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Jun 17, 2013

People always seem to have a good excuse or explanation as to why they do not have an estate plan. Sometimes I hear, “well doesn’t everything just go to my spouse and kids anyway?” Most people are vaguely aware that if they do not have an estate plan, their assets will pass to their relatives or next of kin when they die pursuant to state law. Dying without a will is called intestacy. Under Nevada law, if you die intestate with assets, your assets are first applied to any of your debts, and then are distributed in accordance with the “directions” found in the intestacy statutes. For example, if you die and your spouse survives you, and you have one child, then your estate is divided equally between your spouse and your child. Or, if you die with a spouse and more than one child, then your spouse only receives one third of the estate, with the remainder being equally divided among your children. If you have no children and a spouse, then one half of the estate goes to the spouse, and one fourth goes to your father and one fourth goes to your mother, if they are living at the time of your death. If you are divorced with no spouse but have children, then your estate is shared equally by your children.

There are many other scenarios accounted for in the statutes, but the above are the most common. Many people do not realize that their estate does not go entirely to their spouse under intestacy, and in most cases, people want their spouse to have the marital residence, and generally all the other marital assets. If the children and surviving spouse are on good terms, the children can disclaim interest in the assets, but this is not always the case. Perhaps you are on your second marriage and your children do not like your new spouse. Or perhaps your children have a bad relationship with your spouse. Or maybe you do not have any children, but your parents do not approve of your spouse. In any one of these scenarios, you could have a child or a parent willing to have the marital residence sold to be paid their share of the estate, unless your spouse can come up with the funds. While the intestacy statutes try to be fair, they are a one-size fits all to estate distribution, and therefore can create many problems in various scenarios. If you do not have an estate plan, think about how well intestacy would work out for your loved ones. In most cases, you are going to want to get your estate plan done. [This blog is for informational purposes only and is not intended to create an attorney-client relationship. If you have questions regarding your own specific circumstances, please contact me or another attorney.]


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