Disinheritance is an estate planning concept that occurs when an individual chooses to intentionally keep someone from receiving something from their estate upon their death. In most cases, an individual can be disinherited by stating in the will that the deceased does not want that specific individual to inherit any property from the estate. If that language is included in the will, that individual will not be allowed to claim property from the estate.
It is extremely important to have a will document, especially if an individual has specific desires and/or instructions regarding certain beneficiaries or items of property. Without clear instructions, situations may arise where property is distributed in an unsatisfactory manner or not in accordance with the deceased’s wishes.
An increasingly common issue with wills is called accidental disinheritance. This occurs when the deceased intended to leave property to an heir, but that heir does not receive any property. There are several causes of accidental disinheritance, discussed below.
What is the Most Common Cause of Accidental Disinheritance?
One of the most common causes of accidental disinheritance is also one of the easiest to remedy. It is failing to update a will after a major life change for an individual and/or their family. If an individual passes away prior to making the change in their will, the property will be distributed according to the old will.
As a general rule, an individual should update their will after any of the following life events:
- Birth of a child; and/or
- A death in the family.
There may be additional circumstances under which an individual should update their will. These may include a material change in their assets, such as selling a home or property. A will can be changed and/or updated at any time and as many times as the testator, or creator of the will, desires.
Many states automatically void a will after a marriage, divorce, and/or birth of a child. A death in the family does not automatically void a will. It is important to note that automatic voiding only applies to the will and not to things such as trusts and/or life insurance policies. Should an individual pass away prior to updating those items, an ex-spouse or other named beneficiary may still inherit under those trusts and/or policies.
Why are Step Relatives a Problem for Wills?
Another common cause of accidental disinheritance is “stepparent succession.” In most cases, individuals plan on leaving everything to their spouse. What if, however, an individual marries, has children, divorces, and then remarried again? After the individual passes away, the new spouse will inherit the property. This is generally not a problem.
However, an issue may arise if your new spouse passes away. In these cases, inheritance will often pass to the new spouse’s heirs and the children of the first marriage do not receive anything.
What are Survivorship Options?
A third issue that may cause an accidental disinheritance involves survivorship options. Many places where money is tied up have survivorship options where a beneficiary is designated. These may include:
- 401k accounts;
- IRA accounts; and/or
- Home mortgages.
Wills do not influence designations on these accounts. Therefore, if your will indicates all an individual’s money should pass to their son, but all of their money is actually in an IRA account and the beneficiary is listed as the individual’s daughter, the son will receive nothing upon the individual’s death.
How Specific Should My Will Be?
An individual’s will should be as specific as possible. If the individual wishes to leave a piece of property to a friend, the will should specifically name that friend by their full name.
For example, in a famous case, an individual wished to donate a portion of his estate to “the college of USC.” The parties debated whether he meant the University of South California or the University of California, Santa Cruz. The individual should have specifically designated, by full name, the institution to which he wished his estate to be donated.
A will should be as specific as possible to avoid any property being distributed to the wrong party. If a full name does not clarify the intended recipient, provide a physical description as well.
How Often Should I Proofread My Will?
An individual should proofread their will as many times as they see fit. A will should be as perfect as possible. Courts are more likely today to reform mistakes in wills than they were last century but mistakes can still mean significant legal costs for your estate.
Common mistakes include, but are not limited to:
- Using only first names;
- Writing down an incorrect address;
- Not specifically describing property; and/or
- Signing a spouse’s name instead of their own name.
How Do I Modify a Will?
The best way to go about modifying a will is ensuring an individual has a valid will in the first place. It is important to consult with an estate planning attorney to ensure an individual’s wishes are carried out after they pass away. There are two general ways to modify a will: 1) to create a new will and revoke the old will; or 2) add a codicil to the existing will.
The creation of a new will is an option when an existing will needs revision. In most cases, a new will contains a clause revoking any previous wills. It is important to expressly revoke any previous wills in writing.
A codicil is a written alteration or amendment to an existing will. It can include minor changes and/or deletions, such as updating property to be distributed. It may also make a major change, such as removing a named beneficiary. It is generally better to create a new will when making major changes.
It is important to note that in order to create a valid codicil, it must satisfy the same requirements as the original will. In most states, this means the following requirements are met:
- The testator has testamentary capacity;
- The codicil is written;
- The codicil is signed; and
- The codicil is witnessed, usually by two witnesses over the age of majority.
It is important to be aware of the ways in which a will may not be modified. A will may only be modified by an action of the testator. A will cannot be modified by an individual who holds a power of attorney. A power of attorney is a legal document that gives another individual powers to make decisions on someone’s behalf should the need arise. Additionally, a power of attorney ends upon the death of the testator.
Neither an executor named in the will nor the attorney that drafted the will acting alone has the power to modify the existing will. The attorney may, of course, modify the will at the request of the testator.
Do I Need a Lawyer?
Yes, it is very important to have the help of an experienced estate lawyer with any will questions or issues. A lawyer can assist in drafting a will and any supporting documents, review a current will, and/or ensure that no heirs are accidentally disinherited. Spending a small amount now to make sure your will is correct and valid will save your family expense and heartache down the road.