When you consider your estate plan, you typically think about those to whom you want to leave your assets when you are gone. But what if there is someone you that you do not want to inherit from you, such as an errant child or relative? Can you just not mention them in your Will or is there something else you need to do to ensure they do not receive anything from your estate? An Oklahoma City estate planning attorney at Parman & Easterday explains the procedure for disinheriting someone in your estate plan.
If I Do Nothing, Who Inherits My Estate Assets?
There are numerous reasons why having an estate plan is important. You want to make sure the people you want to inherit from your estate do receive your assets when you are gone. This is usually a primary motivation for creating an estate plan. But if there is someone you specifically do not want to inherit from your estate, having an estate plan becomes even more important. If you do nothing, that individual may very well inherit under the state intestate succession laws. When you die without a will or trust leaving behind an intestate estate, the Oklahoma, Kansas and Missouri intestate succession laws determine what happens to your assets in those states. In Oklahoma, for example, the law says your estate assets will be distributed as follows if you leave behind:
- Children but no spouse – children inherit the entire estate
- Spouse, descendants, parents, or siblings – spouse inherits the entire estate
- Spouse and descendants (children or grandchildren) with that spouse – if there is only one child, the spouse inherits half and the child the other half; if there are two or more children, the spouse inherits one-third and the children the other two-thirds
- Spouse and at least one descendant with someone other than that spouse — spouse inherits 1/2 of all property acquired by joint effort during your marriage and splits the remaining intestate joint industry property equally with your descendants. Descendants inherit everything else.
- Spouse and parents — spouse inherits all the property acquired by joint effort during marriage, plus 1/3 of the remaining intestate property. Parents inherit everything else.
- Spouse and siblings (brothers or sisters) — spouse inherits all the property acquired by joint effort during your marriage, plus 1/3 of the remaining intestate property. Siblings inherit everything else.
- Parents but no spouse or descendants – parents inherit everything
- Siblings but no spouse, descendants, or parents – siblings inherit everything
Can I Just Leave the Person Out Of My Plan?
Simply ignoring someone and leaving him or her out of your estate plan probably will be insufficient if your goal is to disinherit that person. When you create your Last Will and Testament or Trust you may make gifts to specifically named beneficiaries. People often think that not including the name of someone they want to disinherit is all they need to do so that person will not receive anything from their estate. Usually what happens when you leave an heir out of your estate plan is litigation (think court battle) when your Will is probated and often that heir ultimately inherits from your estate despite your intent to disinherit.
The Right Way to Disinherit Someone
If the person you want to disinherit is a legal heir of your estate, you must specifically state that you do not want them to inherit from your estate. When a Will (or trust) is silent, the disinherited heir has legal grounds to challenge the Will claiming it was not the Testator’s intent to leave him or her out. Whether as a result of mistake, undue influence, or lack of testamentary capacity, the jilted heir frequently tries to convince the probate court that the Testator would not have intentionally left them out – and that argument works more often than it should. If you really want to disinherit someone, say so! Make it clear in your estate plan to help prevent your Will or Trust from being contested.
Contact an Oklahoma Estate Planning Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to ensure someone does not unintentionally inherit from your estate, contact an experienced Oklahoma City estate planning attorney at Parman & Easterday by calling 405-843-6100 or 913-385-9400 to schedule your appointment today.