If a person passes away without having a valid will in place, their property is divided among heirs as provided in the intestacy laws of the state in which the decedent resided. These laws are established by states and generally are not subject to change except by the state legislature. According to a state’s laws of intestacy, after a person passes away, their property might be distributed in a way with which they would not agree.
In addition, the legal process of probate without a will might be more costly than alternatives and may be unpredictable in terms of the time it takes. Most people try to avoid this type of situation by having a valid written will in place that directs the distribution of their property.
By creating a will, a person can closely control who does and does not receive their property when they die. A valid will also allows a person to disinherit someone who would otherwise have inherited their property via intestacy laws. This can be done by excluding them from the person’s will.
What Does Disinheritance Mean?
Under the law of wills and estates, “disinheritance” occurs when a person intentionally chooses not to make a bequest for a particular person in their will. A bequest is a provision in a will that leaves some part of a person’s estate to another person. Typically, a person can disinherit someone by stating in their will that they do not want a particular person to inherit anything. Legally, the person would not be able to claim property from the estate.
There are limitations as to who can be disinherited. In most states, a person cannot completely disinherit their surviving spouse or their minor children. This makes sense if one considers that a person is legally obligated to support their children. In Louisiana, a person cannot disinherit a child who is under the age of 24 or who is unable to care for themselves. A person can only disinherit a child who is 24 or older for certain reasons stated in the law of Louisiana.
This is why it is important for a person to have a will, especially if the person has specific wishes regarding the bequests they want to make and the people whom they want to inherit their property. If a person does not leave clear instructions in a will, situations can arise in which a person’s property is distributed in a way that is unsatisfactory.
What If I Didn’t Intend to Disinherit Someone?
A growing problem with wills and estates is what is called “accidental disinheritance.” This type of disinheritance occurs when a person actually intended to leave something to an heir. However, due to a faulty will or other error in estate planning, an intended heir ends up receiving nothing.
For example, there may be some lack of clarity regarding a person’s name or identity in the will document. Inadvertent errors of this kind can lead to accidental disinheritance, as well as other legal problems. It could, potentially, make an entire will invalid and force a person’s estate to be distributed according to the laws of intestacy.
Another situation is where a will is created under circumstances where fraud, misrepresentation, coercion, or duress is at play. Someone might pressure a person into writing a will. A person under pressure may accidentally disinherit a person whom they did not mean to disinherit.
Or, a couple may have been married for many years. They owned most of their assets jointly. They may have had a will that left everything in equal shares to their children in the event they were both to die at the same time.
However, if one member of the couple dies, the other inherits everything because of their joint ownership of their assets. The surviving spouse becomes the sole owner of the entire estate. This surviving spouse then remarries and includes their new spouse in the joint ownership of all their assets. When the surviving spouse of the first marriage passes away, the second spouse becomes the owner of all of the assets held in joint ownership. The children of the first marriage are disinherited. In this scenario, the law does not rescue the children of the first marriage. They have been disinherited.
If the person who has been accidentally disinherited from a will is a person’s child or spouse, the inheritance laws in some states may protect them by ensuring that they will receive something from their estate. These laws are different in each state. There may be laws to protect immediate family members from disinheritance. But there may not be. It is not guaranteed.
How Can Accidental Disinheritance Be Avoided?
As mentioned, accidental disinheritance is usually the result of some type of error or oversight in a will or changed circumstances in a person’s life that are not reflected in their estate plan.
Thus, accidental disinheritance issues can largely be avoided by taking steps such as:
- A person should be clear and precise about exactly how they want their property distributed. If any of the provisions or terms are vague or unclear in a person’s will, it could lead to an accidental disinheritance;
- A person should make sure that their will is formalized in writing and that it meets all the requirements for a valid will in their state. This includes making sure that the will is witnessed and signed. A written will is better than an oral will as it provides all parties involved with a written document to which they can refer if there is a dispute about a will;
- A person should modify their will if there are major changes in their life that could affect how a person’s will is likely to function. A will is not something that a person can have made one time only. If a person gets divorced or remarried, if they have children in a second marriage – all of these life events could have an impact on the effect that a person’s will can have. It could even have the effect of rendering a will obsolete and of no practical use;
- Create a will early on in life and update it regularly to reflect changed circumstances. This would help avoid problems in the event that a person becomes seriously ill or incapacitated and may not be in a condition to create a will or update a will that is out-of-date;
- A person should work with a qualified wills, trusts, and estates lawyer when drafting and finalizing their will. An attorney can help review a person’s estate and their existing will, if there is one, with the person to help ensure that there are not any mistakes or inadvertent exclusion of property or beneficiaries that might lead to an accidental inheritance.
By taking the above steps, a person can avoid accidental disinheritance along with all of the other unpleasant legal steps that happen after someone passes away. Death is inevitable, and many people find creating a will or estate plan depressing or otherwise something to be avoided. But one must persist in spite of these negative feelings and make sure they have an up-to-date, valid will that is going to affect their wishes for the distribution of their estate.
Should I Contact a Lawyer for Help with Accidental Disinheritance Issues?
If you have any questions about wills or concerns about accidental disinheritance, you should consult with an experienced inheritance lawyer. Even if you have completed your own will, it is a good idea to have an experienced attorney review and possibly update it for you.
As with most things, little additional attention now can save your family from problems later on. You want to make sure that your estates will be distributed in a way that conforms to your wishes.
