My mother is trying to draft a will. Long story short, she wants myself to be the only beneficiary/I am the only inheritor. I am one of three children She was told by someone if she doesn’t leave at least 5% to each of the other kids, they can legally contest the will. Is this true?
Also, she owns a house. Does she have to leave a percentage to them of the house for them not to be able to contest the will?
Presuming you live in the US-this is False. Unless your siblings are minors, your mother can completely cut them out of her will. They could contest it for other reasons–
Undue influence (by you)
Mental incapacity
Invalidity based on improper execution.
But there is no law that requires her to leave anything to adult children.
You want to discuss this with a lawyer who is licensed in your jurisdiction.
It going to depend by state. Some states do not allow you to disinherit certain people (generally children, but also spouses, parents, etc). Some do.
The thing you may be referencing was brought up by the lawyer I used to draft my will (in a “we need to kill time while my secretary makes copies, lemme tell you this story” way) was that if you simply DON’T include one of your children in a will, their lawyer will claim this was a simple oversight during the making of the will and OF COURSE the parent intended to leave equal shares to all their children. The solution to that is to explicitly leave some trivial amount (the lawyer I was talking to suggested a dollar) so that it’s clear you didn’t forget them - you just didn’t want them to get your stuff.
That said, depending on the size of the inheritance, the other children can and often will contest and wills can be basically ignored by the executor if the executor so chooses. The BEST way to handle that situation is to give away all your assets before you die. The gift exemption is something like $5 million, so unless your mom is sitting on quite the fortune, the easy way is for her to give you all her stuff now, while she’s still alive and lucid and can tell your sibling to pound sand, than after she’s dead.
This might be risky for her. There was a story in the paper here about someone who did just that and handed over ownership of her house to her daughter, who then rented it back to her. I think that this was mainly done to avoid inheritance tax.
Some years down the line, they fell out and the daughter evicted her mother. The case went to court on the grounds that they had a contract, but the mother lost.
The proper thing to do, is hire an attorney to do the Will. Then you can answer all these questions and find out what is and isn’t legal.
What no attorney can prepare you for, are the other relatives coming to you because they need money and expect you to hand it over to them because you have it.
There is no one, simple rule that can be articulated about inheritance laws in the fifty states. Without knowing the jurisdiction involved, any answer is worthless.
Your best bet for an accurate answer is to ask someone qualified to answer it in your jurisdiction. That doesn’t have to be an attorney; there are self-help resources in many jurisdictions that would be able to accurately answer this question for you.
Do not rely upon answers given to you here by unlicensed non-attorneys who think they know what they are doing. Such advice is often worth exactly what you paid for it. 
That’s because they didn’t do it right. It’s been done in my family, and what happens is that the owner retains a “life estate” or “life tenancy” when ownership is transferred. It’s actually part of the deed. As far as I can tell, the concept also exists in the UK.
Of course, this only works for real estate, not cash or personal property.
My lawyer recommended we hav verbiage specifically mentioning the exclusion, to guard against a lawsuit. The disinherited party is thus just not “forgotten.”
Again, it depends on your local law. In Canada, the Supreme Court decided a case a few years ago that held that unless the parent had clearly indicated that this type of title sharing was intended to pass the house to that child, the deceased’s house still became part of the estate for probate.
Wills provide a clear legal mechanism to indicate how the property is to be distributed on death. Using other mechanisms, like sharing title, can be a false economy. Yes, probate costs money, but it’s better than half-assed attempts to save a bit of money.
OP should talk to a lawyer in his jurisdiction. Or rather, the OP’s mother should talk to a lawyer. If the OP is too involved in helping her with her will, he may be opening himself to an allegation of undue influence.
Bottom line: go to a lawyer, not friendly anonymous people on a message board.
Just a reminder that any will can be contested in a court of law … the OP’s objective here is to insure that these claims are dismissed … now is a good time to see a lawyer …
I would suggest making an offering to the gods of Karma and include a provision for a couple of thousand to the Moderator’s Widow Pension Fund, c/o StaightDope Message Board, 350 N Orleans St, 10th Floor South, Chicago, Illinois, 60654 …
I’m certainly not going to say that it doesn’t depend on local law - but I’m not talking about title sharing or “passing” the house. I’m talking about my mother deeded the property to my sister and the deed contains a line that says " This Grant is subject to a life estate in favor of the Grantor XXXX , which life estate is hereby reserved in her own favor by Grantor". My mother doesn’t own any part of the house - she only owns the right to use it until she dies. My sister may or may not be able to sell the house without my mother’s agreement (no one ever had a reason to check) - but she was definitely able to take out a mortgage without my mother’s agreement.
For some folks (but not all), a Reverse Mortgage is a good deal … I don’t know the specifics but something to check into …
How is this responsive to the OP in any way??? :dubious:
The IRS says otherwise.
Apologies for being unclear. Yes, the single year gift exemption from one party to one other party is $14k. (if you have spouses on both sides, you could turn it into $56k). I meant that the total allowed to be given between inheritance and lifetime gifts is something like $5MM.
My overall point is that if mom wants her stuff to go to a certain place after she dies, the best way is to start doing that before she dies.
The “I leave $1” thing is one of those stories … I have also read that specifically excluding the children is also OK as long as you say they are disinherited, so the “forgot” excuse can’t be used. (IIRC Joan Crawford “Mommie Dearest” did this to her adopted daughter, and now is forever immortalized in book and screen for it.)
It’s also important as others say, to involve a lawyer and make sure the lawyer clearly interviews the mother alone, to avoid the “undue influence” excuse. (I assume, IANAL) When one child is advising the parent and arranges for a will disinheriting the others, undue influence and feeble-mindedness are going to be obvious grounds to contest. I would ask a lawyer (no, your mother should ask a lawyer) what the process is to ensure such contests fail. I have heard a “should anyone contest this will” poison pill incentive. “I leave $5,000 to my son Ted who never visits, and if he contests the will and loses, he does not even get that $5,000.”
I don’t know that an executor can ignore a will. If someone feels seriously short-changed by the executor, they can and probably will sue for failure to perform the duty. But, executors are entitled to reasonable expenses. When we had my mother’s memorial, afterwards her husband took us out to dinner at a nice restaurant. My brother said “Thank you for dinner” and he replied, “Don’t thank me, thank your mother…”
Just a note, for real estate, if at all possible in your jurisdiction, it would be well worth it to look into re-titling any real estate to “Joint Tenant with Rights of Surviorship”, as this usually (in the USA at least) will stop the real estate from having to go through probate. The will can still be drawn up as desired, but definitely sit down with a lawyer.
If you’re not going to get a lawyer to do this, at least get some books that walk you through the process. The reason a will is not something to screw around with is that when your heirs discover the problems, it’s too late to fix them. The will might be invalid, which could result in property being distributed in a way you didn’t want. Your estate might face a big tax bill that otherwise could have been avoided.
If your mother has strong enough feelings that it’s worth it to her to set up a particular plan, then it’s worth paying to make sure her plan works right.
That will however destroy the stepped up basis. And depending on where someone lives, could easily be a $500K mistake on a fairly ordinary house.
There are LOTS of factors involved in doing this stuff right. A paid-for expert in the relevant jurisdiction is cheap insurance against really dumb amateur mistakes.