A last will and testament is essential for every adult. It establishes one’s wishes for distributing their property, whether real or personal, after death. A will can protect one’s legacy, determine who will inherit the property, and ensure that the beneficiaries receive exactly what was intend-ed.
A last will and testament is equally important when the intent is to exclude undesired family members from inheriting.
The process of excluding a person from the will is called disinheriting someone. It is relatively straightforward; however, it does entail the risk of causing family tension, conflict between family members, hurt feelings, and even a will contest.
Furthermore, the right to disinherit is limited by Nevada law to a certain extent. For example, unless there is a prenuptial agreement in place, one’s spouse cannot be completely disinherited. And even if such disinheritance is attempted, Nevada law will override the wishes expressed in the trust or will and give the surviving spouse a portion of the estate, known as the elective share.
Adult children can be disinherited, but minor children will be protected against disinheritance. Disinheriting adult children does increase the chances that the disinherited children will contest the validity of the will.
Parents can be disinherited if they outlive the decedent. Parents are not legally entitled to a share of their children’s estate. Therefore, they can be excluded from the will.
Any extended relatives can be excluded as well. Extended relatives generally do not receive any of the inheritance, and typically they do not need to be expressly excluded from the will.
The reasons for disinheritance vary: the testator may be estranged from the person they wish to disinherit, they may no longer have much of a relationship, or even do not trust the person anymore. Sometimes, the testator believes or knows that the disinherited person, even if close to their heart, is secured financially and does not need the inheritance. While it is not necessary to specify why a person is being disinherited, it should be made clear that a person is not included in the will, and the excluded persons should be specifically listed.
Whether a disinherited person is otherwise legally entitled to the testator’s estate or not, it is still wise to use a disinheritance clause to ensure that an heir or beneficiary is removed and will not inherit under the will.
To protect the integrity of the will against contest, a no-contest clause should be included in the will. The no-contest clause is a provision that expresses a directive to eliminate the share allocated to a beneficiary who takes action to contest the testator’s intent as expressed in the will.
The last will and testament is the person’s last communication and that there will be no further opportunity to offer clarification. For this reason, it should explicitly state the persons chosen as beneficiaries as well as disinherited persons. In order to ensure the enforceability of one’s last will, it should be prepared in a full compliance with Nevada law.
Natalia Vander Laan is a Minden attorney.