Just because a person is excluded from a will doesn't mean they are officially disinherited. There are specific legal steps that need to be taken to prevent an argument or misallocation of the property after someone passes away. Countless people have stories about family members battling assets because critical documentation was not completed.
good afternoon everyone stephanie garces here with pink mic legal confessions today we're talking about a very interesting topic it's how do you disinherit a child a spouse a family member perhaps it's even children from another marriage there's a number of lists of people that you can disinherit especially from real estate that is a big topic today and we're going to talk a lot about that so real estate is a lot of the practice that we do um outside of estate planning so a lot of this stuff is within our wheelhouse and it's very complex and you certainly need the right people to help you along the way but let's talk about this so why would we want to do this well look people have a number of reasons why did this inherit someone from a will from their assets i'm excluding them from receiving really your assets your property that you worked really hard to get and maintain perhaps um and it's often handled by an estate planning lawyer when you want to disinherit someone from some of the stuff that they may be entitled to if something happens to you an estate planning lawyer and particularly one that's familiar with real estate is also really important to do this now in this week's peak mike lille confessions we're talking um with myself about this topic because disinherit this inheritance is a process that happens and many times people want to do this while they're living and they already thought about this but have to formally do it and there's critical steps you have to take so i want to welcome all the viewers today um we're coming back now in the new year so happy new year to everybody um as you know i'm attorney stephanie garces owner of garces law firm where we help you prepare for the unexpected and help you plan for your future especially when it comes to your assets so that is what we do and today we're discussing disinheritances which is always interesting and i personally think that these uh topics actually come up a lot people feel uh comfortable talking about it but you know us in practice talk about this all the time and there's no better time to the present to do this and even consider doing this if this is something that you've um you know talked about or thought about so we're going to talk about how disinheritance works um how disinheriting comes with reason with steps and um you should have the power to choose who to exclude from your will and from your assets and who you want to include so if you want to prevent someone from having your assets or having even access to them or having even so much as an inch of anything that you own if you want to include or exclude a will and making those revisions while you're living is is good so we'll talk about that so that the property you have ends up in the right hands so as i mentioned including some someone from a will is a lot more than just you know not mentioning them that is one of the biggest mistakes i want to put out there a lot of people think oh well i'm not going to include my youngest son in this estate plan because he's bad and he's been mean to me or maybe you have a falling out uh perhaps they're irresponsible there's a number of reasons why people exclude family members or even spouses etc from their estate plan and um when we talk about this it's more than just not mentioning them so uh there's countless of stories that i can share with like family members mixed family members um when i say mixed like mixed families a lot of times people uh divorce and they get remarried or perhaps they don't get remarried they just have a life partner and there's like a number of infinite ways you can you can slice and dice different family dynamics but um you know a lot of times when you don't mention someone um as specifically disinheriting them in your estate plan what ends up happening is that these ex-spouses or family members who maybe you're not too keen about they end up having to enter into litigation when you're no longer here fighting over your assets fighting over what you've worked so hard for and that's because they believe that they're entitled to something so depending on what you have in place at the time you've passed away it does matter it does end up in litigation and who wants that that's really really tough not only for the living but the people that are actually um you know no longer here now everybody has to fight over what you have so that's how you end up in what's called probate so if there is someone that um was not properly or not even disinherited at all from your estate plan that's how your state ends up in litigation in probate uh so just something to keep in mind when we're talking about this so because these critical documents were not completed that's really why you end up there so it's really important to prevent these individuals so you want to disinherit to not be included with being a beneficiary of some of the stuff that you have so i'm going to explain it today and what needs to be considered are a couple of things to really understand the complexity of this and officially informally exclude these individuals that we're talking about so one of the considerations that we keep in mind is inventory of all documents beneficiary statements and the financial insurance accounts so when we work together we certainly look at those things we make sure that in the process we are actively asking for those documents from our clients so we can actually review them i can't tell you how many times people won't even remember who