Nevada Wills vs. Trusts
Navigating Nevada estate planning doesn’t have to be overwhelming. The Silver State offers some of the nation’s most favorable trust and asset protection laws alongside innovative options like electronic wills and trusts. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress while preserving your legacy with Nevada’s unique advantages.
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Nevada Will Requirements
A Nevada Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing (traditional or electronic)
- Signature: Must be signed by the testator (or by another person for the testator at the testator’s express direction)
- Witnesses: Must be signed by at least two competent witnesses (subject to a limited exception for holographic wills)
Witness Requirements
For Nevada wills:
- Witnesses must sign the document while in the presence of the testator
- The only statutory requirement to serve as a witness is that the witness be “competent”
- A devise to someone acting as a witness to the will is void unless the will has at least two additional witnesses
- The fact that a witness is also a creditor of the estate does not by itself prevent the creditor from serving as a competent witness to the will
Self-Proved Wills
A Nevada will can be made “self-proved” through execution of a notarized affidavit or declaration by the will’s witnesses attesting to the facts regarding which the witnesses would testify in probate court. When a Nevada will is self-proved:
- It can be admitted to probate without witness testimony
- The witnesses declare that the testator signed the document willingly with the intent that it be a will while in the witnesses’ presence
- The affidavit further attests that the testator had legal capacity to create the will at the time of its execution
The Nevada legislature provides a sample form for a self-proved affidavit, at N.R.S. §133-050(2).
Personal Property Memorandum
Nevada law allows a testator making a will to incorporate by reference a written statement or list (including a list kept within an electronic record) disposing of items of tangible personal property not addressed within the will itself. For the memorandum to be valid:
- It must include the testator’s signature, the date, and a title indicating the list’s purpose
- It must refer to the testator’s will
- It must identify the items of personal property and intended beneficiaries with reasonable certainty
A Nevada memorandum of personal property can be prepared before or after the will’s execution and can be altered by the testator after the list’s initial creation.
A memorandum of personal property incorporated into a Nevada will cannot be used to distribute real estate, money, promissory notes, documents of title, securities, or property used in a trade or business.
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Amendment, Revision, and Revocation of Nevada Wills
Amending a Nevada Will
Amendment of a Nevada will can be accomplished by executing:
- A codicil (a separate document that amends an existing will)
- Another will
In either case, the document must satisfy all legal requirements for execution of an original will.
Revoking a Nevada Will
Nevada wills can be revoked by:
- The intentional physical destruction of the document (such as by burning, tearing, or obliterating) by the testator or someone acting at the testator’s direction while in the testator’s presence
- Execution of a later will or codicil that expressly revokes the prior will
Automatic Revocation by Marriage
If a Nevada testator gets married after executing a will—and if the spouse survives the testator—the will is deemed to be revoked as to the surviving spouse. When a will is revoked due to the testator’s subsequent marriage, the surviving spouse’s share is equal to what the spouse would have received had the testator died without a will.
Automatic revocation due to marriage does not occur if:
- The spouses entered into a valid prenuptial agreement or similar marriage contract
- The new spouse is provided for within the will or referenced in the will by name
- The spouse is otherwise provided for outside of the will through transfers that appear to have been intended in lieu of devises by will
Automatic Revocation by Divorce
If, after executing a Nevada will (or revocable trust), a testator is divorced, any provisions in the will (or revocable trust) in favor of the former spouse are considered to have been revoked, unless a court order or court-approved property or separation agreement provides otherwise.
Children Born After Will Execution
If a child is born to a Nevada testator after execution of a will—and if the testator did not otherwise provide for or appear to intentionally omit the child—the child inherits a share of the estate equal to what the child would have received had the parent/testator died without a will.
If a will omits a child of the testator who had already been born before the will was executed, Nevada law presumes that the omission was intentional.
Holographic and Oral Wills
Holographic Wills
Nevada law recognizes handwritten (holographic) wills if the testator’s signature, the date, and all material provisions of the will are written by hand in the testator’s own handwriting. A valid holographic will can be admitted to probate even if it is not witnessed.
Oral Wills
Oral (or “nuncupative”) wills are not recognized under Nevada law.
Nevada Trust Requirements
Nevada’s statutes relating to trusts are codified within Chapters 163 through 166 of the Nevada Revised Statutes. Nevada has not adopted the Uniform Trust Code approach used by many states, though some Nevada provisions are similar to those of the uniform act.
Requirements for a Valid Nevada Trust
To create a valid trust under Nevada law:
- The settlor must express a clear intent to create a trust
- There must be actual property that will be held within the trust
- The trust must have a trustee to manage the trust
- The trust must have at least one beneficiary
Beneficiary Requirements
The beneficiary requirement can be satisfied by:
- Trusts established for charity
- Trusts for the care of animals
- Public benefit trusts
- Certain trusts created for noncharitable purposes meeting statutory requirements
- Trusts which grant the trustee the power to select beneficiaries
Trust Creation Methods
Nevada law authorizes creation of trusts through:
- Transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument)
- A declaration by the owner of property that the property is owned as trustee
- Exercising a power of appointment in favor of a trustee
- An enforceable promise to create a trust
Types of Nevada Trusts
Nevada recognizes several formats for trusts:
Written Trusts
Most trusts are evidenced by a written instrument setting forth the trust’s terms, often called a “declaration of trust” or “trust instrument” signed by the settlor.
Oral Trusts
Nevada allows creation of oral trusts if the terms of the trust can be established through clear and convincing evidence. However, certain types of trusts—most notably, trusts relating to real property—must be evidenced by a written document.
Electronic Trusts
Nevada also recognizes “electronic trusts,” which are created through an electronic record that can be authenticated and cannot be altered without detection. Electronic trusts must include the settlor’s electronic signature and otherwise comply with Nevada law relating to electronic transactions. See, Nev. Rev. Stat., Chapter 719.
Personal Property Memorandum for Trusts
Nevada authorizes a settlor of a revocable trust to create and incorporate within a trust a memorandum of personal property. For a trust memorandum to be valid:
- It must be signed, dated, and have a title indicating its purpose
- It must refer to the revocable trust
- It must identify each item and intended beneficiary with reasonable certainty
A list can be created before or after creation of the revocable trust and can be altered by the testator after its initial creation. As with wills, a personal property memo attached to a trust can only be used for distribution of tangible personal property—not real estate, money, promissory notes, documents of title, securities, or property used in a trade or business.
Revocability
Nevada law presumes that a trust is irrevocable unless its terms expressly reserve the settlor’s right to revoke or amend the trust. A power of appointment, power to make administrative amendments, or even to add or remove beneficiaries or replace the trustee are not enough, acting alone, to make a Nevada trust revocable.
Settlor Discretion
When creating a trust, Nevada gives settlors wide discretion to expand, restrict, or vary beneficiaries’ rights and trustee powers and duties within the trust instrument—so long as neither law nor public policy is offended. This can include provisions relating to:
- Beneficiaries’ right to notice relating to trust administration
- Trustee powers, duties and management of assets
- Removal of the trustee
No-Contest Clauses
Emphasizing the goal of giving effect to a settlor’s intent, Nevada’s trust law favors the enforcement of “no-contest” clauses “to the greatest extent possible.” No contest clauses—which penalize beneficiaries for taking certain actions challenging the trust or trustee—are disfavored in many states.
In Nevada, a no-contest clause cannot be used to penalize a beneficiary for:
- Protecting the beneficiary’s rights under the trust’s clear terms
- Enforcing the trustee’s fiduciary duties
- Seeking judicial interpretation relating to provisions within the trust
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Special Considerations
Estate Taxes
No Estate or Inheritance Taxes
Nevada does not impose either estate or inheritance taxes. Large Nevada estates may still be liable for federal estate taxes.
Simplified Probate
Small Estates Probate
At the request of the executor of a qualifying small estate (not exceeding $100,000), Nevada allows for a streamlined, small-estates probate process. When approved, small-estate probate involves:
- A shortened period for administration
- Payment of estate claims
- Distribution of assets to heirs
Small Estate Affidavit
If an estate does not involve real estate located in Nevada and is sufficiently small, a decedent’s beneficiary can obtain estate property without going through probate at all by executing an affidavit. To qualify:
- The estate’s value (excluding vehicles) must be below $100,000 (if the beneficiary is a surviving spouse) or below $25,000 (for anyone else entitled to estate property)
- The affidavit cannot be used until at least 40 days after the decedent’s death
- The affidavit must be served on other beneficiaries at least 14 days prior to filing
The beneficiary’s affidavit must set forth required information about the decedent’s death and estate, and declare that the estate has no outstanding claims and that the beneficiary is entitled to receive specified property from the estate.
