Competency in Creating a Will

June 6, 2016

creating a will
The last will and testament is probably the most common estate planning tool.  Creating a will is relatively easy, but there are a few requirements that must be met in order for your will to be valid. One of the most important requirements is that the person creating a will must be competent to do so.  If a person lacks the legal capacity to create a will at the time it is executed, the will may be invalidated upon a challenge by an interested party.
The basic purpose of a will
Wills allow you to pass on your assets to whomever you choose after your death.  A basic will should specify to whom you want to leave your property, identify a guardian to take care of any minor children in the event of your death, and name the person who will have the authority to carry out the terms of your will, which is known as a Personal Representative in most states.
How is legal competency defined
What many people do not realize is that not everyone is competent to make a will in Nevada.  Generally speaking, the testator must be old enough to create the will and must be able to identify their family and understand the nature and extent of the property in their estate.   In Nevada, a testator must be at least 18 years old and of sound mind.
Nevada's requirements for a valid will
Nevada law spells out who can draft a will under NRS 133.020:
Every person of sound mind, over the age of 18 years, may, by last will, dispose of all his or her estate, real and personal, the same being chargeable with the payment of the testator’s debts.
“Sound mind” means someone who has testamentary capacity.   This capacity is often described as the ability to recognize the natural objects of one's bounty, the nature and extent of one's estate, and the fact that one is making a plan to dispose of one's estate after death.   In Nevada, a will is not valid unless it is in writing and signed by the testator, or by someone expressly directed by the testator to attend.  The will must also be attested (or witnessed) by at least two competent witnesses who sign the will in the presence of the testator.
Nevada recognizes self-proving wills
A self-proving will can speed up the probate process because the court will be able to accept the will without obtaining testimony from the witnesses who signed it.  Under NRS 133.050, to make your will self-proving in Nevada a witness to a will must sign a declaration under penalty of perjury or an affidavit before a person authorized to administer oaths (i.e., a Notary Public), stating such facts as the witness would be required to testify to in court to prove the will. The declaration or affidavit must be written on the will or, if that is impracticable, on some paper attached to the will.  The sworn statement of any witness so taken must be accepted by the court as if it had been taken before the court.
The effects of mental illness
A common misconception is that a person with a mental illness does not have the mental capacity to create a will.  That is not the case.  Having a mental illness or disease does not mean you automatically lack the required mental capacity. As long as you can show that you have periods of lucidity, you may still be competent to sign a will.  Millions of people are affected by dementia. Unfortunately, many of them did not create a proper estate plan before the symptoms began. If a loved one has dementia or some other mental illness that may affect their capacity, it may not be too late.  It is best to consult an estate planning attorney to determine whether the criteria are met to establish competency.   In borderline cases an attorney may recommend the person be evaluated by a neuropsychologist for a clinical determination of capacity.
What happens in Nevada if you don't have a will?
If you have no plan then Nevada’s laws on intestate succession will how your property will be distributed.  Based on these laws, to whom your property will be distributed depends on which of your relatives have survived you.  Another thing dying intestate means is that you have no control over who your heirs are and what each of them will receive. Under NRS 135.050, in Nevada your property goes to your spouse, children, parents or siblings, in that order.  In other words, if only one of these relatives survives you, that relative inherits everything.  If for example, you have two children or two siblings they will divide your property equally.
Attend a free Webinar!  If you have questions regarding creating wills, or any other estate planning issues, please contact Anderson, Dorn & Rader, Ltd. for a consultation, either online or by calling us at (775) 823-9455.

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