Every family has at least one, and some families are stuck with more—the family member who makes life miserable for those around them. According to Kiplinger in the article “Four Ways to Disinherit Family Members,” one estate included a dossier of a lifetime of legal quarrels and typed notes about fights between brothers. However, without a valid and properly prepared will, it’s possible that family members can make a claim on your estate. They’re the “default” setting when there’s no will, and even when there is a will, they have a legal claim to contest it.
Don’t forget this unpleasant fact: if you choose to leave property through a will, your next-of-kin must still be given legal notice that your estate is being probated—even if they are being disinherited and are the only people who have a legal claim to contest your will.
What can you do?
Leave property outside of your will. If you pass property along only through your will and the will is probated, then your next-of-kin will be notified that it is being probated. However, if you have assets that pass through beneficiary designations, they do not go through probate. That can include life insurance proceeds, investment and bank accounts and real estate that is jointly owned. Just make sure that assets have a beneficiary named, and don’t name your estate as the beneficiary.
Using a “no contest” provision correctly. If your kin contest your will or trust, they are in a position to overturn your will or trust. One way to avoid this is to include what is known as a “no contest” clause. It states that if anyone contests your will, they get nothing. Here’s what happens: people include the clause, then leave nothing to the disinherited family member. The disinherited have nothing to lose by contesting the document. The more effective way to use a no contest clause is to leave them something, so that they have a more attractive alternative to nothing. Remember that the amount you leave them needs to be attractive enough to make it worthwhile for them to refrain from contesting the will. It’s not as good as cutting them out completely, but it is better than an estate battle.
Document why you want to disinherit them. This is something that must be done very carefully, with the help of an estate planning attorney. Legal documents have very specific requirements for how they are executed and what must be in the documents. Just writing a letter that says, “I don’t want my brother to get anything, because he beat me up when we were kids” and signing it won’t do it. Your lawyer will help you supplement the legal documents to create formal, signed memorandums with notarized signatures that will support—but do not replace—other documents. Demonstrate familial lineage with the use of family trees and heirship affidavits to better prove your mental capacity and knowledge of your heirs to prove your mental capacity at the time that you create these documents.
Ancillary documents to disinherit spouses. If your marriage is on paper only, for whatever reason, and you don’t plan on divorcing, you may want to have your estate plan changed, so that your spouse does not inherit anything from your estate. You may choose to waive estate rights in a separate document. Remember that you cannot completely disinherit a spouse without his or her consent. Be sure the language of any document that attempts to overturn a prior document, like a pre- or post-nuptial agreement has the correct language.
Speak with an experienced estate planning lawyer to ensure that your family member has little room to challenge your will. Don’t try to follow what seems like an easy logical approach—that is not how the law works and it can easily backfire and hurt your loved ones.
One of the main goals of our law practice is to help families like your plan for safe, problem free, and successful transfer of assets to the next generation. Call our office today to schedule a time for us to review your estate plan and identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.
Reference: Kiplinger (Nov. 13, 2019) “Four Ways to Disinherit Family Members,”