Do I really need a will?

Maieutics. That’s the word used to describe the Socratic method of answering a question with a question. The short answer to the above question is “yes” but Socrates would answer “do I like surprises?”

Intestacy. If a person dies without a will he or she is said to have “died intestate.” The estate of a person who has died intestate goes through probate court. The Nevada Revised Statutes determine who will inherit you assets when you pass away intestate. While this sounds reasonable, the results can have unintended consequences.

Surviving Spouse. Assets acquired during the course of a marriage in Nevada are considered “community property” and are treated as being owned 50/50 between the spouses. Examples of community property include wages earned by either spouse, real estate bought during the marriage and investment income earned during the marriage. Whether an asset is community property will affect the inheritance rights associated with that property. Nevada’s intestacy laws provide that upon the death of one spouse, the deceased spouse’s share of the community property is to be inherited by the surviving spouse. Assuming that the asset was only in name of the deceased spouse, the asset is still subject to probate administration so that it can be distributed to the surviving spouse.

Separate Property. Assets that are owned by a spouse before the marriage are classified as “separate property”. Also, inheritances received during the marriage are also presumed to be separate property. To many person’s surprise (and dismay), the inheritance rules relating to separate property differ significantly than those relating to community property and the surviving spouse does not receive all the separate property at your death. When you pass away and are survived by your spouse and one child, separate property is distributed equally between the surviving spouse and child. However, when there is more than one child, the spouse only receives one-third of the separate property and the children receive, in equal shares, the remaining two-thirds of the separate property. The lesson is that if you desire all of the assets to be inherited by your spouse, the will is the tool to eliminate surprise results that can occur when a person dies intestate.

Widows, Widowers and Divorced Persons. When a person passes away and is not survived by a spouse, then their estate would be inherited in equal shares by their children. This situation can also give rise to unwanted results. For example, you may have raised a step-child since he or she was a toddler and consider the child your son or daughter. However, a step-child is not recognized under Nevada law as a natural or adopted child and, as a result, would not be entitled to inherit any portion of your estate. In once instance, we encountered a divorced man who had passed away and was survived by his two children. However, 50 years earlier, he had fathered a child out of wedlock. Eventhough he had never been a part of this child’s life (and had never even met the child), this third child was found to be entitled to one-third of the decedent’s estate!

Adoptions. Upon the entry of an order of adoption, the child becomes the legal child of the persons adopting the child. By virtue of the adoption the child inherits from his or her adoptive parents or their relatives the same as though the child were the legitimate child of the parents. As a result, you can only be an intestate heir of your adopted parents. Even if you reunite with your birth parents, and form a close relationship, the adoption terminates any right to inherit from birth parents absent their creation of a will.

Unmarried couples. One couple lived together for more than a decade. The home was only in one partner’s name despite the fact the other partner often paid the mortgage. When one partner unexpectedly passed away, the survivor was devastated to learn that he had no right to inherit the home. Nevada does not recognize “common law marriage” and if there is no marriage, you cannot receive any inheritance rights as a surviving spouse. However, domestic partnership in Nevada is a form of legal union. It offers couples nearly all the same rights and responsibilities granted pursuant to marriage in Nevada. They must simply pay a fee and file a Declaration with the Nevada Secretary of State to “register” the partnership. A surviving registered domestic partner, following the death of the other partner, has the same rights, protections and benefits, and is subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower. In other words, the surviving registered partner would have inheritance rights as a surviving spouse if the other partner passed away intestate.

Surprises are a great joy at birthdays and holidays. But the loss of a loved one is a tragic event that will be devastating for your family. Compounding their stress by “surprise results” can easily be avoided by thoughtful planning. For more information of creating your estate plan, please don’t hesitate to contact us at (702) 798-4955.

For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.

Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. A review of this information does not create an attorney-client relationship.