Disclose All Uncomfortable Facts to Your Lawyer, And How to Disinherit
Hi my name is Jordan Flake, I am an estate planning attorney at Clear Counsel Law group and today I want to talk about why it’s really important to tell your estate planning attorney everything.
Sometimes we have these clients who have a child who they just don’t really associate with them as a child anymore.
In fact, often times they’ve considered themselves to have moved on from that relationship. It may not necessarily be a child it can also be a brother or sister or in an estranged situation it could be a spouse.
We have had cases and we have seen cases where someone will come into our law firm and say well ask, “How many children do you have?” They’ll say, “Well I have 2 kids. I have Bob and Susie” and we’ll say, “Okay great.” We’ll include those 2 individuals in their estate planning and then we’ll find out later on down the road that in addition to Bob and Susie they have a child named Johnny.
The problem is they haven’t talked to Johnny in 10 years. It ended badly and they didn’t wish to provide for him.
The client over on the other side of the table is thinking, “If I just don’t tell the attorney at all about Johnny, then only Susie and Bobby will show up in the estate planning and only Susie and Bobby will get part of my estate.”
That seems to be a good idea from their standpoint. Now, some of you who are viewing this may already be able to anticipate what is wrong with that. In Nevada and in other states, it’s necessary to specifically disinherit your next of kin.
Why Nevada Requires You to Expressly Disinherit
Otherwise there’s a presumption in the law that you just somehow made an error and excluded them on accident and so if I say,”I want to give everything to my 2 kids Bobby and Susie” and I don’t mention my third kid Johnny, Johnny can come along after I pass away and say, “Hey, here I am. You know dad said he wanted to give everything equally with his kids.”
Bobby and Susie will say, “Whoa Johnny first of all we haven’t seen you in 10 years. Second of all there’s a problem because we can point very clearly to the language in the estate plan that says he wants everything to go to the 2 of us.”
Then Johnny could say, “Whoa, no it says equally between the kids and he just forgot to put me on there. That’s all that’s happened here.”
That’s why it’s very necessary in Nevada when you’re doing your estate planning to specifically disinherit Johnny.
Often times we’ll put a provision in there that says,”For the purposes of my estate planning I desire to disinherit Johnny and I desire that he be treated as though he had pre-deceased me” so that literally nothing goes to him and so that he won’t have any power over the estate planning at all.
There’s different language you can use.
Sometimes it’s the case that you have Bobby, Susie and Johnny and you just gave Johnny his share of the inheritance before you passed away and in that case we can use a little bit more amicable language where you say, “I do not desire to provide for Johnny through this estate plan that I am preparing because I provided to him a living gift several years ago” or whenever it was.
There’s No Good Reason to Lie to Your Lawyer. S/He is Your Lawyer.
These are different things to take into consideration but the real red flag and the thing that I want you to remember and take away is don’t hold anything back from your estate planning attorney precisely because you’re not sure of the impact of withholding that information on your eventual estate plan.
It’s really good to know for example, do you have a prior marriage where there may not have been a divorce finalized. We see this happen a lot too. A couple will get married, they’ll have a falling out.
They’ll intend to divorce. They may even start the divorce process but they never ever really finalized it.
They never did a divorce discharge and what happens is later on down the road they meet somebody else and they say, “Hey, I want to give you all of my assets when I die.”
They’ll basically draft up an estate plan but then they’ll fail to properly get rid of that spouse who under the eyes of the law is still a spouse.
This is really a scary situation because you don’t end up getting exactly what you want. Make sure you talk to an estate planning attorney about all of these types of issues so that with the benefit of our knowledge and experience we can make sure that there’s not going to be some land mine that crops us later.
If you’re in a situation like this where you may want to disinherit someone. You may have some kind of legal issue that was never fully wrapped up from earlier in your life or maybe you just want to know that you don’t have some sort of landmine that’s going to crop up, please come to me with your estate planning.
I’ll do a no charge consultation.
I’ll sit down and review your estate plan whether you have documents or whether you just, your estate plan maybe right now is just in your mind and you need to get it out on paper.
In either situation, I am more than happy to meet with you and for sure when we meet make sure you tell me everything.
Thanks so much.