Individual Ownership 

One of the most common ways people own real estate is as a sole owner. As the sole owner, you have full control over the real estate. You can mortgage it or transfer it to anyone you choose while you are alive and have capacity. However, your real estate could potentially be exposed to creditors’ claims. At your death, your real estate will transfer to the beneficiaries named in your estate plan (or, if you have no plan, according to state law). If you do not have an estate plan (and rely instead on state law) or you have a will-based plan, probate court involvement will be required to transfer ownership to your heirs. Probate can be time-consuming, public, and expensive for your loved ones.    

Tenants in Common 

Tenants in common is another form of ownership in which multiple individuals own real estate together. Unlike other forms of ownership, when several people own real estate as tenants in common, the ownership interests held by each individual do not have to be equal. One person may own a 25 percent interest (also called a share), while the other owns a 75 percent interest. Each co-owner can generally transfer or mortgage their interest as they wish. However, the more co-owners there are, the greater the likelihood of creditor issues involving one or more of them. Although creditors can collect from only the co-owner who owes them money, they may be able to force a sale of the real estate to satisfy their claim. Upon a co-owner’s passing, their ownership interest transfers to whomever the co-owner has specified in their estate plan (or by state law if no estate plan was prepared). Both options require the property to go through the probate process to transfer ownership to the co-owner’s heirs. 

Joint Tenancy 

In most states, joint tenancy is the same thing as joint tenancy with right of survivorship. Two or more individuals (joint tenants) each own an equal share in the real estate, and each joint tenant can transfer their interest to another person (though doing so may end the joint tenancy and result in a tenancy in common). Unlike tenancy in common, joint tenancy with right of survivorship interests automatically pass to the surviving co-owners upon the death of any joint tenant, avoiding the probate process. One downside of joint tenancy is the exposure to creditors. Because there are multiple co-owners, creditors of any one of them can generally go after that co-owner’s interest in the real estate to satisfy their debts or claims. The creditor may also be able to force a sale of the real estate, even if the other co-owners oppose it. 

Tenancy by the Entirety 

In some states, spouses can own real estate as tenants by the entirety. Because spouses are considered one unit under tenancy by the entirety, one spouse generally cannot transfer or mortgage the real estate without the other spouse’s consent. With some exceptions, one spouse’s creditor cannot go after real estate that is owned as tenants by the entirety to satisfy the creditor’s claims. At a spouse’s death, the surviving spouse automatically becomes the sole owner, which keeps the real estate and its value out of probate. 

In a Trust 

Another option for real estate ownership is to transfer it to, or have it purchased by, a trust. As the trustmaker, you can establish rules for the use of the real estate, appoint a person (sometimes yourself) to oversee its maintenance, and allow others (sometimes yourself) to enjoy it. However, it is important to note that the control and benefits available to you can vary depending on what type of trust you use. If the real estate is held in a revocable trust that you created, you are generally free to manage and use the property however you see fit. If the trust is irrevocable, the analysis becomes more complicated. While a primary residence, with or without a mortgage, can generally be transferred to a trust, other properties with a mortgage may first require bank approval before being transferred to a trust to ensure the transfer does not cause the mortgage to become due in full. One of the primary benefits of transferring ownership of your real estate to a trust is that the property does not have to go through the probate process at your death; instead, the trust terms dictate how the property passes, and the transition happens outside the probate process. 

By a Limited Liability Company  

Another entity that can own real estate is a limited liability company (LLC). Instead of you owning the real estate, you own a part of the LLC (known as a membership interest), which is transferred at your death according to the terms of the LLC operating agreement or your estate planning documents (or, if not addressed in the operating agreement or estate plan, based on state law). In the operating agreement, you can also include rules instructing how the real estate is to be used and managed and outline rules pertaining to the membership interests in the LLC. One major benefit of using an LLC is limited liability. If a lawsuit is filed based on a claim arising from the real estate or if a creditor seeks to satisfy a claim, the only assets available to satisfy any judgments or creditors are typically those owned by the LLC. In some states, if you have personal creditor issues, the creditors may be unable to access the LLC to satisfy their claims against you. These asset protection benefits may vary depending on state or federal law and your unique situation. If this is a concern for you, we encourage you to call us as soon as possible. 

Protect Your Property 

Regardless of how you think you own your real estate and how it will transfer at your death, it is important that you review your deed and accompanying estate plan and confirm your understanding with an experienced attorney. The title of your real estate can play a significant role in how your estate plan is set up and how your assets are ultimately distributed. If your real estate is not properly titled, it can completely undo your estate planning intent. Contact us today at (408) 371-6000 if you have any questions.

They do not get the unlimited marital deduction. Married US citizen spouses can generally transfer unlimited amounts of money between each other during life or upon death in various qualifying ways without any gift or estate tax concerns. This unlimited marital deduction delays any estate taxes until after the survivor dies. However, lifetime gifts to a noncitizen spouse and inheritance upon a citizen spouse’s death for a surviving noncitizen spouse are not eligible for the unlimited marital deduction.

Instead, a US citizen spouse should set up a qualified domestic trust (QDOT), which gives their noncitizen spouse the benefit of the unlimited marital deduction while ensuring that any taxes due will be paid after the noncitizen spouse passes away. There are special rules governing QDOTs. For example, the noncitizen spouse must generally be the trust’s sole beneficiary while alive, and there must be a US trustee. The noncitizen spouse generally receives all the income that the trust property generates during the remainder of the survivor’s lifetime, but generally cannot receive principal without incurring an estate tax penalty.

Jointly owned property is treated differently. If a married couple jointly owns a home, it is generally assumed to belong to both spouses equally when both are US citizens, with each spouse owning a 50 percent share of the home. Therefore, when either spouse dies, only 50 percent of the value of the shared asset is included in the deceased spouse’s estate for estate tax purposes. However, if one spouse is a noncitizen, this presumption may not apply. For example, if the US citizen spouse dies first and the jointly owned home is worth $200,000, the entire $200,000—instead of $100,000—will be included in the deceased spouse’s taxable estate unless the noncitizen spouse proves they have contributed a certain amount toward the home.

There is no unlimited gifting. Generally, US citizen spouses can make unlimited gifts to each other during life without having to pay the federal gift tax, as long as the gifts qualify for the unlimited marital deduction. However, if a US citizen spouse makes a gift to their noncitizen spouse that exceeds the annual limit ($194,000 for 2026), the gifting citizen spouse may need to either use a portion of their lifetime exemption to cover the amount in excess or incur a gift tax liability.

Remember state estate and inheritance taxes. Depending on where a couple lives, state estate or inheritance taxes may apply even if no federal tax is due, because the thresholds for state estate taxes may be lower than the threshold for federal estate taxes.

Contact Us

Regardless of the citizenship status of your family members or loved ones, it is crucial to create a well-thought-out estate plan to provide for them in the way you intend and to minimize your potential tax liability. Contact us today at (408) 371-6000 to design an estate plan that addresses your unique circumstances and needs.

[1] This has nothing to do with immigration status.

Who to Call and What to Update

Your Estate Planning Attorney

After notifying loved ones of your impending surgery, your first call to a professional should be to your estate planning attorney. Time is of the essence, and your attorney can quickly triage the documents that provide the most immediate protection for you and your family.

• Review existing documents. Ensure that your estate planning documents, such as a will, trust, and powers of attorney, are up to date and accurately reflect your current assets and wishes. Life changes such as marriage, divorce, the addition of new children or grandchildren, or a new home can quickly make old documents irrelevant.
• Update personal representatives and heirs. Confirm that the executor or personal representative named in your will and the trustee named in your trust are still the people you want managing your affairs. Separately, review beneficiary designations on life insurance, retirement plans, and investment accounts, because those designations typically control the transfer (meaning the beneficiary designation can override what your will or trust says).
• Create (or update) a will or trust. Although it may be difficult to set up a trust or complex will in a limited amount of time, your attorney may be able to quickly update the provisions of an existing trust or will. If you have no will or trust, an attorney can usually prepare a straightforward will on an expedited basis to cover your most significant probate assets (accounts and property without a named beneficiary). One advantage of using a trust is the avoidance of probate (the court process of validating a will and distributing assets); even though a will cannot avoid probate, it does allow you to name the person who will be responsible for administering your estate, specify who your beneficiaries will be and how they will inherit, and, if applicable, allow you to nominate a guardian for minor children.

Your Healthcare Power of Attorney

You should also contact your healthcare agent (the person named in your healthcare power of attorney or advance directive) to notify them of your surgery and the timing.

• Review wishes. Take a few minutes to review your wishes with them, especially any updates on end-of-life care, pain management, and specific interventions (e.g., resuscitation, ventilation, feeding tubes, or transfusions), so they can confidently act as your voice if you cannot communicate.
• Confirm availability. Ensure that your agent will be reachable and ready to respond during your surgery and immediate recovery period. It is also wise to confirm that you have named a backup agent in your estate planning documents in case your primary agent is unavailable.
• Execute a new document if needed. If you do not have a healthcare power of attorney in place, now is the time to get one. This document can usually be completed on short notice.

What Documents to Prioritize

At a minimum, you should ensure the following documents are in place. Together, they protect your medical care and financial well-being if you become temporarily incapacitated (unable to manage your affairs) and help ensure that your plan is carried out if something unexpected happens.

• Living will: States your specific wishes regarding life-sustaining medical treatment (e.g., ventilators, feeding tubes) if you are unable to communicate; in some states or situations, a separate physician-signed order (often called POLST or MOLST) may also be needed
• Healthcare power of attorney: Designates a trusted person (your healthcare agent) to make all medical decisions for you if you are unable to
• Health Insurance Portability and Accountability Act (HIPAA) authorization form: Gives named people, such as your attorney or loved ones, permission to access medical information and speak with your providers; without this document, your medical care team may be prevented from sharing information due to privacy laws
• Financial power of attorney: Authorizes named people to handle finances on your behalf, including paying bills, managing accounts, accessing records, and filing taxes
• Will: Controls the distribution of probate assets at death and allows you to nominate an executor or personal representative and a guardian for minor children
• Trust: If you have a trust in place, ensure that it reflects your current wishes and is funded (i.e., assets are properly titled in the trust’s name), so that it can function as intended

Short on Time?

If time is extremely limited, prioritize the most urgent step: formally naming the key people who can act for you—your healthcare agent, your financial agent, and (if you have minor children) a guardian. Once those roles are filled, communicate your wishes clearly to each person so they are not left guessing in a high-pressure situation.

In addition, draft a thorough list of your assets (belongings, money, and property), their locations, and any identifying information, which will save time and stress if your loved ones need to step in. Your assets include all your financial accounts, insurance policies, property deeds, safety deposit box locations, and passwords.

Do not overlook planning for digital assets, which may include email accounts, social media profiles, or cryptocurrency, all of which are governed by different policies regarding postdeath access. Documenting login information and instructions for your named agent can prove vital.

Finally, ensure that your loved ones have your attorney’s contact information and know where your original signed estate planning documents are physically located.

While estate planning may be the last thing you want to do before major surgery, taking these urgent steps can give you peace of mind. Knowing that you have prepared for any possible outcome and that your loved ones will not be left to guess your intentions during a difficult time is an incredible gift. We are here to assist you in getting your most important documents in order. Please contact us to discuss estate planning at (408) 371-6000.

An Inheritance Can Shift Your Financial Picture

An inheritance may change the size and makeup of your overall financial picture in a major way, potentially shifting your long-term tax, financial, and estate planning goals. If you inherit rental property, a business interest, or complex investments, your existing estate plan may not address how those assets should be managed and eventually distributed. A sudden increase in wealth could also increase the amount of your taxable estate above the federal estate tax exemption amount, meaning that at your death, your estate may owe estate tax or more tax than it would have without the inheritance. In addition, your inheritance could unintentionally create unequal distributions among your heirs if your estate plan does not account for it.

Ultimately, when you receive an inheritance, it is a good idea to revisit whom you want to benefit from your estate and how you want them to receive their inheritance. For example, your existing plan may already provide for those most important to you, such as children or grandchildren, but you should ensure that the value of what each person receives still aligns with your wishes. With your increase in wealth, you may want to broaden the reach of those you benefit—for instance, by creating or increasing gifts to charity or establishing trusts for other loved ones. Thoughtful provisions in your estate plan can help structure distributions for less experienced beneficiaries and offer greater protection from their creditors, financial missteps, or divorcing spouses.

Preserving Your Family’s Wealth

You may have heard claims that most families lose their wealth within a few generations. Some studies estimate that 70 percent of wealthy families lose their wealth by the second generation, and 90 percent lose it by the third.^[1] However, recent research suggests that the picture is more complex: wealth can persist across generations, particularly at the top, but outcomes vary widely depending on family communication, planning, and decision-making processes. Preserving family wealth for the long term requires proactive planning and open conversations. Families often fail to discuss inheritance because money—especially inheritance—can be a taboo topic that touches on emotion, identity, and family dynamics. Older generations may also fear that younger generations will become lazy and entitled if they are made aware of their inheritance too soon, or that their private financial information will be leaked to those who should not have it.

