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Although it may sound cruel to disinherit a child in their wills, many people do, and have valid reasons for doing so.
Why Does It Happen? In many situations, parents might feel one adult child is well-off and does not need an inheritance, while, perhaps another adult child is not as financially successful and needs an inheritance much more. Still, a person’s circumstances can change, so be cautious when making such decisions based on that reasoning. Certainly, fair doesn’t necessarily mean equal, but feelings can still be hurt despite the fact that the person making the distribution had good intentions.
In the case of an adult-disabled child, there are much better options available than simply disinheriting that child, and leaving what they would have received to their brother or sisters instead who "will take care of the adult-disabled child's share, because they will know what I want them to do with it." Morally, the siblings may know what you want, but legally, they would not actually have to follow through with sharing what they may receive in that situation... There are many other ramifications with that approach as well! It is far better and less riskier for all involved to explore a Trust for that purpose instead. One common recommendation for protecting an adult-disabled child's share as part of Special Needs Planning for an heir includes a Special Needs Trust, which insures that they receive their share in a way that it is protected for their use without risking the loss of their state or public benefits. For more information on why disinheriting a child with Special Needs is not the answer, be sure to check out this earlier VAElderlaw.com blog article.
More expected reasons for disinheriting someone would be because there is no relationship or a strained relationship or, in certain cases, a single incident has occurred that has impacted a relationship negatively. In all cases of a strained relationship, we inquire with clients as to whether they have taken any steps to try to repair that relationship or to understand the reasons for that rift. For example, in a situation where a loved one is battling cancer, perhaps a child is still a loving daughter, but is simply afraid of dealing with that person's possible upcoming death. Perhaps the reason she has not visited is not out of a lack of love, but out of fear of losing that loved one, and simply not being able or willing to face this fear. Keep in mind that cancer and death are scary for most people, and especially scary for children, particularly younger children.
Not a lot of people may be aware, but children do not have an absolute right to inherit! Regardless of the above reasons listed, it is your absolute right to disinherit your daughter or son if you so wish. But there are other options that may be preferable to outright disinheritance, especially if you are concerned about those decisions being challenged later once you pass.
The 4 Myths of Estrangement
Estrangement looks different for those affected, but research relayed by New York Times health reporter Catherine Saint Louis shows that the experience is more common and complex than we might think. Here are the four myths about estrangement that Saint Louis debunked in her article:
Myth 1. - Estrangement is sudden.
Estrangement is actually a “continual process.” Although it sometimes means a clean break, a fight and that’s it, it can also be a chaotic disassociation, or a relationship that’s on and off again over a period of years.
Myth 2. - Estrangement is rare.
Estrangement is more common than most people realize. In fact, one research study said 12 percent of parent-child relationships in the U.S. are estranged, which is likely a conservative estimate, since the study only observed mother-daughter relationships.
Myth 3. - People become estranged for a clear reason.
Estrangement typically falls into one of three categories, according to St. Louis’ findings: choosing between the parent and someone or something else (a partner, a passion, an identity, a lifestyle, etc.); a difference in values or perceived wrongdoing; or stressors such as domestic violence, divorce or failing health. A combination of two or more of all these factors is also possible.
Myth 4. - Estrangement happens on impulse or whim.
According to St. Louis, “(m)ost of the participants said that their estrangement followed childhoods in which they had already poor connections with parents who were physically or emotionally unavailable.” She believes that estrangement is typically years in the making — resulting of unhealthy relationships that couldn’t be saved.
Let's Talk About Virginia Disinheritance Laws!
When it comes to your children, you do have the right to disinherit them in Virginia and in most other states, but you must be explicit in doing so. If you don’t make your disinheritance explicit, there is room for confusion after you pass. Failing to do so could easily give a disinherited child leverage during court hearings.
- Ideally, your estate planning attorney needs to know about any children early on that you wish to disinherit at the first initial consultation when discussing your documents. In the conversation with your attorney, be sure to explain in detail your reasons for disinheriting an adult child. No actual reason needs to be stated in your Will or Living Trust, but it is a good idea for you or your attorney to prepare a written statement that can be left with your estate planning documents explaining your reasons. If a child's name is left out of a Will and not mentioned at all, pretending that they didn't exist, that child could easily have the whole Will thrown out in court as being invalid!
- There are several instances where disinheriting children in your Will can be invalidated in Virginia, such as undue influence, lack of testamentary capacity, fraud, and duress.
- Though it’s often extremely difficult to prove any of this to the court, you should be aware that there is a chance your children can prove this after you pass.
If A Will Is Challenged (Contesting A Will)
A no-contest clause (also referred to in latin as an in terrorem clause) in a Will or Trust is a provision that states that if a beneficiary under the Will or Trust challenges the validity of the document (or, in some instances, tries to take certain other actions against the executor, administrator, or trustee), that person will forfeit his or her rights to take under the document.
