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Is It Possible to Disinherit Someone? Yes, but It Isn’t Easy

Posted by Nina Whitehurst | Jan 11, 2019 | 0 Comments

Son disappointing parents

The decision to disinherit someone isn't made lightly and needs careful consideration.

Sometimes as the difficulties of life wind through families, it is decided it would be best to disinherit a family member. It can be done. However, it needs careful legal consideration, according to Next Avenue in “How to Disinherit a Family Member.”

The first step is to work with an experienced estate planning attorney.  This is a complicated process, and if you don't do it right, it's entirely possible the person you want to disinherit can appeal your action in court after you've died—and win.

A living trust may work better than passing all your assets through a will when you want to disinherit someone. A will is easier to challenge. He or she may say you were being influenced by someone else when you had your will written, and, therefore, the disinheritance does not reflect your real wishes.  They could also claim that you signed the will without understanding what you were signing and that you were not mentally competent and could not make legal decisions at that time. This is a charge of fraud.

After you die, your will becomes a public document, and anyone can find out who you decided to disinherit. They may be angry or embarrassed and feel the need to set the record straight.

A living trust, when prepared correctly, remains a totally private document. In some states, it can only be challenged by the beneficiaries of the trust.

There can always be charges of fraud as a result of your being mentally incompetent to sign the trust. However, most people who create living trusts do so several years before their death. Wills are often written or revised shortly before death. Therefore, the person who created the trust has likely opened accounts in the name of the trust, used the accounts, paid bills, etc. That activity makes it hard to prove incompetence.

What if you want to leave someone only a partial inheritance? Your best bet is to ensure that your estate includes a strong “No Contest” provision, technically termed “In Terrorem.” It's a little harsh, but the general idea is that whoever challenges the will gets nothing. It does make people think twice.

Remember that many of your assets are in accounts with beneficiary designations: IRAs, SEPs, investment accounts, life insurance policies, etc. Review the names on your accounts to make sure the person you want to disinherit does not appear on those accounts. You can also use Payable on Death (POD) or Transfer on Death (TOD).

Blended families face unique challenges. Friction between stepparents and stepchildren can explode when one parent dies and the second spouse is left without the other parent as a buffer. Tensions that were kept under the surface may bubble up quickly. Make sure that all the children know what your plans are for your estate to avoid breaking up the blended family.

We can advise you on creating an estate plan that fits your unique circumstances.

Reference: Next Avenue (Dec. 11, 2018) “How to Disinherit a Family Member”

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...

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