It sounds as if you do not have a Living Trust set up. A Living Trust will allow you to avoid probate courts. A simple will won’t. Get all of your assets into the Trust. Then you can leave instructions to successor trustee or trustees. Also, if one of you passes first, then the trust will split into two. One for the survivor, and the marriage trust that can also be used to support the survivor. We are so glad that both our mothers did this for us. It made it so much easier to handle the estates.
1: You are doing the wrong thing asking this question in a general forum. I say that with perfect certainty.
2: There is absolutely no way to do what you want (and I don’t know or care what that is) without hiring and consulting with a SKILLED ESTATE attorney IN YOUR STATE. Not “an attorney”. An ESTATE attorney. Get references and check the daylights out of his/her credentials. The fact that whatever form your existing will (if any) or trust (if any) seems not to accomodate this turn of events is proof positive that it is insufficient and not properly drawn. Period.
3: Do not cheap out. Do not use LegalZoom or PPD Legal Service for this.
This is the clearest case there will ever be that you, who have done this zero times or one time, or think that you have, seek to produce a specific result in a very, very complex hierarchy of laws and statutes that is VERY sensitive to precise wordings and orders of occurrences and dates and how real estate titles were taken and whether divorces are final and a dozen other details that are beyond your knowledge.
Please stop thinking of this as a do it yourself project. It’s not.
Do not EVER take legal advice from the Internet. At least if a professional lawyer gives you crap advice, you can ruin his career, so they have more of an incentive to be correct.
Get a living trust established. Wills would be part of that trust. If you just have ordinary wills which go through probate, your estate will be tied up for months and the probate fees will take a big bite. See a good estate planning attorney.
I believe you want advice on what to do with your son.
Make contact with him. Extend the peace branch, offer/ask for forgiveness as appropriate.
After your conservation is concluded, you should know what to do with your will. And you should have peace in your heart knowing you are not the cause for the continuation of any broken relationship.
The will is insignificant compared to the estrangement. If you have done everything you can to patch it and it hasn’t worked, I would leave him an equal share and hope it makes him feel ashamed of his behavior.
Yeah I suck like that.
I agree .. find a reputable lawyer who can help you design a will - according to WHAT YOU AND YOUR WIFE WANT .. and not what the lawyer says you should want.
If you interview lawyers .. just be willing to walk away if you don’t think they know what they’re talking about.
Keep in mind, that dependent of state law and the size of your estate, anyone can challenge a will.
Chances are it will not happen though.
It's your call, you have the wheel.
I am not a lawyer. Consult an attorney that specializes in estate planning. He/she can give you the professional advice you need. Best of luck.
Of course the best advice is what the lawyer says. However one consideration for the estranged son is to just pass over him with his share and give that share give to his kids. But then if he has no children or they are raised to hate you, it’s yet another mess.
Disownership and sibling rivalries run up, down and sideways throughout the generations in my family. I’ve had to deal with it since my earliest memories. It’s not fun. I genuinely know your pain.
There are two occasions in my family where the estranged ones get friendly when the elders get close to their end. It’s so obvious they are sucking up just to get their cut. It’s just sickening. My sisters daughter is one of them, sis is just going to surprise daughter, skip over her, and give direct to the grand kids.
Spend everything and enjoy life. You already raised the kids..... let them make their own way. :)
Another option is to start distributing the estate now.
You are allowed to give to any individual as a gift tax free $14,000 per year.
Both you and your wife can both give a gift of that amount to each person you wish, making it $28,000 per year per individual.
We are dealing with settling my m-i-l’s estate and that issue about gifting came up.
I don’t know if states have any say in it, but that’s what’s allowed at the federal level as far as I recall.
That way, even if the remaining estate is contested by the estranged son, there won’t be as much of it and the ones who you want to have the money will get whatever they can before you pass.
Ping.
Per capita - all descendants on either side get equal amounts. Thus, each child/grandchild on either side would get the same amount.
Per stirpes - each branch of the family gets an equal amount. Thus your kids would get half of the total, and her kids would get half of the total. Your wife’s daughter would get half of her share, and her son’s children would together get half of her share (divided equally among the son’s children).
Individual decisions - anything goes. If a child has divided himself from the family, you do whatever you think is best. This may mean leaving him nothing, a token amount, a partial share, or a full share (either per capita or per stirpes). If you take this path, the question should be what would be best for him (including giving him the nudge to learn from his mistakes) and for his relationship with the rest of the family, if that is salvageable. Keep in mind that wills are individual. If you die first, your wife can them change her will and leave whatever she controls to anyone she wants, and similarly if you die first.
There is probably no unique right decision on your son. To a large extent it depends on how the money would affect hiss life (and money is often a negative). To a large extent it depends on how it would affect family relationships (and that is likely to be a problem, no matter what you choose).
Talk with a professional attorney in estate law, and perhaps with your clergyman. They will know far more than anyone on FR, including hopefully knowing either you or your son, or both.
The legal issue of writing the will is easy once you settle the personal/emotional issue of how you feel in your heart about the son and how you want to be remembered by him.....
If the estranged son has kids skip over him and leave to his kids. If he has no kids just leave him out. Easy decision.