FORBES Magazine online blog, The Best Revenge – by Ashlea Ebeling, has an excellent article called 10 Ways to Lawsuit Proof Your Estate that covers a lot of the advice that we at Ainer & Fraker, LLP give to our clients. Please read the entire article by clicking on the following link: 10 Ways to Lawsuit-Proof Your Estate. In our final installment, we’ll examine Part 10 – Spell out any Disinheritance

“If you’re disinheriting a son, spell it out in your will, making it clear it’s intentional. But don’t give a reason for disinheriting a child that might be challenged, particularly one a court might decide was against “public policy”. (For example, I am disinheriting junior unless he divorces his wife.) ” ~ Ashlea Ebeling, 10 Ways to Lawsuit Proof Your Estate

Ainer & Fraker, LLP Analysis The issue of disinheriting a son or daughter is an issue that requires a lot of thought and care. As stated in the article – the Disinheritance must be Intentional or the Probate Court will conclude that you didn’t really mean to disinherit your child. California’s Pretermitted Heir Statutes, found in California Probate Code Sections 21620-21623, state that, in order for the disinheritance to be effective:

The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments. (Section 21621)

This means that the same document that disinherits a child must make it clear that the disinheritance was intentional. Failure to meet this or other statutory criteria, the Court will rule that:

The omitted child shall receive a share in the decedent’ s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument. (Section 21620)

In other words:  to disinherit a child, you have to (1) mean it and (2) say that you mean it in the testamentary documents. For these reasons, competent legal counsel should always be consulted before attempting to disinherit a child.

John Erik Fraker, Esq.

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John Erik Fraker, Esq.

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