In order to draft a solid Last Will & Testament, or to grasp a better understanding of some of the benefits of utilizing a Revocable Living Trust for your Estate Planning, it is beneficial to have an understanding of how Probate works in Nebraska.
Probate In Nebraska
A Last Will & Testament provides directions concerning property distribution after you pass away. Your Will, additionally, may include provisions for the care of minor children, disabled dependents, and/or animals, if applicable. While a Will does not take effect until death, your Will can be of great assistance to your loved ones in understanding your goals and desires should you ever happen to become incapacitated by illness or injury.
The Will sets forth those for whom the Will is applicable. The “testator” is the person creating the Will. “Beneficiaries” are heirs receiving assets after the testator has died. The “executor” or “personal representative” is the person who oversees the estate, ensuring that directions in the Will are followed.
If you don't happen to have a Will to provide direction when you pass away, or any other means to transfer your property without Probate, the State of Nebraska has already decided how your property will be distributed pursuant to Nebraska's intestate statutes, which may well not line up with how you want your property to be distributed. The Court will appoint someone to manage the estate, usually referred to as an “administrator.” There is no guarantee the court will appoint a family member or relative, even if there are willing and qualified candidates in the family, which may be contrary to your wishes. As such, having a valid Will precludes a court appointing a stranger to make serious decisions about a treasured possessions and the future of your loved ones.
Probate in Nebraska can be done informally or formally. There are a number of requirements necessary in order to proceed with an informal Probate proceeding, such as that there are no foreseeable contests to the Will or appointment of a Personal Representative; essentially, you need the heirs/beneficiaries to be getting along to go this route. In an Informal Probate, means that the Probate process will not be overseen directly by the Probate Court. In the alternative, there is Court oversight and supervision during the Probate case that will require a Judge to approve certain actions of the Personal Representative. A Formal Probate proceeding can add considerable attorney fees that your Estate will be responsible for paying, so it would be advisable to avoid Formal Probate, if possible, which can be accomplished with a properly drafted and maintained Revocable Living Trust.
A Will is not filed with the Court until after the testator dies and the executor takes the Will to the Court in the county where the testator lived to open a probate case. If the person owned real estate in other states, an “ancillary” probate may be necessary in all other states.
The Will is recorded by the county clerk's office and becomes part of the public record for anyone to see. A number of other documents are filed in the Court along with the Will to get a Probate case opened, which will be public record. Once an application for Probate is approved and a Personal Representative has been appointed, the Personal Representative has the legal authority to act on behalf of the Estate and the Personal Representative is responsible for getting things done.
For example, the Personal Representative will have to ensure that notice is provided to known creditors, and that notice is published to give the opportunity for unknown creditors to file a claim against the estate. Assets are valued and an Inventory of assets is prepared and filed with the Court. The Personal Representative keeps the property safe and also proceeds to distribute the property, when the time comes.
Designated Property, like life insurance proceeds, retirement funds and property owned jointly, are distributed to beneficiaries outside of probate. However, any property owned solely by the decedent is part of the probate action and is vulnerable to creditors and anyone who wishes to make a claim against the estate.
Probate can be avoided entirely with a properly drafted Revocable Living Trust. Like a Will, a Revocable Living Trust will allow you to transfer property after death to loved ones. It is called a living trust because it is created while the property owner, or trustor, is alive. It is revocable, as it may be changed during the life of the trustor, and the trustor maintains ownership of the property held by the trust while the trustor is alive.
The trust becomes operational at the trustor's death. However, unlike a Will, a living trust, so long as it is properly funded and maintained during your life, passes property OUTSIDE of probate court. There are no court or attorney fees after the Revocable Living Trust is established, updating your Revocable Living Trust is generally simple to do and the cost should be reasonable, and your property can be passed almost immediately to your named beneficiaries without the need to have a Court get involved.
The best way to protect your family and your assets is to have a complete estate plan that includes either a Last Will & Testament or a Revocable Living Trust and a thorough review of how assets are titled so they can, if possible, go directly to beneficiaries and not be subject to Probate.
Take steps to give yourself, and your family, Peace of Mind today. Contact Clinch Law Firm, LLC to schedule a consultation at our York, Nebraska office, or feel free to schedule a complimentary 30-minute telephone consultation or a 60-minute in-person consultation for a time that works for you here: Appointment Scheduler. Virtual appointments are also available, upon request.