Most of us have relatives, some of whom we are fond of and some we might not love or even like. Regardless of the true character of the relationship, most people believe that their close relatives should leave them something when the relative passes away. In fact, the law presumes that most people want to leave their worldly possessions to their spouse or next of kin, thus the laws of intestate succession were developed. Under these laws, if a person dies without a will or trust, property that goes through probate is distributed to family members.
There are many reasons why someone might want to omit a certain relative, a group of relatives or all of their relatives from an estate plan. When that happens, it can cause resentment or anger. In fact, some omitted relatives might pursue legal channels to question the trust or will, especially if the deceased had a sizeable estate. If you are creating an estate plan and want to omit a “natural heir”, it is best to include a clause specifically disinheriting that person. Otherwise, a Court might include them under the will or trust anyway on grounds you simply forgot to mention them.
To be fair, there have been well documented cases where a person gave most or all of his or her wealth to a non-relative because he or she was deceived, he or she wasn’t mentally sound, or some illegal activity took place. When someone believes his or her relative has been a victim of undue influence, fraud or elder abuse, steps should be taken to have the matter investigated. One common situation is when a non-relative caregiver winds up being the beneficiary of an estate. Under the law, a non-relative caregiver is presumed to be disqualified as a beneficiary because of the great potential for abuse of the relationship. However, there are people who truly want to give their non-relative caregiver some or all of their wealth to reward faithful service or because of a special bond of friendship.
To insure that a trust or a will giving an estate to a non-relative caregiver is not overturned by a Court, a document called “Certificate of Independent Review” should be obtained. This is a legal document that has to be prepared by an attorney other than the one who drafted the will or trust. It also has to meet certain requirements of law. Basically, the independent attorney reviews the trust or will, counsels the person about the nature and consequences of the intended transfer, and attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence. The attorney then prepares the Certificate based on his or her findings. This document will be very effective in Court to prove that the deceased truly wanted to give all or a portion of his or her wealth to a non-relative caregiver. © 2012 by Marlene S. Cooper. All rights reserved.