Estate Planning: Does Your Will Accomplish What You Want It To?

Posted by: on Thu, Aug 09, 2012

Share this post

On February 16, 2012, recorded in 128 Nev. Advance Opinon 4, the Nevada Supreme Court rendered a landmark decision affecting all persons who make out wills, subject to Nevada law, in which they make provisions excluding persons from receiving their estate upon their death. The decedent in the case was a recluse who had little interaction with anyone during the six years prior to his death. In 1995 he made out a hand-written will which left all of his estate to his girl friend, also stating in his will that he did not want any his relatives to receive any of his estate. However, his girl friend pre-deceased him by six years, and he never made out a new Will after her death. The issue before the Court was: Who received his estate when he died six years later? The decedent’s daughter asserted a claim as the person who would inherit his estate under Nevada’s intestate succession laws, i.e. where a decedent dies without a valid will. The State of Nevada asserted a claim to the estate, arguing that the decedent “disinherited” all of his relatives in his 1995 holographic Will; therefore, all of his estate should escheat to the State of Nevada.

Prior to this case, the general law in the United States was that if a decedent’s will failed to state to whom his estate should be distributed, the will failed and the laws of intestate succession would control the distribution of the estate. Under this general law, the decedent’s estate would have gone to his daughter. Under this general law, the “disinheritance” language in the Will (i.e. disinheriting all of his relatives), would have been deemed as no longer effective because he had failed to name a person to whom he wanted to leave his estate (because his girl friend had predeceased him and was thus no longer living and able to receive his estate when he died).

Based upon a “Will” definition, added to Nevada’s probate code in 1999, which said a Will could contain a “disinheritance clause”, the Nevada Supreme Court determined that it was the intent of Nevada’s Legislature to overturn the general law in the United States. The Court determined that even though the decedent’s Will did not name a beneficiary to receive his estate (because his girl friend who had been named predeceased him), the “disinheritance” language in his Will (disinheriting all of his relatives) should be enforced. Under Nevada law if a decedent dies without any relatives, his intestate estate escheats to the State. Thus, in this case, only the State of Nevada was left as the entity to receive his estate. The decedent’s daughter argued to the Court that after his girlfriend predeceased him, the decedent would have wanted his daughter or family to inherit his estate rather than the State ofNevada. Further, the decedent never said he wanted the State to receive his estate in his Will (and likely would not have wanted such a result). Nevertheless, the Court held, in its landmark decision, that Nevada law required the estate to escheat to the State of Nevada.

This decision emphasizes the importance of making out a Will which will clearly expresses the testator’s wishes and anticipates future developments. Obtaining qualified legal assistance in preparing one’s Will, can avoid one’s estate passing to someone whom one would not want to receive the estate. In the above-mentioned case, had the decedent not only made out a Will more clearly expressing his desires, but also taken advantage of the Revocable Living Trust procedure for assuring his estate distribution according to his wishes, much grief, expense and loss of the estate to the State could have been avoided.

The law firm of Albright, Stoddard, Warnick & Albright has been offering qualified legal assistance to persons in making out Wills, Trusts, and other Estate Planning documents for over 50 years. Obtaining the assistance of a qualified attorney in making out your estate planning documents can make the difference between having your estate go to those you desire upon your death, as opposed to it going to a person or entity not of your choosing or preference.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

%d bloggers like this: