09 January

What Happens to an Estate if There is No Will or Trust?

My Mom died this past year. I am not sure if she had a will. If she did have a will or did not, am I entitled to any of her estate? How may I find out?

If Mom had no will, then she is described as dying “intestate,” which simply means she died without any document legally outlining the distribution of her estate.

The most common documents to set forth distribution of the estate are the Will and the Trust.

If Mom had a will or trust, then she did not die intestate and the distribution of her estate is governed by the will and/or trust.

What happens to the estate if there is no will or trust?

If there is no will or trust, and if there are assets remaining to be distributed for which there has been no designated beneficiary, such as a named beneficiary on a life insurance policy or a retirement account, then such assets will pass to Mom’s heirs under the intestacy laws. (We will assume Mom died in Nevada.)

Nevada's Intestacy Law: Separate Property

Generally, with regard to Mom’s separate property (as opposed to community property), Nevada law leaves one-half of the estate to Mom’s only child and one-half to Mom’s husband.

If she was not married, then the entire estate would pass to the child.

If there is more than one child, and if there is a husband, then he gets one-third of Mom’s separate property and the two or more children equally divide the other two-thirds.

Obviously, if Mom was not married at her death (and there is no common law marriage in Nevada for people living together without being formally married), then the children will share equally in the estate.

If a child is deceased but is survived by children of his/her own, then those children of the deceased child share their deceased parent’s share of Mom’s estate.

Nevada's Intestacy Law: Community Property

If Mom was married, any of her property which is considered to be community property will, under intestacy, pass entirely to her husband.

Community property is generally defined as property acquired during the marriage, usually as a result of working and saving to acquire such property.

Inherited property or property brought into the marriage, is generally separate property and will be split between husband the children as described in the previous paragraph.

What happens to the estate if there is a will or trust?

If Mom had a will or trust, normally the estate will be distributed according to the terms of the will.

If you as a child are not included in the will or trust, then you likely have no claim on the estate if the will and/or trust is/are valid.

The law used to provide that if a child was not specifically disinherited in the will, then that child could claim a share of the estate as a “pretermitted heir,” which is a term which assumes that if a child is not named, then that child was inadvertently left out, and so will receive a child’s share.

Nevada law has changed this law to say if a child is not included, then it is assumed it was Mom’s intent to not include that child, and it will be up to the child to prove that she was intended as an heir, something which would be very hard to prove.

Obtain a Copy of the Will

As a child, you have a right to obtain a copy of the will which is to be admitted to probate Mom’s estate. Probate is a public matter, so the will is open to the public. The will is available through the probate court.

Upon receiving a copy of the will, you may determine what rights, if any, that you may have in the estate, and the executor of the will is legally obligated to honor those rights.

The probate judge and the attorney for the executor are there to ensure that Mom’s wishes concerning distribution of the estate, as set forth in the will, are carried out.

In addition, if it is worth it, you may want to hire your own probate attorney to oversee the estate administration process to make sure you are being treated according to the terms of the trust or will.

Obtain a Copy of the Trust

A trust is not a matter of public record so you may need to dig a little deeper to obtain a copy of Mom’s trust.

If you are named in the trust as a beneficiary, the Trustee must inform you of this fact and you will be entitled to receive a copy of the trust with respect to those provisions of the trust which describe what you will be inheriting from the estate.

Because the administration of a trust is a private matter, often not coming before the court system, it may be difficult to find out who is overseeing the process of administering Mom’s trust, but a little effort will usually result in finding out who is in charge, following which, your attorney can then obtain a copy of those portions of the trust document which deal with your share of the estate.