Wednesday, April 9, 2014

Technical Requirements of a Last Will and Testament-Another Reason To Utilize Trusts

In this day and age, most individuals establish a revocable trust. The revocable trust is the key document that controls the disposition of the assets that are transferred to the trust as opposed to the Last Will and Testament being the controlling instrument. The individual’s Last Will and Testament is a “pourover” Will that “pours over” any asset outside the trust that would be controlled by the terms of the Will into the trust to be disposed of per the terms of the revocable trust.   

There are a number of reasons for establishing a revocable trust, including the avoidance of the time and expense of probate when one dies.  Probate is formal Court supervision of an estate proceeding in which the key document is the Last Will and Testament of the decedent.
 
There are a number of technical, legal requirements for a Will to be valid in Nevada.  Generally speaking, a Will must be in writing and signed the testator (person making the Will), or by an attending person at the testator’s express direction, and attested to by at least two competent witnesses who subscribe their names to the Will in the presence of the testator.  Nevada law also requires that all bequests under the terms of the Will to a subscribing witness to the Will are void unless there are two other competent subscribing witnesses to the Will. Unfortunately, this situation will arise periodically in which an individual who is a subscribing witness is also a beneficiary of the Will.  In such a case, if there are not two other competent subscribing witnesses to the Will, the bequest to the subscribing witness will be void and not legally effective.  This can have serious ramifications, especially if the bequest is a significant one to a member of the decedent such as a child.

Nevada does recognize holographic (handwritten) Wills that require no witnesses.  A valid holographic Will is a Will in which the signature, date and material provisions are written by the hand of the testator, whether or not it is witnessed or notarized.  These requirements are strictly enforced.  For example, a number of holographic Wills have been held invalid because there was no date on them.  Nevada also recognizes electronic Wills.  However, again there are technical, legal requirements that are strictly enforced. For example, an electronic Will must contain at least one authentication characteristic of the testator, and the electronic Will must be created and stored in such a manner that only one authoritative copy exists.  Nevada does not recognize nuncupative or oral Wills.
A revocable trust is much easier to create under Nevada law. Generally speaking, a trust is created if the creator properly manifests an intention to create a trust and there is trust property.

The above technical, legal requirements of a valid Last Will and Testament are yet another reason for the creation of a revocable trust in one’s estate planning.  
 
-Attorney John Mugan

 

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