Inheritance Conditions-Control from the grave

POSTED ON: October 13, 2021
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Creating unusual or amusing conditions upon beneficiaries may make for a good read. However, in the real world, inheritance conditions and terms are limited by the law. A last will or trust contains language specifying how you want assets to be distributed after your death. There are some conditions and terms included, but others should be left for creative writers according to a Forbes magazine recent article titled “What Can You Force Your Heirs to Do To Get Your Wealth”.

If something is illegal or against public policy, it is not acceptable in a last will.  Public policy are principles, often unwritten, on which social laws are base.  It's something that can make someone feel uneasy, that something isn't quite up to par. For example, making a gift of land to the town on the condition that an offensive statue be placed in the middle of the land would be against public policy. Having an inheritance condition for a beneficiary to not marry a specific person or type of person is considered illegal in a last will. Beneficiaries are not to be prevented to live their lives freely through the force of a last will.

Whether an inheritance condition is valid also depends upon whether it is a precedent that existed at the date of your death or a condition that occurs after your death. For instance, a requirement for a beneficiary to live in a specific location at the time of your death might be considered valid by a court. However, a condition requiring a spouse to never remarry would not be valid.

Obvious illegal inheritance conditions are easily eliminated.  For example, requiring a beneficiary to commit a burglary or murder is a definite no-no. However, sometimes things get murky. Restraints on getting married or selling or transferring property are two of the biggest problems, and often the stories behind the last wills are unfortunate, sad tales.

A condition of not marrying, divorcing, or remarrying is not legal. However, a condition that the beneficiary does not marry outside of the faith has been enforced as a valid last will condition. A complete prohibition of a second marriage by a surviving spouse has been deemed void. It should be noted that certain requests have been permitted, like having a surviving spouse lose payments from a trust when they remarry. As antiquated as it may sound, courts have affirmed the concept of the specific limitation to provide financial support only until the surviving spouse remarries and is, therefore, not void.

A probate court will not void an inheritance condition on a bequest automatically, even if it is clearly illegal. The beneficiary, or another interested party, must file with the probate court to have the condition voided. If you fail to do so, when the last will or trust is allowed, it is possible to lose your right to void the condition.

A suggestion may be to not try to control your heir’s behavior from the grave. If you don’t want to give something to someone, your estate planning attorney will help you create an estate plan, and possibly a trust, to control how your assets are distributed.  Any general guidelines, not enforceable, can be left instead in a document called “Minutes”.

Reference: Forbes July 21, 2021 “What Can You Force Your Heirs to Do To Get Your Wealth”

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