Trusts, wills, and inheritance

[Badger]

My wife and I have trusts and wills that need to be updated and want to make sure there are no problems with the estate going to who we designate and eliminate any contesting when we are gone. We both have brothers who were trustees when our respective parents passed away and did numerous things to grab as much as they could in the process. It took lawyers at our own expense to stop some of it.
Neither of them are named in our trusts and wills and would like to insure they won't be able to contest them by claiming they are family and were just inadvertently left out. It is possible they would try.
As a belt and suspenders person would it be reasonable to identify them to NOT receive anything from the estate and also anyone contesting the trust or will is to be automatically excluded from the trust or will?

Cheers!

 

[audreyh1]

I think in cases where you intend for a close relative not to get anything it’s best to state so clearly in the will, but I am not an estate attorney. I assume you will discuss this issue with yours.

 

[Car-Guy]

^^^^^ Agree, I would think an estate attorney would know how to say that "legally" in a will... Better than saying "Bob" doesn't get anything. (But maybe it's that simple? )

 

[braumeister]

I think in cases where you intend for a close relative not to get anything it’s best to state so clearly in the will, but I am not an estate attorney. I assume you will discuss this issue with yours.

I've heard of several cases where the disliked relative was specifically named in the will for a bequest of something like one dollar. That was to preclude any claim that they were "inadvertently forgotten" in the will.

 

[Dash man]

In our trusts, we specifically state anyone who challenges our trust is specifically eliminated from being a beneficiary of the estate. Not the exact wording, which was written by our estate attorney.

 

[audreyh1]

I've heard of several cases where the disliked relative was specifically named in the will for a bequest of something like one dollar. That was to preclude any claim that they were "inadvertently forgotten" in the will.

I was bequeathed my father’s love.

 

[Badger]

Thanks for the replies. It appears that this is something to consider so I will be making those changes after clarifying everything with the estate lawyer. I don't like the idea of anyone challenging the trusts/wills and creating a problem. Past experience tells me to insure the brothers are prevented from trying more shenanigans. I particularly like eliminating anyone as a beneficiary who challenges.

Cheers!

 

[OldShooter]

Thanks for the replies. It appears that this is something to consider so I will be making those changes after clarifying everything with the estate lawyer. I don't like the idea of anyone challenging the trusts/wills and creating a problem. Past experience tells me to insure the brothers are prevented from trying more shenanigans. I particularly like eliminating anyone as a beneficiary who challenges.

Cheers!

I suggest that you also find a junkyard dog attorney and name him or her as executor.

 

[MarieIG]

Yes, it would be reasonable to insert a clause that they not being beneficiaries is not an oversight.

With regard to a no contest clause, there is typically a carrot, i.e., you leave them something which they forfeit if the contest. They have nothing to loose if they are not a beneficiary in any event.

BTW, you can not block a contest from being initiated. You can [-]increase[/-] decrease the likelihood of the contest being successful. They are not your children or a spouse, so their potential claims are - weaker . . . [mod edit given the subsequent correction]

Get a good estate attorney.

 

[ERD50]

Yes, it would be reasonable to insert a clause that they not being beneficiaries is not an oversight.

With regard to a no contest clause, there is typically a carrot, i.e., you leave them something which they forfeit if the contest. They have nothing to loose if they are not a beneficiary in any event.

BTW, you can not block a contest from being initiated. You can [-]increase[/-] decrease the likelihood of the contest being successful. They are not your children or a spouse, so their potential claims are - weaker . . . ....

Right, the no-contest only works if, for example, they were bequeathed 10%, and they thought they should get 20%. If they get 0%, they've got nothing to lose, so why not contest.

And even though the non-contest clauses sound good on the surface, what if an actual error of some sort was made? Now it can' be fixed? Sounds too much like having your rights signed away.

But yes, you need an executor who has no problem saying "NO - go away, don't bother me again".

