How to Avoid Unintended or Accidental Disinheritance

Disinheriting a family member is a legitimate estate planning objective for some individuals. When permitted under Michigan law, a properly-drafted estate plan can accomplish an intentional disinheritance. Unfortunately, other circumstances can lead to the unintended or accidental disinheritance of a family member. In this discussion, our BRMM estate planning and probate litigation lawyers explain the primary ways that accidental disinheritance may occur, and what you can do to avoid it.

What Is Unintended or Accidental Disinheritance?

Disinheritance occurs if a person chooses to exclude a specific individual (usually a family member, like a child) from receiving anything from the person’s estate after their death. In this situation, the heir or beneficiary is intentionally deprived of receiving any benefits from the estate.

In contrast, unintended or accidental disinheritance is not a choice made by the person whose estate excludes someone as a beneficiary or heir. It happens when the person fully intended for a specific individual to receive something from the estate, but the intended heir or beneficiary ends up receiving nothing. Accidental disinheritance can happen in several different ways, all of which can easily be avoided.

Failure to Update an Estate Plan as the Cause of Accidental Disinheritance

When you create an estate plan to ensure financial security for your loved ones after you pass away, it is not a one-and-done accomplishment. Your estate plan needs to be updated regularly to take changes in your life into account.

When changes in your family situation occur, including marriage, divorce, remarriage, birth, and death, you should update your estate plan to take the new circumstances into account. Failure to make necessary changes may result in accidental disinheritance of someone you want to benefit from your legacy, such as a new spouse or recently born child.

For example, updating your estate plan after a divorce or remarriage is essential to ensure that your former spouse, new spouse, children, and grandchildren are all accounted for properly in your last will and testament and other estate documents. While Michigan law provides some protection for estate-related matters after divorce in MCL 700.2807, the laws are complex and may not cover every situation. Revising your estate plan soon after a divorce or remarriage can prevent accidental disinheritance of your intended beneficiaries.

In any circumstance, relying on state law to fix gaps in your estate plan that occur after a major life change is a serious mistake. If you do not update your estate plan to address changes in your situation, your loved ones may end up in court to settle disputes over who receives your financial legacy. Court involvement takes a toll on everyone involved, delays the process of settling your estate, and can result in considerable legal expenses for your estate. Litigation ultimately may result in your estate assets being distributed to individuals other than your intended beneficiaries.

You can learn more about revising your estate plan in other articles by our BRMM attorneys, includingWhen Do You need to Update Your Estate Plan? andHow Does Your Estate Plan Change As You Age?

Risks of Do-It-Yourself (DIY) Estate Planning

The do-it-yourself or DIY approach to estate planning is another cause of accidental disinheritance. Using forms or online services to create a last will and testament or other estate planning documents creates substantial risks that your intended beneficiaries will not receive your assets after your death.

Without assistance from an experienced estate planning attorney, your documents may not be valid in Michigan, or they may not accomplish what you think they will. An additional risk is that you may create inconsistent documents or accounts that make your intentions impossible to ascertain. In that situation, a court may decide who receives your property — and it may not be your intended beneficiaries.

A thoroughestate plan prepared with a lawyer’s assistance includes more than the necessary estate planning legal documents. Your lawyer also makes certain that your beneficiary documents (like life insurance policies and IRA accounts), title documents (for assets like real estate), financial accounts, and other assets are properly completed and executed so they are consistent with your other estate planning documents.

Without the proper legal guidance, do-it-yourself estate planning efforts may result in accidental disinheritance of someone you want to include in your estate. You can avoid that possibility by getting assistance from a knowledgeable lawyer when you create or revise your estate plan.

Misunderstandings About Michigan Law

In some situations, individuals make the conscious decision not to make an estate plan in the mistaken belief that Michigan law automatically provides for their heirs. For example, married couples sometimes assume that a surviving spouse automatically receives the entire estate after a spouse passes away. In reliance on that mistaken belief, they don’t think they need a will or estate plan, so they don’t take the time or spend the money to make one.

The fact is that a surviving spouse does not always inherit the entire estate under the Michigan laws of intestate succession, when someone dies without a will or trust. From a broader perspective, any reliance on intestate succession laws to address distribution of your estate may result in your property ending up in the hands of heirs other than those you expected to receive your property.

Making a last will and testament is extremely important to ensure your intended heirs receive your estate property and for other reasons as well. You can learn more about why you need a will and what happens if you don’t have one in our article,Should Everyone Have a Will? You may also learn more about wills and estate planning in our discussion,A Will Is Not An Estate Plan (Here’s Why).

Another misunderstanding that may cause accidental disinheritance happens when an individual revises a will or another estate planning document without a lawyer’s assistance. Changes to your legal documents need to meet strict requirements under Michigan law. If you try to make changes without a lawyer’s help, your efforts could have disastrous results, including unintended disinheritance of loved ones. If your will or estate plan is out of date and needs revision, it’s essential to get assistance from an estate planning lawyer.

How to Avoid Accidental Disinheritance

The preceding discussion explains the primary causes of accidental disinheritance. It may occur in other ways as well. There is only one sure way to avoid the possibility of accidental disinheritance in your estate: Get assistance from an experienced estate planning attorney when you create your estate plan. Review your plan on a regular basis and meet with your lawyer to update it as necessary to ensure that it reflects your current family and financial circumstances.

Talk With Our Experienced Michigan Estate Planning Attorneys

Our attorneys at the law firm ofBarron, Rosenberg, Mayoras & Mayoras, P.C., provide a full range of services relating toestate planning. We’ve been serving clients in Oakland County and beyond for more than 40 years. Our clients count on our commitment, experience, and credentials when they turn to us for their legal needs. Call us today at 248-641-7070 or use ouronline form to talk with our experienced estate and probate attorneys.

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