NEVADA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Nevada Revised Statutes, Ch. 133: Wills (N.R.S. §§133.020, et. seq.).
Trusts: Nevada Revised Statutes, Ch. 163: Trusts (N.R.S. §§163.001, et. seq.).
Nevada Will Requirements.
Under Nevada law, a testator must be at least 18 years old and “of sound mind” to create a valid will. Nevada wills must be in writing and must be signed by the testator (or by another person for the testator at the testator’s express direction). A valid Nevada will must also be signed by at least two witnesses (subject to a limited exception for holographic wills).
The witnesses to a Nevada will 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. However, 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.
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.
Within the self-proved affidavit, 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).
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. Often called a “memorandum of personal property,” the list must include the testator’s signature, the date, and a title indicating the list’s purpose. It must also refer to the testator’s will and 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.
Significantly, 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.
Amendment of a Nevada will can be accomplished by executing a codicil (a separate document that amends an existing will) or another will. In either case, the document must satisfy all legal requirements for execution of an original will.
A Nevada will can be revoked through 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. A Nevada will may also be revoked by execution of a later will or codicil that expressly revokes the prior will.
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, if the new spouse is provided for within the will or referenced in the will by name, or if the spouse is otherwise provided for outside of the will through transfers that appear to have been intended in lieu of devises by will.
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.
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.
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 (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. Provisions relating to creation and validity of trusts are primarily found from N.R.S. §163.002 through N.R.S. §163.0095. 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.
To create a valid trust under Nevada law, the settlor must express a clear intent to create a trust, and there must be actual property that will be held within the trust. Nevada trusts must also have a trustee to manage the trust and at least one beneficiary. 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, and trusts which grant the trustee the power to select beneficiaries.
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), through a declaration by the owner of property that the property is owned as trustee, by exercising a power of appointment in favor of a trustee, or via an enforceable promise to create a trust.
While most trusts are evidenced by a written instrument setting forth the trust’s terms, 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 (often called “declaration of trust” or, more generally, “trust instrument”) signed by the settlor.
Along with written and oral 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.
Nevada authorizes a settlor of a revocable trust to create and incorporate within a trust a memorandum of personal property. The memorandum is essentially a list of tangible items not addressed within the trust instrument, with instructions for disposition of each specified item. A memorandum of personal property used with a Nevada revocable trust is subject to requirements and limitations similar to personal property memoranda used with wills.
The memorandum must be signed, dated, and have a title indicating its purpose. It must refer to the revocable trust and 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.
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.
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; and removal of the trustee, among other things.
Emphasizing the goal of giving effect to a settlor’s intent, Nevada’s trust law also 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, or seeking judicial interpretation relating to provisions within the trust.
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. Under Nevada law, 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.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes: Nevada does not impose either estate or inheritance taxes. Large Nevada estates may still be liable for federal estate taxes.
Simplified 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, and distribution of assets to heirs.
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. The beneficiary’s affidavit must set forth, among other things, required information about the decedent’s death and estate. It must also declare that the estate has no outstanding claims and that the beneficiary is entitled to receive specified property from the estate. A small estate affidavit can be used if the estate’s value (excluding vehicles) is 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 and must be served on other beneficiaries at least 14 days prior to filing.
Non-Probate Transfers: Nevada law provides several mechanisms for transferring assets without going through probate. In addition to non-probate transfer using living trusts, Nevada allows assets co-owned as joint tenants with a right of survivorship to automatically transfer to a surviving co-owner. Married couples can elect to own some or all of their community property with a right of survivorship, in which case undivided ownership of the community property vests with the surviving spouse upon the other’s death.
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic non-probate transfer to a named beneficiary upon an owner’s death, are also useful in Nevada. POD designations can be added to financial accounts and CDs. TOD designations can be used with registered securities, brokerage accounts, and some other similar assets.
Along the same lines, some assets—like retirement accounts, annuities, and life insurance—allow owners to name a beneficiary who automatically takes ownership of the asset upon the original owner’s death.
Transfer-on-Death (TOD) 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, but the beneficiary does not acquire present rights in the asset until death actually occurs.
Spousal Shares: Nevada law does not provide an elective share in favor of a surviving spouse. However, because Nevada is one of the nation’s few “community property” states, a married individual’s assets often include a significant amount of marital property jointly owned 50/50 by the couple. Community property includes most assets acquired by either spouse during the marriage, unless obtained via gift or inheritance.
Upon one spouse’s death., the surviving spouse is entitled to his or her half interest in the couple’s community property. A married decedent can devise his or her half-interest in community property (and all of his or her separate property) by will. If a decedent spouse is intestate, the surviving spouse receives the decedent spouse’s interest in community property. If an intestate decedent leaves no children, the surviving spouse receives all of the decedent’s separate property. Or, if the decedent leaves children, the surviving spouse receives half the decedent’s estate (if only one child) or one-third (if more than one child).
Electronic Wills: Nevada is among the states that recognize the validity of “electronic wills.” An electronic will must be created and maintained within an electronic record and must include the dated electronic signature of the testator. To be valid, a Nevada electronic will must also include at least one of the following: (1) electronic signatures of two witnesses, (2) an electronic notarization, or (3) 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, or 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.
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
1 comment
rio ramirez
Thanks.