CAN YOU DISINHERIT YOUR CHILD?
In word...Yes.
In California, you have no obligation to leave any property to your children, not even one thin dime. There are many reasons people choose not to leave their property to one or more of their children. They may not need the inheritance, they may squander it, they may have treated their parents badly or abandoned them entirely. The reason can be a good one, or a bad one, but the reason why makes no difference at all. You do not have to state a reason ore even have a reason why you choose to disinherit your children. In fact it is much better if you do not satate the reason at all. All that is required is stating that you choose not to have them receive any portion of your estate.
PROBATE IS AN INVITATION TO CONTEST A WILL.
Probate is an open forum for Will Contests. The Court is in effect asking if there is anyone that disagrees with the terms of the Will or thinks they are for some reason invalid. If a reason for disinheriting a beneficiary is stated in a Will, the disinherited party can go to the Court and show that the reason was based upon a mistake or an error. If the Court finds the reason as inaccurate, the disinherited party may become an inherited party. This can particularly be a problem for a person that chooses to leave some or all of their estate to a charitable organization, instead of their family. Often times, the disinherited family members will do everything it possibly can to prevent the organization from getting the proceeds that were left to them in a Will. This can delay the distribution and unnecessarily consume the assets of the estate.
WHAT HAPPENS IN A WILL CONTEST?
If someone comes forward with an objection to a Will, the distribution of the assets stops and the validity of the claim is determined by the Judge. This can be a time consuming and costly process. It becomes a contested case and ultimately result in having a trial to decide the issue. The funds to pay to defend the estate from the claims of a contestant come out of the estate assets. Frequently, even in the case of a questionable or clearly false claim, the heirs will seek to make a settlement offer to reduce the costs and delay. The result is a new beneficiary of the estate and a loss to the intended beneficiaries. the costs and delay.
HOW CAN WILL CONTESTS BE AVOIDED?
Every Will or Trust should contain a provision called a "No Contest" clause. An example of that language is as follows:
If any person (referred to in this paragraph as "the contesting person") for any reason or in any manner, directly or indirectly, contests the validity of this Will in whole or in part, on any ground, or opposes or objects to any of the provisions of this Will or seeks to invalidate them or seeks to succeed to any part of my estate otherwise than pursuant to the provisions of this Will, the contesting person shall not take anything from my estate. Further, I intend to leave nothing to any person not mentioned herein, expressly including any person who would otherwise be a pretermitted heir. Any gift or other interest in my estate to which the contesting person would otherwise have been entitled shall pass to those persons who would have been entitled thereto under the provisions of this Will that would have been applicable if the contesting person had died without issue before the event that made him or her ineligible to receive such gift or other interest.
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Sometimes That is Still Not Good Enough...
Even with a powerful No Contest Clause, there is no guarantee that a disgruntled heir will not file a Will Contest and delay the distribution of the estate. They will probably lose, but that still does not mean that they are precluded from filing hte Will Contest if they choose to.
THERE IS A BETTER WAY...
Through the use of a Living Trust, the decision to disinherit a potential heir does not mean running the risk of a Will Contest. Unlike a Will, which becomes a public record during probate, a Living Trust is a confidential document. A disinherited person is not even allowed to see the document. If they attempt to file a contest, the closest they will come to seeing the trust is for a Judge to read the trust and tell them they are disinherited! The Courts have consistently honored the confidentiallity of Trust documents.
Instead of a probate case for a Will that can go on for months or even years, assets held in trust can be distibuted to heirs within days, without any involvement of the Courts or the legal system.
IN CONCLUSION
The decision to disinherit a family member is one that is often difficult to make, but if it is your decision, then make sure the outcome will be the one that you have chosen, and not the outcome chosen by the disinherited person. With a Living Trust, the options available to a disinherited person are virtually eliminated.
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