- How to Disinherit an Heir
- Disinheritance: The Basics
- Who You Can (and Can’t) Disinherit
- Reasons for Disinheriting
- Other Considerations
- The Bottom Line
- Tips for Estate Planning
- A Step-by-Step Guide to Disinheriting a Child
- First, is there another way to achieve your aim?
- Second, is it possible?
- 1. Create a will
- 2. Make it clear that your child is being purposely disinherited
- 3. Let them know
- 4. Change your will if you change your mind
- So You Want to Disinherit a Family Member..
- The Right to Contest
- Heading Off Challenges
How to Disinherit an Heir
So you’ve decided that a family member won’t be getting an inheritance, after all. Maybe you have an ungrateful or irresponsible family member you want to cut the will.
Or maybe there’s someone you’ve decided to favor at the expense of other family members.
Here’s what to know about the process of disinheriting an heir, including some legal considerations – such as who may be immune from being disinherited.
Disinheritance: The Basics
Disinheriting an heir means preventing them from receiving a portion of your estate in the event of your death, whether it’s by naming them specifically in your will or by leaving them out completely.
Forgoing mention of a relative or heir in your is one way to keep them from inheriting a portion of your estate.
However, this can leave your will up for interpretation, as the intent of the testator, or the person creating the will, is an important factor in considering a will’s validity.
Alternatively, you can also mention the relative you’d to disinherit by name in your will. You can even include the reason. But again, this can leave your will up for interpretation, which can also call your will’s validity into question.
In short, disinheriting an heir in your will is a tricky situation and one that should not be taken lightly or attempted without professional help. Working with a professional can help ensure your will isn’t contested or up for debate in probate court.
When engaging an attorney to draw up a will or trust that disinherits or excludes someone, consider hiring one who has experience with will contests.
Lawyers with will contest experience are sometimes more able to craft a will or trust that is – as much as possible – contest proof than lawyers without such experience.
Who You Can (and Can’t) Disinherit
While you can disinherit some relatives, especially those who are distant or with whom you have no relationship, there are some relatives that may not be able to be disinherited, even in a legally binding last will and testament.
For example, in many states, you are not able to disinherit children or a spouse. Most states protect spouses from being disinherited, and in some states children are also legally entitled to some of your property, as well. However, you are able to disinherit parents, even if they outlive you.
Reasons for Disinheriting
There are many reasons you might choose to disinherit an heir in your will. You may not have a close relationship with them, they may not have supported you prior to your death or you may even believe they have enough financial resources to support themselves, thus making their potential inheritance better used elsewhere.
Parents may also choose to disinherit a child if that child has shown poor judgment or made bad financial choices in the past.
There are consequences of disinheriting an heir in your will. It can cause family drama, hurt feelings and other issues. Disinheriting an heir and including the reason why in your will could also leave your will up for debate or contest in probate court.
It’s also important that you update your will after major life events, such as marriage, divorce and the birth of a child. You don’t want to disinherit someone due to a simple oversight. This is called accidental inheritance.
Keep in mind that if you don’t have a valid last will and testament, your estate will be subject to your state’s intestate laws. Remember, intestate means to die without a valid will, while dying testate means you have one in place upon your death.
Dying intestate, however, means that an heir you may not have otherwise bequeathed property to may be entitled to a portion of your estate. Of course, if they are entitled to your property and how much they may be entitled to depends on the state.
The Bottom Line
Disinheriting an heir means preventing them from receiving a portion of your estate when you die, whether it’s by naming them specifically in your will or by leaving them out completely.
While you can usually disinherit any relative of your choosing, spouses and children may be protected from being completely disinherited, depending on your state.
There are many reasons you might choose to disinherit someone, from not having a good relationship with that person to not approving of a child’s financial or life choices. If at all possible, get professional help with this and other aspects of your estate planning.
Tips for Estate Planning
- Estate planning can be complicated. A financial advisor can help you sort through the financial implications of your estate plans. Finding the right financial advisor who fits your needs doesn’t have to be hard. SmartAsset’s free tool can match you with up to three local financial advisors, and you can choose the one who is best for you. If you’re ready, get started now.
- If you’re not familiar with estate law or how inheritance works in your state, check out this introduction to the subject.
