Creating a will gives you the power to decide how your property and other assets will be distributed after your death. As the drafter, you are able to specifically dictate who gets what assets you have remaining. In some cases, this includes taking someone out of your will or otherwise disinheriting them.
Generally, people choose to disinherit someone in their family for a variety of reasons, which can include:
- Estrangement
- An attempt to protect the interests of one person over another
- Ensuring that someone you deem as deserving gets the money or assets you think they deserve
- Concerns over the motives of the individual once they have access to your money or other assets
Because disinheriting someone in California can be a very difficult process, you will want to work closely with a wills and trusts attorney if you are thinking of removing someone from your will. Without an attorney’s knowledge and experience, your loved ones may find themselves fighting a long court battle after you’ve passed.
California Laws Regarding Disinheritance
If you are thinking about disinheriting your spouse, think again. California law specifically prohibits a spouse from disinheriting another spouse. However, while California does presume that you will provide for your direct heirs in your will or trust, you can specifically exclude them if you wish. You cannot merely fail to include them because of the California presumption.
If you are thinking about disinheriting a direct heir, keep the following in mind.
Disinheritance To-Do’s:
1. Make a Proper Declaration: As discussed above, you must specifically state that you want to remove a direct heir from your will or trust. You may accomplish this with a simple statement: “I have elected to forego any provisions for Little Timmy in the disposition of my estate.”
2. Establish A No Contest Clause: The most effective way to avoid a fight over your will is to provide the person you wish to disinherit with a nominal sum, with the caveat that they cannot have the money if they contest the will. California law is strict when it comes to no contest clauses, so it is best to go over this with your attorney before finalizing your estate planning documents.
3. Preempting A Challenge: There are many cases where children or other family members challenge their disinheritance. The typical challenge is that a person was unduly influenced by another to disinherit someone or otherwise change a will to be less favorable to that person. When changing or drafting your estate planning documents, obtaining the advice of an estate-planning attorney can help you preempt any challenges based on undue-influence.
4. Have Your Will Witnessed Properly: Wills that might have been drafted without the guidance of an attorney might not be properly validated. While laws about signing a will are different depending on the state, in California, two witnesses are required to sign the will at the time that you do. Simply going to a notary will not suffice.
It is a good idea to review your estate planning documents annually and whenever a significant event occurs, such as a birth or a death. The experienced attorneys at Horizon Elder Law and Estate Planning can help you ensure that your estate planning documents reflect your true and current wishes and adhere to current laws. Contact us today to schedule a consult.