Conversations about inheritance do not have to begin with dollar figures. They can focus first on values and the kind of legacy each generation hopes to leave. Working with a team of trusted professionals to develop shared goals and a proactive plan can help foster an environment of intergenerational trust, understanding, and fairness. This collaboration can be the difference between your collective fortune evaporating within a couple of generations and carrying on an enduring family legacy. Comprehensive estate planning can provide a solid foundation to ensure that assets are managed properly and preserved, rather than dissipated.

Seek Professional Advice

An inheritance can be quickly frittered away, but proper planning can help mitigate this risk. If you have received an inheritance—or expect to receive one in the future—seek out financial and legal advice. Estate plans should evolve as your life does, so revising your plan after receiving an inheritance can help to ensure that your wishes, tax strategy, and family goals remain aligned. Contact us at (408) 371-6000 or info@sowardslawfirm.com to explore your options for preserving your family’s legacy.

^[1] Wade Wallace, CFA, CFP®, RICP®, The Biggest Threats to Multi-Generational Family Wealth, Regency Inv. Advisors (Aug. 1, 2025), https://regencyinvests.com/the-biggest-threats-to-multi-generational-family-wealth.

You may be the type who expresses love with words, telling people you care about them or crafting carefully worded messages for someone when they need encouragement. Or maybe you prefer physical affection such as hugging and holding hands to show how you feel. Others express love through gifts: flowers, perfectly chosen birthday presents, or a surprise spa day. For many, love dwells in shared moments or in quiet, selfless acts that make someone else’s life easier.

How we express our love for others and how we prefer to have love shown to us is known as our love language, a term popularized in a self-help book from the 1990s. We may speak one love language when we give love and another when we receive it. Depending on our personality, our expressions of love can be far-reaching and obvious or small and subtle.

Estate planning is a love language all of its own that can communicate care not only through gifts of money and property but also through the act of planning for what will eventually happen to us. It is a way of showing love to the people who depend on us by creating clarity and support so that they are not left guessing or scrambling when we are no longer here.

Where the Term Love Language Comes From

The phrase love language entered the cultural lexicon in 1992 with the publication of The Five Love Languages by Dr. Gary Chapman.^[1] Chapman’s basic idea is simple: People give and receive love in five distinct ways:

• words of affirmation
• quality time
• physical touch
• acts of service
• gifts

His book came at a time when American culture was starting to encourage more emotional transparency and self-expression. It also overlapped with and helped fuel a broader cultural movement toward approachable psychology for ordinary readers, later seen in works such as Men Are from Mars, Women Are from Venus.^[2]

The Estate Planning Paradox: Some Ideas Remain Off-Limits

Over the past three decades, the idea of different love languages has moved far beyond its original relationship-counseling context. It has become shorthand for how we show care, responsibility, and emotional investment in the people who matter most to us—all themes that also fit naturally with estate planning.

However, while self-help, emotional openness, and the love-language framework now seem part of a ubiquitous cultural movement toward emotional fluency, talking about death and estate planning continues to be substantially taboo. Most people still avoid discussing the following topics:

• who will care for them
• how they want to die
• how they want their assets to pass
• family expectations and responsibilities
• long-term care needs
• future burdens placed on their children or partners

Even emotionally fluent individuals and families often avoid end-of-life conversations because they may feel morbid or triggering. A 2025 survey from Pew Research, for example, found that parents and their adult children often avoid talking about topics such as medical decision-making, long-term living arrangements, and future burial plans.^[3]

Another 2025 study revealed that death and estate planning ranked as the second-most-difficult topic to discuss with family.^[4] The same number of respondents (25 percent) rated end-of-life conversations as uncomfortable as discussions about mental health.^[5]

We may have become more expressive about our feelings in life but not about what happens after life.

Admitting that you may someday lose your independence clashes with our cultural emphasis on self-determination and autonomy, forcing us to confront a potential loss of control—a situation our culture is uniquely uncomfortable with.

How Each Love Language Shows Up in an Estate Plan

Emotional transparency, it turns out, has its limits. Even though openness is demonstrably higher than it has ever been in our culture, estate planning rates remain frozen in time and, by some measures, are lower than ever.

The irony is that estate planning can communicate care more powerfully than many of the love languages we use each day. Consider how each love language may show up in your estate plan.

Words of Affirmation: Clear, Considerate Communication About Wishes

Estate planning, with its legalese and technical terminology, can seem unapproachable. At the simplest level, though, an estate plan is a set of documents that communicates meaning and intentionality. Words of affirmation result when someone

• talks openly with family members about their values and intentions;
• tries to reduce confusion or hurt by explaining why they made certain decisions; or
• leaves instructions that make loved ones feel respected and remembered.

Estate planning parallel: People want to feel seen, valued, and emotionally safe. Estate planning gives your loved ones the reassurance of knowing exactly what you want and why. It removes ambiguity—the emotional friction that often leads to hurt or conflict—and shows them that they are appreciated and protected.

Documents that speak this love language:

• Letters of intent or ethical wills that express your values, hopes, and motivations
• Explanatory statements in a will or trust that help loved ones understand the why behind your decisions
• Advance directives that clearly communicate your medical preferences

Acts of Service: The Planning Process Itself

It is not a stretch to say that estate planning is an act of service built on performing helpful, thoughtful deeds such as the following:

• handling difficult decisions about your healthcare, incapacity, and end-of-life preferences ahead of time
• protecting vulnerable beneficiaries
• organizing information necessary for estate administration in a simple, followable format

Estate planning parallel: People feel loved when someone reduces their load, especially during moments of stress and uncertainty. A well-designed estate plan quietly shoulders future legal, financial, and emotional burdens so your family does not have to carry them in the hardest moments.

Documents that speak this love language:

• Financial powers of attorney that empower someone to manage your financial affairs
• Healthcare proxies that designate trusted medical decision-makers
• Funeral or disposition instructions that spare your loved ones immediate logistical stress

Gift Giving: The Legacy You Purposefully Design

An estate plan is not merely about money and gifts, but it does involve a strong element of gift giving. In this case, the giver is leaving their most valuable assets and prized possessions to family, friends, and charities, reinforcing relationships and building emotional bonds with tangible items. The love language of gift giving can be seen in

• choosing who receives your most treasured personal items and charitable gifts;
• funding education or setting up long-term support for your children, grandchildren, or other loved ones; and
• ensuring that your assets transfer smoothly through proper titling and designations.

Estate planning parallel: People want to feel remembered and cherished. Planning turns inheritance into meaning and elevates gifts to something more than material transfer. Whether it is money, a family heirloom, or a charitable gift, it communicates “this mattered to me, and so do you.” The way assets pass under a solid estate plan—clearly, legally, and efficiently—is also its own gift.

Documents that speak this love language:

• Specific bequests in a will for sentimental items or family heirlooms
• Charitable gifts or foundations that carry personal meaning
• Life insurance designations crafted to provide financial stability for your loved ones

Quality Time: Planning That Preserves Time, Memory, and Connection

Quality time is about presence and togetherness. Think of moments from your life that have the greatest meaning. They were probably not spent alone; rather, you shared them with others, which is usually why they mean so much. Our time is limited, and how we spend it speaks volumes about what (and whom) we care about. Quality time in an estate plan looks like

• reducing conflict so that your loved ones can grieve and support one another;
• making end-of-life decisions in advance, preventing rushed or painful choices; and
• creating opportunities for future generations to connect (e.g., family trusts with shared purpose).

Estate planning parallel: People want to feel connected and prioritized. A well-organized estate plan gives your loved ones the time and emotional space they need to console, remember, and be together without distraction.

Documents that speak this love language:

• Guardianship designations that provide clarity and protection for children
• Well-structured trusts that minimize disputes and promote harmony
• Probate-avoidance tools (such as beneficiary designations or transfer-on-death arrangements) that simplify administration and free up emotional space

Physical Touch: Security and Protection When You Cannot Physically Be There

Physical contact builds and reinforces emotional bonds. Psychologically, it represents protection, security, and comfort, which most people need to feel loved. When you are physically incapacitated or gone, estate planning can play a deeply symbolic role that reinforces the power of human touch. Even when you are not physically present, estate planning mirrors the love language of physical touch through

• choosing trusted agents who will advocate for you;
• long-term care planning that shields your loved ones from overwhelming caregiving responsibilities; and
• life insurance and other financial protections for the future, which offer a kind of metaphorical embrace.

Estate planning parallel: Planning provides protection at a moment of great vulnerability. Medical directives, care instructions, and trusted decision-makers form a protective boundary around your loved ones, helping them feel safe and grounded and conveying an emotional steadiness they can feel even in your absence.

Documents that speak this love language:

• Medical directives and living wills that ensure that your care aligns with your wishes
• Long-term care instructions that safeguard your loved ones from overwhelming responsibilities
• Trust provisions for disability or incapacity that create a protective framework for ongoing support

Translate Your Love Language into Planning Actions

Dr. Chapman and his work on the five love languages gave us a powerful framework to discuss what can sometimes be hard to put into words. He made emotions more approachable and relationships more manageable in a simplified format that has remained relevant more than 30 years after publication.

Your estate plan can serve the same role by staying relevant long after it is created.

We can help translate the love languages of the people who matter most to you into the language of estate planning with documents that reflect your voice, protect your legacy, and communicate care in a way that your loved ones will feel for years to come. Please reach out to us to discuss more at (408) 371-6000 or info@SowardsLawFirm.com

^[1] Gary Chapman, The Five Love Languages: The Secret to Love That Lasts (1992).

^[2] John Gray, Men Are from Mars, Women Are from Venus: A Practical Guide for Improving Communication and Getting What You Want in Your Relationships (1992).

^[3] Luona Lin & Juliana Menasce Horowitz, Experiences with Estate Planning and Discussing End-of-Life Preferences, Pew Research (Nov. 6, 2025), https://www.pewresearch.org/social-trends/2025/11/06/experiences-with-estate-planning-and-discussing-end-of-life-preferences.

^[4] Two-Thirds of Americans Have ‘Planned’ Their Funerals, But Majority Avoid Estate Planning Conversations, StudyFinds (Sept. 30, 2025), https://studyfinds.org/americans-planned-funerals-avoid-estate-conversations.

^[5] Id.

As the child who was not cut out of the estate plan, you may find yourself in an especially delicate spot, particularly if your parent named you as the executor (also called a personal representative) or trustee in their estate plan. You may feel torn between emotionally supporting your sibling as they process this news and honoring your parent’s wishes, which you may also be legally required to uphold.

Balancing empathy, family dynamics, and legal responsibilities is hard under the best circumstances. After a parent’s death, when emotions are raw and long-standing tensions bubble to the surface, disinheritance can create an explosive environment that may force you onto a narrow tightrope between family loyalty and fiduciary responsibility.

One wrong step—an ill-timed comment, a perceived slight, or a poorly phrased text or email—can deepen resentment or even spark litigation. Knowing what you can manage on your own and when it is wiser to bring in a professional is part of the delicate balancing act.

Many Young People Are Counting on an Inheritance

For some, an inheritance feels like a birthright. Many people assume that part of their financial future will come from family wealth, and they may treat it as an anticipated windfall that will eventually provide stability or opportunity. However, the reality of receiving, or not receiving, an inheritance is often far more complicated.

Expectation Gap Between Parents and Children

A 2025 study by Northwestern Mutual found that 20 percent of adult children expect to receive an inheritance,^[1] with the average expected amount being nearly $335,000 according to a Choice Mutual survey.^[2] More than half of adults view the expected inheritance as “critical” to their long-term financial security.^[3] Nearly half of younger adults (ages 18 to 27) rely on financial help from their parents, and many lack savings and delay major life milestones such as homeownership and investing.^[4] Despite these expectations, only 31 percent of Americans say they plan to leave an inheritance.^[5]

Of the younger adults who expect an inheritance, most say they would save or invest the money. Others say they plan to use it for housing costs, debt repayment, or support for their own children.^[6] These expectations shape financial behavior in measurable ways:

• One in 6 reports feeling less stress due to an anticipated inheritance.
• One in 12 reports feeling less pressure to earn income now.
• One in 10 reports carrying more debt because they assume that a future inheritance will cover it.^[7]

These expectations are not merely wishful thinking. Sixty-one percent say they have either spoken directly with their parents about an expected inheritance or have seen their parents’ will or trust.^[8]

What It Means to Legally Disinherit Someone and Why a Child Might Be Disinherited

The shock of disinheritance is magnified when expectations do not match reality and the anticipated inheritance never materializes. Given how many young adults rely on the idea of a future inheritance, being cut out can feel like a financial and emotional double gut punch.

