To make a Last Will and Testament in Nebraska, you must be at least 18 years old and of sound mind, put your wishes in writing, and sign the document in front of two witnesses who also sign it.1Nebraska Legislature. Nebraska Code 30-2327 – Execution Get those formalities right and you have a legally enforceable will. Miss them and you have a piece of paper with good intentions.
Who Can Make a Will
Nebraska law requires you to be 18 or older and of sound mind.2Nebraska Legislature. Nebraska Code 30-2329 – Self-Proved Will Sound mind means you understand what property you own, you know who your natural beneficiaries are (spouse, children, close relatives), and you grasp that signing the will directs where your property goes after death. Perfect mental health is not the standard. A person with early-stage dementia, for instance, can still have the legal capacity to sign a will during a lucid period, as long as the three conditions are met at the moment of signing.
How to Sign Your Will Correctly
The will must be in writing and signed by you, or signed by someone else in your presence and at your direction. Two witnesses must also sign, and each witness must have either watched you sign or heard you acknowledge that the signature on the document is yours.1Nebraska Legislature. Nebraska Code 30-2327 – Execution The statute does not require the witnesses to sign in each other’s presence, but having everyone sign together in the same room removes any later argument about proper execution.
Any competent adult can serve as a witness. Nebraska follows the Uniform Probate Code rule that a will is not automatically invalid just because a witness is also a beneficiary. Even so, choose witnesses who do not inherit under the will. A disinterested witness removes any appearance of undue influence and heads off potential litigation.
Handwritten Wills Without Witnesses
Nebraska does recognize holographic wills. A holographic will is valid even without witnesses, as long as the signature, the material provisions, and an indication of the date are all in the handwriting of the person making it.3Nebraska Legislature. Nebraska Code 30-2328 – Holographic Will Material provisions means the key parts: who gets what. A will written partly by hand and partly typed, or one missing a date when other handwritten wills exist, faces a much higher risk of being challenged. A properly witnessed will is almost always the better choice, but a holographic will beats dying without any will at all.
Oral Wills Don’t Count
Nebraska does not recognize oral (nuncupative) wills. No matter how many people heard you state your wishes, a verbal statement about who should inherit your property has no legal effect.
Add a Self-Proving Affidavit
Once the will is signed with witnesses, take one more step that saves your family significant hassle: add a self-proving affidavit. This is a sworn statement signed by you and your witnesses before a notary public and attached to the will.2Nebraska Legislature. Nebraska Code 30-2329 – Self-Proved Will You can prepare it when the will is signed or add it later.
The affidavit does not fix a will that was improperly executed. What it does is eliminate the need for the probate court to track down your witnesses after your death to confirm they watched you sign. Without it, the court must obtain live testimony or sworn statements from at least one witness, which can delay the entire process, especially if witnesses have moved, become incapacitated, or died. Skipping this step is one of the most common and most avoidable mistakes people make.
What to Put in Your Will
The formalities get the document into court. The content inside it decides what happens to your estate. A thorough Nebraska will covers several core areas.
Name a Personal Representative
The Personal Representative (called an executor in many other states) shepherds your estate through probate. They collect assets, pay debts and taxes, file paperwork with the court, and distribute what remains to your beneficiaries. Name at least one alternate in case your first choice can’t serve. The person you choose should be organized, trustworthy, and ideally located in Nebraska or nearby, since they will need to interact with the county court.
Distribute Your Property
Your will can make two kinds of gifts. Specific bequests direct particular items to particular people: your wedding ring to your daughter, your truck to your son, a set dollar amount to a charity. Everything left after specific gifts are fulfilled and debts are paid is the residuary estate. For most people this is the bulk of what they own. Name one or more residuary beneficiaries and specify each person’s share. If you don’t address the residuary clearly, whatever falls into it gets distributed under Nebraska’s intestacy rules rather than your wishes.
Nominate Guardians for Minor Children
If you have children under 19 (Nebraska’s age of majority), your will is the place to nominate a guardian. You can name one person as guardian of the child’s person, responsible for day-to-day care, and a different person as guardian of the child’s estate, responsible for managing inherited money. Splitting the roles makes sense when the best caregiver isn’t the best money manager. The court must still approve the appointment and will consider the child’s best interest, but judges overwhelmingly follow a parent’s nomination unless a serious concern exists.
Direct How Debts and Taxes Get Paid
Your will should direct how outstanding debts, funeral costs, and administration expenses are paid. You can also specify which assets should cover any taxes owed by the estate. Without that direction, Nebraska law applies default rules for splitting the tax burden among beneficiaries, which may not match what you intended.
