Four Ways to Disinherit Family Members

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I recently saw an estate where the decedent hated his brothers so much that he left his girlfriend a dossier of their lifetime legal quarrels, and had handwritten and typed recitations of his brothers and his fights and disputes. He even had his attorney chime in at the disgust he had in the brothers when they left a dead fish in his mailbox and hung a bottle of champagne from a noose on his porch. To say this person did not want his brothers to receive anything from his estate when he died would be an understatement.

Plenty of families don’t get along. The problem is that – absent of a valid will leaving money to other individuals – family members are the “default” recipient of your estate. Few states recognize common law marriage, and no state recognizes friends or a charity as your estate’s default beneficiary. In addition, if you choose to leave any property using your will, your next-of-kin must still be given legal notice of your estate being probated (even if they are being disinherited) and are usually the only people who can legitimately contest your will.

Fortunately, if you do have bad family relations and do not want certain family members to contest your post-mortem desires, there are several legal weapons available in your estate’s arsenal:

  1. Leaving property outside of your will

Probate has been a standard legal procedure for hundreds of years and was originally based on family lines. But people are surprised to learn they must place their next-of-kin on notice when they are passing property using their will. The good news is that you only need to probate property that is not already effectively left to someone outside of probate.

When you name a beneficiary or co-owner on your accounts or real estate, that property avoids probate. Jointly own a piece of real estate with your life partner? If he or she passes away, you just need to bring a copy of his or her death certificate to the county clerk and update the deed to just you as owner. Life insurance policies and retirement plans often require you to name a beneficiary: My will may state, “I leave my entire estate to my spouse,” but if the beneficiaries on my life insurance policy are my niece and nephew, then the property never makes it to the will. If you own real estate, you can always retain a “life estate” and name your choice of beneficiary for when you pass away. Likewise, investment and bank accounts usually allow you to name a “transfer on death” beneficiary; when you do die the beneficiary just gives your financial planner your death certificate. Lastly, property passing by living trusts also avoids probate.