When You’re Leaving Someone Out of The Will – Making Sure That Your Will Is Respected
Sometimes, our lawyers are consulted by a person who wants to leave a spouse, child, or grandchild out of his or her will. That decision might be for a variety of reasons, ranging from the fact that the person being omitted from distributions is very well off and doesn’t need the inheritance to the bad behavior of a relative, or to a breakdown of a personal or family relationship.
Whatever the reason, there are a few facts and laws that you should consider whenever you are omitting a person who might normally be considered the natural object of your bounty” and therefore a person likely to inherit under your will.
First, Pennsylvania law does not permit you to completely disinherit a spouse. Of course, a valid and binding prenuptial agreement might alter this rule. But, if you do not have a prenuptial agreement, and you do disinherit a souse, he of she is permitted to “elect against” your estate and to claim a sizable portion of your probate estate (and often some non probate assets). However, this is a complicated matter under the law and you should consult legal counsel if you are contemplating a claim or disinheriting a spouse.
Unlike a spouse, children, and grandchildren have no statutory right to inherit. However, direct lineal descendant’s often have an expectation of inheritance (rightly or wrongly) and it is important to take measures to be clear in your plan documents and related documents (such as beneficiary designations) to avoid litigation following your death.
These measures can include a carefully worded clause to verify that the exclusion is intentional and not just by mistake, proving for a smaller gift which is eliminated if the recipient challenges the will, and clarifying whether gifts are intended to include step children and their descendants, or just your naturally born issue.
Finally, extra care and precautions should be taken to insure that the will can withstand common challenges. Verifying testamentary capacity, the lack of duress, and the careful execution of the documents in exact accordance with state law will all be important.
For more information on making sure that your will, trust, and estate planning documents are well drafted and can withstand a challenge following your death, watch these videos on making your will bullet proof by David M. Frees III.
Bullet Proof Your Will Parts One – Five
Click here for more information about David M. Frees III, Esquire
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David M. Frees III on Protecting Your Legacy
David M. Frees III Esquire
610-933-8069
dfrees@utbf.com
David has been rated a 9.7 Superb by the lawyer rating service AVVO.
David Frees Chairs the Trust, Estate, and Wealth Preservation Section
of Unruh, Turner, Burke and Frees.
He has offices located in Phoenixville, Malverm and West Chester Pennsylvania.
These offices serve clients through out the state of Pennsylvania including
Chester County, Montgomery County, Buck, Berks, and Lancaster Counties.
For an appointment with David Frees please call 610-933-8069 for Donna or Denise.
Mention this blog post when making your appointment.
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Written by: David M. Frees III
Chairman: Trust, Estates, and Wealth Preservation
E-mail: dfrees@utbf.com
Phone: 610-933-8069
AVVO Rating: 10.0
Tags: Avoiding will challenges, David M. Frees III, disinheriting a realtive, leaving someone out of my will, making will work, no challenge to will clauses, omitting a child or spouse from a will