was on the beneficiary statement for that million dollar life insurance policy that exists or perhaps um there's also retirement accounts that could be up for grabs because individuals are not named properly in those or i actually have seen a lot where someone will have a child for example that they've named as a beneficiary of some of their uh insurance policies and perhaps they want to disinherit them so we here we are doing the estate plan and then we pull this information from them it turns out that they were actually going to get that policy because it was never updated so this is super super important and big considerations you should be thinking about when you're doing your estate plan because everything has to make sense you know everything has to align so that's kind of what we try to focus on outside of the legal things we make sure we even take it a step further and we look at everything that you have your statements your accounts especially all the documents that you may have stored away and still have dust in them because you haven't really looked at them so those are important um another thing we think about a lot is a previous history of access or rights granted to the person that you wish to exclude so many times if you've already have something in place um perhaps you have like powers of attorney letters or you have a will in place maybe you have something that you already drafted in the past that already gives access to this individual to do certain things perhaps if you become incapacitated which is what letters of powers of attorney do and so we do review what you actively have whether or not it's old we don't care we just want to see what is the last thing that you have so this is something to consider because if we're talking about excluding we're talking about updating or those types of terms we always have to go back to what did you have when you created it initially because we talk about this a lot but updating your estate plan every couple of years or even taking a look at it is always always vital to making sure that your wishes are going to be upheld if anything happens to you because you know life happens things change and if you're excluding someone now that you weren't excluding you know 10 15 years ago you would certainly need to update your estate plan so we do look at the history of the documents that are in place to make sure there's nothing missing to make sure that the gaps aren't um you know left open and that we have not left any stones unturned when it comes to that so that's one of the things we talk about um so really familiarizing yourself with your estate plan is really what i'm getting at so we actually also dive into the terms of these these documents there's a a lot of different types of documents that exists without boring everyone that's watching today some of the main ones are living trusts or any sort of uh maybe you have maybe a non-living you have a revocable or irrevocable trust um maybe you have powers of attorney maybe you don't uh living wills all of this stuff we look at so these all have to be established together and particularly when we're talking about blended families when we're talking about previous marriages that you've had or even uh previous relationships where people are partners and they've named each other in their documents but maybe they're no longer together or someone has passed away um all of this matters because we do have to familiarize ourselves with what what it was that was in place so that is extremely important for those individuals that are going through that um there's also a number of documents that will require updating um outside of just the will the trust um beneficiary forms we talked about but uh deeds when we talk about real estate um this is complex when we talk about real estate it really depends on a number of things one of the the few um few things that we discuss um when it comes to real estate is obviously the deed uh the title to the home so we look at the deed of the home the property title we look to see uh have there been any transfers to the property um have there been a person that has passed away that was on the on the deed that no longer is so there's a lot of ownership records we go through uh through the county through some of the documentation you have so these are documents that when we talk about real estate we have to look at and so we do real estate all the time and we know very well that the most recent deed is really what dictates who is on title meaning who is the owner who has the right to do things with the property whether it's to sell it or refinance or perhaps transfer the property somewhere else so all of that matters because the deed when it comes to real estate has a lot to do with disinheriting or not being able to disinherit someone specifically from the real estate so we do talk about that with people because we don't actually know what the position is of the real estate when you come to see us but once you work with us we certainly make sure that pull that information so that nothing is left um you know in the abyss and actually i should mention too that many people uh they don't even recall who is on the deed so this is always interesting to me because uh perhaps you've been or maybe i think especially when we talk about our um you know grandma grandpa individuals that are uh elderly they may not know who they bought the house with um i've had a number of people tell me that they've bought the house on their own and they believe they're the only ones that own the property when we pull the deed with the county we actually have seen that there's been more than one person that has been in that property that's the owner so that becomes a little bit complex because then we have to look at um does the person and the deed have rights