E204 How to Make Sure You Don’t Leave Anything to ...

Many of our Solo Ager clients want to make sure they don’t leave anything to a relative who is distant, estranged, or they just dislike. Here are a couple of common misconceptions – and the best solution.

Can’t I just omit them from the Will?

The assumption is, “If I omit them from my Will, they have zero involvement, right?”

Unfortunately, that is not how the process works. They will still receive notice from the court regarding the Will. When you probate a will in court, you’re required to notify all the family members who would have inherited under the default inheritance law (what the inheritance plan would have been if there was no Will).

For example, you are unmarried with no children, and you have several nieces and nephews who are not involved in your life. Those nieces and nephews are the ones who would inherit if you didn’t have a Will, and they will receive a court notice even if you omit them from your Will.

That court notice is basically an invitation to come to court and contest the Will. Those nieces and nephews may not have legitimate grounds to contest, but may drain the estate’s funds fighting the legal battle, stress out your intended heirs, etc.

Can’t I specifically disinherit them in my Will?

Yes, this is called an “In terrorem” clause, but there are two problems with this approach:

You’re still notifying them and inviting them to contest your Will; and
In terrorem works best with an “incentive,” which you probably don’t want to give.

For example, an In terrorem clause could state that if a nephew contests the Will, then he might not receive anything. The problem here is that you didn’t want him to receive anything anyway. Now, he has no disincentive to contest the Will.

The In terrorem clause works best by giving the nephew something as a disincentive for him to challenge the Will: “I leave $10,000 to my nephew, but if he contests the Will, he will not be entitled to receive the $10,000.” In this example, you have given your nephew a disincentive to challenge, but you’ve also given him money as advanced blackmail that you would not have given to him in the first place.

Solution: A Trust

In the situation where you want to make sure a specific person does not get anything and cannot challenge your wishes – a Trust works best.

A Trust is a mechanism used to deliver assets to your heirs without the probate court process. If you don’t have the probate court process, then no notice is sent to heirs who are not named in the Trust. Even if an unnamed relative finds out about the Trust, there is no easy mechanism to contest your wishes. Unlike the In terrorem clause in the Will, there is no need to give an “incentive” in the Trust.