Nebraska Wills vs. Trusts
Navigating Nebraska estate planning doesn’t have to be overwhelming. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive guide breaks down Nebraska’s unique laws to help you make the right choice for your legacy.
Table of Contents
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Nebraska Will Requirements
A Nebraska Last Will and Testament should include:
- Age and Capacity: Testator must be at least 19 years old (Nebraska’s age of majority) and of sound mind (§30-2326)
- Format: Must be in writing; oral wills are not recognized (§30-2327)
- Signature: Must be signed by the testator or by another person at their direction in their presence (§30-2327)
- Witnesses: Requires signatures from two witnesses, who must witness the signing or acknowledgment of the will (§30-2327)
Interested Witnesses
Witnesses should ideally not be beneficiaries to avoid complications during probate. Though Nebraska law doesn’t explicitly invalidate a will witnessed by beneficiaries, using disinterested witnesses helps prevent potential challenges.
Self-Proved Wills
A notarized affidavit can make a will self-proved in Nebraska, eliminating the need for witness testimony during probate (§30-2432). This affidavit:
- Must be signed by the testator and witnesses
- Must be executed before a notary public
- Can be executed at the time of the will signing or at a later date
- Simplifies the probate process by avoiding the need to locate witnesses
Incorporation by Reference
Nebraska law permits incorporating external documents into a will if they are specifically referenced and exist at the time the will is executed.
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Amendment, Revision, and Revocation of Nebraska Wills
Revoking a Nebraska Will
Nebraska wills can be revoked through:
- Executing a new will that explicitly revokes the prior one or is inconsistent with it (§30-2332)
- Physical destruction (burning, tearing, canceling, obliterating, or destroying) of the will with intent to revoke (§30-2332)
Automatic Revocation by Divorce
In Nebraska, provisions favoring a former spouse are automatically revoked upon divorce (§30-2333). This includes property dispositions, appointments of the former spouse as executor or trustee, and powers of appointment.
After-Born/Omitted Children
If a child is born after a will is executed (pretermitted heir), they receive an intestate share unless explicitly disinherited (§30-2339). This protection ensures children aren’t accidentally excluded from an inheritance.
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Holographic and Oral Wills
Holographic Wills
Nebraska recognizes holographic wills as valid if the material provisions, signature, and date are in the testator’s handwriting (§30-2328). No witnesses are required for holographic wills, making them an accessible option for those who want to create a simple will without legal assistance.
Oral Wills
Oral (nuncupative) wills are not recognized under Nebraska law. All valid wills must be in writing, whether formally witnessed or in holographic form.
Nebraska Trust Requirements
Trusts in Nebraska are governed by the Nebraska Uniform Trust Code (Chapter 30, Article 38).
Requirements for a Valid Nebraska Trust
For a trust to be valid under Nebraska law:
- The settlor must be at least 19 years old and have capacity to create a trust (§30-3828)
- The settlor must indicate an intent to create a trust
- The trust must have lawful purposes and definite beneficiaries unless it is a charitable trust or for non-charitable purposes like pet care (§§30-3828, 30-3834)
- The trustee must have duties to perform
Under Nebraska law, trusts are revocable unless explicitly stated otherwise (§30-3856).
Trustee Responsibilities
Trustees in Nebraska must:
- Act in good faith and adhere to fiduciary responsibilities (§30-3866)
- Administer the trust solely in the interests of the beneficiaries
- Deal impartially with multiple beneficiaries
- Manage trust property prudently
- Keep adequate records and communicate with beneficiaries
Trust Creation Methods
Nebraska trusts can come into existence through:
- Transfer of property to a trustee
- Declaration that the settlor holds identified property as trustee
- Exercise of a power of appointment in favor of a trustee
Trust Modification and Termination
A revocable trust in Nebraska may be modified or revoked by the settlor by:
- Following any method specified in the trust document
- Executing a later will or codicil that expressly refers to the trust
- Any other method manifesting clear and convincing evidence of the settlor’s intent
Special Considerations
Estate Taxes
Nebraska does not impose a state estate tax, but it does have an inheritance tax based on the relationship between the decedent and beneficiary (§77-2004):
- Spouses: Completely exempt from inheritance tax
- Immediate relatives (children, parents): 1% tax on inheritances exceeding $100,000
- Remote relatives (siblings, nieces, nephews): 13% tax on amounts over $40,000
- All others: 18% tax on amounts over $10,000
Simplified Probate Options
Nebraska offers simplified procedures for smaller estates:
Small Estates Procedure
Eligibility:
- Estates valued under $100,000 can use an affidavit process for asset transfer without formal probate proceedings (§§30-24,125–24,129)
Process:
- Successors can file an affidavit 30 days after death
- The affidavit must state that the estate qualifies for this procedure
- No court filing is required for this simplified process
Informal Probate
Nebraska also offers an informal probate process with less court supervision when there are no disputes among heirs.
