Coincidentally, my wife and I are meeting with an advisor tonight regarding a will (we don’t have one). I’ll have to think of some complicated and onerous provision to foist upon my children. 
Just one more note: don’t insult people in your will. There is such a thing as “testamentary libel”, and if you want to disinherit mean Aunt Grizelda, just state that she takes nothing, and don’t say why. If you do, Grizelda may decide to sue your estate, and thus end up taking money you didn’t want her to have.
The better practice is to leave a person you want to disinherit some small gift, say $1000, and include a “no-contest” clause in the will, stating that any person receiving a gift under the will forfeits the gift if they contest the will. If you give them nothing, they have nothing to lose if they contest your will, but they may think twice about it if they stand to lose some free cash.
(Incidentally, I did respond in one of these threads years ago that it would probably be valid to require in your will that your wife cannot marry anyone with the same name as you; the question was asked, as I recall, by someone who’d seen an episode of Everybody Loves Raymond where he wanted to put in his will that his wife couldn’t remarry anyone named Ray.)
It’s my understanding that one can disinherit a ‘heir-in-expectancy’ – i.e., someone with a claim on one’s estate absent a will – by specifying inter vivos gifts had been made that would approximate a fair share of the estate. For example, “To my wife Maude, if she survive me, I leave any share my estate may hold in properties we held jointly, whether real or personal, and the proceeds of my life insurance for which she is beneficiary, and specifically limit her share of my estate to the above, since we had agreed mutually while I was alive that this would be adequate provision for her and it was or mutual intent to make provision for our children in my will. To my son Jack, or his heirs if he be deceased, for whose business I provided the financing, I waive all lien of my estate on his business, and on the truck which I cosigned with him the note for its purchase, and no more, as these gifts while I was alive constitute his share. To my other children, i.e., Fred, Barry, and Eunice, or tro their heirs, I leave the remainder of my estate free and clear, in equal parts, according to an evaluation to be conducted by the executor within thirty days of my death.” Maude and Jack would have no claims on the remainder since it’s made clear that they have been provided for by gifts during life and the waiver of estate claims to what they have. It’s usually wise to have a lawyer write these provisions to conform to state estate law, though – for example, in North Carolina Maude would have automatic claim to the primary residence and half the rest of the estate, and it would need to be clear that these had been duly distributed before death to void her authomatic claim. To void jack’s claim in the example above, it’s necessary to spell out that he received what would have been an equal share as inter vivos gifts (or loans waived at death).
In general, a “reasonable man” interpretation will guide the probate court – Joe can provide for his unmarried daughter until her marriage, for example, but cannot specify whom she may or may not marry. Favoritism can be shown a son who will be carrying on the family business. And so on.
In my understanding, the only way you can direct the proceeds of life insurance is if the estate were the beneficiary. If Maude is the beneficiary, that money does not go through probate.
I believe it’s traditional to say, “And to my sister Maude I leave nothing, for reasons that are known to her.” Oh, snap.
I was advised that a specific bequest of one dollar is less likely to be successfully contested than no provision for a relative, however distant. In my case it would be nearly a hundred just first and second cousins, children, grandchildren, nieces, and nephews. I suppose if I win the lottery, and want to cut folks out of the will that would be pretty hard to contest.
Seems pretty much mean to me, though.
It’s nice to be in a family where one of my siblings was my parents executor, and dealt with it all, and divided it all up with each of us picking specific objects from our home that we personally desired. Not a single case of hard feelings among us.
Tris
Correct. In my example, it is mentioned in the will specifically to demonstrate that Maude was provided for outside the estate.
A related article from The Economist;
I have a slightly different question on Wills. How much of an control can you place over actions that take place after the estate is settled?
When writing a will, it is typically to be executed some time in the future. (Maybe tomorrow, but usually some distant, unspecified future.) So I get the Wills have to be written with conditionals that look at what transpires between when written and when executed (the writer drops).
But what about those conditionals? It’s one thing to say “My son gets squat if he marries a red-headed juggling monkey,” and presuming he doesn’t marry one of those before I die, he gets his loot. But is he then restricted from marrying a red-headed juggling monkey two weeks later? Can the provision be written that he could receive the payout, then violate it, and they come take the bequest away?
Ugh, that’s the first step on the road to property voodoo. I suppose if you really wanted to do something like that, you’d need to create a trust that makes periodic payouts to Red-Headed Juggling Monkey Lover Son (RHJMLS), or in the case of real property such as a house, create what is known as a “life estate”, meaning that RHJMLS owns the property so long as he lives, but it then reverts to someone else under the terms of the will. Then, the will can contain terms revoking the trust or the life estate in event he marries Boborella, the red-headed juggling monkey.
In other words, if you give something to someone free and clear, you can’t just take it back after it has been given. Instead, you give them a revocable property interest, include the terms of revocation, and include an alternate beneficiary to whom the property reverts.
Well, at least the citizens of Calgary get taken care of.
Lets not forget The Rule Against Perpetuities (RAP)
RAP is a common law rule (probably applies in most U.S. states and the UK, Canada, etc.), requires that any contingent estate must vest within 21 years after the life of a person living at the time of the bequest (the death of the testator).
