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My wife and I both have adult kids from prior marriages. I love my kids but am not so sure about hers, particularly her drug-addict son. How do I keep my stepson from inheriting my hard-earned property?
Words by Nelson P. Miller
Execute a last will and testament. Now.
You may be right to be concerned. When someone dies with property but without a will, the property often passes according to laws that govern and intestate estate. How’s that for a lawyer’s phrase? It simply means an estate without a will. An estate is a legal device for handling your affairs after your death.
The laws of intestacy tend to dispose of property the way that people generally would if they had thought of it. Most people would probably leave their property first to their spouse if they had a spouse who survived them. So if you had no will, then under the laws of intestacy much of your property might go to your husband or wife, which might be fine with you but only as long as they shared some with your kids and didn’t let her suspect son get his hands on it.
Uh, right. Better not leave it to chance and a drug habit. No matter what your family arrangement, executing a will is the standard way of passing your property on in the manner that you desire. A will expresses your will as to the disposition of your property. If you want your wealth to go to this person or that charity, then decide before you get injured or ill, become incompetent, and can no longer act.
The time for a will is when you’re healthy and can give responsible thought to it, not later when anything could happen. Probate codes place some limits on your authority to direct the disposition of your property. Your estate must first pay your debts.
Wouldn’t that be nice if you could just have your debts disappear while your assets go to your family and friends?! It doesn’t work that way.
Unless you had credit-life insurance, car loans, credit card debts, even business debt if you have personal guarantees, all generally get paid before your heirs get what’s left. Your estate would likely also have to pay personal taxes you owe, probate-court costs, probate or estate tax, and attorney’s fees.
Unless you have something left, no one gets anything. Many people die with no-asset estates, often leaving creditors unpaid. Probate codes can also protect a surviving spouse. If, for instance, you will all of your property to your adult kids and little or nothing to your wife, then she may well have the right to elect against your will.
Your wife might take the share that the probate code provides for a spouse rather than the little or nothing you left her. Your adult kids would then get what was left. Beyond paying your debts and ensuring that your spouse gets at least something, though, you have a great deal of liberty in choosing who gets your property after your death.
You need only properly execute a valid will while you are competent and then ensure that your heirs can locate and probate your will after you’re gone. For a valid will, state laws generally require appropriate language, competent disinterested witnesses, signatures, maybe notarizing, and a few other specifics.
You want to give some real thought to your choice of personal representatives (executors or administrators), too, maybe both a primary and backup. You have other ways to pass property on your death outside of a will. In some cases, it can make sense to share title to certain forms of property now with the person whom you want to receive it so that the property passes outside the will. Take care, though, because some transactions of this type can have hidden tax consequences.
In the case of life insurance, you usually need only designate a beneficiary. In the case of certain accounts, perhaps a retirement or brokerage account, you may designate account beneficiaries. You may also form a trust, especially if estate taxes or the ability of the heir to manage the inheritance are concerns. Sound confusing? It can be but don’t make it too much so. If you are well enough off to have property to share after your death, then simply be responsible about it. Have an estate plan.
Get help from a lawyer whose practice includes estate planning. Don’t let that suspect stepson take advantage of you, your wife, and your kids. And don’t feel like you got yourself into a mess here. Your situation is actually pretty common. As you well know, things can get complicated in blended families. Clear communication of expectations and interests can help, especially around property and finances.
Keep your house in order.
Everyone will be better off for it, including your suspect stepson.
To read more from Nelson Miller, check out his book Top 100 Questions Friends & Family Ask a Lawyer on Amazon.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