of survivorship or is it going to be what's called tenants in common which is another way of holding property so all of these terms really become um important and it really influences the way that we look at updating your things and perhaps disinheriting someone or perhaps we talk about other options to make sure that we can meet your needs so you do have to make sure uh that when you are doing this you come to someone who's experienced with real estate specifically when disinheriting somebody so just something to keep in mind when we talk about this so one of the other considerations is when do you actually notify your attorney that perhaps did your estate plan or maybe someone that does estate planning that you you don't have an estate plan when is a good time to get in contact well the obvious answer is immediately there's no better time than the president to even just request a consultation which is free with us to make sure that you know that what you have is up to date or perhaps um it's not up to date maybe you got it from an online source which many people do that doesn't necessarily mean that it's a full estate plan that actually serves the need that you have perhaps the form you have is outdated it may actually not include some of the individuals that exist today for example maybe you had more children or perhaps you have adopted children or perhaps you have a second marriage um and again everything changes we know for a fact that you know nothing is really um uh the same from when it was ten fives you know 20 years ago uh we have a lot of people that come in here with estate plans that have been um around for very long time and don't even include you know a new spouse that sort of thing so so really really immediately is one is the best time to notify an attorney specifically estate planning attorney perhaps happen to know real estate especially when we're talking about this inheriting someone from a property so um if you wish to exclude someone or something because your life is changed don't wait any any longer than you need to because the process takes time to make sure that we do it right and it really requires in-person signings um that does take time and effort so i just want to recap really quickly for anyone that's just joining us my name is attorney stephanie garces donat owner of garces law firm here in arlington heights illinois where we help parents secure their legacy and prepare for the unexpected for many individuals and today we're talking about life transitions we're talking about disinheriting a family member a spouse a child and we really try to help and educate everyone during this process to make sure that your legacy is protected in the event of an unexpected absence so if you missed the last session you can follow it on our facebook page we had a really really good topic on that one but for today's topic we're talking about a challenging topic one that not everyone wants to talk about at least maybe not at a family dinner or something but you certainly have been thinking it so for those of you that have been thinking about it how to disinherit a child a spouse a family member and especially when it comes to real estate property is something that we're talking about today so you always can join us on tuesdays at one o'clock central time to make sure you know what is up to date with what we're talking about that way you can know you know something that you didn't know before so a lot of the viewers have questions and i always welcome questions during the pink mic because people tend to be watching and maybe you don't want to you know call us with your question or set up a consultation because you're busy but you can always pop in with questions during the chat below and we love to see the questions and you can even message us personally so we'll be kind of tackling a couple of questions that we've got so far uh today we have a question that says do i have to notify a person that i'm excluding from a will that is a great question in the practical answer is no you don't have to notify anybody you certainly don't want to say hey by the way i don't really care to include you in my assets now can you tell them sure you can tell them whatever you want but typically uh no you don't have to notify anybody uh formally and the best practice is really just to think about what you're doing when you're doing this because you know just because you got in a fight with your spouse or your child um you should not rush to go do this i mean these are these are really serious decisions so you don't have to notify the person but you certainly want to think it through before you actually do this because once you update the will and the estate plan and you've excluded this person from your assets and from your estate in order for you to you know put them back in to the estate because you've reconciled your differences or whatever then you have to redo the updates so the updates take time there's a lot of formal paperwork they actually do what's called an amendment or perhaps a reinstatement uh the statement is the one that talks about updating the entire trust so we may have to do that if you already have something that's that's already there um if it's from scratch we can still do it from scratch but you don't have to notify the other person so that's a really good question and one that i enjoy when people ask me that because it's a good question i don't think i'd ever think to notify someone but um the next question we have is uh will they have to sign documents if i remove them no the answer is no uh that's a great question too because i think people think that if you're getting something updated you have to get someone to come sign off um the i would say the general answer is no but keep in mind when we talk about spouses when we talk about