In Virginia, if a person challenges a Will or Trust with a no-contest clause and prevails in that challenge, the court will declare the Will or Trust to be invalid and of no effect (thereby eliminating the effect of the no-contest clause), and a prior Will or Trust (if any) will control the disposition of the assets. if there is no prior document, then the laws of intestacy will control the disposition of the estate, which may not have been what the deceased wanted! So, when a person is considering challenging a Will or Trust that contains a no-contest clause, he or she faces a very important choice: risk challenging the Will or Trust (and, if unsuccessful, potentially losing his or her inheritance), or not take any action and instead accept an estate plan as it was written.
Consider Leaving Something To Your Adult Child, In Case He Or She Contests The Will
If the potential challenger has a sizeable sum of money at stake, he or she will need to carefully think through the merits of the challenge. So, although you cannot do anything to completely prevent the risk of a disinherited child challenging your estate plan, it is sometimes best — depending in part on your age and health, because these things factor into a potential claim of incapacity or undue influence or duress — to leave the child you wish to disinherit enough money to serve as a disincentive for them to challenge your Will or Trust, even if you have a “no-contest” clause, because a no-contest clause is effectively meaningless without a bequest to go along with it that the disinherited person risks losing by filing the contest.
Estate Planning Is Vitally Important For Families With Estranged Loved Ones
We see many families who have a loved one who is estranged. For those with an estranged loved one when disinheritence for that person is desired, estate planning is vitally important. Our offices have strategies in place to help all types of families plan for themselves and their loved ones (whether you are tight-knit, estranged, or "it's complicated"). With proper advance planning, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that the needs of the loved ones who he or she designates will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a consultation.
Congratulations are in order: Managing Attorney Robert W. Haley has been recognized in Finance Monthly Legal Awards for 2020 as Elder Law Lawyer of the Year!
Ah, the joys of moving! Among all the changes you must make when you move from your old state to a new state: driver's license, voter registration, be sure to not forget about your Last Will & Testament or other estate planning documents you had drafted in your previous state like Trusts, Powers of Attorney and Living Wills!
While your original will should still be valid in your new state, there may be differences in the new state's laws that may make certain provisions of that will invalid. Moving from one state to another is a good reason to consult an attorney fluent in your new state's laws to make sure your estate plan in general is still up-to-date for your current situation.
Of course, you may ask - Why is this important to do? Why bother meeting with a different attorney? Why can't it stay as drafted originally, or, why can't I just have my will amended by the original attorney instead who drafted it in my old state of residence if I needed to make changes to it?
There are a lot of reasons: Most obvious one being that your original attorney you used before may not be licensed to practice law in your new state! Also, property laws can vary from state to state. For example, It is especially important to have your estate plan reviewed if you move from a common law state to a community property state, like Arizona, California, Idaho, New Mexico, Louisiana, Washington, Nevada, Texas, Wisconsin, and Alaska) or vice versa.
In a common law state each spouse's property is owned individually, while in a community property state, property acquired during the marriage is considered community property. In addition, states may have different rules about when co-owned property may pass to the surviving owner and when it may pass under the will.
Other things to consider are whether there is any language you can add to the will to make it easier to probate in your new state and whether your executor named in the document made in your previous state of residence, still makes sense now based on your new location. Other elements of your estate plan may certainly need updating as well. For example, your new state may also have different rules for powers of attorney or health care directives.
While it may seem troublesome or unnecessary, the best practice is to meet with an Elder Law Attorney licensed in your new state to make sure that all documents will still work the way that you want them to. There may be changes that now need to be made under that state's law.
Asset Protection & Medicaid Planning Webinar (FREE)
May 6, 12:00 PM – 1:30 PM
UPCOMING FREE WEBINAR: Are you prepared for the massive expense of long-term care, or a nursing home for yourself or a loved one? In far too many instances, the costs can quickly wipe out a lifetime of savings as the cost can easily reach upwards of $80,000 or more a year.
The truth is you don't have to lose everything! This webinar by Managing Attorney Robert Haley is being done in conjunction with New College Institute as part of their LIFE series, and focuses on the important topic of Asset Protection and Medicaid Planning.
Join us on Zoom, Wednesday, May 6 at 12pm.
Please click the link below to join the webinar:
Dial In by phone:
1 312 626 6799
#estateplanning, #elderlaw, #assetprotection, #medicaidplanning, #aginginplace
Our firm has received great news this month: Managing Attorney Robert W. Haley, of the Estate & Elder Law Center of Southside Virginia is listed as part of the Super Lawyers list in the category of Elder Law for 2020! He received this distinction starting back in 2007, and onward from 2009 through 2019 as well.
This accolade is presented by the Super Lawyers organization, which is an independent rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement in their respective fields. The selection process includes independent research, peer nominations and peer evaluations.
