Common Causes of Accidental Disinheritance
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What Is Accidental Disinheritance?
An increasingly common problem with wills involves accidental disinheritance. This is when you intended to leave property to an heir, but your heir does not receive anything. There are several common causes of accidental disinheritance.
What Is the Most Common Cause of Accidental Disinheritance?
One of the biggest causes of an accidental disinheritance is also one of the simplest ones: failing to update your will after a major change in your life or your family. If you then die before making the change, your property will be allocated under the old will. A general rule is to always update your will after a marriage, divorce, birth of a child, or death in the family.
Many states will automatically void a will after a marriage, divorce, or birth of a child. Deaths do not automatically void wills. Note that automatic voiding of wills only applies to wills. If you fail to update your trust or life insurance policy after a divorce, your ex-spouse can still inherit under that trust or policy.
Why Are Step Relatives a Problem for Wills?
Another common cause of an accidental disinheritance is something known as "stepparent succession." Most people plan on simply leaving everything to their spouse. However, what if you had children, got divorced, and then remarried? After your death your new spouse will get your property, which generally is not a problem. However, after your new spouse’s death, where will your money go? Often, it will pass to your spouse’s heirs, and your children will not receive anything.
What Are Survivorship Options?
A third problem involves survivorship options. Many things that we tie up our money and assets in, such as 401k accounts, IRAs, and home mortgages, have survivorship options where we designate who our beneficiary is. Wills do not influence these designations. So, if your will indicates that all of your money is to go to your son, but all of your money is tied up in an IRA account and the beneficiary is your daughter, your son will be left out upon your death.
How Specific Should my Will Be?
Your will should be as specific as possible. If you intend to leave a painting to your friend John, you should state John’s full name.
In one famous case, a testator wished to donate part of his estate to "the college of USC." The parties argued whether the testator meant the University of South California or the University of California, Santa Cruz. If you intend to donate a quarter of your estate to UC Santa Cruz, you should write down "the University of California, Santa Cruz."
Your will should be as specific as possible to avoid giving your estate to the wrong party. If the full name does not fully clarify who you mean, use physical descriptions as well.
How Often Should I Proofread My Will?
Your will should be as perfect as possible. Although courts are more likely to reform mistakes in wills today than they were last century, mistakes in a will can still incur significant legal costs for your estate. Some of the most common mistakes include, but are not limited to: using only first names, writing down the wrong address, and signing your spouse’s will instead of your own.
Do I Need a Lawyer?
It is always a good idea to consult with an estate planning lawyer regarding your will. An experienced attorney can review everything and make sure that you are not accidentally disinheriting anyone. A little expense now can save your family untold distress down the road.
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Last Modified: 10-17-2013 11:24 AM PDT
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