Tuesday, April 26, 2011

Disinheriting a Relative; Will Contests

We hope you are enjoying this wonderful weather! A couple of miscellaneous, but nonetheless important topics on this week’s blog: A quick discussion about disinheriting a relative, and a quick discussion about will contests.

DISINHERITING A RELATIVE

The question we always hear is, “Do I need to write in my will that I am disinheriting someone?” The answer depends on who it is. First, you can never completely disinherit your spouse, even if you write such a clause into your will. Your spouse, if you are still legally married at the time of death, is entitled to an elective share or 1/3 of your estate in Pennsylvania.

Second, you can disinherit a child, but you must be careful in this case. You should always write in your will that you are disinheriting the child. Usually, it is good practice to give the reason why you are disinheriting. Some people feel better giving a nominal inheritance of $1, but it is not necessary to do so if your disinheriting clause is clearly written.

Third, other relatives or people in your life generally don’t need to be mentioned. However, if you have written previous wills in which certain people have received inheritances, and you’re not sure if there are old copies of your will floating around, it may be advisable to insert disinheriting language into your new will.

You should always speak with an attorney when considering who to disinherit, and how to do so.

WILL CONTESTS

There are typically two reasons that someone can use to contest or challenge your will: Competency/capacity and Undue Influence. In Pennsylvania, undue influence is usually the best way to challenge a will.

Undue influence occurs when someone with whom you have a relationship with receives a substantial benefit as a result of your weakened intellect.

A typical case of undue influence is when one child brings mom or dad in to write a will, and that child convinces mom or dad to disinherit her other children. Mom or dad in this case would have some sort of condition, such as Alzheimers or general incompetency that would prevent them from making a rational decision.

In our office, we are careful to practice defensive lawyering, in that specific disinheriting language is used, and steps are taken to help prevent will contests. If we can be of assistance, please contact our office at anytime at (215) 706-0200.