Sometimes family and estate planning begins before the family is complete, particularly in an age where people (generally) are waiting until later to have children. In that case there could be grandchildren named in a will and others not, who are all in the same family. The reason may simply be that the children who were left out were not born when the will was made and it is too late to remake it. Fortunately, most states now have laws that are designed to remedy this situation.
Generally children are protected if they are left out, because they are considered to be overlooked as opposed to specifically disinherited. Some states protect spouses and grandchildren under the theory that they have been omitted rather than excluded. But, states have a couple different ways of handling omitted relatives. Many states assume that if the testator (the will maker) had a chance or had not forgotten to do so, that they would have included the omitted relative. This is important because the suggestion is that naming the individual would have been the testator’s intent had they recognized the omission. Other states make no mention of what the testator’s intentions would have been, because they want a testator who intends to disinherit someone to do it using positive language rather than just not mentioning that person. Both of these approaches can fly in the face of the facts regarding what the testator wanted or intended. But, one thing is clear, if you intend to leave someone out of your will who is a close relative you must do so expressly. That can be done by saying something like, “And, to my wife Sheila I leave nothing,” or “To my son Thomas, I leave the kick in the rear end I should have given him years ago.”
Such a scenario is a nightmare for your estate planner who knows that Shelia and Thomas will challenge your will because they have no reason not to. As was discussed in a previous article, it is better to leave a relative something that they are afraid to lose and use a no-contest clause in many instances. However, sometimes a client is clear in the desire not to leave a thing to one of his/her relatives. This is become increasingly difficult under state laws that protect omitted relatives and disfavor no-contest clauses. It is another case of laws that are designed to protect our interest also protecting us from being free. Why shouldn’t the testator be able to disinherit those they don’t like with ease? Why should the government decide who your assets will go to? Remember that most people die intestate so the state is used to making these decisions, but why should they be able to do so if you make a will? Perhaps it is another legal road paved with good intentions or perhaps it is another instance of big brother deciding for you.
This is another pitfall that your estate planner will be able to help you avoid. If you want to disinherit someone, then let your estate planner clearly know your intention. There is nothing wrong with that. Remember that, as an attorney, your estate planner’s job is not to judge your wishes, but to make them happen and guard you and your estate against what you don’t want. Your estate planner should not, and most likely will not, make you feel judged. They work for you and have taken an oath to faithfully serve your legal wishes to the extent that they have the legal power to refuse to break your confidence even after you pass away. Any estate planner who isn’t ready to fight tooth and nail to see your wishes met is not doing their job.
Just remember that if you intend to leave someone out of your will, you can do that. And conversely, your estate planner can help you provide for extra grandchildren that you may not have been lucky enough to meet, but that you still might help go to college.