FROM THE OFFICE OF ROBERT W. HALEY, MANAGING ATTORNEY:
As the Managing Attorney of The Estate & Elder Law Center of Southside Virginia, my staff and I recognize the important role that long-term care facilities play in our community with caring for and keeping their residents safe.
Due to the concerns of COVID-19, all facilities have imposed a no-visitor policy during these uncertain times. As the pandemic concerns continue, the corona virus (COVID-19) is frightening to many in our community, country, and across the world, but above all, is especially dangerous in regards to the health and wellness of our elderly loved ones.
While certainly necessary during this time, the unfortunate and unavoidable side effect of this policy is that elders often miss the routine contact and visits that they would normally receive from family and friends in the past. For those who suffer from memory loss or dementia, this isolation and protocol can be hard to explain. Sadly, this has become the ‘new’ normal. Furthermore, no one among us knows how long this may need to continue.
In doing our part to help address this unique problem and situation, this week, a member of our staff will be out in the area distributing Amazon Kindle Fire HD8 tablets to designated representatives in various nursing homes, for the purpose of their residents to have an option to be able to reach out to their loved ones by video conferencing during these difficult times.
Wonder about why you need a Will, Powers of Attorney and a Living Will? Curious about Estate Planning, but hadn't been able to catch Mr. Haley yet at one of his seminars?
For his next seminar, Wednesday, April 8th at 12 noon, he will be presenting a WEBINAR on this very important topic! This is an online ZOOM Meeting, brought to you by New College Institute and their 'Learning Is Forever Program' that is FREE TO ATTEND! For more info, or to RSVP, please call (276) 403-5671
Follow online by following this link:
Meeting ID: 325 557 665
For audio by phone only, dial
+1 929 205 6099
The truth is, everyone needs an estate plan! While most people already know they should have a Will, Estate Planning means much more than just preparing a Last Will & Testament or tax planning for the disposition of your assets upon your death! Any complete Estate Plan should include a Will, along with a Health Care Power of Attorney (which names an agent and an alternative agent responsible for medical decision-making) and a Durable Financial Power of Attorney naming an agent (and an alternate) responsible for asset and financial management if one is unable to do such things for oneself. A Living Will, or other Advance Medical Directive, gives instructions concerning the type of care one wishes to receive or avoid in the event of a terminal illness. Along with a Digital Diary, these documents are the 5 important estate planning documents that everyone should have in place by age 55!
This important and informative online webinar held in conjunction through New College Institute, goes over the basics that everyone should consider to protect themselves and their family regardless of age for the future.
How many law offices offer curb service when needed? Yesterday, due to mobility concerns, our office staff performed a review of a client's documents in our parking lot as needed for the safety and convenience of our client.
Since the beginning of the COVID-19 pandemic, both Bassett and Danville offices' focus has been on protecting and serving our clients during these uncertain times, by offering appointments either in our offices in accordance with recent CDC guidelines or via tele-conference or video-conference options.
Why do we do what we do? Simple: The need for planning hasn't stopped - Our clients are executing their estate plans (typically, Wills, Powers of Attorney, Living Wills, Trusts, etc.,) because the aging process will not stop for COVID-19. Our firm's approach evolves as needed to keep in step with the demands of the times we live in.
Both offices are here to help: Contact us to see how we can help you and your family in planning for the future!
Managing Attorney Robert W. Haley and staff of The Estate & Elder Law Center of Southside Virginia, PLLC, would like to thank all who voted for us recently in the Chatham Star Tribune 2020 Readers' Choice Awards!
We greatly appreciate your support. Our office received First Place in the Best Law Firm category for 2020!
To see the online version of the Readers' Choice 2020 Awards winners from the Chatham Star-Tribune, that appeared in the newspaper today, check out this link: https://view.flipdocs.com/?ID=10003598_222666
Effective immediately today, March 3rd, 2020, in accordance with VA Executive Order 53, as you may have heard by now, Virginia Governor Northam has closed schools for the remainder of the school year and all non-essential businesses. Yet, the order also notes: “Non-essential brick-and-mortar stores can remain open if they practice social distancing and avoid groups of 10 or more people.”
The Estate & Elder Law Center of Southside Virginia will remain open in BOTH our Bassett & Danville offices. But we are NOT accepting walk-ins at this time!
We ask that you call FIRST if you need an appointment! In addition, you will also receive a follow-up call the morning of your scheduled appointment to confirm your consultation and to confirm if you:
- Do not have a fever
- Have not been around anyone sick/exposed to COVID-19
- Have travelled outside the Martinsville/Danville areas recently.
Do not arrive early! If we have clients in the hour before you, we want to ensure they have left the building and we have had time to wipe down the conference room table, etc.
Once you enter the building, please go straight to the restroom as directed and wash your hands with soap and water and dry them with the paper towels and put the paper towels in the trash can.
We are here for you at this time. Let’s all use our common sense and take the necessary steps! We thank you for your cooperation.
To set an appointment, please call: (855) 503-5337
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