When Expectations Collide with Reality

More than half of young adults surveyed by Choice Mutual believe they will one day be financially responsible for caring for their aging parents.^[9] Many may implicitly view an inheritance as part of the “deal,” or a kind of tradeoff, for that anticipated support.

However, adult children are not legally entitled to an inheritance from their parents. An inheritance is a gift, not a right. Unlike spouses (who, in many states, have statutory rights) or minor children (who are often entitled to financial support until adulthood), adult children generally have no automatic claim to their parents’ estate.

A parent may disinherit an adult child for almost any reason, provided that the decision is voluntary, made with full mental capacity, and formalized with properly executed, legally valid documents.

Common Reasons Parents Disinherit a Child

• Estrangement or long-term conflict
• Concerns about substance abuse or financial irresponsibility
• Perceived fairness due to substantial lifetime gifts
• Blended family dynamics and competing obligations
• Deep moral or value-based disagreements
• A desire to protect assets through trusts for some children but not others

The decision to disinherit a child is often rooted in complex family history and is rarely simple or purely punitive. However, while a parent does not need to provide a specific reason, simply failing to mention the child in an estate plan is generally not enough to disinherit them: A parent must clearly state in their estate plan that a child is being intentionally excluded. Otherwise, the child may later claim that the omission was accidental (a pretermitted heir situation) or may inherit under state intestacy rules if no estate plan exists. 

However, even when every legal requirement has been met, careful planning may do little to protect the sibling(s) left in the middle from the emotional and relational fallout—as well as the potential legal ramifications—that may come afterward.

Emotional, Moral, and (Sometimes) Legal Challenges for Inheriting Siblings

When a parent disinherits a child, the impact is rarely confined to the person who was cut out. It can reshape the entire family dynamic, placing the remaining siblings, particularly those who have been left an inheritance, in a uniquely complicated position.

If you find yourself in this position, you may feel torn between compassion for your sibling and respect for your parent’s autonomy. And if you are a fiduciary (i.e., an executor or trustee), the tension becomes legal as well as emotional. A fiduciary is held to the highest standard of care, meaning that you must act solely in the best legal and financial interest of the estate or trust beneficiaries while faithfully following your parent’s written instructions.

Fiduciaries Versus Nonfiduciaries

• If you are a fiduciary, you are obligated to carry out the estate plan exactly as written even though the decisions may be painful or controversial or risk creating conflict. Your role is to carry out your parent’s written intent, not to interpret or soften it. And in families where a sibling has been disinherited, every email you send, every document you provide, and every distribution you approve may be closely scrutinized.
• Even if you are not specifically acting as a fiduciary, you may still be drawn into an emotional crossfire, blamed for influencing the parent or pressured to mediate long-standing grievances.

As the executor or trustee, you may even be the one who ends up breaking the news to your disinherited sibling. As a sibling, you may also feel pressure to clear the air about your parent’s decision—to offer what little context you have to reassure them that you were not part of the decision or simply to soften the sting where you can.

Transparency Versus Caution

Some families favor transparency. Discussing the disinheritance while the parent is alive can reduce later shock and demonstrate that the decision was voluntary, which may be helpful and admissible evidence if that sibling later decides to contest the estate plan. It is almost always a smart idea for a parent to also notify their appointed executors and trustees ahead of time so that they can prepare for potential issues and understand the parent’s reasoning.

However, early disclosure has real dangers. It can ignite resentment, invite pressure campaigns to change the estate plan, or trigger accusations of undue influence. Where conflict already exists, advance disclosure can escalate the situation long before the estate is ever administered.

Many families choose strategic limited disclosure, ensuring that fiduciaries and professionals know the plan while saving broader explanations for later or documenting them instead.

The Importance of Clear and Updated Estate Planning Documents

Families often avoid discussing disinheritance to prevent conflict during a parent’s lifetime. However, avoiding the conversation can create confusion and give rise to later disputes. As a sibling who remains included in the estate plan, especially if you are named as a fiduciary, your role is to support your parent in creating clear, updated documents and maintaining evidence that demonstrates their intent, capacity, and independent decision-making. This proactive approach helps reduce uncertainty and strengthens the estate against potential challenges by the disinherited sibling.

• Use explicit, unambiguous language. Disinheritance must be clearly stated. Naming the child and documenting the parent’s decision removes any argument that the omission was accidental or the result of a drafting oversight.
• No-contest clauses. A no-contest clause in a will or trust can deter challenges by threatening to reduce or eliminate a beneficiary’s share if they initiate litigation. Such clauses cannot stop a disinherited child from suing, but they make weak claims far riskier. (Note: The enforceability of these clauses varies significantly by state, so they are not a guaranteed defense.)
• Align beneficiary designations. Outdated beneficiary designations on life insurance, retirement accounts, or payable-on-death accounts can completely override an otherwise clear estate plan. For example, if a parent updates their trust to exclude a child but leaves that child listed as the beneficiary on a retirement account, the account will still pass directly to that child. To avoid unintended inheritances, parents should review these designations and ensure that they reflect the same decisions made in their will or trust.
• Letters of intent and personal statements. A brief explanatory letter, although not legally binding, can illustrate that the decision was deliberate and not the product of outside pressure. Courts may consider these tools persuasive when evaluating challenges to an estate plan.
• Contemporaneous records of capacity. Attorney notes, confirmations of intent, and medical evaluations help establish that the parent acted with clear capacity and independence. These records can be critical evidence if the disinherited child later alleges undue influence or that their parent lacked capacity.
• Ethical wills and legacy letters. While not legal tools, ethical wills and legacy letters can preserve the parent’s voice, values, and affection, helping the surviving children process the emotional impact even when the distributions are unequal.

Above all, keeping the plan current is paramount.Outdated documents often create accidental rights or revive old ones, which can open the door to contests. Regular updates are recommended every three to five years or sooner if a major life event such as divorce, estrangement, reconciliation, the birth of grandchildren, or remarriage occurs.

Alternatives to Disinheritance

Disinheritance is not a binary choice. Estate planning offers ways to protect assets, express values, and set boundaries without completely severing ties.

• Conditional or incentive trusts. Rather than leaving assets outright to children, parents can place a child’s inheritance in a trust with specific conditions. Distributions might depend on the child meeting milestones such as reaching a certain age, maintaining sobriety, holding steady employment, or completing their education.
• Lifetime gifts or gradual transfers. A parent may prefer to provide modest financial support during life (e.g., helping with rent or medical bills) while directing the bulk of an inheritance elsewhere.
• Partial or restricted bequests. Instead of complete exclusion, parents might allocate a smaller share to the child through a restricted trust or professional trustee arrangement, helping to maintain a sense of fairness among siblings while protecting assets from mismanagement, creditors, or poor spending choices.
• Gifting to grandchildren or other heirs. Another way to preserve a family legacy is to skip a generation and leave assets directly to grandchildren, nieces, nephews, or other relatives instead of the disinherited child. This way, family wealth can support younger generations and also respect the parent’s decision to limit direct inheritance to a particular child.
• Charitable giving in lieu of full inheritance. Parents guided by specific causes or values can direct part of the estate to charitable organizations to create a lasting impact, but they may want to communicate to their loved ones the why behind the decision. Adding a personal letter or statement of intent can help surviving family members understand that this choice reflects deeply held beliefs, not retribution.

Ultimately, your role as an inheriting sibling is not to decide what your parent wants but to help ensure that whatever they decide is legally sound, voluntary, and clearly documented. That could entail nudging them toward an estate planning attorney, encouraging objective evaluations (such as capacity assessments), or helping them build a paper trail that demonstrates their independence. It may also mean discussing whether you should serve as executor or trustee at all; in many families, appointing a neutral professional or corporate fiduciary can reduce conflict and spare siblings from being placed in an impossible role.

You may be unable to avoid getting caught in the middle. However, you can help everyone affected by a disinheritance decision by seeking legal guidance that protects intentions, assets, and feelings—and by ensuring that the administration is handled in the way least likely to further fracture the family. If you have questions, you can contact us at (408) 371-6000 or info@SowardsLawFirm.com.

[1] Intentions Rise, Expectations Fall: The Number of Americans Planning to Leave an Inheritance Goes Up as the Number Expecting to Receive One Goes Down Finds Northwestern Mutual’s 2025 Planning & Progress Study, Nw. Mut. (July 8, 2025), https://news.northwesternmutual.com/2025-07-08-Intentions-Rise,-Expectations-Fall-The-Number-of-Americans-Planning-to-Leave-an-Inheritance-Goes-Up-as-the-Number-Expecting-to-Receive-One-Goes-Down-Finds-Northwestern-Mutuals-2025-Planning-Progress-Study.

[2] Anthony Martin, 66% of Young Americans Expect to Benefit from Great Wealth Transfer, Choice Mut. (Aug. 19, 2025), https://choicemutual.com/blog/great-wealth-transfer.

[3] Intentions Rise, Expectations Fall, supra note 1.

[4] Makailah Gause, Gen Z Consumers Rely on Parents Amid Inflation Squeeze, Reuters (July 10, 2024), https://www.reuters.com/markets/us/gen-z-consumers-us-rely-parents-inflation-squeezes-budgets-study-shows-2024-07-10.

[5] Intentions Rise, Expectations Fall, supra note 1.

[6] Martin, supra note 2.

[7] Id.

[8] Id.

[9] Id.

Before You Meet with Your Attorney

Taking the time to sort through your important paperwork and organize your thoughts surrounding your goals or plans for the future will go a long way toward making the meeting productive and valuable. Skipping this step may turn the conversation into a scavenger hunt for the attorney and leave you feeling overwhelmed and confused due to the amount of information your attorney will need to know to accomplish your planning objectives. 

Here are eight practical ways to prepare yourself for your first meeting:

1. Gather basic personal information. Put together a list of full legal names, birthdates, and contact information for yourself, your spouse or partner, your children, and other important family members or friends. Having this information on hand can help your attorney understand family relationships and potential heirs and beneficiaries from the start. Also be sure to bring a valid form of photo identification.
2. Make a complete list of your assets (money and property) and liabilities (debts).
3. List what you own, such as bank and investment accounts, real estate, retirement accounts and pensions, life insurance, vehicles, business interests, and even digital assets. Also include the approximate values for each item to give your attorney a clear picture of your estate’s size and composition.
4. Jot down how each of these assets is owned. For example, note whether it is titled in your name alone or jointly with others, such as a spouse, business partners, or another family member.
5. Indicate whether you have already designated a beneficiary for any of your accounts or policies and, if so, whom you designated.
6. Make a list of any debts you owe, such as mortgages, home equity loans, credit cards, medical bills, auto loans, student loans, or personal loans.
7. Note the approximate balance for each debt and who the lender or creditor is.
8. If any debts are jointly held with a spouse, partner, or someone else, jot that down as well so your attorney knows who is legally responsible for repayment.
   
   
9. Think about whom you want to leave an inheritance to, when you would like them to receive it, and how you want them to receive it.

Think about whom you want to inherit from you and in what proportions. It is also helpful to choose backup (contingent) beneficiaries in case any of your first-choice beneficiaries pass away before you or are otherwise unable to inherit. Also think about whether there is anyone you specifically wish to exclude from inheriting your property.

Keep in mind that there are many ways to leave inheritances to beneficiaries. You can give an inheritance to them all at once outright, or you can distribute smaller portions over time at specific ages or after they reach certain milestones (such as completing college, starting a business, or getting married). You can also choose to keep the inheritance in trust for the beneficiary for an undetermined period of time, with the trustee choosing when and how to make distributions. This approach provides the strongest long-term protection and support for the beneficiary.

Your attorney will walk you through different ways to structure these distributions, but taking time to consider each beneficiary’s current needs—and what they may need in the future—will help ensure that the terms are thoughtful and tailored to your loved ones’ unique circumstances.

• Reflect on your end-of-life wishes. Think carefully about your preferences for medical care if you were to become seriously ill or incapacitated (unable to manage your affairs). Thinking through the following sensitive but important questions in advance will help your attorney properly prepare the right documents for you, such as a living will and healthcare power of attorney, so your personal choices are clearly documented and honored.
• Do you want life-sustaining treatments if you have a terminal condition, are in a persistent vegetative state, or are severely incapacitated with no reasonable expectation of recovery?
• What are your preferences regarding mechanical ventilation (life support) and medically supplied nutrition and hydration (tube feeding or IV fluids)?
• If you become seriously ill, do you prioritize prolonging life or maximizing comfort and quality of life (even if that means potentially hastening death)?
• Where would you prefer to receive end-of-life care (at home, in a hospice facility, in a hospital, or somewhere else)?
• Would you like to be an organ or tissue donor? If so, are there any limits you would place on that donation?

