Law Question: Will

[MacroGuru]

My step fathers mother slapped this clause into her contract.

Basically stating that if the will is contested the one contesting the will would forfeit all rights. It was to keep my step father (Who was not in her best graces) from fighting the will.

Well, we almost have the same issue with my in-laws, 3 of the children basically abandoned their mother, never come and visit, only call when they need money. My Mother in Law is the one that takes care of her with my wifes help.

So she (The Grandmother) basically asked that she wanted to change her will to a contest clause like my Step Fathers mother did. She doesn't want the other 3 children to get a dime more than what she outlines, which isn't a lot. While my mother-in-law receives the bulk of everything because she has always been there for her mom.....

Now my question is this, is it a special provision that we need to contact a lawyer and have added in, can it be a clause added to the will and notarized? Can it even be done?

[albionmoonlight]

I've never heard of a clause like that.

Estate law is almost entirely state based (at least the stuff that isn't about federal tax avoidance). You will almost certainly need to talk to a lawyer who specalizes in that sort of stuff for your state.

[digamma]

It will vary by state, but a significant number of states look down upon these clauses as unenforceable.

[stevew]

Wouldn't it just be easier for the party in question to give what she wanted to give to the person she wanted to have before she died. Instead of having it drag out?

[Farrah Whitworth-Rahn]

Wouldn't it just be easier for the party in question to give what she wanted to give to the person she wanted to have before she died. Instead of having it drag out?

Depending when, what and how much, you could run afoul of some serious gift and estate tax laws doing this.

[MacroGuru]

Wouldn't it just be easier for the party in question to give what she wanted to give to the person she wanted to have before she died. Instead of having it drag out?

It has been going that route, however its to the point now, my grandmothers house was sold and the money put into her trust fund to help take care of her. It's this fund that is the major pain right now. She doesn't want the other kids to get a dime of this.

Word will get to the kids the property and home have been sold (In fact, I bought a chunk of property off of her 7 years ago for $35,000 and there was a major family battle over that). I hate to say it, the 3 kids aren't the nicest of people. In fact, 1 of the 3 took her for close to 100K and then has disappeared, no one knows where he is at.

It's just that she is trying to ensure that, these are her words "Those money grubbing fools", will not be able to get a dime of this property.

[stevew]

Depending when, what and how much, you could run afoul of some serious gift and estate tax laws doing this.

Yeah, I realize you would have to pay the taxes and whatnot. Is there a serious difference in taxes between giving someone something, and leaving it to them via estate? And even if there is a great difference in the tax, it would still seem to be better to know that someone you love got the money without a massive legal fight.

[Farrah Whitworth-Rahn]

Yeah, I realize you would have to pay the taxes and whatnot. Is there a serious difference in taxes between giving someone something, and leaving it to them via estate? And even if there is a great difference in the tax, it would still seem to be better to know that someone you love got the money without a massive legal fight.

It depends on how much there is, when she dies, when the property is given away etc. The IRS won't like it if Grandma gives her house to Mac six months before she dies. They'll pull it back into her estate, and it could potentially be taxable at the estate tax rates.

Mac- is she working with an estate tax attorney? There are some tax vehicles she could use to achieve her goals. They're pretty difficult to challenge in court, and might be what she's looking for.

[spleen1015]

My wife and I went throught his about a year ago. We live in Indiana. We were able to state in our wills that my father and brother have no legal right to anything we own. The lawyer said it was prefectly okay stating that we didn't want certain individuals to get anything.

[Butter]

Did anyone else think that the "law question" just got cut off or something when they first read the title?

I'm sitting here thinking: "Will what?"

[kcchief19]

It depends on how much there is, when she dies, when the property is given away etc. The IRS won't like it if Grandma gives her house to Mac six months before she dies. They'll pull it back into her estate, and it could potentially be taxable at the estate tax rates.
It won't be taxable at an estate tax rate unless Grandma lives in a million dollar home. There is a limit on gifts though, so I would imagine that the gift tax would be more burdensome than any potential estate tax.

Of course, there's probably a couple of loopholes -- setting up a trust, selling the house for a $1, etc. Regardless, it definitely needs an attorney.

