Can You Successfully Exclude a Family Member from Your Will?

You don’t have to leave your estate to anyone. Suppose you leave everything in your estate to one person and exclude someone else who might normally be included. In that case, it’s your choice, according to the article “Estate Planning: Disinheriting a loved one” from nwi.com.

Many people ask about using the “one dollar bequest.” However, it’s not a commonly used provision nor is it necessary.

Depending upon the state, some estate planning attorneys prefer to acknowledge the disinherited individual and recognize their exclusion was the intention of the testator. Some use language like this: “I specifically acknowledge that I have made no provision for my daughter Jane Smith and have done so knowingly, intentionally, and for reasons known only to me.”

This language doesn’t offer a lot for the disinherited individual to challenge. What language could cause a problem? Try this: “I make no bequest for my daughter Jane Smith because she drinks too much.” This opens the door for Jane to prove she doesn’t drink any more than the average person, and if Dad had only known this, he wouldn’t have felt the need to exclude her.

It may not be the best argument heard in a courtroom. However, it wouldn’t be the worst either.

The issue of using a no-challenge clause in a will is different. A no-challenge clause in a will is known as an in terrorem clause. In Latin, in terrorem means “in fear of.” This clause can be used to punish someone who challenges a will. The punishment could be automatic removal from the will or a shift of legal costs to the person who challenges the will. The clause intends to deter a challenge.

In some states, these clauses are not used. In others, they are automatically voided. Indiana used to void such provisions until 2018 when Indiana law changed automatically, and in terrorem clauses were deemed acceptable.

The clause can add an additional layer of protection for people who are concerned about family members who might react to being disinherited.

The critical thing to remember is you may leave or not leave your estate or portions of your estate to whoever you want to. Don’t let traditions or conventions of what you “should” do impact how you distribute your estate.

Speak with your estate planning attorney if you are concerned about ensuring that your wishes are carried out. When your will goes through probate, it becomes a public document. Therefore, anyone who asks can read it. Your estate planning attorney may suggest using trusts, which can afford greater privacy as they never become part of the public record.

If you're unsure about when it's best to exclude someone from your estate plan, or if you need a probate attorney, we are here to help.  Our probate attorneys in Los Angeles can guide you through it.

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Reference: nwi.com (Oct. 15, 2023) “Estate Planning: Disinheriting a loved one”