• Think about whom you want to make decisions for you and handle your affairs if you become incapacitated or pass away. Choosing the right people to serve in these fiduciary roles is one of the most important decisions you need to make. You can select different people for different roles. The most common roles you will need to assign include the following:
• Executor or personal representative (manages your estate after death if probate court is needed)
• Guardian for your minor children
• Agent under your financial power of attorney (handles your finances and legal matters if you are alive but incapacitated)
• Agent under your healthcare power of attorney (makes medical decisions on your behalf if you are unable to communicate your wishes yourself)
• Trustee or successor trustee (manages assets held in a trust if you become incapacitated and after your death)

Why are these decisions so important? If you choose the wrong person or someone who cannot or will not serve when needed, the estate plan you have so carefully put together will be much harder to carry out.

If you are like most people, you will want your attorney’s advice in selecting the right people or institutions to serve in these roles. Still, it is helpful if you think about which family members or friends might be good candidates—and which ones may not be.

• Gather relevant legal and financial documents. It is very helpful for your attorney if you can locate and bring the following key documents. Having them on hand makes the meeting more productive and helps your attorney create a plan that is truly tailored to you. Gather what you can, but do not feel overwhelmed if you cannot find everything.
• Documents that show details about what you own, such as recent statements for your bank, investment, or retirement accounts; property deeds; business agreements; and life insurance policies
• Recent statements or documents for any debts you have, such as mortgages, home equity loans, credit cards, auto loans, student loans, or personal loans
• Existing estate plan documents, such as wills, trusts, or powers of attorney
• Any marital agreements, such as a prenuptial or postnuptial agreement or divorce judgements, if you have any
• Consider any special circumstances that your attorney should know about. Every family is unique, and your estate plan should be tailored to reflect your specific needs and circumstances. You may be part of a blended family, have a child with special needs, own a business, own property in another state, or hope to leave a charitable legacy.
• Write down your questions. It can be easy to lose track of the questions you have once the meeting starts. Preparing a list of questions helps ensure that nothing slips through the cracks. You may want to ask about costs and timelines, the differences between a will and a trust, or why many people seek to avoid probate court. This is your meeting, and the attorney wants to ensure that you are comfortable with the choices you are making, so no question is off-limits.

Estate planning can be surprisingly emotional. You may face questions that touch on sensitive topics, including family dynamics, your preferences for end-of-life care, and whom you would want to raise your minor children if you cannot. You may also learn about planning options you never knew existed. Being open and honest with your attorney will enable them to tailor a plan that best suits your circumstances and wishes. These eight points may seem like a great deal to consider and organize, but the peace of mind you gain from creating your comprehensive estate plan will make it well worth the effort. Please reach out to us at (408) 371-6000 or info@sowardslawfirm.com to discuss your estate plan.

An estate plan is not static; it is a living tool that should evolve with the changes in your life. Over time, your family circumstances, financial picture, and estate planning goals will likely shift. Whether through new births or children getting older; career or business developments; or changes to your investments, health, or where you live, countless factors can affect your evolving estate planning goals. External factors, such as new tax legislation or emerging financial instruments, could also throw your plan off track or open the door to new planning opportunities.

You do not need to spend countless hours worrying about your estate plan. Just ask yourself these nine simple questions to stress test your plan and determine whether it is time for an update.

1. When did you last update your will or living trust? In most cases, reviewing an estate plan every three to five years is sufficient, but if a major life change happens sooner, it is a good idea to take another look immediately. The more time that has passed, the more likely there have also been changes in the law that could affect how your plan works.

2. Whom have you named as executor and trustee? Are the people you chose to wind down your affairs still the right fit? Sometimes people choose a loved one out of obligation, even if that person may not be the best at managing money or handling difficult situations. Ask yourself: Is the person I chose still willing and able to handle this responsibility? Am I confident that they understand my values and will act in a way that reflects my wishes?

3. Do you have adequate life insurance? Life insurance is an effective way to provide for yourself (depending on the type of policy) and your loved ones after your death. But instead of just purchasing any policy, it is important to ensure that you have the right kind of insurance (for example, term, whole, or universal) and the right amount of coverage for your needs. For each of your policies, regularly review and update your beneficiary designations. Each policy should name both a primary beneficiary who is first in line to receive the proceeds when you pass and a contingent (backup) beneficiary, in case the primary beneficiary cannot inherit the proceeds. If you have a trust-based estate plan, your attorney may have recommended naming your trust as a primary or contingent beneficiary. This strategy allows the proceeds to flow directly into your trust, which can be managed and distributed according to your wishes. Regularly reviewing your beneficiary designations ensures that your life insurance policies will pass smoothly and according to your wishes, protecting your loved ones from delays, confusion, or unintended outcomes.

4. Which of your accounts or pieces of real property are jointly owned with someone other than your spouse? Jointly owned property can sometimes cause unexpected tax issues. Look at your real property records and seek advice from a professional to ensure your accounts and property are titled in the most tax-efficient way while still carrying out your planning objectives.

5. How is your recordkeeping? Good recordkeeping will make your loved ones’ job much easier if they need to step in for you while you are alive but unable to manage your own health or finances, or when the time comes to wind down your affairs after your death. Do you have an up-to-date list of all your bank and investment accounts, employee benefits, retirement plans, online passwords, and key legal documents in one safe place? If not, now is a good time to create one. Having this information organized, accessible, and secure helps ensure that your loved ones can step in smoothly without unnecessary stress or delay.

6. Has your health or the health of a loved one changed? If you or someone close to you has been diagnosed with a serious illness, it is important to review your estate plan to ensure that it reflects your current circumstances. You may want to update your healthcare and financial powers of attorney to ensure that your decisions will be managed by someone you trust who understands your wishes. You may also consider revisiting your living will, trust provisions, or long-term care planning to ensure your plan provides the right protection and support for yourself and your family.

7. Have you experienced a major financial change? Your estate plan should always reflect your current financial picture. If you have received an inheritance, come into a large sum of money, sold or purchased significant assets, or made new investments, reviewing and updating your estate plan is important. Such changes can affect tax exposure, distribution goals, and even beneficiary designations. Keeping your plan aligned with your financial reality ensures that your wealth is protected and passes according to your intentions.

8. Do you have a plan for your digital life? In today’s world, so much of our personal and financial life exists online, yet many overlook these assets in their estate plans. Digital assets include cryptocurrency, online accounts, social media profiles, email, cloud storage, and even monetized platforms or websites. A thoughtful plan should identify these assets, authorize who can access them, and provide clear instructions on managing or transferring them. Without proper planning, valuable or sentimental digital property can be lost, locked, or mishandled. Including your digital life in your estate plan ensures that your online presence and assets are protected and passed on according to your wishes.

9. When did you last give your plan a thorough once-over? Even if nothing major has happened, we recommend having your plan reviewed by an experienced estate planning attorney every three to five years. This precaution can help you catch small issues before they become big problems.

If any of these questions made you pause, it might be time to review your plan. We are here to help you get the peace of mind that comes from knowing that you and your loved ones are protected. Please reach out at (408) 371-6000 or info@sowardslawfirm.com to discuss.

As a Veteran, you have dedicated your life to serving others; service and sacrifice come naturally to you. Creating an estate plan may not immediately come to mind as another way to serve and protect those you love. For Veterans, however, a standard estate plan is often insufficient. Military service brings unique benefits, responsibilities, and considerations that require thoughtful coordination to ensure that you and your loved ones are fully protected.

A “Mission Plan” for Protecting Family, Benefits, and Legacy

As a Veteran, you are no stranger to paperwork. From the extensive documentation required for recruitment and enlistment to the detailed records of assignments, pay, training, medical history, and awards maintained throughout your career, you have likely been responsible for keeping records that are vital for verifying your service history and accessing service-related benefits.

Estate planning documents serve a different but similarly important purpose. They are designed to protect your loved ones and ensure that your personal wishes are carried out if you become incapacitated (unable to manage your affairs) or after your passing.

Dwight D. Eisenhower’s assertion that “plans are useless, but planning is indispensable” stresses the value of developing multiple contingency plans for probable scenarios and unexpected situations. The same principle applies to your estate plan: While your specific documents may evolve over time, the process of thoughtfully creating a plan helps ensure that you and your loved ones are prepared for whatever life may bring. Your estate plan allows you to specify who should inherit your service-related benefits and other assets (accounts and property), name guardians for your children, and appoint trusted individuals to manage your affairs if you become incapacitated and wind down your estate after your passing. The main documents of a comprehensive estate plan include the following:

• Last will and testament. A will provides clear instructions for the distribution of your accounts and property that do not have a joint owner or beneficiary designation. It is also the document in which you can legally nominate a guardian for your minor children if you pass away and the children’s other legal parent is unable to care for them.
• Trust. Whether included as part of your will (testamentary trust) or a standalone document (revocable living trust), trusts can help you manage how and when your assets are distributed rather than leaving your loved ones an outright inheritance. One key difference between testamentary trusts and revocable living trusts is that testamentary trusts must be administered through the often costly, long, and public probate process, whereas a revocable living trust is administered privately.
• Powers of attorney. Financial and medical powers of attorney are both essential components of a complete estate plan. A financial power of attorney lets you designate someone you trust to serve as your agent (also called an attorney-in-fact) to handle your legal and financial affairs if you are incapacitated or otherwise unable to manage them yourself. A healthcare power of attorney (also called a healthcare proxy) authorizes a trusted person to make medical decisions on your behalf and communicate with your healthcare providers if you are unable to, ensuring that your treatment preferences are followed and your values are upheld. 
• Living will or advance directive. This estate planning tool allows you to outline your wishes regarding medical treatment and end-of-life care. It complements your healthcare power of attorney by providing clear guidance about your medical wishes and sparing your loved ones the stress of having to guess what you would have wanted. Without it, disagreement among family members about your care could, in rare cases, lead to court involvement, and a judge might need to decide whether certain medical procedures or life-sustaining measures should be provided or withheld.
• Beneficiary designations. Retirement accounts, life insurance policies, and military benefits such as Servicemembers’ Group Life Insurance (SGLI), the Thrift Savings Plan (TSP), and the Survivor Benefit Plan (SBP) are distributed directly to the individuals named on the beneficiary designation forms on file when you pass away, regardless of what your will or trust says.

Together, these tools form the foundation of your estate plan—a mission plan for protecting your loved ones, benefits, and legacy. Just as every mission has its own objectives, so does your estate plan; the way you use these tools will depend on your unique circumstances and goals. As a Veteran, you need to carefully coordinate your plan with your military benefits so that they work seamlessly together to support your family as you intend in both foreseen and unforeseen situations.

Estate Planning for Veterans

Estate planning can be complex for anyone, but it can be especially challenging for Veterans. In addition to managing the same personal, financial, and family considerations as civilians, Veterans must also account for a unique mix of military benefits that include earned entitlements and needs-based programs. These benefits can be affected, delayed, or even reduced if your estate plan is not updated to reflect your transition from military to civilian life.

Taking these proactive steps can help ensure that your benefits, health coverage, and estate plan all work together to protect you and your family:

• Review Veterans Affairs (VA) benefits. You may qualify for various programs, including VA Disability Compensation, VA Pension, and Dependency and Indemnity Compensation (DIC). Because some benefits are income- or asset-tested, improper planning—such as leaving assets outright to a spouse instead of through a trust—could unintentionally disqualify your spouse from receiving or continuing those benefits.
• Plan around VA Aid and Attendance (and Housebound) benefits. The VA offers needs-based pension enhancements—Aid and Attendance and Housebound—to help eligible Veterans and their surviving spouses cover the cost of long-term care or in-home assistance.^[1] Because eligibility is based on income and asset limits, careful estate planning, including the use of a properly structured trust, can help preserve current or future eligibility for these benefits while still protecting family resources.
• Transition life insurance and evaluate alternatives. SGLI coverage ends shortly after separation from service. Eligible Veterans can convert their SGLI to Veterans’ Group Life Insurance (VGLI), which provides similar coverage, but premiums typically increase with age.^[2] It may be wise to review civilian life insurance options to avoid gaps in future coverage or higher cost later.
• Coordinate TRICARE for Life (TFL) coverage and Medicare coverage. TFL acts as secondary health insurance coverage for eligible military retirees enrolled in Medicare Parts A and B.^[3] Medicare pays first, and TFL typically covers remaining costs. Estate planning documents, especially powers of attorney and healthcare directives, should explicitly authorize agents to handle medical claims, billing, and insurance appeals to ensure uninterrupted care and coverage.
• Update estate planning documents. Veterans who created an estate plan while still in the military or before enlisting should review and update that plan after transitioning to civilian life. You may now have new income sources, a civilian employer-sponsored retirement account, or different insurance coverage. Your housing situation, family needs, and available benefits may also have changed. Updating your plan ensures that your assets, beneficiaries, and decision-makers remain aligned with your current circumstances and long-term goals.
• Preserve survivor benefits. SBP elections made during military service can still significantly affect the financial security of a surviving spouse or dependent. It is important to review those elections after retirement or major life changes and coordinate them with other benefits, such as life insurance or Social Security, to ensure continued protection for your family.
• Incorporate trust-based planning. Trusts can help preserve eligibility for means-tested benefits such as VA pensions, Aid and Attendance, or other government assistance programs. They are especially valuable for Veterans with minor children or dependents who have disabilities, special needs, or other circumstances—such as substance use challenges, mental health conditions, or difficulty managing money—that make a direct inheritance unwise.
• Document your wishes for your funeral and burial. Veterans may wish to include specific instructions in their estate plan regarding funeral and burial preferences. These can include requests for burial in a VA national cemetery, a headstone or marker provided by the Department of Veterans Affairs, and the inclusion of military honors at the service. Documenting your wishes in advance helps ensure that they will be carried out with accuracy and respect and relieves loved ones of having to make difficult decisions during an emotional time.
• Work with an experienced attorney. You may be receiving a mix of VA pensions, disability compensation, and military retirement accounts in addition to civilian income, employer-sponsored retirement plans, and insurance policies. An experienced estate planning attorney can help coordinate these benefits and assets to create a plan that protects your eligibility, maximizes available resources, and aligns with your long-term goals.

