Experienced Asset Protection and Estate Planning Attorney Offers Tips on Disinheriting Family Members in Estate Planning

The Presser Law Firm, P.A., Asset Protection Attorneys

The Presser Law Firm, P.A., Asset Protection Attorneys

For every 60 minutes you spend making money, spend 60 seconds thinking about how to protect it!

Deciding which beneficiaries to distribute assets to is always a tough decision to make when it comes to estate planning. In some families, it is clear who should inherit assets at an individual’s death. This is usually the case where there are no divorces and everyone gets along. In other families, the lines are much blurrier. Disinheriting family, however, may be necessary in some cases and may ultimately protect an estate from litigation later on. On the other hand, disinheritance can also cause damage to family relationships. Nonetheless, deciding whether or not to disinherit a family member is a very personal decision.

1. Estate Planning Defined

Estate planning is the process of planning for the disposition of one’s assets at their death. Estate planning can also involve the process of making sure an individual’s family is taken care of in the event of incapacity and/or death. While estate planning focuses on the distribution of assets, it also should specifically state if any one should not receive distributions. Estate planning typically includes incapacity planning documents (durable power for health care, durable power of attorney for finances as well as a HIPAA Release), a last will and testament and a revocable living trust. This is considered the foundation of your estate planning.

2. How to Disinherit a Family Member

Disinheriting someone from receiving gifts from an estate must be done using special language that is included in the estate planning documents. A disinheritance must be planned for ahead of time when an individual has the capacity to execute estate planning documents under proper formalities and really decide the language they prefer to use. Disinheritance language could be as simple as “I disinherit my daughter (or son) from receiving any bequests” or it could be more expansive and detailed. The language can be personalized to the particular individual and state a reason, or it could be something along the lines of “I disinherit my daughter from receiving any bequests under my last will and testament and revocable living trust, not for lack of love, but for other reasons known to me.”

3. Which Documents are Used for Disinheritance

The disinheritance language should be included in the dispositive documents. The dispositive documents provide for the distribution of assets (last will and testament and revocable living trust). If an individual has a last will and testament and a revocable living trust, then the same language should be included in both documents. In cases of married couples, the disinheritance language should be included in both of the husband and wife’s estate planning to allow for consistency. The more consistent the documents are, the clearly the intent appears.

4. Effect of Disinheritance

Disinheritance essentially has the legal effect of regarding the disinherited individual as predeceased, or dead (at least for legal purposes). It is also important to note no contest clauses, in Florida last wills and testaments, are not enforceable. Therefore, a disinherited heir may still have a claim against an estate (challenging such disinheritance), however, if the language of the documents are clear, the heir would have a very high burden of proof. They would need to prove that there existed duress or lack of capacity during the signing of the estate planning and the disinheritance is not what was intended. Therefore, if disinheritance is desired, it is advised that the estate planning documents make that very clear.

The Presser Law Firm P.A., Asset Protection Attorneys, represents individuals and businesses in connection with the establishment of comprehensive Asset Protection plans that incorporate both domestic and international components.

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“For every 60 minutes you spend making money, spend 60 seconds thinking about how to protect it!” states attorney Hillel L. Presser, Esq., MBA regarding the importance of protecting your assets proactively.

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