General DefinitionAny part of the estate of a decedent not effectively disposed of by his will. Sec. 30-2301.
Order of DistributionThe intestate share of the surviving spouse is:
- if there is no surviving issue or parent of the decedent, the entire intestate estate;
- if there is no surviving issue but the decedent is survived by a parent or parents, the first one hundred thousand dollars, plus one-half of the balance of the intestate estate;
- if there are surviving issue all of whom are issue of the surviving spouse also, the first one hundred thousand dollars, plus one-half of the balance of the intestate estate;
- if there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate. Sec. 30-2302.
The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, passes as follows:
- to the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
- if there is no surviving issue, to his parent or parents equally;
- if there is no surviving issue or parent, to the issue of the parents or either of them by representation;
- if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
- if there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent, the entire estate passes to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through a more remote ancestor. Sec. 30-2303.
If there is no taker under Nebraska law, the intestate estate passes to the state. Sec. 30-2305.
Common Law or Community PropertyNebraska is a common law, elective share state.
CapacityAny individual who is eighteen or more years of age or is not a minor and who is of sound mind may make a will and dispose of personal and real property at and after death and prescribe, to the extent not otherwise controlled or limited by this code, the manner of administration of his estate and conduct of his affairs after death and until final settlement of his estate. Sec. 30-2326.
DraftingEvery will is required to be in writing signed by the testator or in the testator's name by some other individual in the testator's presence and by his direction, and is required to be signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Sec. 30-2327.
An instrument which purports to be testamentary in nature but does not meet the requirements of a formal will is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of signing are in the handwriting of the testator and, in the absence of such indication of date, if such instrument is the only such instrument or contains no inconsistency with any like instrument or if such date is determinable from the contents of such instrument, from extrinsic circumstances, or from any other evidence. Sec. 30-2328.
Any individual generally competent to be a witness may act as a witness to a will. A will or any provision thereof is not invalid because the will is signed by an interested witness. Unless there is at least one disinterested witness to a will, an interested witness to a will is entitled to receive any property only to an amount or extent not exceeding that which is or would be the intestate share of such interested witness if the testator died intestate at the date of death. Sec. 30-2330.
Any will may be simultaneously executed, attested, and made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal. Sec. 30-2329.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
ModificationsA will or any part of a will is revoked:
- by a subsequent will which, as is evident either from its terms or from competent evidence of its terms, revokes the prior will or part expressly or by inconsistency; or
- by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the presence of and by the direction of the testator. Sec. 30-2332.
Naming of Personal RepresentativeTo acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 30-2403.
No person is qualified to serve as a personal representative who is:
- Under the age of nineteen;
- A person whom the court finds unsuitable in formal proceedings. Sec. 30-2412(f).
Persons who are not disqualified have priority for appointment as personal representative in the following order:
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will;
- The surviving spouse of the decedent who is a devisee of the decedent;
- Other devisees of the decedent;
- The surviving spouse of the decedent;
- Other heirs of the decedent;
- Forty-five days after the death of the decedent, any creditor. Sec. 30-2412(a).
Submission of WillAfter the death of a testator and on request of an interested person, any person having custody of a will of the testator is required to deliver it with reasonable promptness to a person able to secure its probate and, if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. Sec. 30-2356.
To be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registrar or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if specific conditions are met. Sec. 30-2402.
NotificationsNotice must be given in the manner prescribed by Sec. 30-2220 by the petitioner to the surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the clerk will publish notice to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated in accordance with Sec. 30-2220(a)(2). Sec. 30-2427.
InventoryWithin three months after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, must prepare and file an inventory of property owned by the decedent at the time of death, listing it with reasonable detail and indicating as to each listed item its fair market value as of the date of the decedent's death and the type and amount of any encumbrance that may exist with reference to any item. The personal representative must send a copy of the inventory to interested persons who request it and shall file the original of the inventory with the court. Sec. 30-2467.
Elective Share, Homestead, Family Allowance and Exempt Property:
If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share in any fraction not in excess of one-half of the augmented estate under the limitations and conditions detailed. Sec. 30-2313.
The decedent's surviving spouse and minor children shall be allowed a homestead and family allowance as detailed in Secs. 30-2322. and 30-2324 and exempt property as detailed in Sec. 30-2323.
Debts and DistributionsIf the applicable assets of the estate are insufficient to pay all claims in full, the personal representative must make payment in the following order:
- Costs and expenses of administration;
- Reasonable funeral expenses;
- Debts and taxes with preference under federal law;
- Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent and claims filed by the Department of Health and Human Services pursuant to Sec. 68-919;
- Debts and taxes with preference under other laws of this state;
- All other claims. Sec. 30-2487(a).
No preference will be given in the payment of any claim over any other claim of the same class, and a claim due and payable will not be entitled to a preference over claims not due. Sec. 30-2487(b).
Tax RateThe inheritance tax rate ranges from 1% of the value of the property received in excess of $40,000 to 18% of the property received in excess of $10,000. Secs. 77-2004 to 77-2006.
Property InclusionAll property is subject to inheritance tax; however, inheritance tax does not apply to transfers to a surviving spouse and to charity. Secs. 77-2001 and 77-2004.
Filing and PaymentThe inheritance tax is due within 12 months of the decedent's death. Interest is charged from the date the tax becomes payable. Secs. 77-2102; 77-2010.
Income Tax Charitable Deductions and/or Credits
Nebraska allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 77-2714.01.
Gift Annuity Requirements
Nebraska, a "conditional exemption" state, regulates the issuance of charitable gift annuities under Secs. 59-1801 through 59-1803. The statute provides for exemption from insurance regulation if certain conditions are satisfied.
Exemption QualificationTo qualify to issue charitable gift annuities, the charity must be a Sec. 501(c)(3) organization and have been in continuous operation for at least three years. Further, the gift annuity must be in compliance with Sec. 501(m)(5) and Sec. 59-1803.
Issuing gift annuities is not deemed to be engaging in business as a trust company or insurance company, a restraint of trade or commerce, engaging in an act in violation of the Viatical Settlement Act or engaging in an act in violation of the Uniform Deceptive Trade Practices Act.