-ERD50

 

[oldphd]

We recently updated our wills. I have a sister who has made some incredibly poor financial/life decisions. As of mid 2020 she cut off communications with all immediate family members, including our parents who are still alive. No cell phone, no computer, foreclosed on house so no known address, didn't register her car last year, no employment. We could not find her now if we needed to for any reason.

My will states that she was deliberately left out, but no $ left to her to avoid contesting. The lawyer said that would do.

 

[sengsational]

Your will could just include the family facts. I, Mr Jones, married to Jane and having siblings Tom, Dick and Harry, do hereby say that this is my last will and testiment...

Then just leave them out.

 

[luckydude]

My wife and I have trusts and wills that need to be updated and want to make sure there are no problems with the estate going to who we designate and eliminate any contesting when we are gone. We both have brothers who were trustees when our respective parents passed away and did numerous things to grab as much as they could in the process. It took lawyers at our own expense to stop some of it.
Neither of them are named in our trusts and wills and would like to insure they won't be able to contest them by claiming they are family and were just inadvertently left out. It is possible they would try.
As a belt and suspenders person would it be reasonable to identify them to NOT receive anything from the estate and also anyone contesting the trust or will is to be automatically excluded from the trust or will?

Cheers!

Good on you to look ahead to possible contest of your will/trust by your siblings, but I would think that their chances of success are practically nil. I can see better chances of success if a child decides to contest a will because he/she is left out by a parent, but siblings are not direct descendants and really have no legal claim if left out of a will.

Other posters have suggested including languages to specifically exclude an individual, etc. These are all good ideas. But I suppose if someone is determined to file a frivolous contest, they can even go as far as to claim that the will/trust in question is invalid or even produce a forged one. Even if they lose, I suppose they could tie up the estate in legal proceedings indefinitely to make it painful for heirs in hopes of getting a possible settlement out of it.

FWIW, I have seen plenty of disputes over wills/trust within my family, but they always involved siblings fighting over parents' estate, and never a sibling trying to grab another sibling's estate if the latter had legal heirs (i.e., kids).

 

[Dash man]

These are all good ideas. But I suppose if someone is determined to file a frivolous contest, they can even go as far as to claim that the will/trust in question is invalid or even produce a forged one.

I don’t know how most Estate Attorneys handle it, but ours created two identical sets of wills and trusts with original signatures, giving one to us and keeping one for us. So it would be more difficult to prove it’s invalid. It also protects us in case of fire or flood.

 

[OldShooter]

Good on you to look ahead to possible contest of your will/trust by your siblings, but I would think that their chances of success are practically nil. ...

The problem with things like this is that even if the plaintiff loses, the estate still pays the legal bills to defend. (Unlike the English "loser pays" system.) So it is in the OP's best interests to protect himself from frivolous lawsuits by the siblings, even if they would have little or no hope of success.

 

[MarieIG]

Yes, it would be reasonable to insert a clause that they not being beneficiaries is not an oversight.

With regard to a no contest clause, there is typically a carrot, i.e., you leave them something which they forfeit if the contest. They have nothing to loose if they are not a beneficiary in any event.

BTW, you canNOT block a contest from being initiated. You can DEcrease the likelihood of the contest being successful. They are not your children or a spouse, so their potential claims are - weaker . . .

Get a good estate attorney.

TYPOs - (too late for me to go back and edit)

 

[SecondCor521]

The general topic is covered by "in terrorem clauses", which y'all can google.

In my particular situation, I've chosen to make it simple and mention a person in one part of my will but not in the part where I bequeath my estate. I felt it was fairly obvious that I would not be including this person as a beneficiary, and I felt it would have been too rude to say "X gets $0" or "X gets $1".

I haven't finalized this version yet, so I may mull it over more.

 

[rk911]

My wife and I have trusts and wills that need to be updated and want to make sure there are no problems with the estate going to who we designate and eliminate any contesting when we are gone. We both have brothers who were trustees when our respective parents passed away and did numerous things to grab as much as they could in the process. It took lawyers at our own expense to stop some of it.
Neither of them are named in our trusts and wills and would like to insure they won't be able to contest them by claiming they are family and were just inadvertently left out. It is possible they would try.
As a belt and suspenders person would it be reasonable to identify them to NOT receive anything from the estate and also anyone contesting the trust or will is to be automatically excluded from the trust or will?

