Dying Without a Will: The Law of Intestacy

Dying Without a Will: The Law of Intestacy

Many of my clients are surprised to learn that the State of Nevada has laws that provide who inherits their property in the event they die without a Last Will and Testament (“Will”) or a valid estate plan. The laws are primarily set forth in Chapter 134 of the Nevada Revised Statutes. The law makes a distinction between community property and separate property – community property is dealt with under our community property statutes while separate property is dealt with under our intestacy statutes.

Under community property law, if you are married and die without a valid Will or estate plan, any community property titled “with right of survivorship” will pass by operation of law to your surviving spouse. All other community property without “right of survivorship” language is treated as one-half (1/2) of the surviving spouse’s separate property and the remaining one-half (1/2) interest will pass to the surviving spouse under community property law. These results would not apply to the extent that they are inconsistent with the provisions of any premarital agreement.

If you are married and own separate property, if you are unmarried or if your spouse predeceases you, your property will be distributed among your spouse and/or other family members depending on who survives you pursuant to the law of intestacy.

If you are survived by a spouse and one child (or descendants of one child), one-half (1/2) of your separate property will be distributed to your spouse and one-half (1/2) of your separate property will be distributed to your child (or the descendants of your child if he or she predeceases you).

If you are survived by a spouse and more than one child, your separate property will be distributed one-third (1/3) to your spouse and the remaining two-thirds (2/3) will be divided in equal shares among your children, by right of representation. “Right of representation” means that if a beneficiary predeceases you leaving children, the share for the deceased beneficiary will be distributed in equal shares among the children of the predeceased beneficiary.

If you are survived by a spouse and no descendants, your separate property will be distributed as follows: (1) one-half (1/2) to your spouse and one-half (1/2) in equal shares among your mother and father who are then living at the date of distribution; (2) if both of your parents have predeceased you, then one-half (1/2) to your spouse and one-half (1/2) in equal shares among your brothers and sisters who are then living at the date of distribution; (3) if your parents and siblings have predeceased you, then all of your separate property to your spouse.

If you are unmarried or if your spouse predeceases you, and if you have descendants, your entire estate will be distributed in equal shares among your child(ren), by right of representation.

If you are unmarried or if your spouse predeceases you, and if you have no descendants, your estate will be distributed in equal shares among your mother and father who are then living at the date of distribution. If both of your parents have predeceased you, your estate will be distributed in equal shares among your siblings, by right of representation. This means that if a sibling predeceased you with children, the equal share created for your deceased sibling will be divided equally among the deceased sibling’s descendants.

If you are not survived by a spouse, descendants, parents or siblings, your estate will be distributed to your “next of kin,” which means that your estate will be distributed to your nearest blood relatives. If you have no next of kin, your estate will be distributed to the State of Nevada for educational purposes.

The law of intestacy usually does not comport with most people’s legacy goals for reasons too numerous to list. However, here is a small sampling why the law of intestacy is inadequate for most people’s estates:

1. Some individuals desire that all or part of their community property interest pass to someone other than the surviving spouse. This is especially true in a blended family situation.

2. Some individuals desire to provide for their children differently – either by different percentages, by specific distributions of property, or by providing different provisions of how a child can access or receive his or her inheritance.

3. Some individuals are not interested in providing substantial bequests to their parents and/or siblings.

4. Some individuals wish to provide one parent with a larger bequest than the other parent.

5. Some individuals desire to provide for certain siblings and not to others.

6. Many people have charitable beneficiaries or charitable contingent beneficiaries that do not include the State of Nevada’s educational programs.

7. If intestacy law applies to an estate, a probate proceeding is most likely required, which adds time and expense to the administration of an estate. The probate process can also leave an estate vulnerable to claims and litigation to the detriment of intended beneficiaries.

It is very easy to avoid the law of intestacy. To do so, you must create a valid Will or Trust. Your Will or Trust will designate the individuals to whom you wish to provide a bequest, and it will set forth the amount and manner in which those individuals receive their bequest. It is important to work with an experienced estate planning attorney to help you determine whether you need a Will or a Trust and what other important factors you need to consider in your plan to effectuate your legacy goals.

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