My siblings were disinherited–Do I owe them anything?

The short answer is no. If you are named as the only heir to your parent’s estate, then you win—and all the excluded children lose. You do not owe them anything. Or at least, that is how it should work…in theory.

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But many cases are not that easy because the excluded children often do not like being excluded (imagine that). Instead, the excluded kids want a share of the estate. Whether you have a Trust or a Will (or both), an excluded child often feels wronged and they will strike out at the person who wronged them…presumably the child receiving the money.

That brings us to Trust and Will contests. Both a Trust and a Will can be challenged in court; provided that, there are grounds on which to challenge the document. The most commonly used Trust or Will contest claims are lack of capacity and undue influence. And it is relatively easy to make sufficient allegations that a parent lacked capacity or was unduly influenced at the time of signing the Trust and/or Will. Once the allegations are made in a Trust or Will contest lawsuit, then the lawsuit has to make its way through the court system before a resolution will be reached by the court.

The problem with Trust and Will contests is that they cost time and money. The typical contest case last from 18 to 36 months, or more. We have seen Trust and Will contest cases last over five years in some unfortunate cases. And the costs of a contest lawsuit can be staggering.

Uncovering evidence, or the lack of evidence depending on what side you are on, can be a substantial cost. Referred to as “discovery,” the process usually accounts for a majority of your litigation expenses. For example, to take a single deposition (where a witness is questioned in person under oath) will costs anywhere from $800 to $1,800 just for the court reporter who takes down everything that is said in the deposition. If you want to video record the deposition, that will costs another $1,500. And then you have to pay your lawyer to prepare for, and take, the deposition, which can be anywhere from a couple thousand dollars to tens of thousands depending on how long the deposition takes (and how complex the case is). All told, a single deposition can cost from $4,000 to $10,000 or more. And most Trust and Will cases have multiple witnesses that must be deposed.

You also have to retain and pay expert witnesses in Trust and Will contest cases, which can be a significant cost depending on the amount of medical or other data that must be reviewed and considered by the expert. In most cases, a single expert witness will cost between $15,000 to $30,000, or more.

So what does all this talk of time and money have to do with you if you are the sole beneficiary of your parent’s estate because your siblings were disinherited? It means you probably will be entering into a settlement at some point. In California, a majority of civil lawsuits settle before trial because they simply cost too much, take too much time, and the risk of winning is always unknown. For these reasons, it is often better to pay some money to end a lawsuit rather than continuing on to the bitter end only to find that you lose. Even where you technically should owe your siblings nothing because you are the sole estate beneficiary, you may find yourself coming out ahead by paying to end a lawsuit rather than taking a risk of loss at trial.

So you may not owe your siblings anything if you are the sole beneficiary of a parent’s estate, but you may end up paying them something anyway. This is the practical effect of a Trust or Will contest. And the better the facts for contesting the Trust or Will, the more you will have to pay to settle the case.