The Situation
Alan and Betty are both 65 years old and have two adult children, Carl and Don.
Alan and Betty have been estranged from Carl for more than 15 years following a significant falling out. They have no relationship and do not want Carl involved in their lives, finances, or medical decisions in any capacity.
During that time, Carl has built a highly successful business and is well known and respected in the community.
Don, by contrast, is kind-hearted and deeply devoted to his parents, but he has struggled financially and has difficulty maintaining steady employment.
Despite Don’s lack of financial success, Alan and Betty want:
- Don to inherit all of their assets, and
- Don to be the sole decision-maker for both financial and healthcare matters if they become incapacitated.
Just as importantly, they want to ensure Carl has no authority, no involvement, and no inheritance.
The Danger of Doing Nothing
If Alan and Betty do no estate planning at all, they are not avoiding planning, they are simply defaulting to state law.
Pitfall 1: Intestacy Laws Override Personal Intentions
If Alan and Betty both pass away without a will, trust, or beneficiary designations:
- An estate must be opened in probate court.
- State law determines who inherits and who manages the estate.
- In virtually every state, children inherit equally.
That means Carl and Don would each inherit 50%, regardless of Alan and Betty’s wishes.
Pitfall 2: Equal Rights to Control the Estate
Probate law also typically provides that all children have equal priority to serve as the estate’s administrator (sometimes called a personal representative).
To begin probate, someone must petition the court to be appointed.
In this scenario:
- Carl sees his parents’ obituary and promptly petitions the court.
- Don, assuming he would naturally be appointed, is caught off guard.
- Carl arrives prepared, professionally represented, and on time.
- Don arrives late and unprepared.
Based on Carl’s strong community reputation and the fact that he took initiative, the judge appoints Carl as the administrator.
Carl now:
- Has legal authority over all probate assets.
- Controls the administration process.
- Is entitled to statutory compensation, often 2–5% (or more) of the estate’s value.
- Ultimately must distribute the estate 50/50, as required by law.
The outcome is clear: Carl controls the process and profits from it, while Don receives less—and none of it reflects Alan and Betty’s intent.
The “Simple Will” Trap
Determined to avoid this outcome, Alan and Betty decide to create a will using an online template.
They:
- Name Don as Executor.
- Name Don as the sole beneficiary.
- Ask Don to serve as a witness to the will signing.
Pitfall 3: A Technically Invalid Will
Under the laws of virtually every state:
- A person who stands to inherit under a will cannot serve as a witness.
- A will that is improperly witnessed is invalid.
After Alan and Betty pass away:
- Don submits the will to probate.
- Carl, as an “interested party,” receives notice and hires counsel.
- Carl successfully challenges the will’s validity.
- The court invalidates the will.
Even though Don may still be appointed as administrator, the estate must now pass under state intestacy laws, again resulting in a 50/50 split between Carl and Don.
Once again, Alan and Betty’s wishes are completely undone.
Partial Planning Isn’t Enough
Learning from that mistake, Alan and Betty take further steps:
- They validly execute new wills naming Don as Executor and sole beneficiary.
- They designate Don as POD/TOD beneficiary on all accounts.
This time, however, they do not die.
Instead, they are involved in a serious car accident and are left incapacitated, unable to manage finances or communicate medical wishes.
Pitfall 4: Incapacity Triggers “Living Probate”
Wills and POD/TOD designations only work after death.
Because Alan and Betty are alive but incapacitated:
- The will is not effective.
- TOD/POD designations do nothing.
- Someone must be appointed to make decisions on their behalf.
This process is often referred to as “living probate.”
The court must appoint:
- A Guardian (for healthcare and personal decisions), and
- A Conservator (for financial decisions).
Once again, state law controls priority and Carl and Don have equal standing.
Given Carl’s financial success and ability to hire legal counsel, the court may appoint Carl over Don.
Now Carl:
- Makes medical decisions for his estranged parents.
- Controls their finances.
- Can petition the court to sell their home to fund care.
- Can force Don out of the house if Don was living there.
The very person Alan and Betty wanted excluded now has total control.
The Proper Solution: A Comprehensive Estate Plan
To truly accomplish their goals, Alan and Betty need a coordinated and proactive estate plan.
Key Components of the Plan
Durable Powers of Attorney
- Financial Power of Attorney naming Don.
- Healthcare Power of Attorney naming Don.
These documents allow Don to act immediately upon incapacity, without court involvement.
Valid Last Will and Testament
- Properly executed and witnessed.
- Acts as a safety net for any assets not otherwise planned.
- Clearly disinherits Carl.
Revocable Living Trust
- Don is named as Successor Trustee and beneficiary.
- Assets, especially real estate, are titled in the trust.
- Allows Don to manage, sell, or maintain property without court approval.
- Prevents probate and eliminates Carl’s involvement entirely.
The Takeaway
When a family includes an estranged child, doing nothing or doing “just enough” is often worse than no planning at all.
Without proactive planning:
- State law treats children equally.
- Courts decide who controls finances and healthcare.
- Estranged children can inherit, control assets, and make life-altering decisions.
With a comprehensive estate plan:
- Your wishes, not the state’s, control.
- Trusted individuals are empowered.
- Court involvement is avoided.
- Family conflict is minimized.
- Your legacy is protected.
Contact Us
If there is someone in your life, whether a child, relative, or former loved one, whom you do not want involved in your finances, healthcare, or inheritance, the law will not assume that for you.
Planning around an estranged child requires intentional, properly executed estate planning.
If this scenario resonates with you, now is the time to ensure your plan clearly reflects your wishes before the courts are forced to decide for you.
Contact our office to discuss how to protect your wishes and prevent unwanted involvement.