“Huh?” You say
- When the will is probated (you die, heirs start inheriting),
- Any continget estates (“To Anne, as long as she doesn’t X, otherwise to Bill”)
- Must vest (no possibility of the contingent remainder being in effect, Bill must either get it or know that he’ll never get it)
- Within the life of a person, plus twenty-one years (can be anyone, but it has got to be a real person).
The purpose of the RAP was to prevent landowners from prohibiting their great-great-grandchildren from selling the house. So contingent estates must vest within 21 years after the death of a person who is alive at the time of the creation of the contingent estate.
If you violate RAP, the contingency is ignored. So “To Charlie, provided that he doesn’t sell it within the next 200 years, otherwise to Dan” would be read as “To Charlie.”
IIRC Joan Crawford disinherited her eldest adopted daughter with the verbiage “nothing for reasons known to her.” Is this legal boilerplate? If so it puts a different spin on the situation.
But of course the warning- in return the daughter has forever immortalized her her as “mommy dearest” now more memorialized as an abusive bitch rather than a great actress.
I wonder which course of action paid off best in money and satisfaction - inheriting or collecting royalties and making a statement?
Rather than dig up the corpse of a previous thread, I’ll ask here - Hey lawyers, how does this work?
The grandparent dies and leaves the money to “equally to each grandchild provided they (marry a spouse of X faith ) / (don’t marry a spouse not of X faith)”
I assume the estate can’t sit in lawyer limbo until everyone dies or marries? Or could a badly written will be contested on the grounds “Just because my latest spouse is not X does not mean I will never marry one, so you can’t give the money to my siblings instead”. The wrong wording implies the money would never be settled unless there were an “otherwise…” clause? Is a deadline necessary?
So would a trust have to be explicitly set up as part of the will? Or is that implied in the “wait until they marry” clause? Or are estates not yet settled a trust with an indeterminate end point? Must they be settled sometime according to that RAP?
Does the law accept that a person “of the Jewish faith” must meet some definition of Jewishness provided by a rabbinical authority? Or is it enough for someone to claim to the court they are, they consider themselves to be?
Similarly, who defines “Catholic” let alone “conservative Catholic”? AFAIK, you are Catholic if you say you are; children not yet baptized can be catholic, so can converts? Even if you are excommunicated you are still catholic.
Ditto for many other faiths.
I presume a restriction related to “cannot marry a non-white” would automatically be struck down?
All of those restrictive clauses would be open to challenge by any disaffected heirs. It could then go to court and the expensive lawyers could argue about the definitions. Alternatively, the heirs could see sense and divvy up the estate between them with just one lawyer to write the agreement.
My son-in-law’s uncle died a few months ago with no immediate family and a fairly valuable estate (£1m +). He wrote a will that cut out a couple who had been expected by all to get part of the inheritance. I am not involved so don’t know the details, but I understand that the named heirs are collectively re-writing the will to include the missing couple. One of the concerns is tax: Inheritance taxes will be paid by the estate and beneficiaries get theirs tax-free. The problem is that some of them are elderly and want to pass their share down the line; it is sufficient to cause tax problems if they die within seven years.
The property has all been liquidated, and they are now going through the process of creating a legally acceptable agreement that will avoid as much tax as possible.
Why would any competent lawyer allow their client to put provisions in their will that violates public policy? Wouldn’t/shouldn’t the lawyer tell them its unenforceable?
A Volkswagen commercial from long, long ago.
“In continental Europe”… even within a single country, who is an automatic heir unless disinherited, the automatic amount and the mechanisms to disinherit vary wildly.
My automatic heirs are my siblings; if any of them predecease me, their children. If I were married, my husband would be the full heir of any goods we had in common, but the automatic heirs of anything I held solo would still be my siblings. My parents would never be part of the automatic inheritance. The amount that has to be left to an automatic heir without having to go through a disinheritance process is “3€ and the right to bid for the usage of public land” (land that’s owned by the town and rented out for agricultural uses; anybody who is a registered resident of a town can bid). But that’s in Navarre.
In those parts of Spain which were Crown of Aragon, half of what someone owns goes to their spouse and half to the children. Siblings are not part of the automatic list, but parents can be. The minimum amount that has to be split among the children without disinheriting them is half the deceased’s estate, which means half of what they owned solo plus one quarter (half of half) of whatever they owned with their spouse.
We have 13 different inheritance laws. Just within Spain. And their validity areas don’t even always happen to match administrative borders.
As I understand, the executor can do (almost) whatever the hell he wants - only has to justify it to the beneficiaries. If they all agree, then no problem. After all, to sue (essentially ask the courts to correct the executor) a person would have to be one of those who would otherwise benefit who feels they are not getting what they are entitled to. If the executor feels a clause is not enforceable, he can ignore it -and then it’s up to one of the people losing part of their share to fight it in court.
(I wonder how the “contests this will” clause would work if the argument was with the executor’s decision - or is that different from contesting the will?)
My favorite take on this is the Frederick Forsyth short story A Careful Man, which appears in his anthology No Comebacks. It’s been adapted for television once (in 1984) and is available on audio. It concerns a wealthy individual who learns that he is about to die within the year, but who doesn’t want his money to go either to his remaining (and, in his mind, undeserving) relatives, or to the taxman, and who hatches a highly credible scheme* to basically screw them all out of it, without ultimately destroying the wealth.
http://www.imdb.com/title/tt0418264/
*This being Forsyth, who is always careful to avoid flights of extreme fancy.