Jennifer Mahe: What happens if I die without a will?

As we head into a new year, many people are making New Year’s resolutions to better their life, such as losing weight or spending more time with family or friends. One often overlooked possible resolution is to ensure your desires are honored after your death and you have made it easier for your loved ones by preemptively addressing the issues that arise upon your death. The most common way to accomplish this is to execute a Last Will and Testament.

In the event someone dies without having executed a valid Last Will and Testament, their assets are transferred pursuant to intestacy. Intestacy refers to the group of statutes passed by the Nevada Legislature which dictate what happens to an individual’s assets in the event they die without a Last Will and Testament. These statutes identify specific situations, such as an individual dying with a surviving spouse and surviving children. The statute then identifies what percentage of the estate would be distributed to each of the identified loved ones. For example, if an individual dies and leaves behind a surviving spouse and more than one child, the surviving spouse gets one-third of the estate and the surviving children split the remaining two-thirds of the estate evenly.

Intestacy is made even more challenging by the fact the statutes distinguish between community property assets, for individuals who are married, and separate property assets. Specifically, community property assets are transferred entirely to the surviving spouse. Thus, in order to determine to whom an asset must be transferred, the source of the asset and the time at which it was acquired must be determined so the asset can be qualified as either community property or separate property.

Obviously, in many situations the dictates of the Nevada Legislature don’t follow what an individual would want to have happen to their assets. Accordingly, if they have any assets which they desire to transfer to specific individuals, the only way to ensure this happens is to prepare a Last Will and Testament or engage in other estate planning techniques, such as preparing a Living Trust or titling assets to distribute upon death. Moreover, preparing a Last Will and Testament provides the individual the opportunity to make choices during their lifetime so their loved ones don’t need to address those issues after their death. In a Last Will and Testament an individual can identify who will be responsible for acting as executor or executrix, identify who they desire to act as guardian for any minor children or place restrictions on the distributions, like ensuring their heirs have reached a certain age before receiving the entirety of their distribution. All of these things are not addressed by the intestacy statutes and instead require the choices be made by the surviving loved ones.

Finally, if the decision is made to execute a Last Will and Testament, one needs to ensure that they comply with the Nevada statutes for executing a Last Will and Testament so the document is valid. Obviously, these statutes can be amended from time to time thus it is important to review the most current statutory provisions. However, generally speaking a Last Will and Testament must be in writing, signed by the testator and the testator’s signature must be witnessed by two people who execute the Last Will and Testament as witnesses.

Thus, in most situations having a Last Will and Testament is preferable to allowing your assets to be distributed pursuant to the intestacy statutes and also gives you the opportunity to make it easier for your loved ones to address issues after your death.

Jennifer Mahe has practiced law in the Northern Nevada area since 2005 focusing on general civil matters such as real estate, business, litigation and estate planning. She can be reached either via the Mahe Law, Ltd. website, www.mahelaw.com, or at 775-461-0992. If you have a legal topic related to general civil law which you would like to see addressed in this column in the future, send that topic to the Nevada Appeal.