Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Samantha Gordon (00:00):
Hello, I am attorney Samantha Gordon with
McIntyre Elder Law and I amjoined by attorney Jordan
McIntyre.
Hey Jordan.
Jordan McIntyre (00:08):
Hey guys.
Samantha Gordon (00:10):
Thank you for joining us for our Elder Law
Report today.
Today we're going to be talkingabout disinheriting someone.
So what does that mean?
Meaning that when you establishyour estate plan, unfortunately
there are situations where youmay have someone in your life
that otherwise would haveinherited from your estate that
you do not want to inherit fromyour estate that could be a
(00:32):
child, for instance and so you,specifically within your estate
plan, state that you do not wantthat person to inherit from you
.
There's different reasons whythat comes up and sometimes it
can be a very emotionalsituation and a very emotional
conversation to have with aclient.
But having an estate plan inplace allows you to really
dictate who gets to inherit fromyou, and sometimes this does
(00:55):
come up.
So, jordan, can you tell ourviewers just can you disinherit
someone?
How does that work?
And then who can you disinherit?
Jordan McIntyre (01:04):
So the short answer is yes, but it's not
always as simple as just leavingsomeone out of your will.
In some cases, state laws andfamily dynamics can make things
more complicated, and I reallythink if you want to disinherit
someone, you've got to be clearand intentional in your estate
planning.
Just omitting someone's namefrom the will isn't enough.
This can actually invite legalchallenges.
(01:26):
So let's talk about who can youdisinherit.
You can disinherit adultchildren, so in almost any state
you can legally disinherit anadult child.
However, north Carolinaprotects minor children, so you
can't leave them completelywithout support.
Additionally with the spouse,in North Carolina we have laws
(01:48):
that prevent you from fullydisinheriting a spouse.
The spouse can claim what'scalled an elective share, and
this means that they can claim aportion of your estate even if
they're not in your will.
With other relatives, it'spretty easy.
You're free to disinheritsiblings, nieces, nephews or
anyone else who isn't legallyentitled to a portion of your
(02:08):
estate.
So, sam, do you want to talkabout how to potentially prevent
will contests?
Samantha Gordon (02:15):
Yeah.
So I think it's super important, especially as attorneys, that
if we have a client that comesin and they are saying that you
know, I haven't talked to mychild, I haven't talked to my
spouse, there's some type offamily rift that happened and I
don't want them included in myestate plan, going over what you
(02:36):
just said, jordan, is superimportant, so that the client
understands that, and reallyfiguring out what type of estate
plan that we need to do.
Are we going to do a will?
Are we going to do a trust?
In both of those documents awill and a trust there's
different implications that weneed to think about.
So if we're disinheriting achild from a will, for example,
they have the right after youpass away.
(02:58):
If they believe that there is areason why other than just what
you wanted, um, that you didnot include that child in the
will, they can contest the will,meaning that if they believe
there's undue influence, if theybelieve that you lacked
capacity when you sign that will, um, they can actually
challenge the will through thecourts, even if that was not
(03:20):
your intention, even if you saidthis is what I want.
I know this is what I want andthere was no undue influence.
There was no lack of capacitysituation.
They still have the right to dothat and contest the will.
They have to prove it.
It's very straightforward as towhat they need to prove and
their burden of proof, but theycan do that, and so that can
(03:42):
cause a very emotional situationfor the family after you pass
away, who are already grievingright.
And so a will contest, alsoknown as a will caveat that
means that someone brings acomplaint to the courts asking
the court to determine whetheror not this will is valid.
The attorney that drafts thatwill generally will be a witness
(04:05):
, and so if it's one of usthat's drafting that will, we're
going to have a conversationwith the client really
understanding why we aredisinheriting this child spouse,
whatever may be going on, sothat if we ever have to testify
and explain what's going on, wecan explain why we drafted this
document and advocate for thereasons why.
(04:25):
And very important to make surethat if the situation is going
on, it's only you and theattorney in the conference room
that's discussing what's goingon.
There's no one else in the room, because if there's someone
else in the room with you, thatcould lead to a claim of undue
influence, and so there'sdifferent ways that you need to
maneuver to make sure that thisis done so that, if this is
(04:47):
really what you want, this iswhat's going to happen.
There's also an underused toolwithin our laws in North
Carolina that you can actuallyhave your will probated while
you are alive.