[saldana]

you should be able to have this added as a clause to the actual will..

iirc, Aaron Spelling has the exact clause in his will, and i would just hazard a guess, no offense intended, that his estate is a bit bigger than your mother in law's mom. and as far as i know, it is being enforced without problem

[Farrah Whitworth-Rahn]

It won't be taxable at an estate tax rate unless Grandma lives in a million dollar home. There is a limit on gifts though, so I would imagine that the gift tax would be more burdensome than any potential estate tax.

Of course, there's probably a couple of loopholes -- setting up a trust, selling the house for a $1, etc. Regardless, it definitely needs an attorney.
The amount of gifts she has gives reduces that $1,000,000 estate tax threshhold. Any gifts given to anyone within three years of her death are automatically pulled back into her estate (I'm 90% sure it's three years, I'd have to look it up to be 100% sure) - so she could very well be in a taxable position, depending on the value of her assets.

She needs a professional on this one.

EDIT TO ADD: She can't sell the house for $1, the IRS will deem it an invalid sale and it will be included in her estate.

[GabeRivers]

The type of clause about which you are inquring is largely superfluous. It can act to deter meritless claims, particularly when the claimant has something at risk (meaning he or she was bequeathed something of value). If the claimant has little at risk, it won't impede the filing of claims.

If a claim is brought that is deemed meritless, the clause might well be enforced. Otherwise, all bets are off. If the claim is found to be valid (e.g., fraud in the inducement, coercion, etc.), then the clause will be rolled over like a plastic cone by a runaway truck.

In short, people can generally bequeath as they desire, but as others have advised, get a good lawyer to steer you.

[digamma]

you should be able to have this added as a clause to the actual will..

iirc, Aaron Spelling has the exact clause in his will, and i would just hazard a guess, no offense intended, that his estate is a bit bigger than your mother in law's mom. and as far as i know, it is being enforced without problem

There is pretty strong precedent in California that such clauses are not enforceable. If Tori ever decides to stop sniffing nose candy in bathrooms on the Sunset Strip and contest the will, she'll have no problems doing so (whether she wins the contest is another question).

[MacroGuru]

Thanks for the advice and help, I have been telling them to go to an attorney for weeks now, and this will solidify it for me.

Funny thing is, my wife is the one that proposed the post, she was like "Isn't there a bunch of lawyers on the FOFC?"

[terpkristin]

I don't want to threadjack this, but I actually have a question on how much it will cost to get a will drawn up. I haven't the foggiest how much these things cost, or what really is involved. I just need something simple, naming who should inherit my estate if I were to die. I don't need any fancy clauses or anything...any idea how much drawing up a will costs?

Thanks
/tk

[digamma]

Honestly, unless you are doing something tricky, I wouldn't spend much (read: any) money on a will until you are a) wealthy enough to need to do something tricky or b) have a spouse and kids.

I'd poke around on the internet a bit. You can pretty easily draft your own, have it witnessed by two people and be on your way.

Of course, I'm disclaiming that this is legal advice of any sort. For that, you should consult your own attorney.

[terpkristin]

I'm not saying I'm rich (I'm not), but I do have some money I got through an inheritance that if I were to die intestate, it would cause a lot of problems for my family. After watching my Aunt die intestate (and I think I have more money now than she did then), I don't want to put my survivors through that.
Just something I've been thinking about since I got the inheritance.

/tk

[digamma]

I wasn't meaning to insinuate you weren't rich....no offense intended.

[Farrah Whitworth-Rahn]

TK - this site (http://www.legalzoom.com/) is pretty good for DIY type documents. Since you don't have any kids, this might be the right way to go.

It's also never a bad idea to establish a relationship with an attorney now, while you're young. As things happen in your life you'll always have someone on your side, someone who knows your history.

Plus you never know when you'll need someone to bail you out of jail at 3:30am on Sunday morning, and not tell the future Mr. TK. ;)

[terpkristin]

I wasn't meaning to insinuate you weren't rich....no offense intended.

None was taken. As I said, I ain't rich, but I have enough money right now that I'd be worried about things being "in order" should something happen. After I watched the mess my mom went through with her sister's "estate," I wouldn't wish that upon anybody.

Oh, and thanks for the info, Farrah. :)

/tk

[Mountain]

Depends on where you live and what the going rate in the area is. For a simple will in SC you can get it done for about $150. Also you may not even need a will if you agree with how the state divides the estate according to its intestacy scheme.