For most people, the primary focus of estate planning is to ensure that their assets are passed down to their loved ones according to their wishes after they are gone. Consequently, many of the decisions you will make when creating an estate plan relate to who you want to inherit from your estate assets. What if there is someone you specifically do not want to inherit from your estate? Below we will discuss how to disinherit someone.
Who Inherits If I Don’t Have a Will?
If there is someone you specifically do not want to inherit from your estate, the need for a comprehensive and well drafted estate plan is often heightened. If you do nothing, the individual may inherit through that state’s intestate succession laws. When a decedent leaves behind an intestate estate, the California intestate succession laws dictate what happens to the decedent’s assets. Those laws dictate that the estate assets be distributed as follows if the decedent left 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
Silence Is Not Always Golden
Creating an estate plan is important if you want to disinherit someone; however, simply leaving the individual out of the plan may be insufficient to accomplish your goal. For example, when you create your Last Will and Testament you will make gifts in that Will to specifically named beneficiaries. People often make the mistake of thinking that not including the name of someone they want to disinherit is all they need to do to ensure that the person in question receives nothing from their estate. Unfortunately, instead of accomplishing the intended goal, remaining silent often leads to litigation during the probate of the Will.
Making Your Wishes Clear
To ensure that someone who might otherwise be considered a legal heir does not inherit from your estate, you will likely need to specifically mention them and make it 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 works sometimes. If your intent really is to disinherit someone, therefore, you need to make that clear within your estate plan and you need to utilize all available estate planning tools and strategies to help prevent your Will from being contested.
Please download our FREE estate planning checklist. If you have additional questions or concerns about how to disinherit someone, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.