Disinherit

Do You Really Want to Disinherit Someone?

Money Matters Radio – Estate Planning Q&A with Gary Goldberg

By: Martin M. Shenkman, Esq.

Introduction/Overview: Family
dysfunction seems the norm. The Cleaver family was really fictional (sorry to
break your heart on that one)! Occasionally, a parent may believe they should
disinherit a child. Is this really the way to go? And if it is, are there better
ways to do it?

√ Question: Let’s
start with a tangential issue that is pretty important. What role does the
attorney have in this process?

√ Answer: Needless
to say, the lawyer drafts the will, and will often thus become the instrument of
the family’s destruction. If you tell your attorney you want to disinherit
someone, and they don’t spend some serious time trying to address with you why,
and suggest less harsh alternatives, you should really assess if that is the right
attorney for you. Remember, some lawyer somewhere left $12 million to Leona
Helmsley’s dog, Trouble, instead of her own grandchildren. That was unnecessarily
destructive and cruel. You might be sure of your wishes, but you want an
attorney that will talk you through issues and not be a milk toast.

√ Question: Why do
people do this?

√ Answer: Sometimes
there are really objective reasons. Heirs have often done some really ugly
stuff and might very well deserve to be disinherited. Too often, people
disinherit heirs because they were hurt that the relationship wasn’t more.
People really should differentiate the two situations, because they are
different. Disinheriting someone because they did not call enough or show the
level of warmth you wanted is a lot different than disinheriting a child who
stole from you or tried to have you declared incompetent and name themselves
guardian when you really did not need to give up control.

√ Question: What
should people do if they do determine that they want to disinherit someone?

√ Answer: First,
have your lawyer analyze the situation with you. Better yet, consult with a
family counselor, psychologist, or psychiatrist about the situation. Be sure you
are understanding and clear on what you are doing, why you are doing it, and how
to do it. Going into the process in a deliberate manner might give you insight on
how to best handle it, to leave the smallest destructive wake behind you. Once
the decision is made, talk to your lawyer. In the movies, the person disinherited
typically gets $1 or some other insult. The downside of that, is that because
the person is an heir, state law might give them the right to a notice concerning
any proceedings and a copy of your will. Ignoring them in the will is really
dangerous because they can sue, claiming the lawyer mistakenly left out their
name. The better approach might be to expressly mention them, but say you’ve
left nothing to them, for reasons known to you. If you state a reason, it can
create more malice and hard feelings. Worse, if the person disinherited
challenges the will, can they gain some advantage by proving your reasoning was
incorrect?

√ Question: Any
last points?

√ Answer: Great set
up. The last point is the last point. How do you want to be remembered?
Whatever you put in your will or a final letter may be the legacy you leave. Is
it really advisable or appropriate to leave ugly and hurtful language. What if
you reconcile on your deathbed? What if you misunderstood? What if you’re
advanced age and the accompanying cognitive declines have skewed your
thinking?