Non-Probate Transfers
Nebraska offers multiple options for transferring assets outside of probate:
TOD Deeds and Vehicle Titles
Nebraska allows transfer-on-death deeds for real estate (§76-3410), providing a simplified way to transfer property outside of probate. However, Nebraska does not permit TOD designations for vehicle titles. For real estate TOD deeds:
- Must be properly executed and recorded during the owner’s lifetime
- Can be revoked at any time before death
- Property transfers automatically at death without probate
- Beneficiaries have no rights to the property during the owner’s lifetime
Need help creating the right estate plan for your Nebraska family?
Our estate planning specialists can help you navigate Nebraska’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Immediate (living trusts) or at death |
| Probate Process | Required | Avoided if properly funded |
| Privacy | Public record | Private |
| Challenges | Easier to contest | Harder to contest |
| Cost to Create | Lower upfront cost | Higher upfront cost |
| Ongoing Administration | None until death | Requires funding and management |
| Protection During Incapacity | Requires separate power of attorney | Trustee manages assets |
| Inheritance Tax Impact | Subject to Nebraska inheritance tax | May offer planning options for inheritance tax |
When It Takes Effect
Wills: After death
Trusts: Immediate (living trusts) or at death
Probate Process
Wills: Required
Trusts: Avoided if properly funded
Privacy
Wills: Public record
Trusts: Private
Challenges
Wills: Easier to contest
Trusts: Harder to contest
Cost to Create
Wills: Lower upfront cost
Trusts: Higher upfront cost
Ongoing Administration
Wills: None until death
Trusts: Requires funding and management
Protection During Incapacity
Wills: Requires separate power of attorney
Trusts: Trustee manages assets
Inheritance Tax Impact
Wills: Subject to Nebraska inheritance tax
Trusts: May offer planning options for inheritance tax
Frequently Asked Questions
Do I need a lawyer to create a will in Nebraska?
No, but legal assistance ensures compliance with state requirements and helps avoid potential errors that could invalidate your will.
What happens if I die without a will in Nebraska?
Assets are distributed according to Nebraska’s intestacy laws, prioritizing spouses and children. Distant relatives inherit only if no immediate family exists.
Are handwritten wills valid in Nebraska?
Yes, holographic wills are valid if the material provisions, signature, and date are in the testator’s handwriting (§30-2328). No witnesses are required for holographic wills.
What makes Nebraska’s TOD deeds unique?
Nebraska’s transfer-on-death deeds allow real estate to pass directly to beneficiaries without probate while giving the owner full control and the right to revoke during their lifetime.
How does Nebraska protect children from disinheritance?
Pretermitted heirs (children born or adopted after will execution) receive an intestate share unless explicitly excluded in the will.
What is unique about Nebraska’s inheritance tax?
Nebraska is one of the few states that still imposes an inheritance tax, with rates varying based on the relationship to the deceased: 0% for spouses, 1% for close relatives, 13% for more distant relatives, and 18% for non-relatives.
Can I use a trust to avoid probate in Nebraska?
Yes, assets properly transferred to a living trust during your lifetime avoid probate upon your death.
What is Nebraska’s small estate procedure?
Estates valued under $100,000 qualify for simplified affidavit-based transfers without formal probate proceedings (§§30-24,125–24,129).
Conclusion
Creating a will or trust in Nebraska does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences. Nebraska’s unique inheritance tax system also requires careful planning. Whenever any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with Nebraska’s specific laws.
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