Agreements to Deviate from a Will

Wednesday, September 4, 2019

    Sometimes a Will is not well thought out.

    Sometimes things simply have changed since the Will was written.

    Sometimes there is no Will at all, and the intestate provisions set out in law would result in people receiving things as heirs that do not seem fair or do not seem to be in the best interests of everyone who is left.

    In these circumstances, if the heirs and beneficiaries agree, there can be an Agreement to Deviate from a Will (or from the provisions of Intestacy).

    Intestacy is the one size fits all Will substitute that exists in common law or statute which says where your property goes if you die without a Will.

    If you die without a Will and have a spouse, the spouse will get either half or all of your probate property.  If you have children who are not also the children of your spouse, the spouse will get half of your property if you do not have a Will.  If you have no children, or if your children are also the children of your spouse, then your spouse will get everything you own when you die, if it passes through your probate estate.

    If you have children, but no surviving spouse, your children will each get an equal share of what you have if you do not have a Will.

    If you have neither a spouse nor children, then your parents inherit if you don’t have a Will.  If your parents are already gone, then, if you do not have a Will, your things will flow to your aunts and uncles equally (or if they are gone, to their children).

    Often this results in something that either is not fair, or that everyone recognizes is not the best allocation of property.

    If, for example, one child took care of a parent, but either the Will or intestacy left the parent’s property to all children equally, this might seem unfair.
    Alternatively, if there was a falling out with one child, the Will might cut that child out, but the rest of the children might think that was unfair,

    Similarly, it might seem silly to run a decedent’s property through the estates of elderly parents, when it might make more sense to have the property go directly to nieces and nephews who need the assets.

    It might also be that all of the heirs and beneficiaries might agree that one of them has a greater need, and should have a greater share.  In a case where one child was living with a parent, sometimes the family feels that this child should receive the house, instead of forcing the house to be sold, so that each child can receive an equal share.

    In any of these situations, if all of the heirs and beneficiaries agree, they can enter into a formal agreement, which, if approved by the probate court, can result in a distribution that is different than the distribution called for in the Will, or that would result from the intestacy provisions of the law if there is no Will.