It's called living probate,where you can actually have your
will probated while you arealive.
It's called living probate,where you can go to the court
and you can say to the court Iwant to have a hearing and I
want this will to be determined,that this is my last will and
testament, and the court thencan have that hearing determined
(05:11):
that your will is valid, whichmeans that when you pass away,
no one can contest that willbecause it's already been
determined that it is your validlast will and testament.
That is something that is superunderutilized, in my opinion.
North Carolina.
It's something that we do.
It really helps with thosespecific situations when you are
disinheriting someone, and sothat's a really, really, really
(05:33):
good tool to have in your toolbelt with your estate planning.
That I've done this, I knowthat if something happens to me,
this has already been deemedvalid and my family doesn't have
to worry about some type ofcourt proceeding where now they
have to prove my will is valid,because I've already done that
while I'm alive.
So you can put yourself as wellas your family IDs.
Jordan McIntyre (05:56):
Yeah, and what about using no contest clauses
in a will?
Samantha Gordon (06:00):
So we do that.
We'll have no contest clausesin the will.
You know well, dory, what'syour opinion on the no contest
clause.
Jordan McIntyre (06:11):
I think that it is a protective mechanism for
disencouraging any type offamily disputes.
Right yeah, only come forthwith a good faith challenge to
be able to challenge these nocontest clauses, and they
essentially state that anyonewho contests the will forfeits
their inheritance if they weregetting anything at all.
(06:33):
However, I don't really thinkwe're using this with
individuals who are beingdisinherited.
This is just for individualswho are going to receive
something and then we want toprevent them from challenging
how much they're going toreceive.
Samantha Gordon (06:47):
Yeah, and I mean kind of a disinheritance
right, because if you have twokids, generally through the law,
if you're not married, just thelaw has already stated that
they would split everything50-50.
And so you could have asituation where in a will you
said 60-40.
You know, maybe a daughter'sgetting 60 and then a son's
getting 40.
So technically you'redisinheriting their share right,
(07:09):
the amount that they would havegotten through the law, and so
the no contest provision couldhelp with that, saying that you
are inheriting.
And if you were to contest thisbecause you wanted to get your
extra 10%, then you may not getanything.
We've seen in other wills thathave been drafted by other
attorneys, as well as wills thatwe've drafted.
(07:30):
There's different ways that youcan kind of outline your will.
That doesn't necessarilydisinherit someone but it
changes the percentage, thatequal distribution that
otherwise they may have gotten.
So I'll have clients sometimeswhere they want to leave a
dollar to someone and Iexplained to them that I
understand.
Maybe you know why you want toleave a dollar to someone, but
(07:52):
really you're making yourexecutor's job really really,
really difficult if you leave adollar to someone.
So it's actually not going tobe as easy, or maybe give that
sting that someone's wanting todo when they leave that dollar.
Really it's going to make yourexecutor's job really hard.
I've also seen in wills whereyou know someone will just say
(08:15):
that they leave their love andaffection rather than an actual
monetary amount that they'regetting.
And so there's different waysthat you can disinherit a child
or an heir, whoever that may be.
That can be done a certain waydepending upon the situation and
really figuring out how we needto do that, whether it's making
(08:39):
an unequal distribution,whether it's completely cutting
them out and just making surethat you have the right language
in place in that document toensure that your wishes are
going to be conveyed the waythat you want them to.
But then also, if somethingwere to happen to you, then
everyone kind of knows what's upand what needs to be done.
Jordan McIntyre (09:00):
So bottom line sounds like attorney Samantha
Gordon is saying thatdisinheriting someone is
possible, but it has to be donestrategically and if your wishes
are honored, you really need towork with an experienced estate
planning attorney like SamanthaGordon.
If you have questions aboutestate planning, give us a call.
(09:20):
We offer free consultations tohelp you get affairs in order,
and we have offices in Shelby,north Carolina, charlotte, north
Carolina and Hendersonville,north Carolina.
We also have the ability to dosome estate planning in South
Carolina now.
So give us a call at888-999-6600 or visit our
(09:41):
website at wwwmcelderlawcom andschedule a free consultation
today.
Thanks for tuning into theElder Law Report.
See you guys next time.
Samantha Gordon (09:51):
Thanks guys, bye, nice talking to you, Jordan
.
Jordan McIntyre (09:55):
Nice talking to you too.
