Nebraska Living Trust

Introduction

Key Things to Know

1. 1

   Nebraska is one of a handful of remaining inheritance-tax states, and Neb. Rev. Stat. Section 77-2002 reaches property transferred in trust that is intended to take effect after the grantor's death. A living trust avoids probate but not this tax. Rates run 1% over a $100,000 exemption for immediate relatives, 11% over $40,000 for remote relatives, and 15% over $25,000 for everyone else; a surviving spouse and recipients under 22 are exempt entirely. These are the post-2023 figures set by LB 310; no further statutory change through 2026 was found (Sections 77-2004 to 77-2006).

2. 2

   No notary, witness, or will formality is required to create a Nebraska trust; Section 30-3828 asks only for settlor capacity, indicated intent, a definite beneficiary, and a trustee with duties to perform. But there is a Nebraska-specific wrinkle: Section 30-3854(a) presumes a trust is revocable only for an instrument executed on or after January 1, 2005. An older, silent Nebraska trust is read the opposite way, as presumptively irrevocable.

3. 3

   Nebraska's certificate of trust must be sworn. Section 30-38,102 requires it to be in the form of an affidavit, signed and acknowledged by all acting trustees, not just one, which is a heavier bank-facing burden than most Uniform Trust Code states impose. A bank or title company is also not required to accept the certification in place of the full trust instrument.

4. 4

   A Nebraska living trust cannot cut a surviving spouse out of the estate. Sections 30-2313 and 30-2314(a)(1)(ii) let a surviving spouse elect a share of up to one-half of the augmented estate, which expressly includes property the settlor could revoke at death, so revocable trust assets are reachable.

5. 5

   If you are married, you cannot fund your homestead into your Nebraska living trust by yourself. Section 40-104 requires both spouses to execute and acknowledge the deed for any conveyance of homestead property. Nebraska has no statute answering whether the Section 40-101 homestead exemption itself survives funding into a revocable trust; this is unresolved, so ask a Nebraska attorney before moving your homestead into a trust.

6. 6

   Despite Sections 30-3816 to 30-3820 being captioned 'Duty to register trusts,' registering a Nebraska trust with the county court is optional. Section 30-3816 says a trustee 'may register' the trust, and Section 30-3816(5) confirms a court can exercise jurisdiction over a trust whether or not it is registered.

7. 7

   A Nebraska revocable living trust gives you no creditor protection while you are alive; Section 30-3850(a)(1) subjects it to your creditors the same as property you own outright, and Nebraska has no self-settled asset protection trust statute. Funding your home into the trust is inexpensive, though: the deed to your trustee is exempt from Nebraska's documentary stamp tax under Section 76-902(4).

Nebraska Requirements for Living Trust

• Nebraska Inheritance Tax Reaches Trust Transfers

  Neb. Rev. Stat. Section 77-2002 extends Nebraska's county inheritance tax to property transferred in trust that is intended to take effect after the grantor's death. A living trust avoids probate but not this tax. Rates run 1% over a $100,000 exemption for immediate relatives, 11% over $40,000 for remote relatives, and 15% over $25,000 for others, under the post-2023 figures at Sections 77-2004 to 77-2006; a surviving spouse and recipients under 22 are exempt.

• Nebraska Execution and the Pre-2005 Revocability Split

  No notary, witness, or will formality is required to create a Nebraska trust (Section 30-3828). A non-uniform wrinkle at Section 30-3854(a) presumes a trust is revocable only for an instrument executed on or after January 1, 2005; an older, silent Nebraska trust instrument is presumed irrevocable instead.

• Nebraska Certificate of Trust Must Be a Sworn Affidavit

  Section 30-38,102 requires Nebraska's certification of trust to be in the form of an affidavit, signed and acknowledged by all acting trustees rather than just one. A recipient is not required to accept it in place of the full trust instrument, making this a heavier bank-facing process than most Uniform Trust Code states.

• Nebraska Homestead Requires Both Spouses to Sign the Funding Deed

  Section 40-104 requires both spouses to execute and acknowledge any deed conveying or encumbering the homestead, including a transfer into a revocable trust. No Nebraska statute located resolves whether the Section 40-101 homestead exemption survives that transfer; flag this as unresolved rather than assuming either outcome.

• Nebraska Elective Share Reaches Revocable Trust Assets

  Sections 30-2313 and 30-2314(a)(1)(ii) let a surviving spouse elect a share of up to one-half of the augmented estate, which expressly includes property over which the decedent retained a power to revoke at death, reaching revocable living trust assets.

• Nebraska Trust Registration Is Optional

  Although Sections 30-3816 to 30-3820 are captioned 'Duty to register trusts,' registration with the county court is optional under Section 30-3816, and Section 30-3816(5) confirms it is not required for a court to exercise jurisdiction over the trust.