Writing a will the right way

 

A Last Will and Testament is the estate planning document that everyone should have, regardless of one’s wealth or family circumstances. Depending on the intricacies of one’s estate and personal situation, as well as one’s budget, a Will can be drafted by an attorney or can be prepared by the testator themself, either by using an online form or following drafting instructions.

Nevada, like most states, has very strict requirements for making a Will. They are listed in Chapter 133 of Nevada Revised Statutes. When choosing to draft one’s own Will, it is recommended to become familiar with this statute and to follow the statutory rules rather than using an online form of uncertain origin.

Any person over the age of eighteen who is of “sound mind” may draft their own Will in Nevada. “Sound mind” means that a person had a testamentary capacity when executing the Will. Such capacity includes understanding that a person is executing a document that disposes of their property upon death, the understanding of the nature and location of one’s property, and the understanding of one’s relationship to the people affected by the Will. The Nevada Supreme Court clarified that a test of testamentary capacity does not involve the ability to enter into complex contracts. The threshold is that a person understands what they own, how they want it distributed upon their death, and who their natural heirs are.

A diagnosis of dementia, Alzheimer’s, or other degenerative diseases, or even being in a guardianship, does not necessarily mean there is a lack of testamentary capacity. Such capacity can be inferred from the Will itself. Otherwise, the court will rely on medical records and expert testimony to determine whether or not the testator had testamentary capacity. While the threshold is rather low, certain suspicious circumstances can lead to a presumption that a Will is invalid and it becomes the burden of the proponent of the Will to prove the existence of testamentary capacity.

In general, a Will in Nevada must be in writing. There is a limited exception for electronic wills but those follow their own set of rules. Unlike seen in the movies, a Will cannot be recorded on video. Such video would be disregarded by court and the distribution to heirs would occur pursuant to the statutory rules.

There are certain elements that should be present in every Nevada Will: it should state that the testator intends for it to serve as his or her Will; it should confirm that the testator is at least eighteen years old and of “sound mind”; it should acknowledge the testator’s spouse and children, if any; and it should state the testator’s desired distributions of the estate and the alternate beneficiaries. Sometimes other elements should be included, like the designation of a guardian for minor children.

A Nevada Will should be signed in the physical presence of two witnesses who watch the testator sign the Will. Then, the witnesses have to sign the Will after the testator in his or her presence and the presence of each other. Both witnesses have to be uninterested; meaning, they cannot inherit under the Will, or the gift to such witness is invalid. It is a good practice for the witnesses to sign a “self-proving affidavit” which offers a proof to the court of all the requirements being met. An improperly executed Will is invalid. Once signed, the original Will should be kept in a safe place.

As initially stated, when creating one’s own Will, the Nevada Revised Statutes should be applied. The safest option would be to hire a professional.


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