TRUST AND ESTATE PLANNING
Covering Temecula, San Diego,
& Inland Empire
Can My Parents Disinherit Me
Can my parents disinherit me and what if they do?
Can my parents disinherit me? This is a question that may come up after they threaten to do so and you wonder if you should take them seriously.
As someone who understands this feeling, I, Andrea Aston, a trust and estate as well as probate attorney, am here to advise you that yes, they can, but there are things you can do if this happens.
What is disinheritance?
When a person passes away, the property that the deceased owns will be distributed to various people, such as a spouse or family member, a charity, or the bank or government. A person can decide who will receive their belongings and properties upon their death through an estate plan which will include a will, and perhaps a trust, and power of attorney.
This is why estate planning is important—it’s a valid process documenting your last wishes and desires.. It also gives clarity to the family as to what you were thinking and the intentions you had at the time.
However, sometimes a parent can also exclude someone, a child for example, who might normally receive a share of the property.
This exclusion is referred to as “disinheritance”.
But how can my parents disinherit me?
Reasons children can be disinherited
Children can be disinherited for several reasons, some of which might be:
The parent abandoned the child.
The parent is estranged from the child.
The child suffers from addiction and the parent believes an inheritance wouldn't be managed properly.
The parent believes that the child has already received enough financial assistance.
The parent believes that the child's siblings have a greater need for financial assistance.
How can I fight disinheritance?
While it may not necessarily be illegal to disinherit a child, the good news is, you do have the right to contest the will as a disinherited child to pursue recovery of your rightful inheritance.
You just have to understand what happened and why you became disinherited to help you determine the best way to dispute your disinheritance.
Can My Parents Disinherit Me: How To Contest A Will
Anyone who creates a will has the final say in who is and isn't in the will. Depending upon the circumstances, you may be able to challenge the will.
However, it is important to move quickly as there are time limits for making certain types of claims, like a 6-month time limit for making a maintenance claim.
If you believe the will has changed, perhaps under duress or diminished mental capacity, then you can hopefully find out the how and why.
The first thing to do is request a copy of the will from the executor, but if they refuse to provide one, you can apply to your local probate registry for a caveat to prevent the grant of probate.
This can stop the executor from gaining control of the estate for at least 6 months.
A good executor will usually compare copies of the will and will note any significant changes.
So a notice from the executor may be your first clue that you were removed from the will.
If you are not told before the will enters probate, you will be able to get a copy from the probate court.
From there, you will also be told how long you have to contest the will. My advice is sooner rather than later.
Another thing to consider is getting the advice of an experienced probate attorney to ensure you put together the strongest possible case and have the best chance of a successful outcome.
In this article, we will explore potential grounds for overturning a will, the process for doing so, and how likely a challenge is to succeed.
CHALLENGING A WILL DUE TO LACK OF CAPACITY
This is one of the most common reasons for challenging a will. You must prove that your parents were not of “sound mind.” In California, “sound mind” for creation of a will means that a person must understand:
(1) the nature of his property
(2) the nature of his relations (i.e., who his children are)
(3) the general nature of his assets (see California Probate Code section 6100.5).
The law presumes that all people creating wills have the capacity—no matter how incapacitated they may be. To challenge a will, you have the burden to overcome this presumption and prove a lack of capacity.
It is up to you to find the necessary evidence to prove lack of capacity if you want to overturn a will. For example, the medical evidence of a mental defect that could prevent him from understanding the nature of his property and to prove a lack of capacity.
CHALLENGING A WILL BECAUSE THE TESTATOR WAS UNDULY INFLUENCED BY A BENEFICIARY OR PARTY
For undue influence you must prove:
(1) that the person creating the will was susceptible to undue influence due to things like age, mental condition, illness, etc.
(2) the undue influencer (the person doing the influencing) was in a position of authority (or apparent authority) over the victim,
(3) the undue influencer used actions and tactics to carry out the undue influence (such as isolation, controlling medication, etc.), and
(4) the terms of the will or trust are unfair.