Non-Probate Transfers
Nevada law provides several mechanisms for transferring assets without going through probate:
Transfer-on-Death Deeds and Vehicle Titles
Nevada is one of a handful of states that recognize TOD designations on both real estate deeds (sometimes called a “beneficiary deed”) and vehicle titles. In either case:
- An asset with a TOD designation automatically transfers to the named beneficiary upon the owner’s death
- The beneficiary does not acquire present rights in the asset until death actually occurs
Electronic Wills and Trusts
Nevada is among the states that recognize the validity of “electronic wills” and “electronic trusts.” An electronic will must be:
- Created and maintained within an electronic record
- Include the dated electronic signature of the testator
To be valid, a Nevada electronic will must also include at least one of the following:
- Electronic signatures of two witnesses
- An electronic notarization
- An “authentication characteristic” of the testator
Acceptable authentication characteristics include an electronic record of the testator’s:
- Fingerprint
- Retinal scan
- Voice recognition
- Facial recognition
- Video recording
- Digitized signature
A Nevada electronic will can be made self-proving if it includes necessary digitized affidavits and designates a qualified electronic custodian to retain custody of the will.
Self-Settled Spendthrift Trusts
Like most states, Nevada authorizes spendthrift trusts restricting transfer of beneficiaries’ interests in the trust—thereby protecting trust assets from creditors. Nevada, though, is one of only a few states that allow self-settled spendthrift trusts.
With a self-settled spendthrift trust:
- The beneficiary whose interest cannot be transferred is also the settlor him or herself
- An asset held in a self-settled spendthrift trust is immune from attachment by creditors beginning two years after the asset is transferred to the trust
- Even then, the creditor must establish that the transfer was made with intent to hinder creditors
This makes Nevada self-settled spendthrift trusts a powerful asset-protection tool, though they are subject to some restrictions not present with an ordinary revocable trust.
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Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Nevada Special Features | Electronic wills, beneficiary deeds for real estate and vehicles, holographic wills | Self-settled spendthrift trusts for asset protection, electronic trusts, strong no-contest clauses |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Nevada residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Nevada’s status as a trust-friendly jurisdiction makes it an attractive option for those seeking asset protection, maximum flexibility, and innovative estate planning options. The state’s self-settled spendthrift trusts, electronic will and trust options, and favorable community property laws offer advantages that few other states can match. When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Nevada law to ensure your estate plan takes full advantage of the state’s favorable provisions while avoiding potential pitfalls.
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- ✓ Avoid costly probate and family disputes
- ✓ Maintain privacy of your financial matters
- ✓ Protect assets from creditors with Nevada’s superior trust laws
- ✓ Create safeguards for children and loved ones
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Frequently Asked Questions About Nevada Wills and Trusts
Do I need a lawyer to create a will in Nevada?
While Nevada law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. Nevada has specific requirements for valid wills, including the need for two competent witnesses (unless creating a holographic will). An attorney can help ensure your will is legally sound and properly executed. Additionally, Nevada offers innovative options like electronic wills, which have specific technical requirements that an attorney can help you navigate. If you have substantial assets or are interested in advanced estate planning strategies like trusts, professional guidance becomes even more valuable to ensure your estate plan takes full advantage of Nevada’s favorable laws.
What happens if I die without a will in Nevada?
If you die without a will in Nevada (intestate), state laws determine how your assets are distributed. As a community property state, your spouse will automatically receive your half of any community property. For your separate property, your spouse would receive all of it if you have no children or if all your children are also your spouse’s children. If you have children from a different relationship, your spouse receives half your separate property (if you have only one child) or one-third (if you have multiple children), with the remainder going to your children. If you have no spouse, assets go to descendants, then parents, then siblings according to Nevada’s intestacy hierarchy. Additionally, the probate court would appoint an administrator for your estate and guardians for minor children without considering your preferences. Creating a will allows you to determine exactly how your assets are distributed and who will care for your minor children.
What is a Self-Settled Spendthrift Trust and why is Nevada famous for them?
A Self-Settled Spendthrift Trust (SSST) is a special type of irrevocable trust where the person who creates and funds the trust (the settlor) can also be a beneficiary while still protecting the trust assets from most creditors. Nevada is famous for these trusts because it has some of the strongest asset protection laws in the nation. In most states, if you’re both the creator and beneficiary of a trust, your creditors can reach those assets. However, Nevada law specifically allows this arrangement and provides significant protection. Assets transferred to a Nevada SSST become immune from most creditors’ claims after a two-year waiting period, and even then, a creditor must prove the transfer was made with actual intent to defraud. Nevada’s laws also don’t exempt certain creditors (like some states do for divorcing spouses or child support), making these trusts particularly powerful for asset protection planning. This has made Nevada a destination for those seeking to protect assets from potential future creditors, including professionals at high risk for lawsuits.
