaves a spouse and more than one child living, the deceased’s property goes one-third to the surviving spouse and the remaining two-thirds is divided in equal shares to the children or their heirs.

All possible permutations of how one could die with or without heirs is listed in this section. By way of example, should an individual die without a spouse, without any surviving parents and without any children, then their property goes to their brothers and sisters. If their brother and/or sister should also be deceased, then that portion of the estate passes to the child/children of that deceased sibling. (NRS 134.060).

Now, you may ask — What if the individual that dies has no living parents, no spouse, no children, and no siblings — essentially, no immediate family members whatsoever? Then the estate would go to the next of kin in equal degree, like a second cousin, third cousin, fourth cousin, etc. For instance, if a third-cousin shows up to claim the property and 5 different fourth-cousins show up as well, the next of kin closest in relation to the deceased will take the property and the fourth-cousins will not take any of the estate. (NRS 134.070)

Even though the law takes all possible combinations into account should an individual die without a will, as you can see, it can get very complicated. Furthermore, the process to distribute the property when an individual that dies intestate — called “probate” — takes much longer than if an individual dies with a will.

The ideal way to have your estate efficiently distributed and in accordance with your exact wishes is by having a will produced and kept in a safe place. No estate is too small for a will, and the need to create one exists even if you don’t own a house, land or cars.

Let me give you an example: If someone had a wedding ring handed down to them as a prized family heirloom, and he or she did not want it going into the possession of an irresponsible child who might turn around and pawn it, then that person could specifically designate that the wedding ring be given to a more responsible person, as their sole and individual property (known as a “bequest”).

One can leave a baseball card collection to one of their four sons and then designate in the will that the remainder of their estate be divided equally among the sons. If the individual had passed intestate, then that equal distribution among all four sons may have happened by operation of law (assuming all other requirements were met, i.e. — no spouse), but the added ability to have the prized baseball card collection go to a specific child is included in the will and more closely matches the preferences of the deceased.

Having a will also includes the benefit of being able to name an executor to handle the distribution of your estate and push it through probate in a more timely manner.

Remember, for a will to be legally enforceable in Nevada it must be in writing (typed is fine) and signed by the person whose last will and testament it is (or by an attending person at the individual’s express direction). It must be attested by at least two competent witnesses who subscribe their names to the will in the presence of the individual who is producing their last will and testament. I would recommend keeping a signed original will with your executor so that when the time comes they will have immediate access to it.

Note: There are limitations on what property a spouse can bequest in a will because property in a marriage is often considered community property – meaning that half of the value of that property is owned by each spouse. Therefore, a deceased spouse cannot leave an entire marital home to his best friend in his fantasy football league, because he does not own the entire home. Half of that home belongs to the surviving spouse.

Is the above complex? It certainly can be. There is not much room for error, so consulting with an attorney who handles the creation of wills, trusts and estates is the most surefire way to have an enforceable will created for you. However, a will can be created by and individual as long as laws pertaining to wills set forth in NRS 133 are followed.

Once you have passed away, you don’t get to speak up and make any objections or corrections to the distribution of your property. So, if your slippery little criminal nephew stands to take everything you worked for all of your life, all because you died without a will, then that possibility alone should motivate you to produce a will and keep it in a safe place.

Got something you’d like to ask a lawyer? Email your question to askalawyer@reviewjournal.com.

This information is for educational purposes and should not be considered specific legal advice. Always consult with a qualified attorney regarding your individual circumstances.

Marc Saggese is the owner of The Law Offices of Saggese & Associates. He has been a Las Vegas personal injury and criminal defense attorney for over 15 years. Mr. Saggese writes weekly about various issues of the law for reviewjournal.com. For more information visitwww.MaxLawNV.com or connect with him on Twitter, Facebook or Linkedin.