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Writer's pictureJenny Rozelle, Host of Legal Tea

Cautionary Tales - Disinherited: Stories of Being Written Out of an Estate Plan - Episode 166


Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is the “cautionary tales” topic. And on these “cautionary tales” episodes of Legal Tea, we normally talk about real-life cases with real-life clients that are things me or my office have worked on -or they are things that I think are generally good things to be aware of, so you don’t turn into a cautionary tale on my Legal Tea podcast one day! Well today, we’re going to be talking about disinheriting people. You wouldn’t be surprised to learn that I meet and help quite a lot of people that end up choosing to disinherit someone – now most of the time it’s a child, but not all the time. Sometimes, it is other people like siblings, parents, or other family members. But yeah, like I said, it’s usually a child – and often, the child is estranged, problematic, or both.

Often, when this topic comes up, it feels like the client is semi-ashamed or embarrassed to bring it up. And trust me, I get it – talking about the “elephant in the room” stuff is not an enjoyable thing to do, especially when sharing it with someone like a lawyer. While it’s not enjoyable, it’s very important. So, if someone shares with me that they have someone, like a child, in their life that is estranged or problematic (problematic means a lot of different things to different people), then that may mean that want to talk about “how” to disinherit someone. So, for this “cautionary tales” episode, let’s talk about the topic of disinheriting people – and what people have done to disinherit someone through an estate plan. The theme you should take away from both these stories is that the client discussed (with the estate attorney) HOW to ensure the person they were disinheriting … didn’t have a leg to stand on.

So, let’s start with Story #1

We will call the client . Jane had two children – specifically, two daughters. When Jane did her original estate plan, she had included both daughters – 50/50, equal beneficiaries. Well, years passed and Jane had experienced some unpleasant things with ONE daughter in particular that she just couldn’t emotionally get over. For example, the daughter had repeatedly asked her to “borrow” money (and of course, never paid her back). Add that with … also, the daughter’s spouse and Jane didn’t get along very well. Jane, ultimately, just got fed up and she came to the hard decision to disinherit that daughter. Ultimately, as part of her estate plan, Jane did a few things:

1.     Jane modified her estate plan documents to remove the daughter (like literally on the estate documents) AND ensured that she modify any/all beneficiary designations as she saw fit (aka, to remove the daughter she was wanting to disinherit) from investment and retirement accounts.

2.     Secondly, Jane also put a specific “disinheritance clause” in her Trust. Now, when I help clients add a clause like this, I always warn clients that the language is a little strong, but it needs to be strong to protect what she’s trying to accomplish. So, Jane included a “Hey, we didn’t forget about you, daughter; you’re actually legally disinherited” statement to really just bolster her plan and protect what she was trying to accomplish.

3.     Lastly, Jane wrote honestly a very heartfelt handwritten note explaining her decision. She sealed the letter in an envelope and she asked that the we, the estate attorney’s office, keep the envelope and note at their office until Jane passed away. Jane asked that it be given it to the daughter when she (Jane) passed away.

Fast forward a handful of years, the time has come. Jane passes away. We meet with the daughter that was NOT disinherited, who Jane had designated as her Executor and Trustee in her estate plan. She was so nervous, I tell you, about her sister (that was disinherited). She was terrified what her sister would do, say, think, etc. Though, if there’s a silver lining (for her at least), she was not close to her sister and really had no relationship at all either. In the meeting, we worked out next steps, how to notify her sister, what would happen if her sister reared an ugly head, etc. One of the things we discussed was that I’d have my office call her sister to pick up the letter from her mother.

That time came … the disinherited daughter comes to my office, we sit her in a conference room, hand her the envelope, and I KID YOU NOT, the daughter looks at us dead in the eyes, rips the letter in half, and walks out the door. It’s hand down one of the most unbelievable things I’ve seen go down. It was so … strange and emotionless. Well, to no one’s surprise, the disinherited daughter calls a lawyer. We talk to the lawyer, explain that Jane had disinherited their client, and oh PS … don’t even go here because Jane was, without a doubt, of sound mind when she did everything. We never heard from that lawyer or the sister again. It worked … beautifully.

How about another story? Story #2!

This story involves someone, oh, let’s call him … Dave. So, Dave, too, had an estate plan and he had several kiddos. I think he had like 6 or 7 kids. Anyway, well I got involved with Dave and family after Dave had been diagnosed with advanced dementia. Therefore, it’s probably crazy to think about, but I actually never worked with Dave individually on Dave’s stuff; I worked with Dave’s Power of Attorney, who was his son and daughter. Dave had one child that he was super estranged from … and I’m not sure if my memory is failing me or maybe I was never told why (it doesn’t really matter), Dave had disinherited this one child in his estate plan. He had expressly disinherited that child – like, called them out and said, “Hey I didn’t forget about you. You get nothing!” in much more legal terms, of course.

