By: Martin M. Shenkman, CPA, MBA, JD
Money Matters Radio - Estate Planning Q&A with Gary Goldberg
By: Martin M. Shenkman, Esq.
Introduction/Overview: Family dysfunction seems the norm. The Cleaver family was really fictional (sorry to break your heart on that one)! Occasionally, a parent may believe they should disinherit a child. Is this really the way to go? And if it is, are there better ways to do it?
√ Question: Let's start with a tangential issue that is pretty important. What role does the attorney have in this process?
√ Answer: Needless to say, the lawyer drafts the will, and will often thus become the instrument of the family's destruction. If you tell your attorney you want to disinherit someone, and they don't spend some serious time trying to address with you why, and suggest less harsh alternatives, you should really assess if that is the right attorney for you. Remember, some lawyer somewhere left $12 million to Leona Helmsley's dog, Trouble, instead of her own grandchildren. That was unnecessarily destructive and cruel. You might be sure of your wishes, but you want an attorney that will talk you through issues and not be a milk toast.
√ Question: Why do people do this?
√ Answer: Sometimes there are really objective reasons. Heirs have often done some really ugly stuff and might very well deserve to be disinherited. Too often, people disinherit heirs because they were hurt that the relationship wasn't more. People really should differentiate the two situations, because they are different. Disinheriting someone because they did not call enough or show the level of warmth you wanted is a lot different than disinheriting a child who stole from you or tried to have you declared incompetent and name themselves guardian when you really did not need to give up control.
√ Question: What should people do if they do determine that they want to disinherit someone?
√ Answer: First, have your lawyer analyze the situation with you. Better yet, consult with a family counselor, psychologist, or psychiatrist about the situation. Be sure you are understanding and clear on what you are doing, why you are doing it, and how to do it. Going into the process in a deliberate manner might give you insight on how to best handle it, to leave the smallest destructive wake behind you. Once the decision is made, talk to your lawyer. In the movies, the person disinherited typically gets $1 or some other insult. The downside of that, is that because the person is an heir, state law might give them the right to a notice concerning any proceedings and a copy of your will. Ignoring them in the will is really dangerous because they can sue, claiming the lawyer mistakenly left out their name. The better approach might be to expressly mention them, but say you've left nothing to them, for reasons known to you. If you state a reason, it can create more malice and hard feelings. Worse, if the person disinherited challenges the will, can they gain some advantage by proving your reasoning was incorrect?
√ Question: Any last points?
√ Answer: Great set up. The last point is the last point. How do you want to be remembered? Whatever you put in your will or a final letter may be the legacy you leave. Is it really advisable or appropriate to leave ugly and hurtful language. What if you reconcile on your deathbed? What if you misunderstood? What if you're advanced age and the accompanying cognitive declines have skewed your thinking?
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