It is often reported that the majority of Americans do not have a Last Will and Testament, and I expect those in Nevada are no better. That leaves many with the question: What if I die without a Will? And perhaps more specifically, without a will who gets what? Well, there are several consequences of not having your estate planning in place.
First, one who dies without a Will is said to die “intestate”. This means that instead of you deciding to whom your assets pass, either by way of a Will or living trust, the state’s intestate succession laws will apply. In Nevada, the in intestate succession statutes are found at NRS Chapter 134. In effect, the state has written a will for you.
Second, your assets, at least those without beneficiary designations, will pass through the probate process. Probate can be an expensive and time-consuming process. Most people are interested in avoiding probate altogether.
But, back to the question of if someone dies without a will, what happens to their money and other probate assets? You first have to determine whether the property is community property or separate property.
If a spouse dies and the married couple have community property, the property will pass to the surviving spouse without probate if it was held as community property with rights of survivorship. But if the survivorship clause does not exist, then the deceased spouse’s one-half community property interest will be probated.
If the deceased spouse had a will, you follow what the will says to do with the property. A husband or wife may dispose of his or her community property interest in property however he or she pleases.
But if the deceased spouse did not have a will, that is he died intestate, Nevada law states that the community property asset passes to the surviving spouse.
But what about separate property? If the decedent dies holding separate property, we look to the state’s intestate succession statutes. Distribution will depend upon who the surviving next-of-kin are.
If there is a surviving spouse and one child, the separate property is divided one-half to each. However, if there are two or more children, then the property passes one-third to the spouse and two-thirds are divided equally among the children.
When there is no surviving spouse, but there are children, then the estate goes to the children, share and share alike. Obviously, if there is only one child, it would all pass to that child. But if there is a deceased child who is survived by children, then the estate goes to the living children and the issue of the deceased child, by right of representation.
If there are no children, then the spouse receives one-half and the deceased person’s parents each receive one-forth. If there is just one parent, that parent receives one-half of the estate. And if no parents are living, that half is divided among the deceased spouse’s siblings.
If there is no surviving spouse nor children, then the estate is split between the decedent’s mother and father. But if just one of the parents are living, then the entire estate goes to that parent.
What if there is a spouse that survives, but no children, issue of any child, parents or siblings? Then the entire separate property estate passes to the surviving spouse.
When someone dies without a spouse, issue, or parents, then the estate will pass equally to the surviving brothers and sisters, and to the issue of any deceased brother or sister, by right of representation.
As you can see, there is quite a variation of estate dispositions depending upon who survives the decedent. Which is one reason for making sure you have at least a will. And if avoiding probate is of interest to you, please consider a revocable living trust.