A big part of estate planning is deciding what sort of legacy you want to leave behind. However, writing a will or establishing a trust often means making difficult decisions. One of the most emotionally charged aspects of planning any estate is not deciding who gets which assets, but who shouldn’t get any at all. 

California Estate Planning Attorney Kavesh Minor & Otis

Why Some People Disinherit Heirs

The legal term for writing a loved one out of a will is disinheritance. People decide to disinherit heirs for many reasons, including:

  • A spouse or family member has become estranged.
  • A relative is financially irresponsible.
  • A potential heir has become affluent in their own right, and you believe your assets could make a bigger difference to someone else.

No matter what reasons you have for leaving someone out of your will, you should approach disinheritance with caution.

Disinheritance Can Cause Legal Problems

Under California law, simply removing a loved one’s name from an estate plan may not ensure that you’ve legally disinherited them. Since not everyone has a comprehensive estate plan, the courts often assume that the decedent intended to provide for their immediate family members.

If you disinherit a spouse or child, and your will is later contested, a judge may be persuaded that your omission was made in error. After all, a California probate court probably won’t be familiar with your family affairs and will try to do what it thinks is best.

Amending Your Will

To protect your will, you’ll want to insert a clause specifically and clearly stating that you chose to disinherit an heir and do not want them to inherit certain assets. You should also document your decision, and safeguard a signed, detailed explanation of the same.

You would be well-advised to have an attorney review any changes you make to a will and any other critical estate planning document because alterations which seem straightforward may not comply with California’s probate code.

Alternatives to Disinheriting a Relative 

If you’re not sure about the long-term consequences of disinheritance, there are other options you can pursue, including:

  • Creating a skip bequest, which allows you to disinherit a child while leaving an inheritance for their children (your grandchildren)
  • Creating an incentive trust, which only disburses funds or assets to an heir who meets the behavioral conditions you set (going to and graduating college, for instance)
  • Creating a no contest clause, which effectively disinherits any heir who tries to challenge your will

Incentive trusts have the added advantage of keeping your family affairs private since—unlike wills—they’re administered without court oversight.

Additionally, trusts are comparably flexible. Certain kinds of trusts can be easily altered while you’re still alive. You may add and disinherit heirs, set conditions for the disbursal of assets, and minimize the chances of your last wishes ending up in front of a judge.

Since disinheritance decisions can be challenged, legal experts don’t recommend making major changes to a will or trust without professional guidance. If you’re trying to rearrange the contents of your will or establish a trust, don’t run the risk of your estate being parceled out by a California probate court.

Do You Need To Speak With An Attorney About Estate Planning?

If you need to speak with an experienced estate planning lawyer please contact us online or call us directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our estate planning services. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.

 

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.