How do electronic wills work in Nevada?
Nevada was one of the first states to legally recognize electronic wills. An electronic will in Nevada is a will that exists in an electronic format rather than on paper. To be valid, it must include the testator’s electronic signature and date, and must be created and maintained as an electronic record. Additionally, it must include at least one of the following: electronic signatures of at least two witnesses, an electronic notarization, or an “authentication characteristic” of the testator (such as a fingerprint, retinal scan, voice recognition, facial recognition, video recording, or digitized signature). For maximum legal protection, the electronic will should designate a qualified custodian to maintain the electronic record. The custodian must keep the electronic will in its original format without alteration, maintain records of any changes to the document, and provide certified paper copies when needed. While electronic wills offer convenience, they require careful attention to technical requirements to ensure validity. Nevada also recognizes electronic trusts under similar standards.
Are there estate or inheritance taxes in Nevada?
No, Nevada does not impose any state-level estate or inheritance taxes, making it one of the most tax-friendly states for estate planning. When a Nevada resident dies, their estate is not subject to any state death taxes regardless of its size. This is one of several tax advantages Nevada offers, as the state also has no state income tax, which can benefit certain types of trusts that generate income. However, Nevada residents with large estates may still be subject to federal estate tax if their estate exceeds the federal exemption threshold (currently $13.61 million per individual in 2024, subject to change). For those with estates potentially subject to federal estate tax, Nevada offers excellent planning opportunities through various trust structures that can help minimize tax exposure while providing asset protection. The combination of no state death taxes and favorable trust laws makes Nevada an attractive state for comprehensive estate planning.
What is community property and how does it affect my estate plan in Nevada?
Nevada is one of only nine community property states, which significantly impacts estate planning. Under community property law, most assets acquired during marriage (except gifts and inheritances) are considered equally owned by both spouses, regardless of whose name is on the title. This means that when one spouse dies, they can only control their half of the community property through their will or trust – the surviving spouse automatically retains ownership of their own half. This differs from “common law” states where property ownership is based primarily on legal title. Nevada also allows couples to hold community property with right of survivorship, which means the surviving spouse automatically receives the deceased spouse’s half without going through probate. While Nevada doesn’t provide an “elective share” for disinherited spouses (as common law states do), the community property system naturally protects spouses by ensuring they retain at least half of all marital assets. Understanding the distinction between community property and separate property is crucial when creating your Nevada estate plan, especially for blended families or those who moved to Nevada from non-community property states.
How can I avoid probate in Nevada?
Nevada offers several effective tools to avoid probate. The most comprehensive approach is creating a revocable living trust and transferring your assets to it during your lifetime. Assets properly held in trust pass to beneficiaries without going through probate. Nevada also recognizes transfer-on-death (TOD) designations for both real estate and vehicles, allowing these high-value assets to pass directly to named beneficiaries. For financial accounts, you can establish payable-on-death (POD) designations, and investment accounts can use transfer-on-death registrations. Life insurance, retirement accounts, and annuities with proper beneficiary designations also avoid probate. Married couples can hold property as community property with right of survivorship, which transfers automatically to the surviving spouse. For smaller estates, Nevada provides simplified options: estates under $100,000 qualify for a streamlined probate process, and estates without real property worth less than $25,000 (or $100,000 for surviving spouses) can be transferred using a small estate affidavit after 40 days. A comprehensive estate plan typically combines several of these approaches to ensure a smooth transfer of assets.
Does Nevada recognize holographic (handwritten) wills?
Yes, Nevada recognizes holographic wills, which are wills entirely handwritten by the testator. To be valid in Nevada, a holographic will must have three key elements in the testator’s handwriting: the signature, the date, and all material provisions of the will. Unlike formal wills, holographic wills in Nevada do not require witness signatures, making them easier to create in emergency situations. When submitted to probate, the court will verify the handwriting is authentic, typically by comparing it to known samples of the testator’s writing or through testimony from people familiar with the handwriting. While holographic wills are legally valid in Nevada, they often lack important provisions and safeguards that an attorney would include in a formal will. They’re also more vulnerable to challenges regarding capacity, undue influence, or authenticity. For these reasons, holographic wills are generally recommended only as a temporary measure until a formal will can be prepared, particularly for those with substantial assets or complex family situations.
1 comment
rio ramirez
Thanks.