Cheers!

in a word...yes! you'e free to include/exclude any person you want from your estate.

 

[DrRoy]

I've heard of several cases where the disliked relative was specifically named in the will for a bequest of something like one dollar. That was to preclude any claim that they were "inadvertently forgotten" in the will.

+1. I like this one.

 

[The Cosmic Avenger]

Right, the no-contest only works if, for example, they were bequeathed 10%, and they thought they should get 20%. If they get 0%, they've got nothing to lose, so why not contest.

This is probably why I've heard the advice to bequeath $1K, or for bigger estates, maybe $10K, rather than one dollar. In addition to making it clear that it wasn't an oversight, the person suing the estate also does have something to lose.

 

[armor99]

I've heard of several cases where the disliked relative was specifically named in the will for a bequest of something like one dollar. That was to preclude any claim that they were "inadvertently forgotten" in the will.

This is correct… and is now very common in wills. Not as a snub per se, but to make sure no one can contest it. This is often done for ex’es, that have crazy families that think they are still owed money somehow..

 

[cathy63]

This whole "leave them a dollar" thing is a myth. There are numerous articles online explaining why it's a bad idea. Here's just one: https://www.snyderlawpc.com/should-i-leave-1-in-my-will-to-disinherit-an-heir/

The truth is that leaving your heir $1 in your will in order to disinherit them is not necessary. Going this route may even end up costing your estate. For the heir to formally receive his or her dollar, they will need to be notified and a check will need to be drawn up and sent to that person by your Executor (called a Personal Representative in California) or your Trustee. The Executor or Trustee will be unable to close out the estate’s checking account until the check is cleared. As you can imagine, everyone involved in this process of identifying the heir, sending out notifications, and paying the heir is also charging for their time along the way.

Also, "no contest" clauses are not always enforceable anyway. Here's a state-by-state summary: https://www.actec.org/assets/1/6/State_Laws_No_Contest_Clauses_-_Chart.pdf

 

[audreyh1]

Yeah, exactly. Angry heirs can cause still problems for the estate. Just make it clear in the will that they didn’t inherit anything.

Siblings don’t normally inherit anyway if someone has children.

 

[CaliKid]

This is probably why I've heard the advice to bequeath $1K, or for bigger estates, maybe $10K, rather than one dollar. In addition to making it clear that it wasn't an oversight, the person suing the estate also does have something to lose.

The key is it's enough to matter to that beneficiary. Give a drug addict $500 if they don't contest and they likely won't contest. Give a multi-millionaire $10k if he doesn't contest it doesn't really matter and he'll likely contest if he wants.

Giving one dollar is bad advice in my opinion. Technically then your trustee/executor has to actually send them a dollar. I had that in a case. The beneficiary was in jail. It was a big hassle. Spent way more than a dollar to get the guy his dollar he was entitled to. Plus it does basically almost nothing to prevent someone from contesting. In my opinion the only thing beneficial about saying zero or $1 or that you intentionally disinherited them or whatever, is that an attorney might be less likely to take the case on a contingency basis. You likely want to make it harder for them to get a good attorney. On the other hand it could be argued that a starving attorney might be your worst enemy because they'll take a bad case and fight fight fight for a small amount of money.

 

[pb4uski]

While we don't have any such situations, I would think that giving $0 and being specific about it would be preferable. First, the executor avoids the need to chase down heirs to give them $1 or other relatively small amounts and secondly, if someone claims that they were overlooked, the will makes it clear that they were not overlooked and were intentionally left nothing.

Now most of our estate will transfer to our heirs via beneficiary designations for financial accounts and/or enhanced life estate deeds for our properties and I presume that it would be harder for someone to make a claim for those than to contest a will. There is next to nothing that will pass via our will so they can give it a go if they wish to but it will cost them money to contest.