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Wills, Durable Powers of Attorney, Living Will
Creating an Estate Plan: If you’re looking to create a new Estate Plan or update an existing one, I can help. There’s lots of online options out there, but they might be a bad choice for you. Sometimes they are not that cheap or a faster solution, especially when you consider the signing process. A “real” in-person lawyer will make sure you have all your documents properly signed and notarized when you walk out of the office.
Everyone should have a Last Will & Testament and Durable Powers of Attorney, as a foundation. Estate Planning is also about reviewing how your property is titled (solely owned or jointly) and checking beneficiary designations on retirement plans, life insurance policies, and other assets that allow a beneficiary designation.
Protect your final wishes. If you do not have a Will, the State decides who inherits your property that is not controlled by beneficiary designation or other forms of joint ownership. Your Will describes how you want your property, accounts, digital assets, and more to be handled after your death.
Your Will also names an executor (a “Personal Representative” in Nebraska). If you have minor children, you should also name a Guardian for your children in your Will and Durable Powers of Attorney. These “candidates” named in your documents might be unable to serve at the moment they are needed, so you can also name successors or alternates. But don’t let the choice of alternates bog you down. If you only have one good candidate then name that person! The law has provisions to fill in the gaps.
Durable Powers of Attorney: When you give someone power of attorney you are giving them the authority to make decisions on your behalf should you become incapacitated in some way. A Durable Power of Attorney for Health Care and Durable Power of Attorney for Property (covering property and financial matters) are at least as important as having a Will. Your Durable Powers of Attorney can help you while you’re living. (Versus a Will just says where your property goes after you die).
Living Will: A “Living Will” as they are often called is different than a Last Will & Testament. In a Living Will you state the kinds of medical treatments you want, or do not want, if you become terminally ill or are unable to make decisions for yourself.
(The information provided on this web site blog is abbreviated to convey general information only. You should seek legal advice from an attorney in your State to apply to your particular situation).
Wills, Living Revocable Trust, Small Estates
Will versus Trust: It’s not widely known, but you can have trust provisions in a Will (it is called a “Testamentary Trust”) which most often are provisions for your children (or grandchildren). This can help ensure that trust assets are used for your children’s (or grandchildren) health, education, maintenance, and support while they are younger. Your trust can also specify the age when remaining assets are distributed outright to your children (or grandchildren).
You hear a lot about Living Revocable Trusts and I agree it can seem confusing.
A properly funded Living Revocable Trust can help avoid probate. If you own real property outside of Nebraska, you can avoid having an ancillary probate in a different state if your out-of-state property is titled to your Trust. But, Living Revocable Trusts are not a total solution:
- There is no income tax, estate tax, or inheritance tax advantage to a Living Revocable Trust versus a Last Will and Testament.
- There is no more asset protection with a Living Revocable Trust than compared to a Will.
- There is more work (and cost) to set up and maintain a Living Revocable Trust.
- There’s a lot of hype about Living Revocable Trusts being more private. Well, maybe in some states, but in Nebraska, after you die if an inheritance tax petition and worksheet is filed, your Trust Assets and “estate” are now public just like a probate case with a Will.
- The advantage of probating a Will through the court process ultimately means finality. Heirs won’t have to worry about a creditor or someone coming back asking for money.
- With a Living Revocable Trust, there is no cutoff of creditors’ claims unless a court probate is filed and completed.
Update! Small Estate Affidavit: As of July 21, 2022, if a decedent’s estate involves less than $100,000 (increased from $50,000) in personal property (and/or $50,000 or less in real estate) no probate is required.
By using a Small Estate Affidavit, the only legal preparation expense is the affidavit itself. The remaining work can be handled by a family member in an informal manner, to collect assets, pay bills, and distribute the remainder to your legal heirs. None of these steps needs to be filed with county probate court.
Probate, Estates, Inheritance Tax
Do you have a family member that has passed? I can help with your Nebraska Probate and Inheritance Tax questions.
Formal or Informal Probate: Probate is the legal process of submitting the decedent’s Will to your local county probate court, taking an inventory and accounting, paying claims, and finally distributing the property to the heirs according to the Will.
An attorney is normally required to file a probate estate in your local county court. Not having a Will can make the process more costly.
Estate Tax: As of 2022, most people will not pay Federal Estate Tax because the exemption amount is $12.06 million ($24.12 million for a married couple). Nebraska’s Estate Tax was repealed in 2007.
Inheritance Tax: Nebraska is one of a handful of states with an inheritance tax. A surviving spouse is always exempt from inheritance tax, but property passing to other heirs may be taxed. (Note: Life insurance proceeds are exempt as long as the beneficiary is not “My Estate.”)
Inheritance tax is class based. The tax is paid to the county where the decedent resided or had real property in the State:
- CLASS 1: 1% tax child (or father, mother, grandfather, grandmother, brother, sister) with a $40,000 exemption per such person.
- CLASS 2: 13% tax to more remote relatives, e.g. nieces/nephews ($15,000 exemption per heir)
- CLASS 3: 18% tax to others, i.e. friends ($10,000 exemption per heir)
Inheritance Tax Update! The Governor signed a significant revision to Nebraska’s inheritance tax laws, going into effect January 1, 2023:
- CLASS 1: Exemption increased to $100,000 per child (or father, mother, grandfather, grandmother, brother, sister).
- CLASS 2: Tax rate reduced to 11% and exemption increased to $40,000 per heir.
- CLASS 3: Tax rate reduced to 15% and exemption increased to $25,000.
- Exemption from any tax for persons inheriting who are under the age of twenty-two.
For the full and current inheritance tax law see Neb. Rev. Stat. 77-2004 et. seq. https://nebraskalegislature.gov/laws/statutes.php?statute=77-2004
Graduate of Creighton School of Law (Omaha, NE)
Honors: Creighton School of Law Domestic Moot Court Board
Admitted to Nebraska State Bar – 1997
Married 20+ yrs with four great kids
Supporter of the Boy Scouts of America
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Probate, Wills, Powers of Attorney, Trusts, & Estates.
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Law Office in Old Mill
711 N 108th Court
Omaha, NE 68154