Top 10 Ways To Be Disinherited (And How To Avoid That) (Part 2)

LeClairRyan
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This is Part 2 in the series of the top 10 factors that I’ve seen that lead to people being disinherited from a relative’s or friend’s estate plan. In Part 1, I discussed 5 of the 10 factors, and the following round out the final 5 factors. Knowing these factors will hopefully help ensure that you not only avoid being disinherited, but perhaps, more importantly, help ensure that you have deeper and more meaningful relationships with family and friends:

6) File a Guardianship and Conservatorship Action Against a Relative
There are two main reasons why a person would file a guardianship and conservatorship action: first, because a relative failed to execute a general or medical power of attorney, and that relative has since lost capacity. In those instances, the person petitioning for the appointment of a guardian and conservator asks the court to grant someone the authority to make decisions for the incapacitated person relating to healthcare, finances, living arrangements, etc. The second main reason involves seeking the appointment of a guardian and conservator in connection with an action seeking to have a court revoke an agent’s authority under a power of attorney, and simultaneously appoint a different person as a guardian and conservator.

Relatives should think very carefully before they file a petition for the appointment of a guardian and conservator because under Virginia law (and the law in numerous other states), a person may be “incapacitated” for purposes of needing a guardian and conservator, while still having the requisite testamentary capacity needed to make a will. Sometimes, the elderly person reacts angrily when a relative seeks the appointment of a guardian and conservator for the elderly person, and disinherits the relative as a result. The act of disinheriting can be both reasonable and warranted in some instances (such as where the relative bringing the guardianship and conservatorship petition is unethical and brining it for improper reasons). However, the act of disinheriting can also be unreasonable and unwarranted in other cases (such as where an upstanding relative seeks to protect the elderly person from abuse by the agent under the power of attorney; or where there’s no general or medical powers of attorney in place for the elderly person, and someone needs to provide for his care).

7) Talk Excessively About Your Parent’s Estate Plan
This is a bit different from being presumptuous with your parent’s assets, which was one of the factors that I discussed in my earlier blog post on this issue. Unlike the more overt problem of being presumptuous with a parent’s assets, this can manifest itself as simply and as innocuously as frequently raising with your parent the issue of whether he has an estate plan in place and what it provides for.

Let me state the obvious: some discussion of an estate plan with family members is a good thing. It’s a smart thing for children to broach the subject with their parents of whether they have an estate plan in place. It’s a smart thing for children to ask their parents if they have executed general and medical powers of attorney. It’s also a smart thing for parents to mention to their children that they have an estate plan in place, and to let them know if they’ve named their children as agents under their general or medical powers of attorney (so that the children can be aware in the event they ever need to exercise authority pursuant to the powers of attorney). In some cases, it may also be prudent for parents to let their children know that they’ve named them in certain other fiduciary roles (such as executor of the estate, trustee of the trust, etc.).

Having said that, in most cases, it’s not appropriate for children to ask about the specifics of a parent’s estate plan. There is where some children get into trouble. Few children are such dolts that they will outright and repeatedly ask their parents: “What does your will say?” Rather, some children will attempt to subtly elicit that information from their parents by suggestive questions or comments. Here’s my advice to children: don’t even try to elicit that information. It’s none of your business. Your parents have the legal right to leave their assets to whomever they darn well please (as long as the bequests are not the result of fraud, undue influence, lack of testamentary capacity, etc.). It’s not difficult to see how parents would find such meddling to be inappropriate and react by disinheriting the meddlesome and presumptuous child.

8) Fail to Accept A Relative’s Later-In-Life Changes
It can be a difficult thing for children and friends to witness a relative aging and making different decisions as a result. Perhaps the elderly relative no longer has as much of a passion for a hobby, or vacationing, or other interests that the person used to have. That can cause strains in a relationship if a significant part of a relationship centered on things like going sailing each year, or travelling to the beach each summer.

Undoubtedly the most significant later-in-life change that children and other relatives find difficult to accept is when an elderly relative – who is a widow or widower – begins to date a new person. The elderly person’s family and friends often (and understandably so, to a certain extent), react initially with a mix of anger and worry. The anger can stem from: feelings that the mourning period for the departed spouse was not long enough; feelings that by dating a new person, the relative is not “honoring” the deceased spouse’s legacy; and feelings that the new person may “take the place” of the deceased spouse’s memory. The worry can stem from: feelings that the new person is “just a golddigger” who will seek to change the relative’s estate plan; feelings that the new person “moved in too quickly”; and feelings that the new person is taking advantage of an emotionally vulnerable widow or widower.

It’s a good and proper thing for family and friends to voice concerns about life changes that negatively impact the elderly relative. It’s not a good thing to voice concerns when life changes occur that are either neutral (or in fact positive) for the elderly relative, yet they may not suit the tastes of the family and friends. If family members and friends become too vocal in their opposition, it could lead to disinheritance.

9) Take Out Your Emotions On Your Relative
It’s a painful thing for a family member to see a relative’s health decline. Witnessing the decline of a loved one can trigger a range of emotions in different people ranging from the stoic to the debilitating. Unfortunately, some people witnessing the decline of a family member can become so distraught and angered at the decline, that the person’s anger is in fact turned back at the declining family member himself. Whether in the form of rage at having to change yet another adult diaper, at the thought of the other brothers and sisters not being anywhere nearby to help care for mom, or as a result of sheer exhaustion, a caregiver can find himself in a situation he never imagined: he’s taking his anger out at the only person around: the declining relative who does not deserve to bear the brunt of it.

I’ve seen it happen. A few years ago I handled a matter where a daughter cared dutifully for a declining father for years. She was left a smaller portion of the estate than other children, who – while they faithfully called and visited over the years – did not exercise anywhere near the level of care that the daughter did. What reason surfaced for the smaller bequest to that daughter? That while she cared for her father, she was bitter and spiteful towards him for years, which led to his final years being filled with turmoil and angst.

10) Share Certain Bad News About Your Kids
This is a tricky issue. Certainly, honesty within a family is important. A family is designed to be one of the few social structures where people should receive support and love – with their faults and all – by virtue of no other reason than they are part of the same family. That said, it is often prudent for family members to withhold certain information from elderly relatives about the flaws and faults of other family members.

I’m talking here about things like substance abuse, repeated failed marriages, imprisonment, etc. Certain families may find it prudent to also withhold information about comparatively minor issues (which, in the eyes of certain people in society, may not even constitute failings). By withholding such information, you’re preventing two scenarios. First, you’re preventing the elderly relative from potentially disinheriting the wayward child (who, out of all of the people in the family, may need the inheritance the most). Note: I am not speaking here about particularly extreme scenarios such as chronic drug use, whereby an inheritance would almost certainly be misused to only feed a destructive habit. Second, you’re preventing a scenario whereby a relative disinherits you as a result of the acts of your wayward child (either in the form of direct punishment to you for alleged “failings as a parent” or to prevent you from in turn passing on any of that inheritance to the wayward child when you pass).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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