Photo credit: ©iStock.com/Drazen Zigic, ©iStock.com/courtneyk, ©iStock.com/simpson33
A Step-by-Step Guide to Disinheriting a Child
There is no shortage of parents who, as they think about estate planning, consider disinheriting a child. If you have teenagers, maybe you have considered it in passing on more than a few occasions… Joking aside, there can be any number of reasons to consider writing a child your will.
If you have a substantial estate, perhaps you fear to spoil your child by essentially giving them a free pass on earning their own living, and developing their own talents and skills (this is where a legal trust fund can be a great option.) If you have a child who struggles with addiction or impulsivity, perhaps you want to avoid enabling them to continue down a destructive path. Or maybe you have not spoken to your child in years. Who knows?
Need to create a will first?Start a free legal will with Tomorrow(click to download app).
People have a number of reasons for wanting to disinherit a child. If that is a path you are considering, here are some things to take into consideration.
First, is there another way to achieve your aim?
Before you change your will, give some thought to your reasons for wanting to disinherit your child, and consider if there is another way to achieve your aims. Because despite the best-laid plans etc. etc., if you disinherit a child, there will ly be a lot of bad feelings plus a court battle after you die.
There are a number of motives you may have for disinheriting that could have better solutions. For instance, if you are considering not leaving your child an inheritance because you think that they are financially stable, consider that fortunes change, and even your child’s current situation may not be what you think it is.
If your child struggles with addiction, consider that they may one day overcome their addiction. You can set up a trust for them and set the conditions you choose on the distribution of funds from the trust.
If you are considering disinheritance because your child has a disability and you do not wish to jeopardize their government benefits, consider setting up a special trust that can supplement their needs without affecting their benefits.
Lastly, if you are considering disinheriting a child as a way to get back at them, to have the last word, or to otherwise show your disapproval, consider that deliberately leaving them nothing is unly to positively change their behavior, and may just make them feel unloved and resentful.
Second, is it possible?
If your child is an adult, you can disinherit them in almost all states. But if your child is a minor or you live in Louisiana, you will have a harder time. A number of states have protections for children under 18 who lose a parent so that their residence is not left to someone besides the spouse or minor child, for example.
In Louisiana, children under 24 or any child who is physically or mentally incapable of caring for themselves is prohibited from being disinherited under state law. For children 24 or older who are able to care for themselves, they may be disinherited, but it must be for one of the “just causes” provided for under state law.
So if you live in Louisiana or want to disinherit a minor child, check your state laws first to see if it is possible.
Regardless of the above, there are certainly situations in which it is necessary and prudent to disinherit your child, and you are entitled to do so. If you do, make sure you do it the right way. Otherwise, your child could end up contesting the will and receiving the inheritance that you never intended for them to have.
1. Create a will
This seems self-evident, but it is important to know why. If you do not make a will, your estate will be passed on through intestate succession.
In most states that means that your estate will be divided among your spouse and children. So write a will, and make sure that it is kept in a secure place and that your executor knows where it is.
Protect your family by creating a free will and testament in under 10 minutes with the Tomorrow app!
2. Make it clear that your child is being purposely disinherited
The best way to do this is to acknowledge your child by name in the will and state, “For reasons known to me, I make no provision for (child’s name) and/or the child’s lineal descendants.”
It’s better to use this wording, “for reasons known to me,” because if you name a reason in the will, your child may use that to challenge the will. For example, if you state in the will that you are not leaving your child an inheritance because they have enough money for their needs, they may contest the will by trying to prove that they do not have enough money for their needs.
Some people want to leave their child a tiny amount of money in their will, $1 for instance, to acknowledge the child but give them almost nothing. If you want to actually disinherit them, this is not the best idea.
Leaving them anything at all means that they will have the right to information about your estate without going to court.
Plus, the $1 must be delivered, accepted, acknowledged, and filed with the registry—it just creates more work and possibly delays in administering your estate.
3. Let them know
If you have not been in contact with your child for many years, it will probably not come as a shock to them if they are not included in your will. But in most cases, it is advisable to let your child know that they are not being left an inheritance, especially if you have other children who will be receiving an inheritance.
One reason for letting them know is to try to prevent bad blood between siblings, if possible, and to possibly ward off a will contest.
