Fans of the comic strip Peanuts might remember a panel in which Patty and Violet are planning a party.
“Let’s not invite Charlie Brown,” Patty says.
“Okay, we won’t invite Charlie Brown,” Violet replies.
“And let’s not invite Lucy,” Patty continues.
“Fine. We won’t invite Lucy,” Violet agrees.
Then, looking up from her list, Patty exclaims, “It’s a lot more fun not inviting people than it is inviting them!”
The impulse that prompted Patty’s remark can also apply when writing a will. The crazy aunt who makes homophobic remarks. She’s out. The estranged brother who refused to attend your gay wedding. He gets nothing.
All joking aside, deciding who should inherit from you requires careful thought. The most important people in your life should of course top the list. Your partner or spouse, your children, or anyone you hold dear ought to be remembered in your estate plan.
But what about those people you specifically don’t want to attend the party? The best way to keep your assets out of their hands is to have a current estate plan in place. At a minimum, this would include a will or trust, a durable power of attorney, and an advance medical directive. If you don’t have a will, your disapproving relatives might inherit from you under the laws of “intestacy.”
Your will or trust should specifically mention the people you wish to disinherit. Including their names will make it clear that they were intentionally omitted and not simply overlooked.
It may be tempting to explain why you are disinheriting someone, but usually, the less said the better. A comment like “because we have had no contact for the last ten years” could provide a toehold for them to challenge the will by offering evidence that disproves your assertion.
More inflammatory remarks, like “because he is a drug dealer who cheats on his wife” could prompt the person in question to sue your estate for libel. This is unlikely to happen, but even the possibility of a lawsuit is reason enough to leave editorial comments out of the will. If you feel the need to give someone a piece of your mind after you are gone, the safer approach is to prepare a side letter to be kept with your will and given to the person upon your death.
Whether to prepare a will or a trust is a question to discuss with your lawyer. A “revocable living trust” has the benefit of being more private than a will, which becomes a public document when the estate is opened. Trusts are also harder to challenge than wills, but they can be cumbersome and more expensive to set up.
Whether you decide on a trust or a will, it is equally important to check the beneficiaries you have named on assets like life insurance and retirement accounts. If your relationship with a beneficiary has soured, it’s essential that you name a new beneficiary. Simply excluding them from your will won’t be enough to keep them from receiving the asset upon your death.
A vintage New Yorker cartoon depicts a rich old man who has included these types of precautions in his will. Reviewing the document with his lawyer in an oak-paneled drawing room, he says, “Now read me the part again where I disinherit everybody.”
- Lee Carpenter is an attorney dedicated to serving Maryland’s LGBT+ community. His practice focuses on estate planning and administration, as well as some small-business matters. He works at the Baltimore law firm of Niles, Barton & Wilmer and teaches Estates & Trusts at the University of Maryland Carey School of Law as an Adjunct Professor. He has written regularly for Baltimore Out Loud since 2014 and is a frequent lecturer on topics related to same-sex marriage and LGBT law. A Maryland native, he is proud to call Baltimore home and lives in the city with his husband and son. To find out more, visit https://mdlgbtestateplanning.com/.