How Should I Deal With Estranged Children and Other Family Members in My Estate Plan?
By: Anthony J. Enea, Esq.
Being estranged from a family member is generally one of the most difficult and complex issues encountered when preparing one’s estate plan. This is particularly true if the estranged person is a child, grandchild, or sibling (if one has no children) as well as a person with whom one previously had a good relationship.
The first and perhaps most important thing that one needs to do is to prepare a Revocable and/or Irrevocable Trust (Trust) or a Last Will and Testament (LWT) that specifically excludes the estranged individual. Dying without a LWT or Trust would be disastrous if the person from whom you are estranged is a “distributee” of yours under the laws of intestate distribution. A distributee is a person who survives the decedent and is entitled to inherit under New York law if the decedent passes “intestate” (i.e., without a LWT or Trust). Under the laws of intestacy, said person receives a percentage or all of the decedent’s estate, depending on whether such individual is a parent, spouse, child, grandchild, or sibling. The percentage the individual receives is dependent upon how many persons in the same class of distributees survive the decedent. For example, if I die without a LWT or Trust, and I have no spouse, children, grandchildren, and/or parent surviving, but I have two (2) surviving siblings, then in that event each sibling would be entitled to fifty (50) percent of my estate irrespective of my personal wishes. They would also each be entitled to apply to be the administrator of my estate. The laws of intestacy control the distribution of my estate, not my personal unwritten wishes.
As between having a Trust or a LWT when one wants to disinherit a family member, a Trust (Irrevocable or Revocable) is, in my opinion, a much better option. The assets owned by a Trust at the time of one’s demise are non-probate assets. A Trust, unlike a LWT, does not need to be admitted to probate in the Surrogate’s Court of the County where the decedent resided. It is a private document (like a contract) that controls the disposition of the assets titled in the name of the Trust. When I am excluding distributees or others from my estate plan, they are not entitled to notice of the provisions of my Trust, and there is no Court proceeding in which they are permitted to appear and express their objections to the admission of the LWT to probate, as is the case one when has a LWT.
Additionally, when excluding distributees from one’s estate plan, it is important that your attorney obtain as much information about your family members as possible as well as the reason for and length of time of the estrangement from the individual(s) being omitted. Detailed information regarding the estrangement should be obtained by the attorney.
Finally, it is advisable to include language in the Trust and/or LWT stating that you are specifically not making provisions for the individual you wish to exclude; that the exclusion applies to the individual’s children as well (if that is the case); and that you do not want said excluded persons to be appointed as executor of your LWT and/or as trustee of your Trust. Retitling all of your non-retirement assets to a Trust and designating primary and alternate beneficiaries on your retirement accounts helps ensure that your assets will not be tied up in litigation in the Surrogate’s Court upon your passing. In my opinion, avoiding probate is of critical importance.
Anthony J. Enea is the managing attorney of Enea, Scanlan and Sirignano, LLP of White Plains, and Somers New York. He focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA) and is the past Chair of the 50+ Section of the NYSBA. He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at (914) 948-1500 or at [email protected].