Assets Your Will Will Not Control
One of the biggest misconceptions about wills is that they govern everything you own. They don’t. Certain assets pass directly to a named beneficiary or surviving co-owner regardless of what the will says.4Legal Information Institute. Non-Probate Assets These include:
- Life insurance proceeds go to whoever is listed as beneficiary on the policy.
- Retirement accounts such as 401(k)s, IRAs, and pensions pass to the beneficiary named on the account paperwork.
- Real estate or bank accounts held in joint tenancy with right of survivorship transfer automatically to the surviving co-owner.
- Payable-on-death and transfer-on-death accounts pass directly to the named person.
- Assets held in a revocable living trust distribute according to the trust, not the will.
If your will says your daughter should receive your savings account, but the bank’s records list your son as the payable-on-death beneficiary, your son gets the account. Beneficiary designations override the will. Review them periodically, especially after a divorce or a death in the family. Outdated designations are a common cause of assets going to the wrong person.
Spousal Rights You Cannot Override
Nebraska law prevents you from completely cutting your spouse out of your estate. A surviving spouse has the right to claim an elective share of the augmented estate, which includes both probate and certain non-probate assets. The percentage depends on the length of the marriage, increasing with longer marriages under Nebraska’s version of the Uniform Probate Code. A spouse claims this share by filing a petition with the probate court, effectively overriding whatever the will says about their inheritance.
A prenuptial or postnuptial agreement in which the spouse waives the elective share right is the primary way to plan around it. Without such an agreement, the elective share acts as a floor your will cannot go below.
If you marry after signing your will and never update it, your new spouse is considered an omitted spouse and is generally entitled to a share of your estate as though you had died without a will, unless the will shows you intentionally provided for the spouse outside of it or you signed a prenuptial agreement waiving that right.5Nebraska Legislature. Nebraska Code 30-2320 – Omitted Spouse
Where to Keep the Signed Will
The original signed will is what the court needs. A photocopy is not a reliable substitute, and if the original cannot be found after your death, there is a legal presumption that you destroyed it intentionally. Store the original in a fireproof safe, with your attorney, or by depositing it with the Clerk of the County Court in the county where you live.6Nebraska Judicial Branch. Deposit of Will A safe deposit box works, but your Personal Representative may need a court order to access it after your death, which can cause a delay. Make sure at least one trusted person knows where the original is kept.
Changing or Revoking Your Will Later
Life changes, and your will should change with it. Nebraska gives you two ways to modify an existing will and two ways to revoke one entirely.
Codicils for Small Changes
A codicil is a separate document that amends specific parts of your will while leaving the rest intact. It must be signed and witnessed with the same formalities as the original. Codicils work well for swapping out a Personal Representative or adjusting a specific bequest. For anything more than a minor tweak, writing a whole new will is cleaner and less likely to create confusion.
Revocation
You can revoke a will two ways. First, execute a new will that explicitly states it revokes all prior wills and codicils. Second, physically destroy the original by burning, tearing, or otherwise obliterating it with the intent to revoke.7Nebraska Legislature. Nebraska Code 30-2332 – Revocation by Writing or by Act Someone else can destroy it for you, but only in your presence and at your direction. If copies exist and the original is missing, the court may presume revocation, which is another reason to keep the original in a known, secure place.
Divorce Automatically Revokes Spousal Provisions
If you divorce, Nebraska law automatically revokes every provision in your will that benefits your former spouse, including property gifts and any appointment as Personal Representative.8Nebraska Legislature. Nebraska Code 30-2333 – Revocation by Divorce or Annulment; No Revocation by Other Changes of Circumstances It also revokes provisions benefiting relatives of your former spouse. The rest of the will stays in effect. Executing a new will after a divorce is still the best practice because it eliminates ambiguity and gives you a chance to name new beneficiaries and fiduciaries.
What Happens If You Never Make One
If you die without a valid will, Nebraska’s intestacy statute decides who inherits. The distribution depends on which relatives survive you:9Nebraska Legislature. Nebraska Code 30-2302 – Intestate Share of Surviving Spouse
- Spouse, no children or parents: your spouse inherits everything.
- Spouse and parents but no children: your spouse receives the first $100,000 plus half of the remaining balance, and your parents split the rest.
- Spouse and children who are all also your spouse’s children: your spouse receives the first $100,000 plus half the remaining balance, and your children split the rest.
- Spouse and children, at least one of whom is not your spouse’s child: your spouse receives half of the estate, and your children split the other half.
These default rules ignore close friends, charities, stepchildren who were never legally adopted, and unmarried partners entirely. If you want anyone outside the statutory order to inherit anything, you need a will.