Probate FAQs

The loss of a loved one can be a profoundly difficult experience. You do not have to go through this process alone. Our attorneys are trained to assist you through the probate process and the administration of your loved one’s estate.

What is Probate Court?

Probate is the legal process for collecting and distributing one’s assets after they pass away. The role of the Probate Court is to determine whether a deceased individual left a valid Will, assign someone to act as the Personal Representative of the Estate, determine who the heirs are, determine if creditors have valid claims against the estate, and oversee payment of inheritance taxes and distribution of the estate. Probate Court will be required to transfer your loved one’s assets if they exceed $100,000 in value. Assets that are titled in a trust, titled in joint tenancy with right of survivorship, or are designated payable on death do not require Probate Court to be transferred. The Probate Court and Personal Representative will distribute the assets according to the instructions in the Will. If there is no valid Will, they will distribute the assets to the deceased person’s heirs pursuant to the State’s statutes.

What is the job of the Personal Representative/Executor?

If you were appointed Personal Representative or Executor of an estate, your job will be to work with the Probate Attorney to determine what your loved one’s assets and liabilities were at death, notify other beneficiaries and creditors of the estate, file an inventory of assets with the probate court, settle outstanding debts, pay applicable inheritance tax, and distribute the assets of the estate. Upon gathering the assets of the estate, you will be responsible for safeguarding the same until they are distributed. For example, if your loved one left a home, you should make sure it is maintained and kept out of foreclosure during these proceedings. If the home has to be sold, you will work with a realtor to make that happen. If there is no will, the Probate Court will have to determine who shall act as personal representative based on their relationship to the deceased, with spouses having priority.

Can’t I just use my loved one’s will to collect their property?

The Last Will and Testament does not actually transfer one’s property, rather it is a declaration that instructs the Probate Court as to who the deceased wishes to transfer their property upon death. You won’t be able to just take the Will to the bank to collect your loved one’s assets. The Nebraska Probate Court will first have to ensure that the will is valid before entering an Order admitting the Will to probate and allowing the Personal Representative to collect and distribute their loved one’s property. If the Will is authentic and complies with the State’s legal requirements, the Probate Court will follow the instructions of the deceased.

My loved one died without a will, who inherits their estate?

If someone dies without a valid Will in place, they are said to have died “intestate”. The State has laws in place that state how one’s property will be distributed after death if there is no will. The Spouse will be entitled to a share as follows:

1. If there are no surviving children or parents of the deceased, the spouse will inherit the whole estate;
2. If the deceased is survived by parents but no children, the spouse inherits the first $100,000 along with half of the balance of the estate;
3. If there are surviving children of the deceased, all of whom belong to the surviving spouse, the spouse inherits the first $100,000 along with half of the estate’s balance;
4. If there are surviving children and the spouse is not the parent, the spouse inherits one-half of the estate.

If there is no surviving spouse, the children of the deceased will inherit the estate. If there are no children, then the deceased’s parents inherit the estate.

Can Probate be avoided?

You may add a “payable-on-death” designation to your bank accounts to allow the funds to be transferred to a beneficiary of your choosing upon death without the necessity of a probate court order. You may also use a Transfer on Death Deed or title your real property jointly to allow the property to be transferred without the necessity of probate court. Please note, a person inheriting a house through a deed transfer will still be responsible for paying inheritance tax, which will require a limited probate proceeding. Most individuals have a beneficiary designation on their retirement accounts, which allows the accounts to be transferred outside of probate. Additionally, some individuals may choose to set up a living trust, for their assets. They will then transfer ownership of all property to the Trust, and the trustee can transfer the property to the beneficiaries after death without probate. If your loved one did not take these steps before they passed, you will have to open a probate case to transfer the property.

Will I have to pay Inheritance Tax?

Possibly, Nebraska is one of the few states that has an inheritance tax. The amount of inheritance tax you pay is based on your relationship to the decedent and the value of assets you inherit. For parents, grandparents, siblings, children and other lineal descendants, a tax of 1% is assessed against an inheritance in excess of $100,000 if the decedent died on or after January 1, 2023. In the case of an aunt, uncle, niece or nephew, the tax is 11% of the clear market value of property received in excess of $40,000. For all other individuals not related to the decedent and organizations, the tax is 15% of the clear market value of property received in excess of $25,000.

What about my deceased loved one’s estranged spouse?

If the decedent was still legally married when they passed, the estranged spouse will be considered a surviving spouse under the law and under the will. Please note that one cannot disown their spouse in a will the way they can disown children in absence of a valid prenuptial agreement permitting the same. If a spouse is excluded from the will, they will be entitled to an elective share. If a divorce is finalized prior to the decedent’s passing, the Nebraska probate statutes will automatically revoke the provisions in the will that name the ex-spouse as a beneficiary or personal representative. If you do want your ex-spouse to inherit from your estate, you will have to write up a new will that specifically states this.

My loved one didn’t have much when they died, do I still need to file Probate?

The probate statutes allow for the transfer of personal property, such as bank accounts and vehicles, by affidavit if the total value of the estate (less liens and encumbrances) is $100,000.00 or less. The following other conditions apply: thirty days must have elapsed since the death; the individual or individuals must not be a creditor of the estate; there is not a personal representative or pending application/petition for personal representative; and all persons who have a right to the property must sign the affidavit. The small estate affidavits cannot be used to transfer real property.