A will is considered to be a legal instrument that allows an individual to distribute his or her property in accordance with their particular wishes. When a person dies with a valid will, the testator, or the individual with the valid will, is said to die. However, if an individual dies without a will, they are said to die intestate. Without having the legal instrument to dictate where, who, when,, and how an individual’s property will be distributed upon death, an individual will have “an estate plan by default,” meaning that their property will be disposed of in accordance with a prescribed method of distribution by way of applicable law.
Under the Uniform Probate Code, specifically UPC § 2-101 through 2-105, there are a variety of factors that are determinative of who receives a portion of the estate based upon which takers are alive or deceased at the moment of the intestate individual’s death. For instance, if an individual only has a spouse, and does not have any descendants or parents, the entire disposition will be given to the spouse. If the intestate individual dies with a spouse and descendants, the disposition will depend on how many descendants are the intestate individual’s. These prescriptions are meant to distribute property accordingly in a way that would allow living takers to receive the benefit of the property before the property escheats to the state. “Escheating” to the state means that the entire property would be given to the state government. Under the Uniform Probate Code, a spouse, descendants, surviving parents of the decedent, surviving siblings of the decedent, surviving grandparents of the decedent, and the surviving descendants of the grandparents would be eligible to receive a portion of the estate before the property escheats to the state. Typically, the spouse would take precedence over all relatives, followed by descendants of the deceased.
Some state’s intestacy laws contain several similarities to the Uniform Probate Code’s prescription of disposition but maintain several differences. Some state’s intestacy prescriptions are governed by NRS § 134. The similarities between certain state’s intestacy laws and the UPC’s prescriptions of intestacy are mainly when an individual has children without any spouse, parents, or siblings; or when an individual has a spouse, without any children, parents, or siblings. Just as in the UPC, the children and the spouse would, respectively, inherit the entire estate. Where the differences exist between the two bodies of law begin when an individual has a spouse and children. Under the UPC, the presumption of inheritance if all of the decedent’s descendants are all of the spouse’s children is that the spouse would inherit the entire estate. If the decedent has a spouse and one child, the spouse will inherit all of the community property and one-half of the separate property, while the child will inherit the other half of the separate property. When there is more than one child that is both the decedent’s and the spouse, the spouse inherits all of the community and one-third of the separate property, while the children receive an equal share the other two-thirds of the separate property.
The importance of creating a will is to have your property distributed in accordance with your intentions and wishes. The issue with dying intestate is that the government allocates property in a fashion that may not necessarily be the wishes of the decedent. Drafting a complete will that dictates the exact methods that you wish your property to be distributed in various situations where a relative may predecease the testator creates security and certainty as to what manner the decedent’s property will be distributed.