How to Make a Will

By January 18, 2017 January 23rd, 2017 Estate Planning
Typewriter how to make a will

Like most states, Nevada has very strict requirements for creating a Last Will and Testament. These requirements are found in Chapter 133 of the Nevada Revised Statutes.  This post will walk you through the requirements and tell you the Who, What, and How of creating a Will in Nevada.

The Who

Any person over the age of 18 and who is of “sound mind” may create a Will in Nevada.  NRS 138.020. “Sound mind” means that the person creating the Will (known as the “testator”) must understand the nature and extent of his or her property, as well as the effect of the Will on the distribution of his or her property.

The What

Generally speaking, a Will in Nevada must be in writing. NRS 138.040. There is a limited exception for “electronic wills,” but such wills are beyond the scope of this post.  Take note that this means a video will is not legally effective.  Unlike the movies, you cannot record yourself on video describing how your property should be distributed.  In such a case, the probate court will disregard your video will and distribute your property as if you died intestate.

The exact contents of the Will depend on individual circumstances.  However, the following features should be present in every Will in Nevada:

  • The Will should clearly state that the testator intends for it to serve as his/her Last Will and Testament.
  • The Will should state that the testator is of “sound mind” and over the age of 18.
  • The Will should state whether or not the testator is married and has children.  If so, it should provide the identities of the testator’s spouse and/or children.
  • The Will should provide for the distribution of the testator’s property, including the “residuary” of the testator’s estate.
  • The Will should provide for the distribution of the testator’s property in the event that the intended recipient dies before the testator
  • If the testator has minor children, the Will should nominate guardians for them

How To Make A Will: The How

Arguably the most important part of creating a Will in Nevada is the signing and witnessing of the Will, otherwise known as the execution.  A Will that is improperly executed is invalid, so great care must be taken to make sure that everything is done correctly.

Under NRS 133.040, a Will must be signed in the physical presence of two witnesses who actually watch the testator sign it.  There is an actual court case where a Will was found invalid because one of the witnesses walked into the adjoining room while the testator was signing the Will.  That’s how strict these requirements are interpreted by the courts.

Also, the witnesses must sign the Will after the testator in his or her presence, as well as the presence of one another.  This means that when executing a Will, the testator and both witnesses should remain together in the same room until everyone has finished signing the Will in order to avoid any potential problems.  Note: a witness cannot be someone who is going to inherit under the Will.  NRS 133.060.

Lastly, although not strictly required by law, it is a very good idea for the Witnesses also sign a “Self-proving Affidavit” or an “Attestation Clause.”  These are separate from the Will and are taken as proof by the Court that all of the requirements for executing the Will were actually followed by the parties, which can help avoid troublesome challenges to the Will’s execution. Samples are provided in NRS 133.050.

Conclusion

After the Will is signed and witnessed, it is legally effective.  The originals should be kept in a safe place and a copy given to the person(s) named as executor. If you have any other questions about how to make a Last Will and Testament in Nevada, please contact us.