uh people that you're married with it's a little bit uh more complex it's not as easy of an answer because it really depends on the marriage and what exists there's uh prenuptial agreements post-nuptial agreements that couples will have with their marriage if you have one of those the answer is it depends because there are documents that exist that we have to review in the interim of trying to exclude a spouse um especially when you're married with them because it may require them to consent to that so it just depends because it's hard to say it as a as a general um blanket answer but if you're talking about children or family member typically the answer is no they don't have to sign anything to be removed now maybe if we're talking about a spouse or something to that effect you'd want to see an attorney before you actually get an answer just from this pink mic because that is very um dependent on the circumstances so keep in mind that you do want to with your attorney when you're actually trying to do this especially when it comes to the spouse to make sure it's done properly and so you understand the process and what's involved another question that we get often is how much do these updates costs so if you already have an existing estate plan that you've had for many years but perhaps you need to update it we have to do a restatement they call it perhaps um those are usually on an hourly basis or we sometimes do them flat fee depending on what is required sometimes the updates will be minimal which the cost is minimal um or it could be a whole new um a trust because it really depends on what you have there's a range i mean it could be a flat fee you know 300 if it's something simple or it could be closer to like maybe a thousand maybe two thousand depending on how much time is required so you know they say the time is money it's the same thing when it comes to the cost so if you're requiring a bigger um update and maybe we're just actually stripping what you have and creating a whole new one that changes all of the terms they may be more expensive in the long run but it's certainly still worth it because it'll save you the hassle if it's something more simple like you want to change um for example we have a client now that had to change the name of the of the children that are living because someone is one of their children virtually passed away um and the husband has passed away so we are sort of um reallocating some of the assets um whatever was going to their their son is not going to someone else so those things are not um very costly but it just depends on the circumstance so that's a good question the other question we get is uh what if the financial institution requires signatures and acknowledgements um now when we talk about financial institutions if you come around this topic and this is something that comes up you certainly want to maybe call a timeout and call your attorney to see what exactly is being required to be signed because to be honest it's hard to advise someone what they need to sign or not sign if it's something that we're not present for so it's always a good idea to check with your attorney especially the one that actually helped you with the estate planning documents if possible because you want to make sure that what the financial institution is asking you to sign is something that aligns with what we're actually studying to do with your estate plan and i say this because you know people that work at the financial institution they have protocol they have documents that they need to sign so it's never a bad idea to pick up the phone and consult with your attorney on that one because we have to make sure that what you're signing is actually something that's appropriate or perhaps it's inappropriate and it would maybe dismantle what we're trying to do with the estate plan or perhaps even um trying to maneuver with with the financial institutions so so definitely check with your attorney before you sign off on anything um if there was a requirement but typically it just depends on the bank if there is something that you certainly want to call us but but uh but that's kind of the best answer for that one now uh what if the person you're excluding is incapacitated is another question that we received so in this scenario uh if someone's incapacitated it's not a bad idea to consider why you're excluding them because many times if someone becomes incapacitated for example maybe someone you had in your estate plan is lacking capacity perhaps their health is declining or they had a bad accident or something where they may never regain their capacity again um you could certainly do that that is another reason why you want to update your estate plan because whenever someone lacks capacity it you know they typically have either they're going to have it could be that they have a guardian someone that's actually acting on their behalf and overseeing their affairs it could be that they may just be in bad health maybe that is not the best person you want to leave some of your assets to if they were to pre-decease you type of thing so you can certainly uh you could certainly do it but you do have to consider and weigh out the options as to uh why are they incapacitated is it permanent is it temporary and this is something you discuss with your attorney because it's um it's a big decision to exclude someone that has recently become incapacitated um if they've always been incapacitated then again there would be someone in place perhaps even a guardian to really oversee them so this is a tough question because you sort of have to decide if this makes sense and and why but you can certainly do it with upsetting your estate plan it's no different than updating it because you wanted to change your assets to go to another beneficiary so that's