Disinheriting A Family Member Through Estate Planning

On behalf of Peterson, Berk & Cross, S.C.

Families in Wisconsin are complicated. In some cases, certain circumstances could prompt someone to disinherit a family member, such as ongoing disputes among siblings. Many people are surprised to learn that certain family members, even if not included as beneficiaries of a will, are entitled to be notified of the probate process. Fortunately, there are some estate planning techniques that can help in a situation in which a person wants to exclude a family member from benefiting from his or her estate without the individual later challenging the plan.

The first tool is bypassing the probate process through the use of beneficiaries and co-owners on real-estate. For example, retirement plans and life insurance policies require a beneficiary be named; this designation trumps anything listed in a will and does not go through probate. Likewise, the co-owner of a piece of real estate simply needs to present the death certificate to the county clerk to record the death, also bypassing the probate process. 

Another tool to help prevent a disinherited family member from contesting a will is through the use of a “no contest” clause, also known as an in terrorem clause. This clause provides that anyone who contests the will receives nothing. To be effective, the testator typically must leave those who may dissent with an amount that is sufficient to dissuade them from taking action; only leaving a nominal amount is likely insufficient motivation to prevent a challenge. 

Some estate planning professionals also recommend providing documentation of the reasons for the disinheritance. However, legal documents have a specific format that must be followed. Additional descriptive letters can be used to supplement these documents but should be notarized. Many people in Wisconsin who want to ensure that their wishes are clearly expressed and followed after their passing choose to seek guidance from a professional with experience with this process to help ensure that their plan is protected in the event of a subsequent challenge.