There are numerous estate planning decisions that could create probate controversy. The decision to disinherit an immediate family member can spark conflict and potentially result in probate litigation. Those considering disinheriting a family member need to understand their options.
Typically, married individuals cannot disinherit their spouses unless they have previously discussed that decision and come to a mutual agreement. Spouses usually have a right to an elective share of the estate regardless of what the estate plan indicates.
That being said, not all family members have a right to inherit if an individual takes the time to create an estate plan. There are several strategies that a testator can employ if they intend to leave nothing for one of their children, grandchildren or other presumptive beneficiaries. How do people eliminate an inheritance without risking probate litigation?
1. Creating a trust
One of the simplest ways to avoid probate litigation and control a legacy is to create a trust. A trust allows an individual to impose very strict standards regarding the use and distribution of estate resources.
The people who move their most valuable possessions to a trust can select specific beneficiaries and impose other rules regarding the distribution of their property after their passing. Choosing not to include a family member as a trust beneficiary is a straightforward way of eliminating their inheritance.
2. Addressing the disinheritance
Those relying on a will as their main testamentary instrument can discuss their plan to eliminate one person’s inheritance. They can specifically mention the decision in the will to prevent a beneficiary from raising a claim that their exclusion was unintentional or the estate plan was outdated.
3. Providing a token inheritance
Many testators make a point in their estate plans to leave something small for the individual they intend to disinherit. They might choose an asset with no real financial value but a degree of emotional value to that beneficiary.
Other times, they might simply leave them a tiny amount of money from the estate. Sometimes, testators combine the decision to leave a small inheritance for one person with the inclusion of a note about the decision to disinherit them.
Those intending to make major estate planning moves may need to discuss their plans to prevent shock from inspiring their family members to contest their documents in probate court. People with unique estate planning goals often need help evaluating their options to achieve their goals. Consulting with an attorney before drafting or updating an estate plan can help a testator control their final legacy.