Hello, I am attorney Samantha Gordon with
McIntyre Elder Law and I amjoined by attorney Jordan
McIntyre.
Hey Jordan.
Jordan McIntyre (00:08):
Hey guys.
Samantha Gordon (00:10):
Thank you for joining us for our Elder Law
Report today.
Today we're going to be talkingabout disinheriting someone.
So what does that mean?
Meaning that when you establishyour estate plan, unfortunately
there are situations where youmay have someone in your life
that otherwise would haveinherited from your estate that
you do not want to inherit fromyour estate that could be a
(00:32):
child, for instance and so you,specifically within your estate
plan, state that you do not wantthat person to inherit from you
.
There's different reasons whythat comes up and sometimes it
can be a very emotionalsituation and a very emotional
conversation to have with aclient.
But having an estate plan inplace allows you to really
dictate who gets to inherit fromyou, and sometimes this does
(00:55):
come up.
So, jordan, can you tell ourviewers just can you disinherit
someone?
How does that work?
And then who can you disinherit?
Jordan McIntyre (01:04):
So the short answer is yes, but it's not
always as simple as just leavingsomeone out of your will.
In some cases, state laws andfamily dynamics can make things
more complicated, and I reallythink if you want to disinherit
someone, you've got to be clearand intentional in your estate
planning.
Just omitting someone's namefrom the will isn't enough.
This can actually invite legalchallenges.
(01:26):
So let's talk about who can youdisinherit.
You can disinherit adultchildren, so in almost any state
you can legally disinherit anadult child.
However, north Carolinaprotects minor children, so you
can't leave them completelywithout support.
Additionally with the spouse,in North Carolina we have laws
(01:48):
that prevent you from fullydisinheriting a spouse.
The spouse can claim what'scalled an elective share, and
this means that they can claim aportion of your estate even if
they're not in your will.
With other relatives, it'spretty easy.
You're free to disinheritsiblings, nieces, nephews or
anyone else who isn't legallyentitled to a portion of your
(02:08):
estate.
So, sam, do you want to talkabout how to potentially prevent
will contests?
Samantha Gordon (02:15):
Yeah.
So I think it's super important, especially as attorneys, that
if we have a client that comesin and they are saying that you
know, I haven't talked to mychild, I haven't talked to my
spouse, there's some type offamily rift that happened and I
don't want them included in myestate plan, going over what you
(02:36):
just said, jordan, is superimportant, so that the client
understands that, and reallyfiguring out what type of estate
plan that we need to do.
Are we going to do a will?
Are we going to do a trust?
In both of those documents awill and a trust there's
different implications that weneed to think about.
So if we're disinheriting achild from a will, for example,
they have the right after youpass away.
(02:58):
If they believe that there is areason why other than just what
you wanted, um, that you didnot include that child in the
will, they can contest the will,meaning that if they believe
there's undue influence, if theybelieve that you lacked
capacity when you sign that will, um, they can actually
challenge the will through thecourts, even if that was not
(03:20):
your intention, even if you saidthis is what I want.
I know this is what I want andthere was no undue influence.
There was no lack of capacitysituation.
They still have the right to dothat and contest the will.
They have to prove it.
It's very straightforward as towhat they need to prove and
their burden of proof, but theycan do that, and so that can
(03:42):
cause a very emotional situationfor the family after you pass
away, who are already grievingright.
And so a will contest, alsoknown as a will caveat that
means that someone brings acomplaint to the courts asking
the court to determine whetheror not this will is valid.
The attorney that drafts thatwill generally will be a witness
(04:05):
, and so if it's one of usthat's drafting that will, we're
going to have a conversationwith the client really
understanding why we aredisinheriting this child spouse,
whatever may be going on, sothat if we ever have to testify
and explain what's going on, wecan explain why we drafted this
document and advocate for thereasons why.
(04:25):
And very important to make surethat if the situation is going
on, it's only you and theattorney in the conference room
that's discussing what's goingon.
There's no one else in the room, because if there's someone
else in the room with you, thatcould lead to a claim of undue
influence, and so there'sdifferent ways that you need to
maneuver to make sure that thisis done so that, if this is
(04:47):
really what you want, this iswhat's going to happen.
There's also an underused toolwithin our laws in North
Carolina that you can actuallyhave your will probated while
you are alive.
