Wills, Durable Powers of Attorney, Living Will

Creating an Estate Plan: If you’re looking to create a new Estate Plan or update an existing one, I can help.

Everyone should have a Last Will & Testament and Durable Powers of Attorney, as a foundation. Estate Planning is also about reviewing how your property is titled (solely owned or jointly) and checking beneficiary designations on retirement plans, life insurance policies, and other assets that allow a beneficiary designation. 

Protect your final wishes. If you do not have a Will, the State decides who inherits your property that is not controlled by beneficiary designation or other forms of joint ownership. Your Will describes how you want your property, accounts, digital assets, and more to be handled after your death.

Your Will also names an executor (a “Personal Representative” in Nebraska). If you have minor children, you should also name a Guardian for your children in your Will and Durable Powers of Attorney. These “candidates” named in your documents might be unable to serve at the moment they are needed, so you can also name successors or alternates. But don’t let the choice of alternates bog you down. If you only have one good candidate then name that person! The law has provisions to fill in the gaps.

Durable Powers of Attorney: When you give someone power of attorney you are giving them the authority to make decisions on your behalf should you become incapacitated in some way. A Durable Power of Attorney for Health Care and Durable Power of Attorney for Property (covering property and financial matters) are at least as important as having a Will. Your Durable Powers of Attorney can help you while you’re living. (Versus a Will just says where your property goes after you die).

Living Will: A “Living Will” as they are often called is different than a Last Will & Testament. In a Living Will you state the kinds of medical treatments you want, or do not want, if you become terminally ill or are unable to make decisions for yourself.

(The information provided on this web site blog is abbreviated to convey general information only. You should seek legal advice from an attorney in your State to apply to your particular situation. Any expertise, obligations or duty with respect to compliance with the Americans with Disabilities Act of 1990 as amended are hereby disclaimed).

Wills, Living Revocable Trust, Small Estates

Will versus Trust: You can have trust provisions in a Will (it is called a “Testamentary Trust”) which most often are provisions for your children (or grandchildren). This can help ensure that trust assets are used for your children’s (or grandchildren) health, education, maintenance, and support while they are younger. Your trust can also specify the age when remaining assets are distributed outright to your children (or grandchildren).

A properly funded Living Revocable Trust can help avoid probate. If you own real property outside of Nebraska, you can avoid having an ancillary probate in a different state if your out-of-state property is titled to your Trust. But, Living Revocable Trusts are not a total solution:

• There is no income tax, estate tax, or inheritance tax advantage to a Living Revocable Trust versus a Last Will and Testament.
• There is no more asset protection with a Living Revocable Trust than compared to a Will.
• There is more work (and cost) to set up and maintain a Living Revocable Trust.
• The advantage of probating a Will through the court process ultimately means finality. Heirs won’t have to worry about a creditor or someone coming back asking for money.
• With a Living Revocable Trust, there is no cutoff of creditors’ claims unless a court probate is filed and completed.

Small Estate Affidavit: As of July 21, 2022, if a decedent’s estate involves less than $100,000 (increased from $50,000) in personal property (and/or $50,000 or less in real estate) no probate is required.

Formal or Informal Probate: Probate is the legal process of submitting the decedent’s Will to your local county probate court, taking an inventory and accounting, paying claims, and finally distributing the property to the heirs according to the Will.

Inheritance Tax: Nebraska is one of a handful of states with an inheritance tax. A surviving spouse is always exempt from inheritance tax, but property passing to other heirs may be taxed. (Note: Life insurance proceeds are exempt as long as the beneficiary is not “My Estate.”)

For the full and current inheritance tax law see Neb. Rev. Stat. 77-2004 et. seq. https://nebraskalegislature.gov/laws/statutes.php?statute=77-2004