Mission-Driven Planning

Your service taught you the importance of seeing a mission through no matter the challenge. That same sense of duty guides the most important mission of all: safeguarding your family’s future.

Even the best mission plans may change, break down, or require adjustment on the fly. But that does not make planning any less important.

Having any plan is better than having no plan. But a plan that is not mission-ready can be almost as problematic, leaving you and your loved ones exposed on life’s battlefield. That is why you should coordinate with us to ensure that your estate planning tools are crafted to preserve your hard-earned military benefits while still meeting family planning needs. Feel free to reach out to us at (408) 371-6000 to learn more.

^[1] VA Aid and Attendance Benefits and Housebound Allowance, U.S. Department of Veterans Affairs (July 18, 2024), https://www.va.gov/pension/aid-attendance-housebound.

^[2] Veterans’ Group Life Insurance (VGLI), U.S. Department of Veterans Affairs (July 1, 2025), https://www.va.gov/life-insurance/options-eligibility/vgli.

^[3] Tricare For Life, Tricare (Aug. 29, 2025), https://tricare.mil/tfl.

1. Lack of healthcare planning. Most deaths occur in hospitals or other healthcare facilities, where many patients near the end of their life are unable to make or communicate their decisions. Without a plan, families and providers can be left guessing. Advance directives outline your preferences for end-of-life care; healthcare powers of attorney appoint a trusted person to make decisions on your behalf when you cannot. Together, these documents ensure that your medical wishes are honored and can be paired with financial powers of attorney to protect your property and finances during incapacity.

• Failure to appoint financial decision-makers. There may come a time when you need someone to manage your financial and legal affairs, either because you are incapacitated or simply unavailable for a specific transaction. A financial power of attorney allows you to appoint a trusted person to act on your behalf, ensuring that bills are paid and important matters are handled without the need for court intervention.

• No will or trust. Without proper planning, your estate may be held up in the often long, public, and costly probate process for months or even years after your death, at a great emotional and financial cost to your family. If you have no will, a judge will apply the state’s statutory default distribution plan to determine who will receive an inheritance from you and how much they will receive. This plan may not match your wishes.

• Lack of attention to digital assets. Without a plan for your digital assets (such as digital photos, cryptocurrency, nonfungible tokens, social media profiles, content creation accounts, and accounts associated with e-commerce businesses) your loved ones may lose access to critical documents, photos, memories, and other important family records. They may also be unable to access any bank accounts or money associated with or generated by your digital assets or accounts.

• Failure to anticipate your children’s possible future divorces, creditors, or lawsuits. Although it is not fun to consider, if your children divorce, rack up massive debt, or are sued at some point in the future, their inheritance could be lost and end up in the hands of unintended people. A trust can help protect your legacy and your children’s inheritance.

• Failure to provide for an intentional transfer of family values. Do you want to pass on more than just money to your loved ones? A comprehensive estate plan can include provisions regarding family meetings, a family mission statement, and custom planning for your loved ones so that your values will continue into the next generation. Your custom plan could include allowing loved ones to choose a charity to receive part of your accounts or property, setting money aside for future family reunions or travel, or building in provisions to incentivize major milestones such as getting married or graduating from college.

• Wasted individual retirement account (IRA) funds. Retirement account beneficiaries generally have the option to receive funds in a lump sum, which could result in a massive income tax bill for them. If this is not your intent, it is crucial to properly plan these accounts to minimize potential tax consequences. A standalone retirement trust, sometimes called an IRA trust, can help safeguard retirement funds from premature or imprudent withdrawals as well as from beneficiaries’ creditors and financial predators while still ensuring that those assets are available to support your beneficiaries.

• Chaotic record-keeping. Proper planning ensures that your loved ones do not spend months or years trying to piece together your finances or interpret your wishes. A comprehensive estate plan helps you organize your finances and create a clear system for keeping your important documents, financial information, and instructions about your wishes in one place, readily accessible to your loved ones when they need them most.

• Failure to consider a surviving spouse’s remarriage, creditors, and predators. If your surviving spouse remarries, your estate could end up in the hands of people you never intended. Likewise, if your surviving spouse is victimized by financial predators—something increasingly common with an aging population—your family may discover too late that your legacy is gone. A trust can help protect your money after you are gone.

1. Family feuds over sentimental items. Sometimes fights are not just about money. Feuds and infighting among your loved ones can occur over items that have little monetary value but high sentimental value. You can help avoid such conflict with a personal property memorandum that lists who gets special items such as artwork, family heirlooms, and jewelry. In addition to the financial accounts, your plan should include careful consideration of important family items.

1. Health Insurance Portability and Accountability Act (HIPAA) privacy lockout. If incapacity leaves you unable to communicate, family members—even your spouse—may be unable to access your medical records or talk to your doctors because of HIPAA privacy rules. Signing a HIPAA authorization form ensures that the people you choose can access your medical information.

1. Outdated estate plan. Does your estate plan reflect your current circumstances, goals, and needs? Have you, your beneficiaries, or your trusted decision-makers had any major life changes (such as getting married, having a child, passing away, divorcing, receiving an inheritance, or moving to a different state)? A comprehensive review by an estate planner ensures that your estate plan reflects current laws and tax rules and carries out your wishes based on your and your loved ones’ lives today.

Do not leave your family vulnerable to these common oversights. A strong estate plan provides peace of mind, knowing that your loved ones are protected and your wishes will be honored. If you recognize any of the above mistakes in your own plan, or if it has been years since your last review, now is the time to act. Contact us today at (408) 371-6000 to create a plan that truly reflects your life and legacy.

A routine preventive check-up is not necessarily the only time we see a doctor. Similarly, a preventive planning meeting is not the only time to consider your estate plan. The occurrence of special life events may also mean that it is time to pick up the phone and call us.

If you experience any of these significant life events, contact us, and we will help ensure that your estate plan still reflects your goals and wishes.

Marriage

Have you recently gotten married? Congratulations! Marriage means new ways of sharing and managing finances and property. As a result, this is an important time to revisit your estate plan. With this life change, you will need to contact us to discuss any necessary changes to your will or trust, and financial and medical powers of attorney. You will also need to consider updates to your retirement account, life insurance, and investment account beneficiary designations. Updating your estate plan is especially important if it is a second marriage and children from a previous relationship are involved. Proper estate planning is the only way to ensure that you protect your loved ones the way you want.

Birth or Adoption

Welcoming a new child into the family is an unforgettable time. You may feel inspired to look toward the future, and you should! This is an opportune time to start planning how you would like to provide for your new family member’s future. Because the child is young, it is important to consider not only what you would like to leave them for an inheritance but also how you would like them to receive it and who you would like to manage it. And while no parent wants to think about who will raise their child if they are unable to, it is also important to decide who would step in as guardian to care for your child if something were to happen to you.

New Job

A new job presents an exciting new set of challenges and opportunities to explore. It also brings very real financial changes. You may be receiving new benefits that require new beneficiary designations. When filling out these forms, the beneficiaries must be named appropriately so that your estate plan will work as designed. In addition, you will need to make sure that your estate plan reflects the change in your financial status, whether it is a pay increase or a pay cut.

Loss of a Job

Similarly, leaving employment brings big changes to your financial situation and your estate plan. It is important to review your plan to determine whether updates are needed to reflect, for example, the loss of employer-provided benefits such as life insurance, any changes that need to be made to your retirement account, and whether any shift in your financial situation could impact your plan.

Retirement

Welcome to your golden years! Retirement brings lifestyle changes, more time for loved ones, and important financial transitions. We can help you update your estate plan now that you have stopped earning income and are beginning to use your retirement account. Also, with this newfound freedom, you may find yourself traveling more, making documents such as financial and medical powers of attorney more crucial.

Moved

If you have moved across state lines, you should consult with a local estate planning attorney to ensure that your estate planning documents are still legally valid and you are fully protected under the laws in your new state. Let us know your new location, and we may be able to recommend estate planning attorneys who can help you. If you have just moved to our state, we are happy to review your existing documents to determine if they comply with our state laws.

Regardless of where you moved from and moved to, a new home will need to be incorporated into your estate plan. If you contact us before the purchase, we can recommend how the deed should be drafted. If you have created a revocable living trust as the foundational tool in your estate plan, it may be best, depending on the situation, to have the home titled in the name of your trust. If you have already purchased your new home, we can file a new deed if needed to make sure the property is titled in a way that aligns with your estate plan.

Divorce

Experiencing a divorce is one of the most difficult times in a person’s life. But looking out for your financial well-being and planning for the future is critical. While your divorce is pending, you can meet with us to discuss what changes, if any, you are permitted to make to your estate plan. Once your divorce has been finalized, we can help you update your plan as needed or desired. This process may include revising your will or trust, changing beneficiary designations on certain accounts (such as life insurance or retirement accounts), and ensuring that your ex-spouse does not inherit from you or have the authority to make financial or medical decisions on your behalf should you be unable to do so yourself. If you have any life insurance requirements in your marital agreement to help satisfy a maintenance or child support obligation, we can also help incorporate them into your estate plan.

Death of a Loved One

There is so much to handle after the loss of a loved one. Take some time to be with those you care about and honor the life of the one you lost. When you are ready, remember that it is important to review your estate plan and consider whether any updates are needed. You may need to remove the deceased loved one as a beneficiary from any will, trust, life insurance policy, or retirement account, and determine who will receive that inheritance now. Reviewing your plan to identify whether your deceased loved one was appointed as one of your trusted decision makers (agent under a financial or medical power of attorney, successor trustee, or personal representative/executor) is important. If so, we can help you choose replacement decision makers and update your documents accordingly.

Received Inheritance

The death of a loved one not only brings grief and loss, but it may also result in receiving an inheritance. An inheritance can include property, money, real estate, and more. Receiving an inheritance may necessitate a change in your estate planning strategy. You may have a new account or property that needs to be retitled or a new beneficiary designation to incorporate into your plan. Also, depending on the value of the inheritance you have received, there may be additional estate tax, management, or asset protection concerns that we can address with you to make sure your inheritance is protected.

We Would Be Honored to Help

Whatever life brings you, we are here to help you weather the storms and celebrate the milestones. We would be honored to help you ensure that your estate plan is up to date to reflect these life changes. Even if no major events have occurred, reviewing your plan every three to five years is still a good idea. Call us today at (408) 371-6000!

What are digital assets? They include all of the following:

• your digital photos and videos saved on your phone, in the cloud, or on an external hard drive
• files (such as emails, financial documents, digital business records, etc.) stored in the cloud or on your computer’s hard drive
• cryptocurrency
• nonfungible tokens
• domain names (URLs)
• social media profiles (e.g., Facebook, LinkedIn, X, TikTok, Instagram, Twitch)
• content creation accounts (e.g., YouTube)
• affiliate marketing accounts (e.g., Amazon, Google, ClickBank)
• accounts associated with e-commerce businesses (e.g., Etsy, Shopify)
• physical device backups
• databases (e.g., medical records, cloud storage services)

Such digital assets often carry significant real-world value and, in some cases, generate substantial income. Examples include cryptocurrency wallets, domain names (URLs), monetized YouTube channels, influencer accounts, and digital business platforms. These assets may represent a meaningful portion of your estate, sometimes even its most valuable components. You can no longer afford to adopt a wait-and-see approach. Whether or not you proactively plan, your legacy now includes more than just the monetary inheritance, family heirlooms, and personal property you intend to pass along. In today’s world, you must also consider and create a plan for your digital assets.

