For some families, making a will is a process of distributing assets to loved ones after they are gone. But for other families, it is a heartwrenching process of deciding whether a disinheritance would be wise. Even if the family knows it is the best option, in almost all cases, the person who is disinherited won’t feel the same.
Many people think of disinheritance as something that is done when there has been a rift in the family and one family member is responsible. But there are many reasons why disinheritance may be the best option for a family member or other heir. Someone who has a history of drug or alcohol abuse, a gambling problem or a history of spending beyond their means may be a good candidate for disinheritance. If they do inherit under the will, their share may be wasted when that portion might have been better invested in another heir or even a charity.
Generally, when you write a will, it is up to you to include or exclude someone or to put restrictions on their inheritance, with one exception: in most circumstances, a spouse cannot be totally disinherited under a will.
Of course, when someone is disinherited, they have the right to challenge the will in court. Many arguments can be made such as the person who made the will was under undue influence from another family member or that the will was executed by someone who was suffering from mental illness. One problem with these challenges is that, once the court challenge is filed, all of the family’s “dirty laundry” may be aired publicly. Another problem is that it may make an already bad situation even worse.
While there is probably no way to satisfy everyone in a tense situation like this, there may be better options. By consulting an experienced estate planning attorney prior to making a will, you may learn of other ways to handle the situation. For example, if the concern is that the person to be disinherited will waste their share of the money, the attorney may suggest a trust that can put limitations on the amount of money that may be withdrawn at one time or only with the permission of a trustee. Every family’s situation is different, but an estate planning attorney can review the facts and make sure you know all of your options.
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