Morris & Morris, A Law Corporation - Estate Planning

Protecting your will from a challenge when you disinherit someone

Families are as complicated as the people who belong to them. It is not unusual for the dynamics of your family to change as your children mature and age. Someone whom you once viewed as trustworthy could later become someone who makes terrible decisions or who struggles with addiction.

It is, unfortunately, common for parents and grandparents to realize that a family member for whom they once wanted to leave an inheritance may no longer deserve an inheritance or would misuse those assets to support a dangerous habit. Choosing to disinherit someone can be a difficult decision, but that doesn't necessarily mean it is the wrong choice.

However, when you remove someone from your last will or estate plan, you drastically increase the likelihood that they will challenge your wishes during the administration of your estate. There are certain steps you can take to reduce the likelihood of a challenge if you choose to disinherit a family member.

Use a trust to better structure your estate

The creation of one or multiple trusts can be an invaluable strategy for those who have complex wishes for their legacy. A single trust may be enough if there are only a few beneficiaries in your estate plan.

If you have a large family or multiple heirs for whom you want to leave structured assets and inheritance, multiple trusts can't help you carefully limit and control what individuals have access to and what they use their inheritance for.

While it is possible for your family members to challenge a trust, it is often more difficult to do that than to challenge a standard last will. In other words, the creation of a trust will make it more difficult for a disinherited family member to seek a portion of your estate.

Tell everybody in your family about your intentions

Telling a member of your family that you chose to cut them out of your last will may not be a pleasant discussion, but it is an important one. When people know for years before you die that they won't receive any portion of your estate, they are less likely to file a challenge out of disappointment or anger.

At the same time, making sure that other family members know about your wishes can prevent them from unintentionally subverting your intended legacy by supporting a challenge because they don't believe that the contents of the will reflect your wishes.

Consider adding a no-contest clause to prevent unnecessary challenges

Perhaps the best way to protect your wishes from an attack by a disinherited family member or heir is to add a special no-contest clause that reduces or eliminates the inheritance of anyone who challenges your estate plan, last will or trust in probate court.

No-contest clauses help remove any financial incentive people have for bringing a challenge. California courts will usually uphold these clauses.

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