Last Will & Testaments / Pour Over Wills
A Will, unlike the estate planning documents previously discussed, takes effect only upon the death of the person who makes the Will. Moreover, a Will only governs the disposition of the assets of a person that are subject to probate administration. For example, if a parent named his or her daughter as the beneficiary of a life insurance policy, and the daughter was living upon her parent's death, the life insurance proceeds would be paid directly to the daughter and not pass through probate administration. Therefore, the Will would not control the disposition of the life insurance proceeds.
In addition, the distribution provisions contained in your Will do not control the distribution of investments held in payable on death or transfer on death accounts because those assets shall be paid to the designated beneficiary of each such account. Moreover, your Will does not necessarily govern the distribution of a joint bank account or brokerage account which provides for the right of survivorship because ownership of that type of joint account vests solely in the surviving joint tenant(s) upon your death.
For a Will to be valid under Nevada law, it must be signed by the person making the Will at the end of the Will in the presence of two witnesses. Both witnesses must also sign the Will in the presence of the person making the Will and in the presence of
each other. Nevada law also provides for an affidavit to be attached to the Will which is signed by the person making the Will and both witnesses and signed by the notary taking the oath. Such an affidavit makes the Will "self-proving" and eliminates the necessity of locating either of the witnesses in order to admit the Will to probate administration.
Although Wills that have been prepared in states other than Nevada might be valid for probate in Nevada, there may be provisions in the out-of-state Wills that would be ineffective. If you have a Will that was not prepared pursuant to Nevada law by a Nevada licensed attorney, it would be prudent to have your Will reviewed by a Nevada licensed estate planning attorney to determine the overall validity of the will and the validity of each of the provisions of the Will and the self-proving affidavit.
Wills, while they do not avoid probate administration, can contain many provisions that will reduce some of the delays and expenses sometimes associated with probate administration. If you are utilizing a revocable living trust as your primary estate planning vehicle, you still need a simple Will, commonly referred to as a "Pour-over Will," to dispose of any assets that are not owned by your revocable living trust at the time of your death.
Wills can also provide for the establishment of one or more trusts after the death of the maker of the wil1. These types of trusts are called testamentary trusts. You may want to establish a testamentary trust to provide for the financial needs of an elderly relative, a relative who has some type of incapacity or a younger relative who may not currently possess the maturity to receive his or her inheritance outright, such as a child or grandchild. A testamentary trust providing for the economic welfare of a surviving spouse or others may also be established to shelter assets having a value not exceeding the current exemption equivalence of the applicable credit amount from federal estate taxes if the decedent is survived by a spouse.
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