Natalia Vander Laan
At the end of the probate process, the court will order the distribution of the decedent’s assets pursuant to the terms of the decedent’s Last Will and Testament or, if there is no Last Will, pursuant to the statute. There is a common misconception that if a person dies without a will or trust, thus intestate, their estate will go the state of Nevada. However, this is typically not true.
The laws of intestate succession will determine who will receive the remainder of the decedent’s estate.
Nevada is a community property state. Therefore, the surviving spouse will receive the deceased spouse’s share of community property. Community property generally comprises of the assets acquired during the marriage, regardless of the title. Separate property, such as assets acquired before marriage, by gift, or by inheritance, will be divided between the surviving spouse and the living heirs, if there are any.
Generally, the closest living relatives of the decedent will split the decedent’s separate property with the surviving spouse. If the decedent had only one child, the separate property will be split equally between the surviving spouse and that child. If the decedent had more than one child, then the separate property is split one-third to the surviving spouse and two-thirds to the children to share equally. If the decedent had no children, half of the separate property goes to the surviving spouse and half goes to the decedent’s parents to split equally, or to the surviving parent. If there are no living parents, then that half of the decedent’s separate property goes to the decedent’s siblings in equal shares. If there are no living children, parents, siblings, or living issue of the siblings, the entire separate property goes to the surviving spouse.
The intestate succession rules are easier to apply if the decedent was not married, because there is no longer a division between community property and separate property. All of the decedent’s property passes in equal shares to the decedent’s children. If the decedent did not have any children, then all the property passes to the decedent’s parents in equal shares, or to the surviving parent. If both parents are deceased, then the property passes equally to the decedent’s siblings. If there are no living children, parents, or siblings, then the property passes to the closest living relative.
The closest living relative is determined by the court based on the rules of consanguinity. In Nevada, adopted children inherit the same way as biological children, but stepchildren do not inherit at all. Half-blood relatives inherit in the same way as full-blood relatives. And noncitizens inherit in the same way as U.S. citizens.
In some situations, even if there is no will or trust, certain assets will be exempt from the laws of intestate succession that typically control the distribution of an intestate estate. These assets include bank and investment accounts that are payable-on-death or transfer-on-death, life insurance policies and retirement accounts with named beneficiaries, vehicles with a transfer-on-death designation, as well as property owned as joint tenants with right of survivorship or as community property with right of survivorship. Selecting one of these options is oftentimes considered substandard to having a comprehensive estate plan with a will or a trust, but at least it allows the assets to pass to the intended beneficiaries without probate.
Only if the property does not pass to the intended beneficiaries via trust or by operation of law, or if there are no relatives determined during the probate process, then the decedent’s property passes to the state of Nevada. This is called “escheat.”
Natalia Vander Laan is a Minden attorney.