To that end, here are three tips to help you create or update a plan to properly manage, transfer, or preserve your digital assets.  

1. Inventory your digital assets. Make a list of every online account you use. If you run a business, be sure to include spreadsheets, digital records, client files, databases, and other digital business documents. Not only will you need this information for your estate plan, but it will also play a crucial role in any business succession plan you create. If it exists online or in the cloud, connects to it, or pertains to it, put it on the list for your attorney and your trusted decision-makers (agent under a financial power of attorney, executor or personal representative, or successor trustee). This list can act as a critical resource when someone needs to step in and manage your digital assets.

2. Designate a Digital Fiduciary (Sometimes Called a Cyber Successor): This is someone you trust who can access your online accounts and business on your behalf if you are incapacitated or after your death. In most cases, this person will also serve in a traditional fiduciary role, such as your agent under a power of attorney, trustee, or personal representative, depending on timing. Access to digital assets is governed by state law (such as the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA, enacted in most states) as well as the terms and conditions of each platform. You should keep your access information secure and consider using the online tools offered by providers (such as Google Inactive Account Manager or Apple Digital Legacy) to ensure your fiduciary can act quickly and legally.

3. Determine the necessary tools to properly record and carry out your wishes and ensure that your legacy continues as you want. Depending on your unique situation, it may be advisable to fund some of your digital assets into a trust or even include specific access in a power of attorney. We can help you determine the best way to protect and pass on your digital assets, select your trusted decision-makers and beneficiaries, and ensure that the right tools are in place so your assets can be accessible when needed. The laws in this arena are evolving, so any planning you have done in the past needs to be reviewed and possibly updated.

Potential Pitfalls of Failing to Plan for Digital Assets

The worst thing you can do is nothing. Inaction could result in the loss of digital family photo albums, disruption of your business if you are incapacitated, or worse. If this process feels daunting or you are unsure where or how to start, call us at (408) 371-6000. We can help you identify, track, and protect your digital assets to give you peace of mind.

The thought of speaking with your parents about important and often sensitive topics like their finances and estate planning probably makes you want to run as fast as you can in the opposite direction. Nonetheless, having this conversation is the key to ensuring that your parents are able to live their golden years without financial worries and that their wishes are carried out after their death.

Estate Planning for Your Parents

Initiating conversations about your parents’ future, especially concerning their finances, medical care, and memorial wishes, can be challenging, but it is undeniably one of the most important discussions you can have with them. Addressing these topics sooner rather than later benefits everyone involved and ensures greater peace of mind and preparedness for the future. This crucial dialogue should encompass plans for when one or both parents pass away as well as scenarios where they become incapacitated and unable to manage their own affairs. To help ensure that their estate plan is comprehensive and aligns with their wishes, consider discussing the following key areas with your parents:

• A team effort. Encourage your parents to compile a list of their advisors, starting with legal and financial professionals, including their contact information. This list should also include the contact information for your parents’ doctors so that whoever they nominate as their health care agent can reach them if necessary. Even if they prefer not to share the list immediately, they can create it and let you know where to find the information if the need arises.
• Last will and testament or a trust. If you discover that your parents do not currently have a last will and testament (also known as a will) or revocable living trust (also known as a trust), it is probable that they do not have other essential estate planning tools, as these important tools are often created as part of a comprehensive estate plan. If they do have a will in place, confirm when it was created, who the personal representative or executor is, and where the original wills are stored. Similarly, if you discover that they have a trust, you will want to confirm who the trustee is, whether or not they have funded property and financial accounts into their trust, and where the original trust documents are stored. Stress to them that you do not need to read their will or trust in its entirety, but knowing where to find the original documents is crucial to ensuring that their wishes are carried out when the time comes.
• Medical directives. While discussing your parents’ estate plan, confirm whether they have created a living will (also known as an advance directive) and a medical power of attorney. These important tools allow someone to make medical decisions on their behalf if they are unable to make or communicate their own medical decisions. If you discover that they have these tools in place, encourage them to have a conversation with their chosen agent under their medical power of attorney to ensure that the decision-maker understands your parents’ feelings and wishes about both their medical care preferences as well as their end-of-life care, such as how their medical affairs should be handled should they become incapacitated and whether or not they want to be on life support.
• Insurance policies. It is important for you or your parents’ trusted decision-makers to know what insurance policies they have and where documentation is located, especially if one or both parents become incapacitated. This includes health insurance (private or Medicare), life insurance, homeowner’s insurance, auto insurance, disability insurance, and long-term care policies.
• Financial, Investment, and Retirement Accounts. Encourage your parents to create a comprehensive list of their checking, savings, brokerage, mutual fund, pension, and retirement accounts. This list should include where each account is held, account numbers, and the names of any key contacts at the institution. Just as important, your parents should have a financial power of attorney in place so that a trusted individual can step in and manage these accounts if your parents are traveling, ill, injured, or otherwise unable to manage their affairs. An experienced estate planning attorney can draft this document, but it is also wise to ask whether the financial institutions involved require their own power of attorney forms, since these are often more readily accepted. Having a valid power of attorney ensures that someone can access and manage your parents’ accounts, whether checking, investment, or retirement, so that day-to-day expenses are covered and long-term financial needs are met during incapacity and beyond.

Why Estate Planning Matters

Failing to put together an estate plan often leads to chaos, excessive costs and taxes, unnecessary court involvement, inadequate incapacity planning, potential hurt feelings, delays in distributing inheritances, and even unexpected outcomes after death.

Fear and discomfort can keep you from having this important estate planning conversation with your parents. As estate planning attorneys, we can provide your parents with guidance and advice on what options are available to them so that their wishes are followed upon their death. Please reach out to us at (408) 371-6000 or info@sowardslawfirm.com to get started on your estate plan today!

To help you manage the responsibilities now on your plate, here is a quick checklist of important steps that will make it easier when you meet with us to discuss handling your loved one’s legal affairs. Some of these tasks have important deadlines, so be sure to reach out sooner rather than later.

• Secure the deceased person’s belongings. Make sure their vehicle, home, important documents, and other valuable items are safe. This action not only protects items intended for distribution but also ensures that critical estate planning documents and information about assets are preserved and accessible as you begin settling the estate.
  
  
• Notify the post office and consider forwarding your loved one’s mail to your address. This action will help ensure that you receive the important bills, account statements, and other correspondence necessary to wind up their affairs.
  
  
• If your loved one wrote an ethical will (sometimes called a legacy statement or family letter)—a written document meant to share personal values, life lessons, hopes, and messages for future generations—consider sharing that with the appropriate people in a thoughtful way. You may even want to print and distribute copies to close family members or others who would find meaning in the words.
  
  
• Obtain several copies of the official death certificate, both short and long forms. You will need them for a variety of tasks, including working with banks, insurance companies, government agencies, and other institutions that require proof of your loved one’s death. Having multiple copies on hand will help prevent delays as you begin settling their affairs.
  
  
• Notify the Social Security Administration of your loved one’s death. Prompt notification helps prevent overpayments and ensures that any eligible survivor benefits can be processed without delay.
  
  
• Take care of any Medicare paperwork needed to report your loved one’s death. This helps ensure that future charges are stopped and the account is properly closed.
  
  
• Contact your loved one’s employer to ask about any work-related benefits (such as a final paycheck, unused vacation or sick time, or employer-provided life insurance). They can guide you on how and when these benefits will be paid.
  
  
• Notify all relevant insurance companies, starting with your loved one’s health insurance provider. Be sure to also contact insurers for life, auto, homeowner’s or renter’s, and other important policies. While some coverage may no longer be needed and can eventually be canceled, you may need to wait until you are formally appointed executor or personal representative by the probate court to take official action. That said, you can often begin gathering the necessary paperwork in the meantime to avoid delays later on.
• Gather all important estate planning documents, including the will, the trust, and any powers of attorney. Ideally, you will be able to locate the original versions (rather than electronic or photocopies), especially the original will, as probating a copy is often much more difficult and may require additional legal steps.
• Identify your loved one’s financial accounts (including bank accounts, investment accounts, retirement accounts, and life insurance policies) as well as any real property (such as their primary residence, family cottage, vacant land, or rental properties). Remember to include any business interests they may have had. Eventually, you will need to obtain valuations for each of these items, so locating recent account statements, appraisals, or other documentation now will be especially helpful later.
• Identify your loved one’s significant digital assets. This includes such things as email accounts, social media profiles, photo cloud storage, and online financial accounts. Try to locate a list of these accounts along with any log-in credentials. Access to this information can be essential for closing accounts, recovering important data, or preserving digital memories.
• Compile information about any debts, bills, or ongoing expenses your loved one may have had—such as credit cards, loans, or utility payments. It is often easiest to bring the actual statements or credit cards with you to our office, but feel free to use whatever method works best for you.
• Locate your loved one’s tax returns from the past few years, and check whether this year’s return (Form 1040) has been filed. If they had a tax preparer, consider contacting them for copies and assistance with any final filings.
• Prepare a list of your loved one’s surviving family members, including contact information when available. Even if certain relatives are not named in the trust or will, we still need to be aware of all close family members. If you know of anyone else named in the will or trust (such as a friend or a charity), please include their contact information.
• Create a list of the deceased’s professional advisors, including their financial advisor, insurance agent, tax professional, and any other relevant contacts. These individuals may have valuable information and will likely play an important role in making the administration process smoother and more efficient.
• Notify the appropriate agencies to cancel your loved one’s driver’s license, passport, voter registration, and any club or organization memberships. You should also notify the major credit bureaus (Equifax, Experian, and TransUnion) of their passing. Taking these steps helps prevent identity theft and reduces the risk of receiving unwanted mail in their name.

You may be thinking about handling all the paperwork yourself. It is a tempting thought; why not keep things as simple as possible? However, taking a do-it-yourself approach to estate or trust administration can lead to costly mistakes and serious consequences for you and your loved one’s desired beneficiaries. There are many rules and legal steps involved, and even a small mistake can have big consequences.

We are here to help you steer clear of the common obstacles that may arise when settling a loved one’s affairs, so you can focus on yourself and your family during this difficult time. We can help you manage estate- and trust-related concerns as well as point you toward other useful resources. Please reach out to us at (408) 371-6000 or info@sowardslawfirm.com

For millions of younger Americans, this means inheriting a parent’s or grandparent’s home. But while a house can be a generous gift that might seem like a windfall, the financial and practical realities of owning a home can quickly turn that gift into a burden for heirs who are not fully prepared.

A mortgage does not automatically disappear when a home changes hands. Ongoing costs—such as property taxes, insurance premiums, utility bills, and deferred maintenance—can also quickly pile up. And if the home lingers in probate or stays in a trust before transferring to beneficiaries, questions may arise about who is responsible for covering these expenses in the meantime.

If the house needs major repairs or is in a high-property-tax area, the costs can be staggering. On top of that, other “hidden” costs, such as cleaning out decades’ worth of accumulated stuff (which may or may not have financial or sentimental value) or replacing major outdated appliances, can surface.

This is not to say that inheriting a home is a bad thing—far from it. With home prices at record highs and many Americans priced out of the market, inheriting a house can be a life-changing opportunity. However, without proactive estate planning and frank conversations about the true costs of home ownership, it can also bring surprise expenses, family conflicts, and tough decisions.

The Costs of Home Ownership

There is the home we can afford on paper—and the one we can afford in reality. The gap between the two may be wider than we realize.

A mortgage alone can cost thousands of dollars per month. If there is still a balance on the home loan when the owner dies, the lender will expect payments to continue. An heir who wants to keep the property may be able to assume the existing mortgage, but this outcome is not guaranteed and depends on the lender and loan type. In some cases, the heir may instead be required to pay off the remaining balance or refinance the loan.

The expense of a mortgage is just the start. Hidden costs can quickly upend budgets and turn an inherited sanctuary into a money pit, especially for first-time homeowners unprepared for the realities of home ownership. Common ownership costs that heirs may overlook when they inherit a home are:

• Property taxes. Mortgages eventually end, but property taxes do not. In some states, the home may be reassessed at its current market value after the owner’s death, potentially triggering a steep tax increase.
• Utilities. Services such as water, gas, electricity, and trash pickup should remain active even after the owner passes away. Cutting them off completely can lead to problems such as frozen pipes or mold and may result in costly reconnection fees or permanent damage in extreme cases. Once the heir takes over ownership, they will be responsible for these utilities, along with other monthly expenses such as internet and cable.
• Maintenance and repairs. Routine upkeep such as lawn care or snow removal may be legally required under local ordinances. Major repairs (e.g., roof repairs, HVAC replacements) can cost tens of thousands of dollars, and they become almost inevitable as the home ages.
• Homeowner’s insurance. Homeowner’s insurance policies will need to be updated after the owner’s death to reflect the new ownership. Premiums may increase, and if the property will be unoccupied for an extended period, the insurer may require a vacant home policy.

