Purpose of a Will
A will is designed to tell a Probate Court how property should be divided upon death. If a person dies without a Will, the person's property will be divided according to the Law of Intestate Succession. For example, if a single parent died leaving 3 adult children, each child would receive a 1/3 share if there were no will. For more information see If You Die Without A Will.
Functions of a Will
In addition to letting you custom tailor the distribution of your assets, a Will can perform these additional functions:
- Allow your executor to serve without the expense of posting a bond and/or without trusting the Estate's money to a lawyer's trust account
If you die without a Will a relative can apply to be the administrator, and the relative will not have to post a bond if the application states that all funds collected will be held in the probate attorney's trust account.
At Reed & Mansfield in a case like this we will set up a special sub-account of our trust account with its own account number for the estate if there would be significant interest earned, otherwise we can use our regular trust account. (Interest on all attorney trust accounts with funds from more than one client go the State Bar of Nevada's fund for legal aid.)
- Contain A Testamentary Trust
For example, parents with young children can specify who would hold their money for their minor children if the parents die while the children are still minors. The parents could also specify at what age the children would get the money. Without such a "testatmentary trust" provision, the minor children would get all of their money at age 18.
- Express Desires As To Who Will Raise Any Children Before They Become Adults
A Will is an appropriate place for parents of minor children to express their desires as to who will raise the children if they die before the children become adults. The issue of who has control of minor children is always determined by the "best interests of the children" standard, but a Court in trying to decide what is in the best interest of the children may be strongly influenced by what the now dead parents wrote in their Will.
- Possibly Avoid a Transfer Tax When The Property Owner Dies
When ownership of real estate is transferred from one person to another all of the Nevada counties impose a real estate transfer tax unless certain exceptions are met. The two relevant exceptions for this discussion are:
- There is no tax if the transfer is between parent and child or between spouses, and
- There is no tax due if the transfer is by will.
So, if the people who would inherit without a will are not spouses or children or parents, transferring by the will is one way to avoid a transfer tax when the owner dies.
A Will is only effective if it goes through the probate process which can be time-consuming, and even in the absence of disputes, will usually involve legal fees and costs of two, three, or even four or more per cent of the assets.