4. Change your will if you change your mind
One last thing to consider is if you write your child your will, but you reconsider at some point, do not forget to update your will. That could be devastating for your child if your relationship is repaired but the will is never updated—and it’s not really about the money.
Leaving your child an inheritance, whatever it may be, has meaning beyond whatever the inheritance is worth—it has symbolic meaning. So if things change and you change your mind, don’t forget to update your legal will and testament.
Protect your family by creating a free will in under 10 minutes with the Tomorrow app!
So You Want to Disinherit a Family Member..
Disinheriting a child or other close family member is a difficult decision that’s often driven by profound disagreements, broken relationships, and long-standing conflicts. Because the wishes of the person leaving behind an estate may not coincide with guidelines set by state law, doing so requires careful planning and guidance from an attorney who specializes in estate planning.
The Right to Contest
Spouses usually have some protection under the law so disinheriting one completely may not be possible, according to elderlawanswers.com.
Most states have laws that protect a spouse from walking away empty-handed, and some automatically entitle spouses to the portion of an estate.
One exception may be when both spouses have a written agreement waiving the right to the other’s estate.
On the other hand, states generally do not require parents to leave anything to their adult children if they don’t want to. That applies to blended families, which can become embroiled in controversy when a surviving stepparent faces pushback from adult stepchildren bubbling with resentment about not getting what they consider their fair share of the estate.
It’s safe to say that whoever is being fenced out will be pretty hurt and angry and may try to fight the situation. Children or other relatives can claim that someone exerted “undue influence” over the decision or challenge the deceased person’s mental competence, so simply excluding them from the will may not be enough.
Heading Off Challenges
Attorneys have a number of recommendations for those considering disinheriting a child or other family member or leaving unequal inheritances.
Update beneficiary designations. Naming certain individuals as beneficiaries on assets such as Individual Retirement Accounts or 401(k) plans is one easy way to direct who receives assets in an inheritance writes Texas attorney Brad Wiewel on nextavenue.
com, a website aimed at baby boomers. Those not named will simply not receive the assets. For brokerage or bank accounts, a POD (payable on death) or TOD (transfer on death) accomplishes the same thing.
None of this information is public record, making it a discreet way to divide assets unequally.
Consider a living trust. Wiewel also points out that a living trust may be a better way to disinherit than a will. In most states, only the trust’s beneficiaries may challenge its provisions.
And un wills, which are often signed when someone is close to death, living trusts are usually established years before a death and may have already been used to open accounts or pay bills.
That transactional history makes it more difficult to claim that someone was unduly influenced or incapable of making decisions.
Have safeguards. Under California law, a direct heir who is left a will would be able to claim that he or she was simply forgotten rather than intentionally omitted, according to HMS Law Group in Sacramento, CA. If that claim is successful, the person could be automatically entitled to a share of the estate.
One step to prevent that from happening is to add a statement to a will or trust specifically disinheriting the named individual. A “no contest” clause in a will or trust that automatically disinherits anyone who contests it can also help shield the estate from challenges.
Such a clause would make it possible to leave a partial, smaller inheritance to a person as an incentive not to contest the will or trust.
Step back. If you stand to benefit from disinheriting another family member, it’s best to avoid any appearance that you are trying to influence the decision.
“That means no shortcuts,” notes a recent article by attorneys Len Tillem and Rosie McNichol in the Santa Cruz Sentinel.
“They (the parents) should see their attorney without you (the child) in the room, the building or even in the parking lot waiting for the car.”
Don’t mess with the deed. Tillem and McNichol also warn that it is almost never advisable for parents to put the name of one child on the deed to their house in order to cordon off that asset from another.
By doing so, they restrict their ability to get a reverse mortgage or take out a home equity loan and open up the possibility of a legal judgment against the home in a lawsuit involving the child whose name is on the deed.
Disinheriting a family member can trigger brutal family infighting and discord that lasts for many years, so it shouldn’t be done without careful consideration.
At the same time parents who don’t see eye-to-eye with their adult children, couples with children from previous marriages, and others have every right to distribute their assets in accordance with their wishes and to exclude those they deem unworthy.
©2011-2020 Worthy, Inc. All rights reserved.
Worthy, Inc. operates from 20 W 37 St., 12th Floor, New York, NY 10018