Planning for the end of your life involves a lot difficult decisions. Who should get all my money and stuff after my death (in legal terms: who should my beneficiaries of my assests be)? Who should be in charge of distributing those assest after my death, and how?
If you live in Nebraska, estate planning can answer these questions, including by the execution of a valid will.
Jump ahead to these sections:
- Nebraska’s Intestacy Laws Explained
- How Does Probate Work in Nebraska If There Is No Will?
- Who Typically Inherits Assets in Nebraska If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Nebraska
These questions are difficult to answer. However, answering them in a valid will in Nebraska can bring peace of mind, as you have made some tough decisions, and make your loved ones’ lives easier.
Unfortunately, many Nebraskans do not answer these questions concerning their assets in a valid will before death.
This article discusses what happens if you die without a will in Nebraska.
Nebraska’s Intestacy Laws Explained
Intestacy is a legal term that means that means you died without a valid will. If you do not answer questions concerning your assets in a valid will, Nebraska law requires that these questions still be answered in some manner. After your death, your assets need new owners and managers.
The intestacy laws in Nebraska answer these questions. These laws decide what happens to your assets if you die without a will in Nebraska.
Basically, the following rules determine the beneficiaries of your assets:
- If you have a surviving husband or wife (spouse), but no surviving children (also called “descendants”) and no parents, the surviving spouse is the sole beneficiary of your assets. They will get everything.
- If you have a surviving spouse and surviving children, whom you had with that surviving spouse, your assets will transfer (i) $100,000, plus one-half of the balance of your assets to the surviving spouse, and (ii) the remaining assets to the surviving descendants.
- If you have a surviving spouse and surviving children, but one or more of those kids is not also the child of that surviving spouse, half of your assets transfer to the surviving spouse, and one-half of your assets to the surviving descendants.
- If you have a surviving spouse and a surviving parent or parents, but no surviving descendants, two things happen: (i) $100,000, plus one-half of the balance of your assets go to the surviving spouse, and (ii) the remaining assets go to the surviving parent or parents (equally).
- If you have no surviving spouse, but do have surviving descendants, the surviving descendants are the sole beneficiaries of your assets.
- If you have no surviving spouse nor descendants, but do have a surviving parent or parents, they are equally the sole beneficiaries of your assets.
- If you have no surviving spouse, descendants, nor parents, the surviving descendants of your parents (potentially your brothers and sisters) are the sole beneficiaries of your assets.
- If you have no surviving spouse, descendants, parents, nor descendants of your parents, half of your assets will be transferred to the surviving paternal grandparents and half of your assets to the surviving maternal grandparents. If you have no surviving paternal grandparents, that half of your assets will go to the descendants of those paternal grandparents, and same if there are no surviving maternal grandparents.
If you have multiple children who are potential beneficiaries, descendants of the same degree of kinship are treated as equal beneficiaries, e.g., niece and a nephew on two different sides will be treated the same.
Descendants of unequal, more remote degrees of kinship are allocated their beneficiary interests based on representation. For example:
Vern dies, survived by his two children, Carol and Mary, and his two grandchildren, Daniel and Jason. Daniel and Jason are the only children of Vern’s third child (now deceased), Peter. As Vern’s surviving children (same degree of kinship), Carol and Mary are treated as equal one-third beneficiaries of Vern’s assets. As Vern’s grandchildren (unequal, more remote degrees of kinship), Daniel and Jason are each allocated one-sixth beneficiary interests in Vern’s assets based on representation (from their deceased father, Peter).
In Nebraska, if you die without a will, the following priority rules determine the manager of your assets:
- Your surviving spouse
- Your other intestacy beneficiaries
- 45 days after your death, any creditor
How Does Probate Work in Nebraska If There Is No Will?
If you die without a will in Nebraska, the state’s laws determine who will be the new owners and managers of your assets after death. The process of actually transferring your assets to your descendants after death in Nebraska is called probate.
Probate in Nebraska is a legal process, supervised by a judge. Even if the deceased person – also called “the decedent” – doesn’t have a valid will, probate may still happen.
Probate in Nebraska begins with the judge appointing a person – known as a personal representative – to administer the decedent’s estate. That means they’re in charge of determining who gets what. If there is no will, this person who will manage your assets is appointed based on the priority rules described.
The personal representative of the decedent’s estate has various responsibilities, including:
- Conducting an inventory of the decedent’s assets
- Collecting the decedent’s assets
- Managing the decedent’s assets in the decedent’s estate
- Determining the decedent’s creditors and sending required notice (based on Nebraska law) to creditors
- Paying the decedent’s creditors, aka any to whom you owed money when you died
- Filing any required tax returns in connection with the decedent’s estate
- Distributing any remaining assets in the estate to the decedent’s beneficiaries
After these responsibilities are taken care of, the judge supervising the process closes the probate.
There are three types of probate in Nebraska: informal probate, unsupervised formal probate, and supervised formal probate. The amount of oversight a judges has depends on the type of probate – informal probate are the least supervised and supervised formal probate are the most.
Who Typically Inherits Assets in Nebraska If There Isn’t a Will?
