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How to disinherit someone

Disinheriting a person it sounds easy but in practice can be difficult to accomplish. The first step is to determine whether the disinherited person is in line to inherit anything in the first place.

Put it in Writing

Generally speaking, if a person does not create a Will or trust prior to death or incapacity (think stroke, dementia, Parkinson’s and Alzheimer’s) that person’s wealth is distributed to the surviving spouse (if any) or descendants or both. For example, Pat and Chris are married and have three children. If Pat does not make a will or trust during his lifetime, Pat’s property will likely be distributed to Chris at Pat’s death. However, some property may be distributed to the children depending on State law and the characterization of property: whether the property is Pat’s “separate” property or Pat and Chris’s “marital” or “Community Property.”

Pat generally has the ability to disinherit Chris from Pat’s separate property and Pat’s portion of the marital property. Chris is entitled to retain Chris’s portion of the marital property.

If Pat and Chris want to disinherit one of their children, they can do so provided that there is a trust or are wills created by Pat and/or Chris. The documents must identify the existence of the children and which child, specifically, is disinherited.

Identify the Disinherited Person

Many people mistakenly believe that they need not mention a child and, in not mentioning the child, that serves to disinherit the child. This is not the case. If Pat and Chris want to disinherit a child, they must make it clear that the child is receiving nothing.

Should the Disinherited Person Receive $1?

Whether Pat and Chris have to leave a disinherited child “$1” depends on your State law. In many States there is no requirement to leave a disinherited child anything.

Write Down the Reason for the Disinheritance

There is an axiom in science that nature abhors a vacuum and there is an equivalent axiom in law that says the law abhors a forfeiture. There should be a reason, preferably a valid “reasonable” reason, that Pat and Chris want to disinherit their child. If the child files a lawsuit to oppose the disinheritance, it’s better to have a valid reason that the person is disinherited then no reason for the disinheritance. Perhaps even worse is a bad reason to disinherit someone. It may be helpful to have a hand written note separate from the Wills or Trust that explains the reason for the disinheritance.

Bear in mind that a Judge always retains the power to invalidate or “interpret” the terms of a will or trust and to re-inherit the disinherited person.

Think Twice Before Disinheriting Someone

Your Will and Trust are part of a larger estate plan. Your estate plan can shape your legacy. Think carefully before you remove a child or other descendant from your estate plan. What will the other beneficiaries think? How will they react? Will this end the situation or will it merely feed the fire?

Please get a Lawyer and Don’t do it Yourself

We know what we know and we know what we don’t know. This knowledge tends to keep us out of trouble. Its not knowing what we don’t know that gets us into trouble. Abraham Lincoln said if you represent yourself you have a fool for a client.

Wills and trusts, and estate planning in general, is highly technical. It is equivalent to writing computer code. If one line of code is bad, it can crash the whole program. The same is true with estate planning and wills and trusts.

If you do hire a lawyer, choose a specialist and avoid the generalists. You should choose somebody that is completely focused on this area of the law. Stated another way, you need to hire someone who knows what they don’t know.

–Jim Cunningham, Jr.IMG_93063672222099