Select Page

Trusts and Wills
University of Nebraska School of Law
Lyons, William "Bill" H.

Wills and Trusts – Outline

I. Introduction
A. Will formalities
1. Capacity
2. Intent to create a will
3. If attested, must be signed, witnessed, ???
4. If holographic, must be ????
5. Contracting that avoids will/intestancy
B. Certain contracts will affect whether property needs to be disposed of by will/intest
1. Probate property is the property subject to will or intestancy
2. Joint tenancy w/housing is common among spouses
a. Right of survivorship passes interest to surviving joint tenant
b. Contract controls
c. Thus, property is non-probate
3. Contracts w/payable on death provisions
a. Pensions, IRAs
b. Must create a death beneficiary
1) Beneficiary has a survivor benefit
c. Thus contract (nonprobate) controls
4. Life insurance
a. For 30 year olds, should be 5-10 times annual salary
b. Payable to declared beneficiaries
5. Bank accounts
a. Usually, contract for account controls transfer upon death
b. Often create joint account or indicate beneficiary
6. Stocks
a. Often created b/w couple as joint tenancy
b. Inv. Co. contract may be a joint contract = nonprobate
7. Autos
a. Usually, title of care is in both spouses names
C. Importantly, many of the contract do not avoid death taxes
1. Transfer of interest under joint tenancy is taxable
a. Estate tax – federal level
b. Inheritance tax – state level
1) Tax on beneficiaries, rather than on estate
2. Pension plans
a. Considered part of estate = estate tax
b. Often, part of inheritance tax
1) NE
3. Life insurance
a. Subject to estate tax
b. Not usually subject to inheritance tax

II. INTESTACY: ESTATE PLAN BY DEFAULT
A. BASIC SCHEME
1. Intestacy Estate
a. Distribution under State Law (default) – Personal and Real Property
1

00, plus 1/2 of any balance, if decedent has non-descendants of surviving spouse
f) NE and many other states do not permit surviving spouse to take entire amount
g) If only decedent parents, then spouse gets first 50,000 and 1/2 of rest
(1) Parents get rest
(2) Type of social security
2. NE – §30-2302
a) Intestate share of spouse is;
(1) Entire estate – if no surviving issue or parent
(2) First $50,000 and ½ Estate – if no surviving issue but there are surviving parent(s)
(3) Same – if surviving issue and all are issue of surviving spouse
(4) ½ Estate – if surviving issue and one or more are not issue of surviving spouse
b. Share of Heirs Other Than Surviving Spouse
UPC – §2-103 (p. 61)