Recent Changes to the Probate Code are an even better reason to have a Will or Trust. In their absence your estate may go to nieces and nephews in greater shares than you might expect.

Changes made to Nevada law during the last Nevada Legislative Session include a change to NRS 134.060 for people that die without a Will or Trust, and are not survived by parents or offspring. In such cases, the Nevada laws on intestate succession (i.e. death without a Will or Trust) dictate how the estate is to be distributed.

Prior to the law change, the estate would be distributed to the brothers or sisters of the decedent in equal shares. If any of those brothers or sisters had died first, but left heirs, then the share that would have gone to the deceased brother or sister would be divided equally among the heirs of that brother or sister. It would not affect the shares given to the living brothers or sisters. The principle of transferring the share to living heirs is known as receiving an estate “per stirpes,” or commonly in statutes, by “right of representation.”

In a simple example, suppose Joe died with no spouse, no children (no offspring) and no living parents, Joe’s siblings – Mable, Lucy and Jake would each take one-third. If Mable were predeceased, but had four kids, her kids would share Mable’s one-third.

However, NRS 134.060 was amended by Senate Bill 420 and the language “right ofrepresentation” was changed to “in equal shares, per capita”. Per capita means that all eligible recipients get an equal share. So in our example above, the estate would be split in six equal shares; one for Lucy, one for Jake, and one for each of Mable’s four kids reducing Joe’s siblings, Lucy and Jake’s share in half in favor of Joe’s nieces and nephews.

The Legislature has changed the effective distribution scheme among Joe’s siblings from one-third, one-third, one-third, to one-sixth, one-sixth, two-thirds. It is very unlikely that a person would intentionally designate their estate to go this way.

The stated intent of the proponents of SB 420 was simply to cut off the distribution of the estate at the niece and nephew level. The changed statute does do that, but it also, perhaps unintentionally, changes the percentages that each beneficiary receives. In reviewing the legislative testimony, it appears that the bill proponents did not realize that this change was being made as their examples to the legislative committee did not follow the plain language of the change to NRS 134.060. However, their intent is of little consequence since Courts do not look to legislative intent unless the language is
ambiguous. Here the language is not ambiguous. Indeed, a senior judge with over 30 years of experience presiding over estate matters confirmed that the language would not be read by him as ambiguous and thus would result in the six-way split in the above example.

There are other results under intestate succession that most people would not expect. For example if Joe had died leaving a spouse and four children, would you have guessed that his estate is split one-third to his spouse and two-thirds split equally among his children? Probably not.

What is the best course to take? Execute a Last Will and Testament, or better still, avoid the costs of probate by creating a Trust. Even the most simple of estate planning would avoid these problems and a host of others that the law dictates for those without Wills or without Trusts.

Questions or Additional Information
With questions or requests for additional information, please contact Steve Tackes at 775.884.8300 or stackes@kkbrf.com; Steve Pacitti at 702.792.7000 or spacitti@kkbrf.com; Alexis Michaud at 702.792.7000 or amichaud@kkbrf.com.

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