The creation of a valid Will in Nevada is governed by Chapter 133 of the Nevada Revised Statutes (NRS 133.020 et seq.). A Will is often referred to as a Last Will and Testament. In order to create a valid Nevada Will, there are certain requirements that must be met. In the creation of a Will in Nevada (or in any other state), it is important to ensure that all of the Statutory Will formalities that are specified in the law are met. Otherwise, the Last Will and Testament may be deemed to be invalid – or it to have some other unintended effect. In the event that the Last Will and Testament is deemed to be invalid (and there is no trust or other Will that is valid), the deceased person will be deemed to have died “intestate”. If a person dies intestate, through the probate process, the decedent’s estate will be distributed in accordance with the Chapter 134 of the Nevada Revised Statutes (NRS 134.005 et seq.), the law governing Intestate succession in Nevada.
The person creating the Will is called the “Testator” (for a male); “Testatrix” (for a female) (Hereinafter, we shall use only the term Testator, for simplicity’s sake). The term “Testamentary” means pertaining to a will or testament. In creating a Will, the Testator/Testatrix is making testamentary provisions – for the distribution of his/her property following his/her death.
The person that is designated by the Testator in the Will to represent the Estate is called the Executor (male) or Executrix (female). The Executor or Executrix may also be called the Personal Representative.
Nevada Will Formalities
In order to create a valid Will in Nevada, all of the following requirements must be met:
-The person must be at least 18 years old
-The person must be of sound mind
-The Will must be in writing (see below for exceptions for a Holographic Will or Electronic Will which are allowed in Nevada) – [a nuncupative or oral Will is invalid in Nevada, as it is in most or all states]
-The Will must be signed by the Testator (or by someone else at the Testator’s express direction)
-The execution of the Will by the Testator must be done in the presence of at least two competent witnesses who subscribe their names to the Will in the Testator’s presence (see below for more on Witnesses)
Important Note on Witnesses: Any devises (gifts) in the Will that are made to a subscribing Witness are void, as a matter of law (NRS 133.060). Therefore, it is always a good idea not to have any family member serve a witness to the Will and, more particularly, do not have anyone that is mentioned in the Will serve as a Witness to the Will – because that witness will end up receiving nothing.
Helpful Practice Tip – Self-Proving Affidavit: In Nevada, the Witnesses to the Will may sign “a declaration under penalty of perjury or an affidavit before any person authorized to administer oaths in or out of the State, stating such facts as the witness would be required to testify to in court to prove the will.” NRS 133.050. This is commonly referred to as a Self-Proving Affidavit of Execution. The Self-Proving Affidavit will negate the need to have the witnesses testify in the probate proceeding, as part of proving up the Will, that they witnessed the Will in the Testator’s presence.
NRS 133.050 specifies that the Self-Proving Affidavit must me in substantially the following form:
State of Nevada }
County of………………………… }
Then and there personally appeared ……………. and …………….., who, being duly sworn, depose and say: That they witnessed the execution of the foregoing will of the testator, …………….; that the testator subscribed the will and declared it to be his or her last will and testament in their presence; that they thereafter subscribed the will as witnesses in the presence of the testator and in the presence of each other and at the request of the testator; and that the testator at the time of the execution of the will appeared to them to be of full age and of sound mind and memory.
Subscribed and sworn to before me
this …… day of the month of …… of the year ……
A Holographic Will is a Will in which the date, signature and all material provisions are in the Testator’s own handwriting (a handwritten Will). A Holographic Will does not have to be witnessed or notarized to be valid. (However, proving up the Will – that it is actually the Testator’s own handwriting will be an issue in the probate process).
NRS 133.085 specifies the requirements to create a valid Electronic Will in Nevada.
NRS 133.085 reads as follows:
1. An electronic will is a will of a testator that:
(a) Is written, created and stored in an electronic record;
(b) Contains the date and the electronic signature of the testator and which includes, without limitation, at least one authentication characteristic of the testator; and
(c) Is created and stored in such a manner that:
(1) Only one authoritative copy exists;
(2) The authoritative copy is maintained and controlled by the testator or a custodian designated by the testator in the electronic will;
(3) Any attempted alteration of the authoritative copy is readily identifiable; and
(4) Each copy of the authoritative copy is readily identifiable as a copy that is not the authoritative copy.
2. Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of his or her estate, real and personal, but the estate is chargeable with the payment of the testator’s debts.
3. An electronic will that meets the requirements of this section is subject to no other form, and may be made in or out of this State. An electronic will is valid and has the same force and effect as if formally executed.
4. An electronic will shall be deemed to be executed in this State if the authoritative copy of the electronic will is:
(a) Transmitted to and maintained by a custodian designated in the electronic will at the custodian’s place of business in this State or at the custodian’s residence in this State; or
(b) Maintained by the testator at the testator’s place of business in this State or at the testator’s residence in this State.
5. The provisions of this section do not apply to a trust other than a trust contained in an electronic will.
6. As used in this section:
(a) “Authentication characteristic” means a characteristic of a certain person that is unique to that person and that is capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using a unique characteristic of the person.
(b) “Authoritative copy” means the original, unique, identifiable and unalterable electronic record of an electronic will.
(c) “Digitized signature” means a graphical image of a handwritten signature that is created, generated or stored by electronic means.
A Codicil is a supplement or addition to an existing Will. It may give clarification to or modify provisions of the Will. It may add to, subtract from or revoke a gift or devise to a recipient in the Will. It may make other changes to the Will. In short, the Codicil makes changes to the existing Will but it does not revoke or replace the entire Will.
REVOCATION OF A WILL
During the lifetime of the Testator, a Will may be revoked by the Testator at any time. A Will becomes firm, upon the death of the Testator.
WHAT A WILL DOES
Simply put, the function of a Last Will and Testament is to spell who gets what when the Testator dies. It allows for the Testator’s wishes in that regard to be carried out, rather than to have the property pass by Intestate Succession – which is what happens when a person dies owning property that does not have a Will. In the case of Intestate Succession, the Statute (law) in the state where the person dies or owns real property spells out who gets what and the no one has any say in the matter, including the now deceased person.
In any case, with or without a Will, you have a ticket to probate court and the probate estate has to go through the statutory process before anyone will receive anything from the estate. A Trust, on the other hand, will avoid probate of the estate (assuming that everything that the now deceased person had is owned by a trust). So, a Trust is really a Will substitute.