Anyone who has gone through losing a family member knows the sheer pain of the experience. While death is so devastatingly final in itself, dealing with a loved one’s estate can be even more heartbreaking.
Once someone passes away, remnants of that person’s life remains, including their bank accounts and investments, debt, possessions, property, vehicle and much more.
What happens to an individual’s assets after they pass away?
If an individual understands the importance of final planning, they may have already created a last will and testament and assigned an executor to administer their estate. This document offers the final words of a loved one to their family after they pass away. It is often the only statement directing what happens to all of their possessions and money.
The executor is in charge of carrying out everything from the funeral plans to settling their loved one’s estate. He or she is usually a family member or close friend who is trusted to act in the individual’s best interest.
For instance, John Lennon of The Beatles appointed his beloved wife, Yoko Ono, as executor of his will. Linda McCartney appointed her husband, Paul McCartney and brother, John Eastman, as co-executors of her will.
Sometimes a third party executor is appointed in order to avoid disputes during this time. If you are a parent wishing to name your children as executors, decide if you wish to name them as co-executors or alternates. Siblings may or may not disagree about your best interests, so make sure they are able to work together on this responsibility.
What if the deceased does not have a Last Will?
If the deceased does not have a last will and testament, it means the death occurred “intestate” and the state or provincial court decides how the individual’s assets will be divided among family.
Without a will, a loved one’s family is left in the dark and disputes may arise, causing worse stress than the death itself.
One of the most complex real life repercussions of not having a will involved the late James “Jimi” Hendrix. The rock legend died at the young age of 27 without a will. Thus began the ensuing battle for his estate, which carried on well past his death in 1970 between his father Al, brother Leon, and step-sister Janie. A legal war tied up much of this family’s life, when a will could of helped instruct them through this hard time.
Very seldom does a will satisfy everyone involved. Whether someone was left out completely or a beneficiary only received a small part of the estate, the wishes of the deceased have a profound effect on the living.
An individual who creates a will is referred to as a testator (male) or testatrix (female). They are authorized to divide their estate how they wish but they must include their minor dependents and spouse in their inheritance. If not, the spouse can have the will thrown out in court and receive their entitlement anyway. Parents, ex-spouses and extended family do not have to be included.
In Michael Jackson’s will, his father Joe, siblings, and ex-wife Debbie Rowe were all left out of his will. He included his mother, children and charities as beneficiaries. Nelson Mandela left his estate to his children and grandchildren, but didn’t include his ex-wife, Winnie Madikizela-Mandela.
A prenuptial agreement can lessen conflict involved with spousal entitlements, especially if the partner had children from a previous relationship. Specifying inheritance in a prenup allows a spouse to be informed of their entitlements beforehand, rather than leaving the will up to contest later.
Unlike most other legal documents, the last will and testament is not necessarily ground in the facts of reality, like a bill of sale or business plan. It is the wishes of the person who creates it. For that reason, it does allow them the freedom to make decisions — even if that means disinheriting someone in their family, such as an adult child.
Disinheritance means to not give a loved one, usually a child, any of their inheritance in a last will and testament. In most states, it is illegal to disinherit a spouse, unless they agreed to be omitted in the prenuptial agreement. All states allow an individual to disinherit their children, except for Louisiana.
In Canada, rules for disinheriting an adult child vary by province, with Alberta providing the most legal freedom and British Columbia offering the least. Review your state or province disinheritance laws before making this decision.
If you disinherit a child, it is best to state so in your will or tell the person about your decision prior to your death. Not mentioning your disinheritance of a child at all may leave the will open to contest, where it could be considered an unintentional mistake.
Harsh wording or unfair disinheritance have lifelong consequences and may wound your loved one forever. You cannot take those words back after death or repair the relationship once you are gone.
Other consequences include hurting the disinherited person’s relationship to their loved ones who did receive mention, such as other siblings. It could further bring home the concept of naming “favorites” and possibly refuel old sibling rivalries.
Leona Helmsley, a real estate developer in New York City, left a portion of her fortune to her dog and no assets to her grandchildren. In her will, she stated she had, “not made any provisions in this will for my grandson Craig Panzirer or my granddaughter Meegan Panzirer for reasons which are known to them.” Leona’s grandchildren contested her will, saying she was not mentally competent and were later given $6 million from Leona’s estate.
Before disinheriting someone, especially a child, think about the result it will have on them or why you are doing it.
- Is it anger or resentment driving this feeling?
- Do you have a legitimate reason, such as lack of relationship or years of previous financial support?
- Can you repair this relationship?
- And lastly, do you really want to leave on those terms?
Disinheritance is considered a last resort, and there are alternatives to disregarding a child in your estate, including setting aside a living trust for a loved one or specifying contingencies for their inheritance, such as reaching a certain age or receiving their entitlement once they get married. Above all, the best alternative would be forgiveness or reconciliation.
Contesting a Will
The amount of wills being opposed or contested have increased over the last five years. This is assumed to be due to complex family arrangements and structures becoming more common.
A will is open to contest if:
- The deceased lacked mental capacity when creating their will
- The testator/testatrix was procured by fraud or forced to execute their will in undue influence
- The will was executed improperly against state laws, such as no witnesses or mistakes in the document itself
- There is no provision for dependents
Update your Will Regularly
The shortness of life is a good reminder to update your will regularly. It may become void after major life events, such as marriage, divorce, death, or birth of a child. Additionally, because people change their minds and disputes are resolved, always ensure your will reflects your wishes should you die today.
Some people think a will should be private until after their death. Others think that holding an open conversation with beneficiaries can make everyone feel included and avoid any surprises once the testator or testatrix passes away. What works for you will depend on your family. If you believe your family can have a fair discussion, it may be worth allowing them to have a say in what inheritances they receive.
Your Last Words
In the end, your last will and testament is your last words to family and friends. While there is no way to completely prevent disputes, there are ways to minimize conflict through proper estate planning.
Take your time, think about what you want to say, and who you want to give your assets to. If you have sincere intentions, the results are more likely to be received with respect from family and friends.