Establishing your Last Will and Testament is essential for every adult, regardless of the size of your estate. It guarantees your wishes will be honored and your assets will be handled as you envision after you’ve passed. When you’ve properly prepared your Estate Plan, you can be confident that each heir will receive exactly what you want.
But what happens if things change?
What if you no longer want to include someone in your Will?
The fact is, there may very well come a time when you need to update and change the Beneficiaries in your Will. And if that time ever comes, don’t worry. The process of disinheriting someone from your Will isn’t as complicated as you may think. Although it might be a difficult decision to come to, the end result will be worth it, knowing your estate will be passed down as you intend.
The most important thing to keep in mind when deciding to disinherit someone from your Will is this: don’t do it on your own.
You can’t just draw a line through someone’s name and hope everyone will listen. And since you won’t be there to answer questions or defend your decisions, it’s very important to follow proper procedures and treat your Will like the fragile legal document it is.
To help you better understand how to accomplish disinheriting someone from your Will, we’ve broken down some of the things you need to consider and some of the steps you should take if you’ve made the decision to disinherit someone from your Will.
How you choose to divide your estate is a personal decision and entirely up to you.
There are many logical reasons for leaving someone out of your Will.
Change in marital status (divorce)
Lack of need (or increased need)
Previous support or gifts already given
Change in marital status (divorce): If you’ve divorced and then entered into a new relationship, not updating your Estate Plan could mean that some family members are left with less inheritance that you want. Particularly if you have children from your prior relationship, it’s important to update your Will after any divorce or remarriage. By default, your new spouse will have spousal inheritance rights, and depending on the state in which you are married, he or she might be entitled to at least half of your estate.
If you want to leave an equal share to all your children, it might mean your current spouse receives less than what they are legally entitled to. You must put in writing if a current spouse will receive less than what state laws grant. This can be achieved with a pre or postnuptial agreement.
Estrangement: If you’re estranged from a family member, it might make sense to disinherit them. Estrangement usually only applies to a child (different rules apply for a spouse). By specifically disinheriting a child in your Will, you’re essentially legally saying you no longer view them as your heir and you don’t want your assets going to them upon your passing.
Medical/health status: Sometimes, drastic changes in one’s health condition may mean you want or need to disinherit others. Doing so can potentially allow more of your estate to benefit an heir who needs it.
Lack of need (or increased need): Oftentimes, there is a significant difference in the financial needs of your offspring. In this case, you could choose to disinherit one child to allow more inheritance to pass through to another. Disinheritance makes it possible for your estate to be split unevenly, or given in its entirety to one heir who requires more financial support.
Alternatively, you may decide to disinherit someone who’s shown themselves to be financially irresponsible. If you’re concerned about how an inheritance will be used, you can disinherit entirely or set up a Trust to specify how and when an inheritance can be used.
Previous support or gifts already given: Sometimes we give substantial gifts to those we love while we’re still alive. You might make an agreement that you’ll gift an heir money now for, say, a down payment on a house, and in turn disinherit them from future inheritance.
Choosing to leave an estate to charity: Sometimes, a decision is made to leave everything in (or a percentage of) an estate to a charitable cause. There can be a variety of reasons for this, including any of the ones listed above. Whatever the reason, if you have previously designated other Beneficiaries to receive any portion of your estate, you may need to disinherit them so you can redesignate a charity of your choice as Beneficiary.
Whatever the reason for disinheriting someone from your Will, failing to make legal specifications using proper measures can result in your estate being bequeathed to someone you don’t intend. And if that happens after you pass, transferring assets to whomever you wanted to receive them might be difficult (or impossible) to navigate…in fact, it’s likely it might not happen at all.
How to Update Your Existing Will to Exclude Someone
Outside of your spouse(s) and possibly your children, most heirs do not have inheritance rights, meaning they wouldn’t automatically be entitled to any part of your estate unless they are specifically mentioned in your Estate Planning documents.
Thus, disinheriting an extended relative can be as simple as just not mentioning them in your Will in the first place. If you’ve previously included them, though, you’ll need to update language in your Will so anyone you wish to exclude is not noted as a Beneficiary.
Disinheriting a Spouse
State marital laws govern how much a spouse is entitled to in a legal separation, divorce or the death of the other spouse, but these laws differ by state.
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are considered community property states. In these states, any property or assets purchased during marriage is recognized as owned by both parties equally (50/50).