In Nebraska, if you don’t have a will, the people who typically inherit assets are close family members: the surviving spouse, descendants, parents, descendants of parents, grandparents, and descendants of grandparents.
The laws assume that most people in Nebraska would want these close family members to be their beneficiaries. The persons named as beneficiaries under the intestacy laws supposedly are consistent with what the deceased person would have wanted.
However, this might not be the case. Some examples:
- Example 1 - Lisa dies, and she is survived by her mother, Gina. Lisa wants all her assets to go to charity, but Lisa does not execute a will. Lisa’s assets transfer all to Gina, contrary to Lisa’s testamentary intentions, aka what she actually wanted.
- Example 2 - Bonnie dies, survived by her husband, David, and her daughter, Angie (who is also David’s child). Bonnie has $1,000,000 in assets. Bonnie wants her assets to be allocated 80% to David and 20% to Angie, but Bonnie does not execute a will. So David will get $550,000 and Angie will get $450,000 contrary to Bonnie’s testamentary intentions.
- Example 3 - Kevin dies, survived by his three children, Damon, Russell, and Pam. Kevin want owns three properties, and wants to transfer his Omaha property, valued at $150,000, to Damon, his Lincoln property, valued at $100,000, to Russell, and his brokerage account, valued at $350,000, to Pam, but Kevin does not execute a will. This means Kevin’s assets will be split evenly in thirds – Damon, Russell and Pam will each receive $200,000, one-third of each of his Omaha property, his Lincoln property, and his brokerage account, contrary to Kevin’s testamentary intentions.
Lisa, Bonnie, and Kevin could have implemented their testamentary intentions with a valid will. But because they didn’t have a will, Nebraska’s intestacy laws substituted for their personal choice. As a result, their testamentary objectives were not achieved, aka what they wanted to happen to their stuff after their death didn’t happen because they didn’t have a will.
Frequently Asked Questions: Dying Without a Will in Nebraska
Many questions can arise when someone dies without a will in Nebraska. Here are some of the frequently asked questions.
What happens when your parent dies without a will?
When your parent dies without a will in Nebraska, how much you get, and whether you get anything (called your “beneficiary interest”) depends on your family situation.
If your parent has no surviving spouse, you and your parent’s other descendants are the sole beneficiaries of your parent’s assets.
If your parent has a surviving spouse, and all of your parent’s surviving descendants also are descendants of the surviving spouse, the surviving spouse gets $100,000, plus one-half of the balance of the deceased parent’s assets. You and your parent’s other descendants are the beneficiaries of your parent’s remaining assets.
If your parent has a surviving spouse, and one or more of your parent’s surviving descendants are not also descendants of the surviving spouse, you and your parent’s other descendants are the beneficiaries of one-half of your parent’s assets.
As between you and your parent’s other descendants, your beneficiary interest is based on the number of children for your parent. For example, if your parent has no surviving spouse and had three children, your beneficiary interest is equal to one-third of your parent’s assets.
What are a surviving spouse’s rights if there’s no will?
A surviving spouse in Nebraska has a lot of rights when someone dies without a will.
If the decedent had no surviving descendants, the surviving spouse is the only person who will receive any assets.
If the decedent had surviving descendants, all of whom also are descendants of the surviving spouse, the surviving spouse will get $100,000, plus one-half of the balance of the deceased person’s assets.
If the deceased has surviving descendants, one or more of whom are also the children of the surviving spouse, the surviving spouse is the beneficiary of one-half of the decedent’s assets.
If the decedent has a surviving parent or parents, but no surviving descendants, the surviving spouse is the beneficiary of $100,000, plus one-half of the balance of the decedent’s assets.
In addition, the surviving spouse is in the position of first priority to be the personal representative of the decedent’s estate.
Are there any probate exemptions if you die without a will in Nebraska?
There are various exemptions from probate in Nebraska, including:
- Personal property or Nebraska real property valued at less than $50,000 can transfer on death by affidavit without probate
- Anything that was designated as a “transfer on death” or “payable on death” assest can transfer on death to the designated person wihout probate
- Assets owned in joint tenancy – e.g., more than one person is on the lease of a house – can transfer on death to the surviving joint tenant without probate
- Assets owned in a trust (such as a “Living Trust”) can transfer on death based on the terms of the trust without probate
How long does probate take when there is no will?
There is no exact time period for every probate in Nebraska.
Probates, on average, take from six to nine months. They can take much longer, even years, if there are disputes between beneficiaries.
If there is no will, probate can take longer because there may be more uncertain issues for a court to interpret and resolve.
Who is considered next of kin in Nebraska?
If you have no surviving spouse, descendants, parents, descendants of parents, grandparents, and no descendants of grandparents, the Nebraska Probate Code will generally find any remaining beneficiaires that are “the next of kin in equal degree.”
A Nebraska court has defined “next of kin” to mean the class of persons nearest in degree of blood surviving the decedent.
Unpleasant Consequences if You Die Without a Will
The good news having a valid will in Nebraska is not a hard thing to do. All you need is a written document that you sign, witnessed by two independent witnesses.
It might not be fun to make these plans or think about your own death, but you’ll leave your family with far less headache than if you don’t.