Can I appoint
guardian for my children in my will?
What is a personal representative?
Does the personal representative have to live in
Nebraska?
What are the personal representative’s duties
and obligations?
Can more than one person be named as personal
representative?
Can I dispose of my property in any way I wish?
Should I leave a separate list disposing of
personal property?
How can a person contest a will?
How can a will save money?
Must the will be read to the family?
Why must an estate go through court?
When should I make a will?
| Can I appoint guardian for my children in my will? |
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You may designate in your will the person or persons you would like the court to appoint as guardians of your minor children. While this is not binding on the court, the wishes expressed in a will are usually followed, provided that the persons named are willing to serve as guardians, and that the court finds the appointment to be in the best interests of the children. If you die without a will, the court may appoint a guardian for your minor children without knowing your wishes.
| What is a personal representative? |
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"Personal representative" is the name now used for what once was called an executor or an administrator. You can designate in your will who is to be the personal representative of your estate. If you do not designate a personal representative, your surviving spouse has first priority for appointment as your personal representative. Next in order of priority would be other heirs. If no personal representative has been appointed within 45 days after your death, any creditor can apply for appointment. Any person appointed as personal representative must be at least 19 years of age.
| Does the personal representative have to live in Nebraska? |
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It is not required by law that the personal representative be a resident of Nebraska, as long as the person named is otherwise qualified by age and suitability.
| What are the personal representative’s duties and obligations? |
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In general the duty of the personal representative is to settle and distribute the estate of the decedent. More specifically, the personal representative must give notice of his or her appointment to interested persons, prepare an inventory of property owned by the "decedent" (the person who died), take possession and control of the decedent’s property, pay taxes, claims and expenses of administration and distribute the property according to the will or according to the laws if there is no will.
| Can more than one person be named as personal representative? |
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You may appoint one or more persons as co-personal representatives or you can appoint successors to take over in the event your first choice for some reason cannot perform the duties of the personal representative.
| Can I dispose of my property in any way I wish? |
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Yes, except that you may not be able to prevent your spouse from receiving a portion of your estate. Additionally, a joint tenant cannot prevent the surviving joint tenants from becoming owners of jointly owned by rights of survivorship.
| Should I leave a separate list disposing of personal property? |
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You can leave a separate list, dated and signed, disposing of personal property. To make that separate list effective, however, you must have a will and the will must make specific reference to that separate list. The advantage of such a list is that it can be changed without actually having to change the will.
| How can a person contest a will? |
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A will contest is commenced by an interested person filing objections to the probate of the will with the court. The will contest must be commenced within three years after death or within twelve months after an informal probate of the will, whichever is later.
| How can a will save money? |
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A properly written will can reduce death taxes, thereby leaving more of your estate for you family. It also gives you the choice of appointing a competent person as the personal representative. In addition, your will can provide that the personal representative need not post bond, which saves the estate the expense of paying the premium on the bond. A will can authorize your personal representative to sell real estate without the necessity of going through a court hearing to get authority to sell.
| Must the will be read to the family? |
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This is a popular misconception. There is no requirement in the law for a "reading of the will." When a will is filed with the court, it becomes a public record and anyone may see it. The law does require that notice be given to all interested persons of the probate of a will so that they have an opportunity to protect their interests. Interested persons may request advance notice of any order entered by the court or of the filing of any document pertaining to an estate.
| Why must an estate go through court? |
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Upon your death, your debts must be paid out of the property you leave. There must be a determination of whether there are debts due to creditors or taxes due to the state or federal government. The law provides for time limits in which creditors may make claims against an estate, and upon proper procedure through court, claims not filed are no longer a legal debt.
| When should I make a will? |
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You should make a will now. A prudent person does not wait for a catastrophe or other compelling reason to begin planning his or her estate. You can always make changes in your will should circumstances so dictate.
You should review your estate plan with your attorney periodically. Changes in your property holding, your family periodically. Changes in your property holding, your family (marriage, death, divorce) and simply inflation in values can change the results of your intent, which has been expressed in the will. Changes in the tax laws can substantially affect the intent that you had when making the will. Review your own will annually; review it with an attorney when family changes occur and at least every three years.