definitely something to consider and definitely um definitely allowed the other thing that we get a question a lot about is uh when we talk about blended families um different marriages you have how soon can i add my new spouse's children as beneficiaries so the answer to that is we're assuming that with that question you have a new spouse and perhaps you may or may not have an estate plan but if you do you can certainly make the change immediately um this is assuming that you've been you know divorced um from your previous spouse and you're remarried and um they have children this is a lot to think about because when we talk about um different marriages there's there may or may not be children from the first marriage if there are you'll want to create an estate plan that fits your needs so you may consider how you want to leave your assets whether it's to your uh your children from your first marriage or perhaps you didn't have any now it's your spouse's children but you can do that right away and uh depending on the circumstances and after a consultation with an attorney you could even create your own trust as opposed to a joint trust with your new spouse um you could also do joint spouse um excuse me a joint trust with your new spouse if you decided to do that and and if that makes sense so we do ask you consult with an attorney when you talk about um adding new children into the mix um you know a new spouse that sort of thing because we do have to consider if it makes sense for what you're trying to achieve so uh you can certainly do it um immediately and i would tell you don't wait on that because again when you're in another marriage and you have another spouse there is a big reason right there in a big life event that you'll want to have the proper estate plan in place especially when we talk about properties we talked about properties a lot during this um this conversation but real estate is important um you know is the real estate that you have in your name only uh is it in your trust is it in your ex spouse's trust those things matter so we do always talk about um you know consulting with an attorney specifically estate planning real estate uh to make sure that what you're actually doing makes sense in theory and that that property continues to be protected because it's it's tough with properties um you know how was it bought how was it being transferred do you have rights to the property do you not all of that will matter so we do consider real estate property just a big asset for many for many of our clients the real estate is actually the biggest asset for them meaning that's the thing the most value that they own you know that matters so even though you may say oh well my house is one of the assets i own well depending on the value of the home there's still reason to protect it so you could certainly add your spouse's children right away when it comes to the real estate we'll also address that and make sure you're you're well aware of what to do with that um also we talk a lot about virtual consultations we're still offering those that hasn't changed at all um so if you do want to do a virtual consultation we are for them for free and from the comfort of your own home i mean who does not want to do a consultation and i have to leave their their desk or perhaps your couch depending on where you're at but we do offer virtual consultations they are free so you can always give us a call at any point you do the consultation with myself we also do on-site visits for anyone that wants to do that of course with everything going on would you require masks all that good stuff but uh certainly doing those free consultations in case you wanted to contact me about that so make sure that you guys always always put your questions in our chat to make sure you don't have any um underlying questions that weren't addressed today and we talked about real estate a lot and keep in mind that real estate is something that is hard to maneuver if you really don't know what you're doing it's not as easy as just moving someone off a deed or adding them on i know a lot of people hear that and they say oh that's going to solve my problems but not always so we want to make sure that if you're disinheriting a child spouse family member etc from your estate plan specifically in real estate you definitely want to contact me today to make sure we can answer those questions and guide you to the best of our ability so i always want to thank you guys for watching our viewers are very very special to me because you're always giving me good feedback and um always supporting us here so we really appreciate that thank you everyone for those excellent questions they really help us dive into what the viewers are thinking so as i mentioned before in my experience working with an attorney that does real estate and estate cleaning like myself can really help you navigate the conversation of disinheriting an ex-spouse a family member a child which can be very difficult and in short we can help you with that we can be the mediators we can be the the guy that you need to really put this in place which eases the stress of the situation and achieves your goals so this year is the year of trying to get everything done and a lot of people are sitting at home now working from home and this may pop in your mind but get your estate plans done if you haven't already and please update them if you haven't checked just take the time to meet with us and we're happy happy to do that so i invite you to join me again next week for pink mic legal confessions same time safe place as always and please feel free to share your recordings with your family members especially those that can't add their questions during the live you can always message us personally so thank you so much for your time and be well.