Common Mistakes and How to Avoid Them
The path to a legally sound disinheritance is filled with potential missteps. Even with good intentions, a simple mistake can undermine your wishes and trigger the very family conflict you may have hoped to avoid. Here are some of the most common errors and how to prevent them.
Mistake 1: Ambiguity and Omission
As we’ve emphasized, the single biggest mistake is simply leaving a child’s name out of your will. This does not legally disinherit them. Instead, it opens the door for them to claim they were an accidentally forgotten heir (a pretermitted heir). The court could then award them the share they would have received if you had died without a will, completely overriding your unstated intentions.
How to Avoid It: Be explicit. Your will must contain a clear, unambiguous clause that names the child and states your intention to provide nothing for them under the will. Work with an attorney to ensure the language is legally airtight according to your state’s requirements.
Mistake 2: Stating Emotional or Defamatory Reasons in the Will
It can be tempting to use the will as a final opportunity to explain your decision or air grievances. This is almost always a mistake. When your will is submitted to the court for probate, it becomes a public document. Including angry or inflammatory language can cause unnecessary pain for your family and may even be used by the disinherited child as evidence to contest the will. They could argue that the emotional language demonstrates a lack of rational thought or that you were suffering from a delusion regarding them, potentially challenging your testamentary capacity.
How to Avoid It: Keep the will’s language clinical and direct. State the disinheritance as a fact, without emotional justification. If you feel compelled to explain your reasons, do so in a separate, private letter that is not part of the will. This letter has no legal power but can offer personal context to your executor or other family members without creating a public spectacle or a legal liability.
Mistake 3: The “Do-It-Yourself” Approach
In an age of online legal forms and software, it may seem easy and cost-effective to draft your own will. While these tools can be adequate for the simplest of estates, they are wholly inappropriate for a situation as legally sensitive as disinheritance. A generic form cannot account for the nuances of your family situation, the specific laws of your state, or the strategies needed to fortify a will against a likely contest.
How to Avoid It: This is a situation that demands professional legal counsel. The cost of hiring an experienced estate planning attorney to draft and execute the will correctly is minuscule compared to the potential cost of litigation, family strife, and the risk of your final wishes being overturned by a court.
Mistake 4: Overlooking Non-Probate Assets
Many people meticulously draft a will to disinherit a child, only for that child to receive hundreds of thousands of dollars because they were still named as the beneficiary on a life insurance policy or an old 401(k). People often forget to update these designations, which operate independently of the will.
How to Avoid It: Conduct a comprehensive audit of all your assets as part of your estate planning process. Make a list of every bank account, investment account, retirement plan, and insurance policy. Verify the named beneficiaries on each one and submit the necessary change-of-beneficiary forms to the financial institutions to align them with the intentions of your will. This step is just as important as the will itself.
Mistake 5: Creating the Will Under Questionable Circumstances
If you are of advanced age, are experiencing significant health problems, or are heavily dependent on another person (especially if that person is a major beneficiary in the will), you are more vulnerable to a will contest based on lack of capacity or undue influence. If a will that disinherits one child while greatly benefiting another is signed while you are in the hospital and heavily medicated, the circumstances alone create suspicion.
How to Avoid It: Plan ahead. Create or update your will when you are in good health and mentally sharp. If your health is a concern, your attorney may suggest taking extra precautions. This could include having a doctor examine you and provide a letter attesting to your mental capacity on the day you sign the will. Your attorney may also ensure that the beneficiaries who stand to gain the most are not present during your meetings or at the will’s execution ceremony to avoid any appearance of undue influence.
