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Validity of a Will in Clark County Nevada

Posted on May 4, 2022 in asset protection,estate planning,probate,trust

Once someone passes away, a will, or something that you think could resemble a will, should be submitted to the court following the death of the person who wrote the will, and the court will decide whether it should be found valid.

Nevada law provides that any individual over the age of 18 who is of sound mind may dispose of his or her estate through a will. (NRS 133.020.) To determine if the testator (writer of the will; the decedent) was of “sound mind” and had “testamentary capacity,” the testator must know the extent of what he owns, the extent of his or her family, and the ability to form a rational plan for the distribution of his or her estate.

Wills must be in writing (not oral), signed by the testator or by someone directed by the testator, and signed by two competent witnesses. (NRS 133.040.) A will can also contain a self-proving declaration where a notary public attests to the witnesses’ signatures. (NRS 133.055.)

Wills that are entirely handwritten and signed only by the decedent are called holographic wills. In Nevada, holographic wills are acceptable so long as they are (1) dated; (2) signed; and (3) contain provisions that say who gets what upon death. (NRS 133.090.) To prove a holographic will was really the decedent’s will, you might need to give the court either (1) two affidavits from two “non-takers” (people who will not get anything under the will) saying that they knew the decedent’s handwriting or (2) a handwriting expert’s testimony.

Electronic wills are also sometimes valid in Nevada. They do not require witnesses, but they must be written, created and stored in an electronic record; contain the date and electronic signature of the testator which includes at least one authentication characteristic of the testator; and be created and stored in a way that (1) only one authoritative copy exists; (2) that the copy is maintained and controlled by the testator or a custodian designated by the testator; (3) that any attempted alteration of the authoritative copy is readily identifiable; and (4) that each copy of the authoritative copy is readily identifiable as a copy. (NRS 133.085.)

A will is only filed once a person has passed away.  In most states, anyone who comes into possession of an original signed will of a deceased person is required by law to file (record) it in the courthouse of the county where the person resided.  In Nevada NRS 136.050(1) states: “Any person having possession of a will shall, within 30 days after knowledge of the death of the person who executed the will, deliver it to the clerk of the district court which has jurisdiction of the case or to the personal representative named in the will.”  This means that the original will must be filed or lodged with the Clerk of the Court.  This begins the probate process.