A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Nebraska wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Nebraska living will, or advance directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, the laws of intestacy determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Nebraska last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a Nebraska last will and testament can be effectuated, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
The probate process in Nebraska begins with the filing of a Petition for Appointment of a Personal Representative in the County Court so the personal representative can obtain letters testamentary and proceed with the administration of the estate.
Nebraska offers a simplified probate process for small estates as well as the option of filing of affidavit signed under oath by a beneficiary stating she is entitled to a certain asset.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Nebraska in the absence of a will, a surviving spouse inherits the entire estate unless the decedent also has descendants with the spouse, in which case the spouse inherits the first $100,000 of the estate and half the balance. If the decedent has a descendant from another relationship, the surviving spouse inherits half of the estate. A decedent’s parents are also entitled to a part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to ability to distribute property
Not all property can be distributed according to a will. Some exceptions include the following:
Property owned in joint tenancy with right of survivorship
Life insurance policy and retirement account proceeds
Elective share of surviving spouse
Form a last will in Nebraska
The basic requirements for a Nebraska last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A Nebraska will must be signed by at least two individuals who should not also be beneficiaries in the will and who have signed after witnessing the testator sign the will or acknowledge the signature or the will.
- Writing: A Nebraska will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in Nebraska
Nebraska recognizes holographic (handwritten) wills so long as the material provisions, signature, and date are in the testator’s handwriting. In Nebraska, a holographic will does not need to have witnesses in order to be valid.
Changing a Nebraska last will and testament
A Nebraska will may be changed at any time by codicil, an amendment to the will, which must be executed in the same way as a will.
Revoking a Nebraska last will and testament
The revocation of a Nebraska will can be accomplished by executing a subsequent will or by burning, tearing, canceling, obliterating or destroying the will with the intent and for the purpose of revoking it, done by either the testator or by someone else at his direction in his presence.
Note that in Nebraska, if the testator gets divorced or has his marriage dissolved or annulled after executing a will, certain provisions in favor of the ex-spouse are revoked.
Ready to make a last will? LegalZoom can help you start a last will online, in three easy steps. LegalZoom also offers other legal documents that help you prepare for the future such as living wills and a power of attorney.