A Bankrate study pegs these hidden ownership costs—maintenance, utilities, property taxes, home insurance, and internet and cable—at an average of around $21,000 per year in 2025, depending on location.^[3] These costs are in addition to the mortgage, which, the study authors caution, is just the beginning.

Before the beneficiary can even address these routine costs, there may also be cleanup expenses, moving costs, and potentially the cost of new appliances or emergency repairs from disasters or plumbing failures while the home was vacant. Pretty soon, what seemed like a gift can quickly become anything but.

Paying for Home Costs During (and After) Transition

A home is the single largest expense most people will ever undertake, whether they buy it themselves or inherit it from someone else.

Understanding the true cost of homeownership and whether a beneficiary is ready to handle it is an important first step. But before ever reaching that point, there is a transition period that occurs after the original owner dies and before the keys are handed over to the new owner.

Bills and expenses are not suspended during this period. They must be paid on time and in full while the property is in probate or held in trust, sometimes for months or years.

Who is responsible for paying such bills and expenses? It depends on how the estate is structured and how quickly ownership transfers.

• Probate. If the deceased person owned the home in their individual name, the property must likely go through probate before title can be transferred to the beneficiary. Probate is the court-supervised process in which a deceased person’s final affairs are settled and their accounts and property are distributed to the entitled recipients. Until the probate process is complete, ongoing expenses generally fall to the estate itself. The executor (known as a personal representative in some jurisdictions) uses estate funds (the deceased owner’s money) to cover the mortgage, taxes, insurance, and upkeep. If there is not enough cash, the executor may need to sell or liquidate other accounts and property.
• Trust. For a home held in a trust, the trustee manages associated expenses using trust funds. However, as with a home in probate, if the trust lacks liquidity, the trustee might need to liquidate other trust accounts or assets to continue making payments on time.
• No immediate transfer. When there is no clear plan—or when disputes arise among the deceased’s loved ones over who is entitled to the property—the home may sit idle, leading to mounting expenses, potential tax complications, and a decline in property value if upkeep and payments are not consistently maintained.
• Post-transfer (beneficiary ownership). Once home ownership legally transfers to the beneficiary, the financial responsibility shifts entirely from the estate or trust to the new owner.

Estate plans can include a cash reserve to cover transitional and post-transfer costs. Holding these funds in a trust—regardless of whether the home is also held in the trust—can spare loved ones financial strain and give them time to decide whether to keep, sell, or rent the property.

Leaving the home to a loved one through a trust rather than transferring it outright allows the original owner to specify plans for the home. The trust can state who gets the home (and when) and what they can (and cannot) do with it. For example, the trust may stipulate that the home can be used only as a personal residence and not as a rental property.

A trust structure for an inherited home can bring clarity, and a cash infusion to fund upkeep, which can prevent the home from falling into disrepair. However, a trust that is too restrictive or does not have enough money to cover expenses could cause problems down the road. A beneficiary may not have the authority to sell the property or the funds to maintain it while the home is owned by the trust.

Such dilemmas and the question of who is responsible for what costs and when could be addressed with proactive estate planning and the use of planning tools, such as the following:

• Property held in trust with a right of occupancy. This arrangement grants someone (often a spouse or partner) the right to live in the home for life or a specified period without transferring actual ownership of the home out of the trust. When the occupancy period ends, ownership of the property passes to other named beneficiaries. The terms of the right of occupancy will clearly define which expenses are the occupant’s responsibility and which will be paid by the trust, leaving no room for uncertainty. If the trust is covering any costs, it may set aside a lump sum to ensure those obligations are met.
• Joint ownership with rights of survivorship. While types of property ownership vary widely by state, creating a joint ownership with survivorship rights in a home generally means that, when one owner passes away, that owner’s share of the property automatically transfers to the surviving co-owner without the need for probate or trust administration. While this option provides clear guidance as to who the owner of the property is when someone passes away and, therefore, who is responsible for paying its associated costs, it carries significant risks. Adding someone as a joint owner of your home is legally considered a gift, which could trigger gift taxes and require filing a gift return, depending on the home’s value. The property may also be exposed to the new co-owner’s creditors, divorcing spouses, or legal judgments, meaning you could lose your home because of their debts. Also, the new co-owner would have to sign off on any future transactions, such as selling the property, obtaining a mortgage, or refinancing the home.

There is no single right way to pass down a home. The best approach depends on factors such as family dynamics, property value, and whether funds will be available to support the home during any in-between phase.

Hidden Estate Plan Considerations for Handing Down a Home

Passing down a home can create more than just financial burdens for beneficiaries; the emotional and practical challenges can be just as significant. Disagreements may surface if multiple beneficiaries want the property or cannot agree on how it should be used, and tensions may arise when one person struggles to budget for ongoing costs such as taxes, insurance, and maintenance. Such challenges can strain relationships and delay important decisions. Planning ahead and setting clear expectations now can help prevent future conflicts and ensure a smoother transition for everyone involved.

If you are considering passing down a home, keep these points in mind:

• Be clear about who will receive the home. Specify in your estate plan exactly who will inherit the property to avoid confusion, disputes, or competing claims among loved ones.
• Define rights and responsibilities for multiple owners. If the property will be shared—such as a family cottage given to several children—outline in writing how it will be used, who is responsible for maintenance, how expenses will be split, and what happens if one owner wants to sell their share.
• Prepare a young beneficiary for the costs of homeownership. If you plan to leave the home to someone who has never owned property before, walk them through the housing budget while you are alive, or leave a detailed list of ongoing expenses so they understand the financial commitment before accepting ownership.
• Declutter and prepare the home. Clearing out the house now spares beneficiaries and loved ones the emotional and logistical burden of sorting through decades’ worth of belongings later. Movements such as minimalism and “Swedish death cleaning”^[4] encourage paring down possessions, which can also make the home more market-ready if a future sale is likely.

Leave a Home, not a Headache

Despite all the complex legal mechanisms available to transfer home ownership, perhaps the simplest—and often overlooked—part of the process is having a straightforward discussion with your loved ones to prepare them for home ownership before you pass. Talking about the fate of a family home inevitably involves some uncomfortable discussions, but they can help nip later financial discomfort and family discord in the bud.

However, talk alone—no matter how honest—is not enough if it is not backed by a solid plan that is ready to implement.

Your home may be the most valuable part of your legacy and estate plan. Please contact us at (408) 371-6000 to learn more.

^[1] James Royal, Ph.D., An $84 trillion wealth shift is underway, and you may soon inherit a piece of it. Here’s what to expect, Bankrate (June 25, 2025), https://www.bankrate.com/investing/the-great-wealth-transfer.

^[2] Anthony Smith, Boomers Are Sitting on Nearly $19 Trillion in Real Estate—Here’s Where They Hold the Most Housing Wealth, Realtor.com (July 21, 2025), https://www.realtor.com/news/trends/baby-boomers-home-equity-wealth.

^[3] Linda Bell, Study: Owning a home costs over $21,000 a year in hidden expenses, Bankrate (June 9, 2025), https://www.bankrate.com/home-equity/hidden-costs-of-homeownership-study.

^[4] John P. Weiss, This Is What Swedish Death Cleaning Taught Me About Life, becomingminimalist, https://www.becomingminimalist.com/death-cleaning (last visited Aug. 22, 2025).

Myth 1: My spouse can make all my healthcare and financial decisions because they are my spouse.

Reality: This is a dangerous misconception that can lead to significant stress and financial hardship for your family. While your spouse has certain rights, they generally do not automatically have the legal authority to make all medical decisions or manage all your financial accounts if you become unable to manage your affairs (i.e., become incapacitated). Without properly executed legal documents, you and your spouse may face obstacles handling the following:

• Medical decisions. Your spouse may be unable to access your medical information, direct your care, or make critical end-of-life decisions without a medical power of attorney (also known as a durable power of attorney for healthcare) and an advance directive (or living will). Without these documents, a court may need to appoint a guardian or conservator in a public, costly, and time-consuming process.
• Financial decisions. Similarly, your spouse could be locked out of accounts in your sole name, unable to pay bills or manage investments without a financial power of attorney. This can prevent timely financial management and even payment of day-to-day expenses. As with medical decisions, a court may need to appoint a guardian or conservator before your spouse can access these important accounts.

Proper planning ensures that your spouse or another trusted individual you choose has the immediate legal authority to act on your behalf and honor your wishes without court involvement.

Myth 2: My family knows my wishes. They will divide everything the way I want it divided.

Reality: While your family may genuinely intend to honor your verbal wishes, discussions about your affairs—without proper legal documentation—carry no legal enforceability. After your death, without a legally binding plan, your estate may be distributed according to your state’s intestacy laws, which may not necessarily be what you intended. This could lead to the following outcomes:

• Unintended beneficiaries. If you rely on the state’s default distribution plan, your money and property could go to distant relatives rather than close friends, stepchildren, or other nonrelated loved ones.
• Family disputes. Even well-meaning family members can disagree on what your true wishes were, leading to bitter conflicts and costly litigation that depletes your hard-earned money and property.
• Loss of control. Without a last will and testament or revocable living trust, you have no say regarding who inherits your money and property and how they receive it, who will raise your minor children, or who will be in charge of winding down your affairs.

A comprehensive estate plan is the only way to legally ensure that your estate is passed on as you intend, protecting your legacy and providing clear guidance for your loved ones.

Myth 3: I signed a will before, so I do not need to do it again.

Reality: Life shifts, laws change, and your goals evolve over time. An outdated estate plan can be just as detrimental as having no plan, so be sure to review your estate plan regularly—ideally, every three to five years. You should also review your estate plan whenever significant life events such as the following occur:

• Family changes. Such changes include marriage, divorce, remarriage (yours and your children’s), birth or adoption of children or grandchildren, and deaths of beneficiaries or trusted decision-makers (for example, agents under a financial or medical power of attorney, executor or personal representative, or guardian of your minor children).
• Financial changes. In addition to seeing significant increases or decreases in the value of what you own, you may have purchased or sold real property or businesses, experienced changes in your retirement accounts, or received an inheritance.
• Location changes. Moving to a different state or country can dramatically impact the validity and effectiveness of your existing estate planning tools, as state and country laws can vary widely.
• Tax law changes. Estate, gift, and income tax laws constantly evolve at federal and state levels, potentially affecting how your money and property will be distributed, how they will be taxed, and how much a beneficiary may ultimately receive.
• Changes in goals. Your philanthropic desires, legacy goals, or wishes for specific personal property, accounts, or real property may shift over time. Your estate plan should reflect that.

A comprehensive review of your estate plan every three to five years or after any major life event is crucial for ensuring that your estate planning tools still reflect your wishes, minimize taxes, avoid probate, and align with current legal requirements.

Myth 4: I am not wealthy enough to need an estate plan.

Reality: This myth is perhaps the most dangerous. Almost everyone, regardless of their net worth, can significantly benefit from thoughtful estate planning. While an estate plan certainly addresses your financial accounts, estate planning encompasses far more than just money.

• Protecting your children. If you have minor children, a will is the primary legal document for nominating a guardian to care for them if something happens to you. Without one, a court will decide who will raise your children—without your input—often through a public and potentially contentious process.
• Caring for pets. You can ensure that your beloved pets are cared for after you have passed away or during a time when you cannot care for them.
• Distributing sentimental items. A personal property memorandum can specify who receives your cherished family heirlooms, artwork, or other nonmonetary items, which can help prevent family squabbles.
• Planning for your incapacity. A comprehensive estate plan allows you to name trusted individuals to manage your finances, make medical decisions, and carry out your wishes without the delays and expenses of court involvement if you become incapacitated. Such protection is valuable regardless of how much money or property you own.

Estate planning is about taking control, ensuring that your wishes are honored, and providing peace of mind for you and your loved ones, no matter what you own. To learn how estate planning can benefit your specific situation, call us at (408) 371-6000.

The good news: Many costs can be reduced by avoiding probate altogether. It is that simple. Here are three ways to avoid probate and its related costs.

1. Name a beneficiary. The probate process applies only to accounts and property in a person’s sole name that do not have a beneficiary, payable-on-death (POD), or transfer-on-death (TOD) designation at the time of their death. Accounts and property with a beneficiary designation will be transferred to the designated individual immediately upon the owner’s death without any probate court involvement. It is common to designate beneficiaries on these types of accounts and property: 

• Life insurance policies
• Annuities
• Retirement plans
• Real estate (if available in your state)

Caution: When someone is named as a beneficiary of an account or piece of property through a beneficiary designation, they will receive that account or property outright and without any strings attached. This means it could be exposed to claims by the beneficiary’s creditors, judgments, or a divorcing spouse. Naming a beneficiary also means giving up the ability to put restrictions on how the beneficiary uses the account or property they receive. Lastly, naming a beneficiary does not help if you become unable to manage your affairs. The named beneficiary will only have access to the account or property at your death and not during your incapacity. You will have to rely on a financial power of attorney or a court-appointed conservatorship or guardianship to manage the account or property if you are unable to.

