From time to time we run into clients who want to disinherit some or all of their heirs. This most often occurs due to damaged relationships, or a perception that persons or organizations other than the heir are in greater need of the resources to be passed on.

Disinheritance typically causes conflict between the disinherited heir(s) and the heirs and devisees (other beneficiaries) to whom resources are passed, causing the estate plan to be legally contested. This causes considerable time to be spent and unintended stress for those who are left to defend the estate plan, not to mention financial resources of the decedent that must be spent to provide that defense.

There are a number of steps that can be taken to avoid or at least mitigate this problem.

1. Don’t needlessly delay creating and updating your estate plan. When a person waits until shortly before they pass away the disinherited heirs will often claim they didn’t have capacity since they were near death and that their illness or condition prevented them from being able to think clearly. By taking care of your estate planning now, when you are lucid and thinking clearly you can avoid this argument. When major life changes occur the plan should be updated to avoid the same pitfalls.

• Make sure your estate planning documents (Will and/or Trust) identify who your legal heirs are. These are the people who would take your property if you were to die without any will, trust, or other document that legally states who are to take your property when you die. By naming them they can’t claim you forgot they existed (indicating incapacity), which is one argument for contesting an estate plan. If you complete your estate plan sooner, rather than later, you have more time to manage relationships with both inheriting and disinheriting heirs.

• Explicitly state that those heirs you are disinheriting are not to receive anything in your estate planning documents. Some Wills and Trusts actually have language stating that any person who contests the provisions of the document will be disinherited. These provisions are difficult to enforce because state law and the courts are very liberal about accepting excuses for doing so (“Medical people said she was not competent to manage her finances”, or “He was so close to death he couldn’t even legibly write his name”).

Another problem with these No-Contest clauses is the need to “give them something” for the threat of disinheritance to mean anything. There is a popular belief that leaving someone a small inheritance prevents them from claiming they were forgotten. While that may be true, it does not prevent the incapacity argument (“He forgot what our relationship was”) or that there was undue influence or exploitation of a vulnerable person.  These clauses don’t cause harm but they typically aren’t enough to prevent a law suit.

Disinheritance can be a very tricky endeavor when it comes to estate planning. At Arizona Mobile Attorneys we have considerable experience in this area and are ready and able to help you navigate through this difficult aspect of estate planning.

© 2022, Michael G. Kelly