Inheritance Issues- Family Not Cooperating, What Are My Options?

Inheritances have specific rules that make them different than other kinds of assets. For example, an inheritance is usually treated as separate property, even in community property estates. If family friction has begun due to friction of learning about a future inheritance, steps can be made in the estate planning process to minimize conflict. Additionally, steps can also be taken after the testator dies to help deal with family problems.

Include a No-Contest Clause

If the testator or testatrix is still alive, he or she can include a provision in the will that says that if any of the beneficiaries contest the will, that beneficiary will lose his or her portion of the inheritance provided in the will. Such a provision may prevent an otherwise disgruntled family member from contesting the will and using up a significant portion of the estate on the legal battle.

Discuss the Reasoning

If you have left certain assets to specific individuals for sentimental or logical reasons, spell out your reasoning to your family members. You can do this either in person or in a writing that accompanies the will. For example, if your daughter has three children, you may prefer to leave her the family home while giving your other children cash gifts.

If a cousin loved a certain family heirloom, explain this is the reason why you left it to that particular cousin. It is important to avoid surprise during this process, so the testator being alive and explaining the decisions included in the estate plan may help alleviate hard feelings.

Make Lifetime Gifts

Rather than waiting for death, a testator can begin reducing his or her estate by making lifetime gifts. This may also give family members an incentive to be on better behavior in order to avoid losing their own gift.

Treat Children Equally

Many situations that cause hard feelings center on leaving children a different proportion of the estate. This can make children feel that they are not loved as much as a sibling. In addition to causing a rift between the parent and child, this can also create friction in the sibling relationship and possible estrangement. If you really want to disinherit a child, it is important that the testator specifically spell this out in the will otherwise this may not occur.

Update Your Plan

Even celebrities make the mistake of not updating their estate plan often enough. This can cause unintended results, such as leaving an ex an inheritance or leaving out a younger child completely. While some states have laws that prevent these situations from occurring, it is best to update your estate plan after any major change occurs.

Even though some states prevent an ex-spouse from inheriting, this may not change whether the spouse is still authorized under a power of attorney or health care proxy.

Defend the Will

If you are a beneficiary and you agree with the terms of the will and its construction, you can opt to defend the will if another beneficiary or interested party contests the will. If you have a self-proving affidavit and affidavits from the witnesses who were present at the signing, it will be harder for a person to contest the will.

Additionally, if the testator is still alive, some states allow for a living probate process in which the testator can declare that the will reflects his or her wishes. Going through this process does not make it impossible to later revoke or amend the will.

Contest the Will

If you believe that the will does not properly reflect the wishes of the testator, you may choose to contest the will if you have valid grounds to do so. For example, you may believe that the will was a product of fraud or undue influence if another party forged the document or took advantage of a position of trust in order to personally benefit from it. If you believe that the testator was not competent at the time that the will was executed, you may also contest it on these grounds.

Conversely, you may also contest the will if the proper steps were not taken in executing it. For example, state law may require that the document expressly declare that it is the person’s last will and testament, have a certain number of witnesses and be signed in certain locations of the document and in front of witnesses. Witnesses may also have to be disinterested in order to keep their portion of the inheritance.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case.

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