Samantha Gordon: 0:08

Hello, I am attorney Samantha Gordon with McIntyre Elder Law and I am joined by attorney Jordan McIntyre. Hey Jordan.

Jordan McIntyre: 0:17

Hey guys.

Samantha Gordon: 0:19

Thank you for joining us for our Elder Law Report today. Today we're going to be talking about disinheriting someone. So what does that mean? Meaning that when you establish your estate plan, unfortunately there are situations where you may have someone in your life that otherwise would have inherited from your estate that you do not want to inherit from your estate that could be a child, for instance and so you, specifically within your estate plan, state that you do not want that person to inherit from you. There's different reasons why that comes up and sometimes it can be a very emotional situation and a very emotional conversation to have with a client. But having an estate plan in place allows you to really dictate who gets to inherit from you, and sometimes this does come up. So, jordan, can you tell our viewers just can you disinherit someone? How does that work? And then who can you disinherit?

Jordan McIntyre: 1:13

So the short answer is yes, but it's not always as simple as just leaving someone out of your will. In some cases, state laws and family dynamics can make things more complicated, and I really think if you want to disinherit someone, you've got to be clear and intentional in your estate planning. Just omitting someone's name from the will isn't enough. This can actually invite legal challenges. So let's talk about who can you disinherit. You can disinherit adult children, so in almost any state you can legally disinherit an adult child. However, north Carolina protects minor children, so you can't leave them completely without support. Additionally with the spouse, in North Carolina we have laws that prevent you from fully disinheriting a spouse. The spouse can claim what's called an elective share, and this means that they can claim a portion of your estate even if they're not in your will. With other relatives, it's pretty easy. You're free to disinherit siblings, nieces, nephews or anyone else who isn't legally entitled to a portion of your estate. So, sam, do you want to talk about how to potentially prevent will contests?

Samantha Gordon: 2:24

Yeah. So I think it's super important, especially as attorneys, that if we have a client that comes in and they are saying that you know, I haven't talked to my child, I haven't talked to my spouse, there's some type of family rift that happened and I don't want them included in my estate plan, going over what you just said, jordan, is super important, so that the client understands that, and really figuring out what type of estate plan that we need to do. Are we going to do a will? Are we going to do a trust? In both of those documents a will and a trust there's different implications that we need to think about. So if we're disinheriting a child from a will, for example, they have the right after you pass away. If they believe that there is a reason why other than just what you wanted, um, that you did not include that child in the will, they can contest the will, meaning that if they believe there's undue influence, if they believe that you lacked capacity when you sign that will, um, they can actually challenge the will through the courts, even if that was not your intention, even if you said this is what I want. I know this is what I want and there was no undue influence. There was no lack of capacity situation. They still have the right to do that and contest the will. They have to prove it. It's very straightforward as to what they need to prove and their burden of proof, but they can do that, and so that can cause a very emotional situation for the family after you pass away, who are already grieving right. And so a will contest, also known as a will caveat that means that someone brings a complaint to the courts asking the court to determine whether or not this will is valid. The attorney that drafts that will generally will be a witness, and so if it's one of us that's drafting that will, we're going to have a conversation with the client really understanding why we are disinheriting this child spouse, whatever may be going on, so that if we ever have to testify and explain what's going on, we can explain why we drafted this document and advocate for the reasons why. And very important to make sure that if the situation is going on, it's only you and the attorney in the conference room that's discussing what's going on. There's no one else in the room, because if there's someone else in the room with you, that could lead to a claim of undue influence, and so there's different ways that you need to maneuver to make sure that this is done so that, if this is really what you want, this is what's going to happen.

Samantha Gordon: 4:59

There's also an underused tool within our laws in North Carolina that you can actually have your will probated while you are alive.

Samantha Gordon: 5:05

It's called living probate, where you can actually have your will probated while you are alive.

Samantha Gordon: 5:07

It's called living probate, where you can go to the court and you can say to the court I want to have a hearing and I want this will to be determined, that this is my last will and testament, and the court then can have that hearing determined that your will is valid, which means that when you pass away, no one can contest that will because it's already been determined that it is your valid last will and testament. That is something that is super underutilized, in my opinion. North Carolina. It's something that we do. It really helps with those specific situations when you are disinheriting someone, and so that's a really, really, really good tool to have in your tool belt with your estate planning. That I've done this, I know that if something happens to me, this has already been deemed valid and my family doesn't have to worry about some type of court proceeding where now they have to prove my will is valid, because I've already done that while I'm alive. So you can put yourself as well as your family IDs.

Jordan McIntyre: 6:05

Yeah, and what about using no contest clauses in a will?

Samantha Gordon: 6:09

So we do that. We'll have no contest clauses in the will. You know well, dory, what's your opinion on the no contest clause.

Jordan McIntyre: 6:20

I think that it is a protective mechanism for disencouraging any type of family disputes. Right yeah, only come forth with a good faith challenge to be able to challenge these no contest clauses, and they essentially state that anyone who contests the will forfeits their inheritance if they were getting anything at all. However, I don't really think we're using this with individuals who are being disinherited. This is just for individuals who are going to receive something and then we want to prevent them from challenging how much they're going to receive.

Samantha Gordon: 6:56

Yeah, and I mean kind of a disinheritance right, because if you have two kids, generally through the law, if you're not married, just the law has already stated that they would split everything 50-50. And so you could have a situation where in a will you said 60-40. You know, maybe a daughter's getting 60 and then a son's getting 40. So technically you're disinheriting their share right, the amount that they would have gotten through the law, and so the no contest provision could help with that, saying that you are inheriting. And if you were to contest this because you wanted to get your extra 10%, then you may not get anything.

Samantha Gordon: 7:32

We've seen in other wills that have been drafted by other attorneys, as well as wills that we've drafted. There's different ways that you can kind of outline your will. That doesn't necessarily disinherit someone but it changes the percentage, that equal distribution that otherwise they may have gotten. So I'll have clients sometimes where they want to leave a dollar to someone and I explained to them that I understand. Maybe you know why you want to leave a dollar to someone, but really you're making your executor's job really really, really difficult if you leave a dollar to someone. So it's actually not going to be as easy, or maybe give that sting that someone's wanting to do when they leave that dollar. Really it's going to make your executor's job really hard.

Samantha Gordon: 8:20

I've also seen in wills where you know someone will just say that they leave their love and affection rather than an actual monetary amount that they're getting. And so there's different ways that you can disinherit a child or an heir, whoever that may be. That can be done a certain way depending upon the situation and really figuring out how we need to do that, whether it's making an unequal distribution, whether it's completely cutting them out and just making sure that you have the right language in place in that document to ensure that your wishes are going to be conveyed the way that you want them to. But then also, if something were to happen to you, then everyone kind of knows what's up and what needs to be done.

Jordan McIntyre: 9:09

So bottom line sounds like attorney Samantha Gordon is saying that disinheriting someone is possible, but it has to be done strategically and if your wishes are honored, you really need to work with an experienced estate planning attorney like Samantha Gordon. If you have questions about estate planning, give us a call. We offer free consultations to help you get affairs in order, and we have offices in Shelby, north Carolina, charlotte, north Carolina and Hendersonville, north Carolina. We also have the ability to do some estate planning in South Carolina now. So give us a call at 888-999-6600 or visit our website at wwwmcelderlawcom and schedule a free consultation today. Thanks for tuning into the Elder Law Report. See you guys next time.

Samantha Gordon: 10:00

Thanks guys, bye, nice talking to you, Jordan.

Jordan McIntyre: 10:03

Nice talking to you too.