Sadly, Dave passed away eventually. Again, I was working with the son and daughter, who were now the Executors and Trustees of their Dad’s plan. Like my last story, we brought them in to figure out next steps. Of course, we talked a little about the child that was disinherited, but not too much because they were confident that “their sibling knew he was disinherited … and he probably wouldn’t cause a stink.” Well, some time passes … maybe like a few weeks or a month. My office gets a call from another lawyer, who I happen to know well, and that lawyer was calling in regards to “Dave’s Estate.” I was thinking my team wrote something down wrong and maybe the lawyer was calling about something else. So, I give the lawyer a call and say, “Hey Matt – How can I help you?” He said, “Hey Jenny – Well I have a prospective client, who said that his Dad passed away and he hasn’t been told anything about his Estate.” If you’re thinking, “Oh no, it’s the disinherited kid … you’re right!”

Matt, the lawyer, thankfully is a solid, good guy and I actually know him from law school … and basically, he was asking (without coming out and asking) if the case was worth taking. I very quickly said, “Matt, I hate to burst your bubble, but Dave had an estate plan and the guy who called you is expressly disinherited in the document.” Matt replied, “Okay – do you want me to call this guy back and tell him or you?” I was like, “Well I have absolutely no reason to talk to him – so you can!” He laughed and said, “You know, I’ve had pretty bad day, so I don’t mind being the bearer of bad news!” I never heard from Matt (on that case) or the disinherited child again. Thank goodness!

We’ve got time for a third story, yeah, alright here comes Story #3

This case is a little different than the last two I’ve shared. This one, the person disinheriting the child is very much still alive and heck, doing wonderful. So, I’m sure you’re like, “What in the heck are you talking about this person then?” Well, they’ve done something that I thought would be a helpful little nugget to share on here. So, she, let’s call her Susie, has had a very on-again, off-again relationship with one of her children – specifically, her daughter. And as they go on-again, off-again, we usually hear from Susie to make changes to her estate plan – ha! So, when they’re on, the daughter is “in” the plan; when they’re off, the daughter is “out” of the plan. Though, this last time seems to be the classic “straw that broke the camel’s back.” I’m not sure if we’ll see Susie put the daughter back in, given what the daughter did.

So, Susie comes in to discuss removing her daughter as a beneficiary – and in that conversation, Susie expressed genuine concern about her daughter trying to claim that she was not in the “right” frame of mind to make these type of legal changes. After all, Susie was in her early 80s and as we age, it’s more ripe for someone to make a claim that … someone was not of, what it is called, sound mind, under duress, or whatever … and that whatever they did to their estate plan should NOT govern since they NOT of “sound mind.” Susie was super concerned about that. We knew she was totally fine; she knew she was totally fine; but her concern was legitimate. I often tell people that “anyone can sue anyone at anytime for anything” so yes, if her daughter wanting to cause a stink, sure! She could TRY!

We bounced some ideas back-and-forth and ultimately came to the conclusion that we’d have Susie visit her Doctor and have the Doctor confirm in writing that she is not suffering any type of cognitive impairment. That way, IF he daughter tried to claim that Susie was off her rocker, we’d have the Doctor saying, ‘Oh no she wasn’t!” I think that idea is brilliant – especially as we age and may make changes to our estate plan. If you (or a loved one) have a similar concern, feel free to snag the idea from Susie’s story!

So yeah, these three stories are all very real – all very real-life examples of disinheriting people. As I said at the beginning, the beautiful thing in all three stories is that the client had a solid estate plan to “protect” their wishes. Can you imagine the saga that would have occurred if these people just stayed silent in their estate plan? Or gave them a $1? Which speaking of that, I should just nip in the rear right now – when you give someone a dollar, you are making them a legal beneficiary of the Estate meaning beneficiaries are entitled to think that NON-beneficiaries are NOT entitled to. Like an Accounting – do you really want someone you’re trying to disinherit get an Accounting of what’s come in/out of the Estate? NO! So let me be loud and clear – leaving someone a $1 in your Will or Trust is just a silly thing to do. Don’t do it. Talk to an estate planning attorney to help guide you on how to appropriately protect your wishes.

Alrighty, let’s shift to a sneak peak of next week, which we’re circling back to the “current trends” topic where we talk about things that are going on currently that impact my estate and elder law world – or maybe, things that I have stumbled upon on the news or social media that is relevant to this podcast. Well for next week, I haven’t decided yet what I’m going to blab about – there’s an episode on Jane the Virgin, a popular tv show, that I may talk about … the episode titled Chapter 28 where Jane and Rafael embark on an estate planning process. We’ll see, so I guess you’ll just have to tune in for next week, Legal Tea Listeners, so until then, be well and talk soon!

 

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