As with lack of capacity, undue influence requires medical evidence of a mental condition that would make the victim susceptible to undue influence. But being susceptible to undue influence is different from lack of capacity.
Susceptibility to undue influence is a lower mental standard. In other words, a person could have testamentary capacity, but still be susceptible to undue influence.
If you can meet one of these legal standards, then you may have a chance to overturn a parent’s will. If, however, you cannot meet one of these standards, then you are simply out of luck. In other words, you cannot overturn a parent’s will just because you don’t like its terms.
CHALLENGING A WILL DUE TO MISTAKE OF FACT
If it can be shown that the parent disinherited the child due to a reason that can be proven untrue. Like for example, a drug addict child was disinherited because he/she can’t handle or protect an asset.
CHALLENGING A WILL DUE TO LACK OF AUTHORITY
Often, a parent oversteps their ability to disinherit a child and attempts to disinherit the child not only from the portion of the estate that the parent owns/controls but also from the portion of the estate that the previously deceased parent owned and left for the child.
The majority of estate plans provide that after the first parent dies, their share of the estate becomes irrevocable, meaning it cannot be changed.
Most surviving parents don’t realize this and, either of their own volition or in combination with being unduly influenced, they try to disinherit a child from their and their deceased spouse’s shares of the estate. Because the plan was irrevocable and could not be changed, they can’t do that.
CHALLENGING A WILL DUE TO OMISSION
If you fall into a narrow category of people who were born after a will was created, then you qualify as an omitted child. As an omitted child, you are entitled to your intestate share of the estate regardless of what the will states.
There are a few exceptions, however, such as a will that references an upcoming birth of a child but states the child is specifically disinherited. But short of that, anyone born after a will is created is considered omitted by California law and is therefore entitled to a share of the estate. By the way, the omitted child rules also apply to a child born after a trust is created.
You are also considered an omitted child if you can prove that a parent left you out of the will because the parent was under the mistaken belief that you were deceased. That rarely happens and can be difficult to prove in any event, but if you fall into that category, then you too will receive your intestate share of the estate regardless of the will’s terms.
CHALLENGING A WILL BECAUSE OF ACCIDENTAL DISINHERITANCE
Simply not being mentioned in the will is not the same as being positively disinherited.
If you have a valid legal claim to inherit from the estate of the deceased, then the court will often proceed on the assumption that the deceased intended to give you something. This is common in cases involving the deceased’s spouse or child.
Other situations can lead to accidental disinheritance as well. For example, there might be a grammatical error in a will document that results in a beneficiary losing their rights to some property. Alternatively, there might be some unclear language or descriptions regarding a person’s identity or a specific item of property.
These might necessarily lead to disinheritance if the court can determine the testator’s overall intentions based on other factors.
CHALLENGING A WILL DUE TO FRAUD
This covers the variety of situations where the will is not genuine. A signature could have been forged, pages swapped out or removed, white-out, and photocopies used.
It also covers situations where the testator may have updated their will based on wrong information that they received. Challenging a will because of fraud can be successful if there is any evidence that somebody associated with the will has acted dishonestly.
What happens when a will is overturned
After the will lawsuit has been filed, stating the basis for challenging the will and the supporting evidence. If it is successful, the court will invalidate the trust or set aside a will amendment. The last will be deemed invalid and the assets will be distributed by state intestate succession laws.
FEEL LIKE YOU’RE WRONGLY DISINHERITED IN A WILL?
Call Andrea Aston today!
If you believe that you have been wrongly disinherited in a will, then you should consult with an expert lawyer as soon as possible to get legal advice.
Andrea Aston, an experienced will, trust, and estate attorney, will review the situation, advise you of your rights, and let you know what your options are to help you get the inheritance you deserve.
Need help? Call today at 760-758-1565 or email aaston@trustandestatelawyer.net for more information and a free phone consultation.
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