States not deemed community property have set limits to protect spouses. Most states allow a spouse to choose between property left in the estate or a set percentage of the estate as noted by law.
If you want to disinherit a spouse entirely, you must go through the legal steps to do so by using a prenuptial or postnuptial agreement.
Disinheriting Minor Children
Any children who are still minors are legally protected from disinheritance. By law, they will be entitled to any financial support they’d receive were you living until they are legal adults. As long as the estate has money, your minor children will be awarded their share.
Disinheriting Adult Children
While you may want to be careful with your wording to avoid life-long hurt, it is important to specifically state any disinheritance of adult children. Simply omitting the name of a biological child is not enough to ensure he or she doesn’t receive part of your estate. Often, a court will assume a lack of name in estate documents as unintentional and award an equal share to the adult child not named. If you truly want to disinherit an adult child, you must include this direct information in your Will, making it clearly understood that the omission is intentional and not an oversight.
Parents by default are not entitled to any portion of your estate. That said, if you do not have a spouse or biological children and you pass away without an Estate Plan in place, your estate will pass to your closest relatives, which could be your parents. If you do not want your parents to inherit part or all of your estate, be sure to specifically include other heirs as Beneficiaries if you’re not married and do not have children.
Disinheriting Extended Relatives
While they’re not automatically entitled to receive a portion of your estate, if you die without a spouse, children or parents, your closest extended relatives could be considered your next of kin.
Keep in mind, anyone can contest a Will and claim they deserve or are entitled to a portion of your estate. Someone can claim they helped you, or that you verbally promised them a portion of their estate. Even if it’s not likely they’d be successful in their attempt, the time, cost and emotional stress on your rightful heirs is enough reason to try and avoid any disgruntled claims.
You can reduce the likelihood of someone contesting a Will by leaving them a small gift. This may dissuade them from further action once they realize how costly the process is and how unlikely it is they’d win. Another option is including language that specifies anyone not included in your Will is intentional, or language that states if anyone contests, they will lose any inheritance you originally left them (may be useful if you go the leave-a-small-gift route).
What Happens if the Disinherited Party Challenges Your Will?
There are times when a disinherited party may try to challenge a Will if they believe they were wrongly excluded as a result of a simple mistake, undue influence, fraud or forgery. The only people who can contest a Will would be a spouse, child, cohabitee or a person who was mentioned in a current or previous Will. They must also have valid legal grounds to contest.
You can choose to disinherit someone directly in your Will without telling them, so they’ll only be notified at the time of your passing. This will ensure they don’t try to change your decision, while avoiding an often incredibly-awkward conversation. But if you go this route, you should be mindful of the language you use so the person is properly legally disinherited.
If your Will is challenged, a court decides if the Will upholds the specific challenge. In these cases, those who were involved with the procurement of the Will might be asked to come to court. Other forms of verification, such as a signed self-proving affidavit declaring the Will was signed in front of witnesses, night protect them from coming into court.
How to Avoid Conflict When Disinheriting Someone from Your Will
There are preventative measures you can take to keep family members and others from disputing your Will.
Establish a Living Trust: Solidify your decision through a Living Trust. There are many types of Trusts you may want to consider, depending on your goals. Trusts can offer privacy, protection against estate taxes, avoidance of probate and much more. The biggest advantage to a Trust in relation to disinheritance would be privacy. Probate is a public record, so anyone can access what you left to whom, which could fuel fire in terms of contesting. A Trust makes all inheritances private.
Adding Beneficiaries to Accounts: Adding a Beneficiary to specific types of accounts and assets is also a solid tactic. Naming Beneficiaries allows for private distribution of funds several types of accounts, including:
Individual Retirement Accounts (IRAs)
Life insurance policies
Transfer on Death (TOD) accounts
The distribution of these accounts will be known by only the Beneficiary and the IRS.
Take into account location of assets: If you have several different residences, businesses or vacation homes, make sure to include any state probate laws you believe will regulate your Will. Otherwise, it can be challenged based on where you die.
Death is hard for everyone involved. Whether it’s expected, sudden, a young person or old, it’s never easy for those left behind. Add to this grief any complicated family dynamics or confusing inheritances, and the pain can be even greater.
Lessen that pain for everyone by completing your Will so there are no questions, no grey areas. Learn more about how to properly prepare with Trust & Will online Estate Planning. Whether you’re just starting the process, or you need to update your documents, including disinheriting someone for any reason, Trust & Will is there for you.