Last Will and Testament for Divorced Person Not Remarried with Adult and Minor Children
Note: This summary is not intended to be an all-inclusive discussion of the law of wills in Nebraska, but does include
basic and other provisons. This summary does not discuss handwritten
wills.
Who may make a will: Any 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 thereby dispose of personal and real property
at and after death and prescribe. 30-2326.
Execution: A will is required to be in
writing, signed by the testator and is required to be signed by at least
two individuals each of whom witnessed the signing of the will by the testator. 30-2327.
Who may witness; interested witness; intestate share:
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 thereunder 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. 30-2330.
Self-proved will: 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. The form attached has
the affidavit required.
Foreign (other states): A written
will is valid if executed in compliance with Nebraska
law, or if its execution complies with the law at the time of execution
of the place where the will is executed or of the place where at the time
of execution or at the time of death the testator is domiciled, has
a place of abode or is a national.
Revocation by writing or by act: A will
or any part thereof is revoked
(1) 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
(2) 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.
Revocation by divorce; no revocation
by other changes of circumstances.
If after executing a will the testator
is divorced or his marriage dissolved or
annulled, the divorce, dissolution, or annulment revokes any disposition
or appointment of property made by the will to the former spouse,
any provision conferring a general or special power of appointment
on the former spouse, and any nomination of the former spouse as
executor, trustee, conservator, or guardian, unless the will expressly
provides otherwise. If provisions are revoked solely by this section,
they are revived by testator's remarriage to the former spouse.
A decree of separation which does not terminate the status of husband and
wife is not a divorce for purposes of this section.
Separate writing identifying bequest of tangible property. A
will may refer to a written statement or list to
dispose of items of tangible personal property not otherwise specifically
disposed of by the will, other than money, evidences of indebtedness, documents
of title, and securities, and property used
in trade or business. To be admissible under this section as evidence
of the intended disposition, the writing must have an indication of the
date of the writing or signing and, in the
absence of such indication of date, be the only such writing or contain
no inconsistency with any other like writing or permit
determination of such date of writing or signing from the contents of such
writing, from extrinsic circumstances, or from any other
evidence, must either be in the handwriting of the testator or be
signed by him or her, and must describe the items and the devisees with
reasonable certainty. The writing may be referred
to as one to be in existence
at the time of the testator's death; it may
be prepared before or after the execution
of the will; it may be altered by the testator after its
preparation; and it may be a writing
which has no significance apart from
its effect upon the disposition made by the will.
Contracts concerning succession: A contract
to make a will or devise, or not to revoke a will or devise, or to
die intestate, if executed after January 1, 1977,
can be established only by (1) provisions of a will stating material provisions
of the contract; (2) an express reference
in a will to a contract and extrinsic evidence proving the terms of the
contract; or (3) a writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not
create a presumption of a contract not to revoke the will or wills.
Effect of divorce, annulment, and decree of separation:
An individual who is divorced from the decedent or whose marriage
to the decedent has been dissolved or annulled by a decree
that has become final is not a surviving spouse unless, by virtue of a
subsequent marriage, he is married to the decedent
at the time of death. A decree of separation which does not
terminate the status of husband and wife is not a divorce for purposes
of this section. A surviving spouse does
not include: (1) an individual who obtains or consents to a final decree
or judgment of divorce from the decedent or an annulment or dissolution
of their marriage, which decree or judgment is not recognized as valid
in this state, unless they subsequently participate in a marriage
ceremony purporting to marry each to the other, or subsequently live together
as man and wife; (2) an individual who, following a decree
or judgment of divorce or annulment or dissolution of marriage obtained
by the decedent, participates in a marriage ceremony
with a third individual; or (3) an individual who was a party to a valid
proceeding concluded by an order purporting
to terminate all marital property rights against
the decedent.
Deposit of will with court in testator's lifetime:
A will may be deposited by the testator or his agent with the court having
jurisdiction of the county of his residence for safekeeping, under rules
of the court. The will shall be kept confidential. During the
testator's lifetime a deposited will shall be delivered only to him or
to a person authorized in writing signed by him to receive the will.
A conservator or guardian may be allowed to examine a deposited will of
a protected testator under procedures designed to maintain the confidential
character of the will to the extent possible, and to assure that
it will be resealed and left on deposit after the examination.
Upon being informed of the testator's death, the court shall notify
any person designated to receive the will and deliver it to
him on request; or the court may deliver the will to some other appropriate
court.
