How to Disinherit Children While Avoiding a Will Contest

My question involves estate proceedings in the state of Texas: I am 71 years old and have been married to the love of my life or 8 years. I have 3 adult children from a 1st marriage. Tragically, my 3 children disapprove of my present marriage. I do not understand the disapproval, as only one of the 3 children has even met my wife, even though we all live within 200 miles of each other. However, I am certain the 3 children have been heavily influenced by their mother. I suspect that money (inheritance) is a part of the disapproval.

I am updating my will and have 2 questions.

1. My wishes are simple. I wish to leave everything to my wife and nothing to my children. The estate is the house, all contents, 2 cars, and my retirement account. The question is, how can I prevent my 3 children from challenging the will, or other wise causing problems for my wife, upon my passing? I am concerned that this is a potential problem.

2. I don't have many options for an executor, certainly not one of the children. Also, all of my long term friends are seniors, many with health problems and/or they live in other states. I may survive them all. I would like my wife, the heir, to also be the executor. Are there any potential problems with my wife being the sole heir and the executor?

Thank You!

Texas allows you to disinherit your children and you can include simple but specific clause in your will such as "I intentionally leave no provision under this Will for my child, Jane Doe."

This doesn't mean that they can't waste their money fighting afterwards, and you'd do well to consult with a local attorney to make sure your will is actually valid.

Thank you. Hopefully, that phrase will suffice, to nullify a challenge. I'll include it, naming each child. Should I name grandchildren, also?

Are you going to try to write your own will?

If you are going to disinherit children, I would suggest that you spend the couple hundred bucks to have an attorney draft the will.

How are the house and cars owned? Solely by you? Jointly? Have you named a beneficiary for the retirement account?

You can always have a attorney be the executor, he can be paid from the estate proceeds.

One car is jointly owned and the other is owned by me. Yes, I named her the beneficiary on the retirement account, but there is a "cash account" that does not have a way to designate a beneficiary specifically for this account.

Yes, I am strongly leaning towards spending the money to have an attorney draft the will. I did check with an attorney I know socially and he said $500 and up for a basic will. That was more than expected and I have looked at the WillMaker software. But, I want to get this right, so my plan is to look for an attorney of service that is less expensive.

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Good suggestion, thank you. I will ask about this when I talk to an attorney.

You are best to hire an attorney to write the will. There are special words and phrases in "Legalese", and a lawyer will be able to determine that you were of "sound mind" when writing the will, making it harder to contest.

You can get a consult with a few different lawyers and decide which one you feel best about.

Yes, I'd like to talk to at least a couple of attorneys, but not sure how/where to find them. I've never needed an attorney before (knock-on-wood). Doing a Google search or any data base seems throwing a dart at a list on the wall.

FYI, if this is a 401(a), 403(b) or 401(k) account that you're talking about, BY LAW your beneficiary MUST be your spouse unless your spouse provides written permission for you to leave it to someone else. You would have had to seek that permission at the time you made the beneficiary designation. I can't speak for other forms of retirement accounts.

Sort of, cbg. ERISA *PRESUMES* the spouse (at the time of death) is the beneficiary. If another is named without spousal consent, the named beneficiary and the spouse spilt 50/50. Of course, this is immaterial to what's going on here. He wants to leave it to the spouse and cut out the children. The important thing for retirement accounts that DOES APPLY HERE is that the beneficiary designation (when there is one) TRUMPS anything the will says. If you had the kids listed as beneficiaries, you'll need to change that right away if you don't want them to potentially get anything.

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Quoting JoeJ

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1. My wishes are simple. I wish to leave everything to my wife and nothing to my children. The estate is the house, all contents, 2 cars, and my retirement account. The question is, how can I prevent my 3 children from challenging the will, or other wise causing problems for my wife, upon my passing? I am concerned that this is a potential problem.

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As others have indicated, you can't keep your kids from contesting the will. You can minimize the chances of a will contest by properly drafting your will and by keeping as much of your property as possible outside of your probate estate.

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Quoting JoeJ

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Are there any potential problems with my wife being the sole heir and the executor?

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There are potential problems with any scenario. An institutional administrator may charge too much. An individual may not do the job well, or may mismanage the estate or its funds. etc. But if your wife is up to the task, having her serve as executor of the estate will maximize the amount she receives, unless you find a suitable third party who will administer the estate without charging a fee.

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Quoting harrylime

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Are you going to try to write your own will?

If you are going to disinherit children, I would suggest that you spend the couple hundred bucks to have an attorney draft the will.

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An attorney should also advise you about how to minimize the amount of the estate that gets probated, with the most common tool being a revocable living trust. As harrylime was intimating with his questions about ownership, they can help you make sure that certain property and accounts automatically become your wife's upon your death through proper titling and designation of beneficiaries.

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Quoting JoeJ

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Yes, I am strongly leaning towards spending the money to have an attorney draft the will. I did check with an attorney I know socially and he said $500 and up for a basic will.

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These days, you would normally get more than a "basic will" with any estate package - you would normally get the will, a durable power of attorney effective upon disability, and a healthcare proxy. I don't know what the lawyer charges per hour, but if you include the interview to determine what you want in the will, counsel on what else you might consider, drafting the will, making any necessary revisions after you review it, and executing the will, it's easy to consume two or more hours of an attorney's time.

Depending on your assets you may be better served by either paying this lawyer more, or getting a more expensive package elsewhere, as you may find that you should use a living trust as part of your estate plan.

I can't promise that every lawyer in NAELA is good, but I've had pretty good experience with its members and they have an online directory.

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Quoting PandorasBox

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....and a lawyer will be able to determine that you were of "sound mind" when writing the will, making it harder to contest.

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You would want your physician, not your lawyer, to be the one positioned to confirm that you were of sound mind at the time you executed your will.

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Quoting Mr. Knowitall

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You would want your physician, not your lawyer, to be the one positioned to confirm that you were of sound mind at the time you executed your will.

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Ha-ha-ha-ah. You can't fool me. There ain't no Sanity Clause.
http://www.youtube.com/watch?v=KS2khYJZKwA

How long have you been waiting to use that one? :joyous:

Well, since he'd indicated that he'd named the spouse as a beneficiary, I didn't think I needed to go into what happened if he hadn't. But your point is well taken.

Thank you. Since I am retired, the account is a standard IRA. I will double check that she is listed as the beneficiary. It looks like the biggest risk is an after tax cash account that does not have a beneficiary page. I assume this account will be covered by the will.

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Thank you. I will be sure the wife is specified as beneficiary in the IRA account. There is another non-retirement, after-tax account that I assume will be covered by the will.

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Mr. Knowitall, you have given many important points, including the NAELA referral. I will look in their directory for a local attorney. Thank you very much!

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Quoting JoeJ

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Thank you. Since I am retired, the account is a standard IRA. I will double check that she is listed as the beneficiary. It looks like the biggest risk is an after tax cash account that does not have a beneficiary page. I assume this account will be covered by the will.

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Thank you. I will be sure the wife is specified as beneficiary in the IRA account. There is another non-retirement, after-tax account that I assume will be covered by the will.

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Mr. Knowitall, you have given many important points, including the NAELA referral. I will look in their directory for a local attorney. Thank you very much!

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You don't mention much about the other account (or is it 2 accounts?), but it is usually possible to add a beneficiary to most financial accounts - what is called a Transfer on Death registration if held with a securities firm or a Pay on Death designation if held with a banking institution. Check with the institutions. The fewer assets subject to probate, the less you have to worry about the will and any possible challenges to it.