If someone dies with a valid will, the will leaves instructions about who should manage his estate and who should inherit his property. But, when a person dies without a will, he is said to have died “intestate” and Nebraska’s laws of intestate succession govern the way his estate is managed and distributed.
An estate must go through the probate process, even when the decedent dies intestate. A probate case begins when someone files an application for intestate probate in Nebraska. This opens the estate for claims and contests. Typically, one of the court’s first acts is to appoint a personal representative to manage the estate. The decedent’s surviving spouse has priority under Nebraska law, followed by other heirs. If no personal representative is appointed within 45 days after the decedent dies, any of his creditors can ask to be appointed as personal representative.
Probate Vs. Non-Probate Assets
Not all assets transfer from a decedent through the probate process. For non-probate assets, it does not matter whether or not a decedent had a will since the transfers are outside probate. Generally, non-probate assets include any assets to which the title was transferred before the decedent died, by right of survivorship or by contract. For example, life insurance is often a non-probate asset; it pays directly to beneficiaries without going through a court process.
Settling the Estate
In Nebraska, the overall process for administering an estate when the decedent dies intestate is largely the same as when the decedent dies with a will. The estate’s personal representative must gather the estate’s assets and inventory them, notify and pay the decedent’s creditors and distribute any remaining assets to the decedent’s heirs. However, since there is no will to guide the personal representative, he must act according to the terms of Nebraska law instead of the terms of a will.
The biggest difference between probate with a will and without a will is that state law determines the intestate decedent’s heirs. Nebraska law presumes that the state knows who the decedent would have wanted to leave his property to. Under Nebraska law, the decedent’s surviving spouse inherits his entire estate if he had no children or surviving parents. If he had a surviving parent or children from the marriage, the surviving spouse inherits the first $100,000 from the decedent’s estate plus half the rest of the estate. If the decedent has at least one child from a previous relationship, the surviving spouse inherits half the estate. The remainder of the estate, or the whole estate if there is no surviving spouse, goes to his children. If the decedent has no surviving spouse, descendants or parents, Nebraska law provides further guidance for distribution.
- Kellogg & Palzer, P.C.: Omaha Probate Lawyers
- Whelan Law Office: Probate/Wills
- Nebraska Legislature: Nebraska Revised Statutes Chapter 30
- Whitmore Law Office: FAQs – Wills
- Cornell University Law School: Legal Information Institute: Non-Probate Assets
- Nebraska Legislature: Nebraska Revised Statutes Chapter 30-2302
- Nebraska Legislature: Nebraska Revised Statutes Chapter 30-2303