Can parents write me out of will and disinherit me from their Estate
Did mom tell you she's leaving you out of her will and now you want to know what your options are? Well, by the end of today's video, you will know what those options are and what you can do about it, if anything. For the best estate planning, probate and trust administration videos, subscribe to my channel and hit the like button and the bell to be notified when I post a new video every Tuesday.
In our last video, I discussed how long lost relatives or even government could get your assets if you do not have an estate plan in place. Today, we're going to talk about what happens when dear old mom or dad leaves you out of their will. There might be three ways to challenge the estate if this happens to you.
The other day, I received a call from a lady who was very upset that her mother-in-law was leaving them out of her will. This lady told me that she and her husband had been depending on their inheritance, it was their money, from the husband's mom. This couple had literally done their retirement planning around getting money from his mother.
The husband's mother had never promised them any money at any time during her lifetime. This lady who called me and her husband just knew that the mother had a nice little nest egg. And seeing as that the husband was her only child, well, he just deserved it, or at least, that's what they thought. His line of thinking just blows my mind.
We also get this same line of thinking at the start of a probate when heirs start calling me asking, "When are we gonna get their money?" When are they gonna get their money? The reason this blows my mind is because that money belongs to the mother, and she can do whatever she wants to do with her money, right? It's her money. You can do whatever you want with your money, right? Just because you are a son or daughter of a parent with money does not mean that you deserve or are even entitled to their money.
There is absolutely no right to inherit from your parents. There are exceptions to this, such as a minor child, but in most all states, you as a son or a daughter do not have any right to inherit from your parent's estate.
Again, it's not your money. If a person has capacity and is not under duress, then they can give their money to whoever they want to. However, there might be three ways to challenge the estate if this happens to you. And as always, talk to your lawyer.
The first one is a big one, and that is lack of capacity. For this to work, a child must prove their parents lack capacity to do what they are doing, and they can actually be proved while the parent is alive or after they have passed away.
Let's say a parent does a really great job at estate planning and executes all the necessary documents at a time in their lives when they have full capacity to know what they are actually doing. They go to an estate planning attorney, like us, and have an estate plan drafted, and they sign and execute the documents in front of witnesses and a notary public. They do everything right. There's no question that they had capacity.
This estate plan completely leaves out their children, and they leave them out in the cold. In other words, they don't get any money. At this point, it would probably be very difficult to challenge the distributions because the parent was fully coherent and new exactly what they were doing in front of witnesses that can testify that that parent had full capacity to do what they were doing at the time that they signed their estate planning documents.
Now, let's fast forward a few years, and the same parent no longer has capacity. They go online and they download a new last will and testament that completely changes the distribution. They fill it out. This new will is not witnessed and is executed at a time in which it is well known that they lack capacity that can be backed up by medical records. And that's the key there, backed up by medical information. In this second scenario, a child will have a much easier time challenging the will because it is well documented that their parent lacked capacity at the time that they executed their estate planning documents.
Do you see the difference here? If a parent has full capacity, then they can do and give or not give you whatever they want. It's their decision because they know what they're doing, but if you can prove a complete mental defect, then you have a much stronger case to invalidate their distributions.
The second way to challenge being left out is proving undue influence. This is also a big one. Just like showing lack of capacity, this also requires medical evidence to show the parent was susceptible to undue influence. In other words, somebody was making them do it. However, it might be the case where the bad guy was able to exert some sort of authority giving the parent no choice to do what they wanted them to do. Guys, this is elder abuse, and unfortunately, we see it sometimes where a caretaker will start withholding food, water or confine and abuse the person until they do or sign what they want.
In other words, sign over their house or sign over a bank account. These types of situations usually come up, come to us as guardianships, where family knows something is going on and we get an emergency guardianship to stop the abuse by someone who's exerting undue influence.
But sometimes, the family just doesn't know that it's going on. And if the family doesn't know what's happening, but they can prove later on after the person has passed, then that might be a way to challenge.
The third way to challenge is being an omitted child. This is rare, but basically, you are a child that are not completely contemplated by the estate plan. What does that mean? Well, let's say a father had two children, then he wrote out his will, and instead, gave everything to a charity. In other words, he didn't give anything to his kids. All of it went to a charity. But, five years later after he executes his estate plan, he has another child that was not mentioned in the estate plan because, well, that child didn't exist when he executed his original estate plan. In this case, the new child might take a share in two different ways.
The first is the father dies when the child is still a minor child. Then the child will most likely be entitled to child support from the estate while he's a minor. The second, the child might also be entitled to a full share of the estate under an estate succession.
The bottom line here is that your parents' money is their money. No matter how much you think you deserve it, their money is not your money. However, there are situations like lack of capacity and undue influence that can and probably should be used to challenge estate distributions, especially if somebody was exerting undue influence.
We have been talking today from the perspective of a child, but this is also good stuff for a parent to consider when creating their estate plan. In other words, make sure you have your ducks in a row. The great thing is that it's all up to you on how your estate plan is structured and customized specifically to what you want, not what somebody else wants.
If you missed our last videos on assets, guardianship and our estate planning questionnaire, then please go back and watch them. Click on the link below to get a copy of our estate planning questionnaire that I use every day. It'll help you get started in the right direction. And to up your estate planning game, then check out this video up here and this video up here.
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