For most people, a primary motivating factor for the creation of an estate plan is the ability to dictate who inherits from their estate. What happens though, if your biggest concern is not who does inherit from your estate, but who does not inherit from your estate? A Los Angeles estate planning attorney at Collins Law Group explains the right way to disinherit an heir.
Who Are My Heirs?
If it is important to you to be the one to determine what happens to your assets after you are gone, you need to have a firm understanding of your state’s intestate succession laws so you know who your legal heirs are. Knowing who your legal heirs are is necessary to know what will happen to your estate assets if you do nothing and leave behind an intestate estate. If an intestate estate is left behind, the California intestate succession laws dictate what happens to the decedent’s estate assets, distributing them as follows if you leave behind:
- Children but no spouse – children inherit the entire estate
- Spouse but no children, parents, siblings, or nieces or nephews – spouse inherits the entire estate
- Parents, but no children, spouse, or siblings – parents inherit the entire estate
- Siblings, but no children, spouse, or parents – siblings inherit the entire estate
- Spouse and one child or grandchild — spouse inherits all community property and 1/2 of separate property
- Spouse and two or more children — spouse inherits all community property and 1/3 of separate property and the children inherit 2/3 of separate property
- Spouse and one child and one or more grandchildren from a deceased child — spouse inherits all community property and 1/3 of separate property and children inherit 2/3 of separate property
- Spouse and two or more grandchildren from a deceased child — spouse inherits 1/3 of separate property and children inherit 2/3 of separate property
- Spouse and parents — spouse inherits all community property and 1/2 of separate property and parents inherit 1/2 of separate property
- Spouse and siblings, but no parents — spouse inherits all community property and 1/2 of separate property and siblings inherit 1/2 of separate property
Can’t I Just Not Mention the Person I Want to Disinherit?
If your goal is to disinherit an heir, it might seem like the easy way to do that would be to simply not mention them in your Will. After all, if you don’t gift them anything they won’t inherit anything, right? Not necessarily true. The law frowns on missing information. In fact, leaving an heir out of your estate plan often leads to litigation during the probate of the Will. In the end, the heir you intended to disinherit could be successful during that litigation and wind up inheriting from your estate after all.
To Disinherit an Heir You Need to Speak Up
To disinherit an heir to your estate you should specifically mention them in your Will (or trust) and make it crystal clear that you do not want them to inherit from your estate. When a Will (or a trust) is silent, the disinherited heir often challenges the Will claiming that it was not the Testator’s intent to leave them out. Whether as a result of mistake, undue influence, or lack of testamentary capacity, the jilted heir frequently tries to convince the probate court that the Testator would not have intentionally left them out – and that argument sometimes works because the document in question said nothing one way or the other. In this case, silence is not golden. The law operates on the assumption that you want your heirs to inherit from your estate. To overcome that presumption, you have to speak up and make it clear that you do not want the individual to inherit anything from your estate.
Contact Collins Law Group
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to disinherit an heir to your estate, consult with an experienced estate planning attorney near you. Contact the Collins Law Group by calling (310) 677-9787 to register for one of our FREE estate planning workshops.