2. Own accounts and property jointly. Probate can also be avoided for accounts or property you own if they are held jointly. Similar to a beneficiary designation, joint ownership automatically transfers the deceased co-owner’s share to the surviving co-owners immediately upon the person’s death without the need for probate court. There are several types of joint ownership that you can set up to avoid having to go to probate court to transfer a co-owner’s interest:

• Joint tenancy with rights of survivorship. With this type of joint ownership, a deceased co-owner’s interest in the property simply transfers to the remaining joint tenants (co-owners) upon the deceased co-owner’s death.
• Tenancy by the entirety. This is a special form of joint tenancy with a right of survivorship only available to married couples in some states.
• Community property with rights of survivorship. This form of ownership is used with property owned by a married couple in a community property state. At the first spouse’s death, the surviving spouse receives 100 percent ownership of the accounts and property determined to be community property.

State laws play an important role here. We can help you determine which form of joint ownership, if any, is a good fit for you.

Caution: As with beneficiary designations, adding a joint owner to your accounts or property can subject the accounts or property to claims asserted by the new joint owner’s creditors, judgments, or divorcing spouse. This vulnerability begins the moment they are added to the account or property, rather than after your death, which means that your new joint owner’s creditors could seize your accounts or property while you are still alive. (One exception is when property is jointly owned by spouses as tenants by the entirety. This type of ownership can protect the property from creditors trying to collect on just one of the spouse’s debts.)

3. Create and fund a revocable living trust. A final method (and one estate planners recommend most often) to avoid probate and all its expenses is to create and fund a revocable living trust. When you create a trust, you will need to transfer the ownership of all your accounts and property to the trust or name the trust as the beneficiary. The process of transferring assets to a trust is called trust funding. The accounts and property owned by the trust (or that become owned by the trust by beneficiary designation) are not probate assets and do not require probate court involvement. While you are alive, you remain in control of all legal decisions pertaining to the accounts and property owned by the trust as the trustee and retain the enjoyment of those accounts and property as the current beneficiary. After your death or if you become unable to manage your affairs, your named successor trustee will step in to manage and distribute the trust’s accounts and property according to your wishes. A trust works well if it is properly created and funded by an experienced estate planning attorney.

We Have the Tools to Help You

If you are interested in creating a plan for you and your loved ones that keeps you out of probate court and avoids all the expenses that go with it, contact our office at (408) 371-6000 or info@sowardslawfirm.com today to schedule your appointment.

Born from the mid-twentieth century artistic rebellion and revived in the 2010s on the back of increased digital clutter, climate anxiety, and economic strain, minimalism promises clarity and order based on less materialism and more intention.

Amplified by bestsellers, influential blogs, and decluttering gurus, the minimalism movement has permeated our cultural consciousness and shaped how we approach everything from our wardrobes to our finances. This pursuit of simplicity is, at its core, about reclaiming control in a chaotic world.

However, a minimalist “less is more” mindset for estate planning can leave you and your loved ones unprotected. An estate plan is one area of your life where you should lean into chaos and assert control, not by reducing your plan to the bare minimum but by adding the appropriate layers of complexity.

The Bare Minimum in Estate Planning: Why “Good Enough” Is Not Enough

A minimalist mindset might be fine for your living space but not your estate plan. Minimalism may be up to the task of putting your house in order but not putting your affairs in order.

Although there is no direct evidence linking minimalism to a lack of estate planning, there are circumstantial ties. For example, one of the top reasons given for not having an estate plan is a lack of assets (money and property).^[1]

What does seem to motivate estate planning are personal life events such as family expansion, upcoming travel, health problems, age-related milestones (such as retirement), and the purchase of a significant asset (e.g., a home).

However, by the time the need for a plan emerges, it could be too late. Estate planning is about addressing not only current needs but also potential future needs, which are constantly changing in unpredictable ways.

A minimalist estate plan that includes a last will and testament and a medical power of attorney might hold up under routine, predictable circumstances, but it can easily fall short when things go sideways and become more complicated. Consider these scenarios: 

• You create a will that provides outright distributions to your beneficiaries. However, are those beneficiaries financially responsible enough or legally old enough to handle outright distributions? What if something happens to them in the future, such as a disabling injury, a job loss, or the development of a substance abuse disorder that causes their life and needs to change significantly? Outright distributions to these types of beneficiaries may lead to undesired and potentially harmful outcomes.
• You sign a medical power of attorney prior to undergoing surgery, which might be fine for a known one-off occurrence. However, do you still want that person to make medical decisions for you in the future if you cannot communicate your wishes yourself? Who will manage your finances if you become incapacitated (for example, you are seriously injured in a car crash or have a stroke)? Is there a plan in place to manage your care and answer deeply personal end-of-life questions? Can your family access your protected health records to make informed decisions?

These are just some of the scenarios that a minimalist estate plan can fail to address.

Failure to create a plan that addresses the possibility of your becoming incapacitated can leave your medical care and finances in legal limbo and your loved ones vulnerable to court costs and conflicts. They might not agree about what decisions to make on your behalf, be forced to petition the court for a guardianship or conservatorship, and face unexpected delays and taxes. A minimalist estate plan might also overlook assets such as digital assets and collectibles, which can often be a source of contention and require court intervention. That is why your estate plan should include multiple tools that work together to provide comprehensive protection under a multitude of circumstances, both likely and less likely. A plan that does not include the following may come up short when it matters most:

• Last will and testament. If chosen as the foundational document of your estate plan, a will directs how your assets will be distributed upon your death (i.e., who gets what) and names a guardian for your minor children.
• Trust (testamentary or revocable living trust). Trusts offer greater control over the inheritance you leave behind. A testamentary trust is created within your will, while a revocable living trust is established during your lifetime and can help manage assets both during your life and after your death.
• Financial power of attorney. A financial power of attorney designates someone you trust to manage your financial affairs if you become unable to do so yourself, avoiding the need for costly and time-consuming court intervention.
• Medical power of attorney. A medical power of attorney names someone who can step in immediately to communicate or make healthcare decisions on your behalf if you are unable to do so due to illness or injury.
• Advance directive or living will. Advance directives outline a person’s wishes regarding medical care and end-of-life care preferences. 
• Health Insurance Portability and Accountability Act (HIPAA) authorization form. This form lets you designate people who are authorized to access your medical information that is protected from disclosure under HIPAA. Access to your protected health information allows your loved ones to communicate more effectively with your healthcare providers and gather important details that may assist in managing your care if needed.

These basic documents are just the starting point for a robust estate plan that covers all of your bases and leaves your family well protected. For added protection, you may also want to incorporate documents such as digital asset authorization, letters of instruction that provide more details about how to distribute items and where to find them, funeral and disposition of remains directives, a standalone guardianship designation for minor children, and a pet trust or pet care directive.

Less Is More—Until It Is Not

With estate planning, less is not more. More is more. Your estate plan should follow a maximalist mindset that goes beyond the bare bones and embraces abundance, detail, and sometimes even excess.

Investing the time and effort to create a well-rounded estate plan is not about accumulating more “stuff”; it is about thoughtfully arranging your affairs to ensure a secure and well-defined future for you and the people you care about most.

Do not let the allure of the bare minimum leave you and your family vulnerable. Please reach out to us at (408) 371-6000 or info@sowardslawfirm.com for more information.

Whether you are beginning your military service or have been serving for some time, the following may be important in your estate planning.

Factors to Consider

Estate plans should be customized to each person’s particular circumstances. As you create or update your plan, consider whether it addresses the following:

• Do you own real property and, if so, is it located in different states or countries?
• Are you married?
• Do you have minor children or children with special needs?
• Do you have retirement savings, such as a 401(k), an individual retirement account, or a Thrift Savings Plan?
• Are you planning to make charitable gifts?
• Do you anticipate multiple moves across states or international borders?

Each of these considerations can significantly impact the structure and effectiveness of your estate plan.

Estate Planning Necessities

Many of the benefits offered to military families can help with estate planning. These include the following:

• Life insurance. Life insurance is an important part of an estate plan intended to benefit those who are financially dependent upon you when you pass away. Active-duty members often have access to low-cost life insurance for themselves and their loved ones from Servicemembers’ Group Life Insurance. You can find more information on the Department of Veterans Affairs (VA) website. When examining how your life insurance fits into your overall estate plan, work with us to ensure that the beneficiary designation works as expected.
• Last will and testament. Also known as a will, this crucial document outlines to whom, how, and when you want your assets(money, accounts, and property) distributed following your death. It also allows you to designate who you want to wind up your affairs after you pass away (referred to as an executor or personal representative, depending on the state) and specify who will care for any minor or special needs children.
• Revocable living trust. A trust is a separate legal entity that can hold property and accounts for the benefit of one or more people or entities. Similar to a will, a trust allows you to dictate who will receive your property at your death and how that property is to be administered. For a trust to work as intended, your assets must be retitled into the name of your trust, and your trust must be designated as the beneficiary of the assets that must remain in your name (e.g., life insurance and retirement accounts). While you are alive and well, you will likely be the initial trustee, which puts you in charge of managing the assets you have transferred to the trust. An added benefit of a trust is that it also provides instructions on who will step in and manage the trust assets during any period of your incapacity(inability to manage your own affairs) and after your death. For most families, a trust-centered estate plan is a better fit, but a will can be adequate for some families depending on their circumstances.
• Other benefits for survivors. Survivor benefit plans (SBPs) are pension-type plans in the form of an annuity that will pay eligible survivors—typically your surviving spouse and dependent children—a monthly benefit at your death. Likewise, Dependency and Indemnity Compensation (DIC) is a tax-free monthly benefit paid to eligible survivors of service members or Veterans who (1) die while on active duty, active duty for training, or inactive duty training; (2) died from a service-related disease or injury; or (3) were receiving, or entitled to receive, VA compensation for a service-related disability rated as totally disabling (100 percent) for a specified period of time before death. When evaluating any financial service or insurance product, it is a good idea to work with an estate planning attorney to ensure that any associated beneficiary designations align with your overall plan and provide the maximum benefit to your family.

You Need Specialized Help

Members of the military often experience frequent moves, have access to several forms of government benefits after service, and can be subject to some unusual tax rules. For these reasons, estate planning for military families is more complicated than it is for most others.

An estate planning professional can assist you in setting up the following:

• Powers of attorney for financial matters and healthcare decisions (very helpful tools when a spouse is deployed)
• Living wills and other medical directives
• Powers of attorney or delegations of parental authority for minor children or separate guardian nominations
• Funeral and burial arrangements
• Wills
• Organ donation authorization
• Family care plans
• Life insurance
• Trusts
• Survivor benefits

An estate plan has multiple objectives: to provide for your family’s financial security, to ensure your property is preserved and passed on to your loved ones in the way that you desire, and to determine who will manage your assets upon your death and if you become incapacitated, among others. We can guide you through the best options available to you and your family. You can reach us at (408) 371-6000 or info@sowardslawfirm.com.

Beware: Spousal Disinheritance Laws Vary Widely by State

Unfortunately, no one set of rules governs what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights, such as elective share and community property laws, depend on the state where you live or own property, and they vary widely. Based on state laws, the surviving spouse’s right to inherit may be based on one or more of the following factors:

• how long the couple was married
• whether or not children were born of the marriage
• the value of what the deceased spouse solely owned
• whether the surviving spouse inherited anything from the deceased spouse outside of probate court (e.g., as a designated beneficiary or joint owner)
• the combined value of an augmented estate, which includes accounts and property that are subject to probate and accounts or property that were automatically transferred to a named beneficiary by operation of law (payable-on-death, transfer-on-death, or beneficiary designation form)

In Florida, a surviving spouse may choose to take an elective share, which is 30 percent of the deceased spouse’s elective estate. The elective estate includes probate assets and certain nonprobate assets, such as payable-on-death and transfer-on-death accounts, joint accounts, revocable trust assets, the net cash surrender value of life insurance, annuities, and retirement accounts. The decedent’s debts reduce the elective estate.

In addition, state laws vary widely regarding the time limit within which a surviving spouse can seek their inheritance rights, which can range from a few months to a few years.

Disinherited Spouses Need to Act Quickly

If your deceased spouse has attempted to disinherit you, seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate administration attorney can help you weigh all your options and protect your interests as a surviving spouse. If you would like to discuss this further, please reach out to us at (408) 371-6000 or info@sowardslawfirm.com.