It's called living probate,where you can actually have your
will probated while you arealive.
It's called living probate,where you can go to the court
and you can say to the court Iwant to have a hearing and I
want this will to be determined,that this is my last will and
testament, and the court thencan have that hearing determined
(05:11):
that your will is valid, whichmeans that when you pass away,
no one can contest that willbecause it's already been
determined that it is your validlast will and testament.
That is something that is superunderutilized, in my opinion.
North Carolina.
It's something that we do.
It really helps with thosespecific situations when you are
disinheriting someone, and sothat's a really, really, really
(05:33):
good tool to have in your toolbelt with your estate planning.
That I've done this, I knowthat if something happens to me,
this has already been deemedvalid and my family doesn't have
to worry about some type ofcourt proceeding where now they
have to prove my will is valid,because I've already done that
while I'm alive.
So you can put yourself as wellas your family IDs.
Jordan McIntyre (05:56):
Yeah, and what about using no contest clauses
in a will?
Samantha Gordon (06:00):
So we do that.
We'll have no contest clausesin the will.
You know well, dory, what'syour opinion on the no contest
clause.
Jordan McIntyre (06:11):
I think that it is a protective mechanism for
disencouraging any type offamily disputes.
Right yeah, only come forthwith a good faith challenge to
be able to challenge these nocontest clauses, and they
essentially state that anyonewho contests the will forfeits
their inheritance if they weregetting anything at all.
(06:33):
However, I don't really thinkwe're using this with
individuals who are beingdisinherited.
This is just for individualswho are going to receive
something and then we want toprevent them from challenging
how much they're going toreceive.
Samantha Gordon (06:47):
Yeah, and I mean kind of a disinheritance
right, because if you have twokids, generally through the law,
if you're not married, just thelaw has already stated that
they would split everything50-50.
And so you could have asituation where in a will you
said 60-40.
You know, maybe a daughter'sgetting 60 and then a son's
getting 40.
So technically you'redisinheriting their share right,
(07:09):
the amount that they would havegotten through the law, and so
the no contest provision couldhelp with that, saying that you
are inheriting.
And if you were to contest thisbecause you wanted to get your
extra 10%, then you may not getanything.
We've seen in other wills thathave been drafted by other
attorneys, as well as wills thatwe've drafted.
(07:30):
There's different ways that youcan kind of outline your will.
That doesn't necessarilydisinherit someone but it
changes the percentage, thatequal distribution that
otherwise they may have gotten.
So I'll have clients sometimeswhere they want to leave a
dollar to someone and Iexplained to them that I
understand.
Maybe you know why you want toleave a dollar to someone, but
(07:52):
really you're making yourexecutor's job really really,
really difficult if you leave adollar to someone.
So it's actually not going tobe as easy, or maybe give that
sting that someone's wanting todo when they leave that dollar.
Really it's going to make yourexecutor's job really hard.
I've also seen in wills whereyou know someone will just say
(08:15):
that they leave their love andaffection rather than an actual
monetary amount that they'regetting.
And so there's different waysthat you can disinherit a child
or an heir, whoever that may be.
That can be done a certain waydepending upon the situation and
really figuring out how we needto do that, whether it's making
(08:39):
an unequal distribution,whether it's completely cutting
them out and just making surethat you have the right language
in place in that document toensure that your wishes are
going to be conveyed the waythat you want them to.
But then also, if somethingwere to happen to you, then
everyone kind of knows what's upand what needs to be done.
Jordan McIntyre (09:00):
So bottom line sounds like attorney Samantha
Gordon is saying thatdisinheriting someone is
possible, but it has to be donestrategically and if your wishes
are honored, you really need towork with an experienced estate
planning attorney like SamanthaGordon.
If you have questions aboutestate planning, give us a call.
(09:20):
We offer free consultations tohelp you get affairs in order,
and we have offices in Shelby,north Carolina, charlotte, north
Carolina and Hendersonville,north Carolina.
We also have the ability to dosome estate planning in South
Carolina now.
So give us a call at888-999-6600 or visit our
(09:41):
website at wwwmcelderlawcom andschedule a free consultation
today.
Thanks for tuning into theElder Law Report.
See you guys next time.
Samantha Gordon (09:51):
Thanks guys, bye, nice talking to you, Jordan
.
Jordan McIntyre (09:55):
Nice talking to you too.
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