Details

Written by Jonathan J. David Jonathan J. David

Dear Jonathan: I am a widower approaching 80 years old. I have four children. I have a great relationship with three of them, but my relationship with my youngest son has been broken for many years.

He is one of those people who think the world owes them a living, and he only comes around when he needs something from me. Last week he stopped by asking for money.

This has happened so many times that I have lost count, and I have always given him something. This time, however, I said “no,” which resulted in an argument.

Finally, I told him that not only was I not going to give him any money, but I was also going to disinherit him. He told me I had no legal right to disinherit him because he was my son, and if I tried to do anything like that, he would hire a lawyer to contest the will.

My question is whether I have a legal right to disinherit my son? Is there some type of law that says you can’t disinherit someone because they are blood related?

 

Jonathan says: Your instincts are correct, and your son is wrong. You can legally disinherit him or any child for that matter.

However, in order to do so properly, you have to specifically identify him in the will as your son but then state you are intentionally omitting him as a beneficiary.

Failing to intentionally exclude your son as a beneficiary would give him the opportunity to argue he was left out of your will by accident and make a claim against your estate for his share.

Because the language has to be worded the right way for it to be enforceable and withstand a challenge from your son, I recommend you make sure an experienced estate planning attorney prepares this will on your behalf. Good luck.

 

Dear Jonathan: I am one of five children. Our father recently passed away. Unfortunately, he wasn’t much of a planner and did not engage in any estate planning other than preparing a simple will, and as a result we now have to deal with probate.

One thing that has come to our attention was that his will, which was written over 20 years ago while my mother was still living, divides the estate between only four of his children if my mother failed to survive him. At that time my parents had disinherited my brother due to a falling out.

When my mother passed away five years ago, our brother and my father reconciled, and they remained on great terms right up until the moment he died.

Unfortunately, my father never got around to updating his will to once again include my brother as a beneficiary. We are very confident, however, that if he had updated his will, he certainly would have included our brother as an equal beneficiary, and that is what we would like to see happen.

Our question is whether we can have our father’s estate divided five ways instead of four ways despite what his will states? We are all in agreement about this, so I assume it shouldn’t be a problem. Is this possible?

           

Jonathan says: It is unfortunate that your father did not update his will to accurately reflect how he wanted his estate to be distributed upon his death now that he and your brother were reconciled.

Although there is nothing you can do to change the terms of the will itself, the state where your father lived may have a law that allows the beneficiaries of the will to enter into an agreement to alter the terms of the will. Many states have these types of laws on the books.

Even if no such law exists, however, there is nothing to prevent you and your siblings from sharing what you receive from the estate with your brother.

Be advised, however, that if the amount each one of you gives to your brother exceeds $15,000 in value, any such excess will be deemed a taxable gift, which will require the filing of a gift tax return.

I recommend you and your siblings meet with the estate planning attorney who will be probating your father’s estate and inform him or her of what you are trying to accomplish. The attorney will then be able to properly advise the best way to address your concerns and prepare the proper documentation. Good luck.

                                                           

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., 1700 E. Beltline N.E., Grand Rapids, MI 49525.