Rights to willed assets

On Behalf of | Feb 16, 2017 | Blog

Estate planning tools can be used by Nevada residents to specify exactly what should happen with their assets after they die. However, there can be a question about what an individual should do regarding assets that he or she was bequeathed in a will but that were legally given away before the testator died.

It is important that individuals know exactly what a will is and how it can be used. It is a written set of instructions that becomes a legally enforceable document once the testator dies. Any number of changes can be made to the will by the testator before that happens. Because of this, the will represents only an expectation of an inheritance, not a right. If an individual has been advised a will leaves him or her assets, it will not be certain until after the testator dies. If the contents of the will state something else, the individual may not have much legal recourse.

The lack of legal options on the part of a potential recipient of certain willed assets also applies in situations in which the contents of the will have not changed and the maker no longer possessed the assets when he or she died. Individuals are not able to give away something that they do not own. The resulting process is known as will ademption.

If the testator of the will gave the property away before his or her death, there is no property to be inherited. The testator could no longer legally give the property away, regardless of what the will states. However, it might be possible for the putative beneficiary to challenge the gift based on undue influence or lack of mental capacity. An attorney could determine whether this would be advisable.