Disinheriting a Family Member: The One-Dollar Myth

The Perils of De Minimis Gift Giving in Texas

A certain persistent myth claims that a parent can disinherit their child by leaving them a gift of only one dollar in their will. In addition to preempting a claim by the disinherited child that their omission from the will was an oversight or mistake, leaving a wayward child nothing but a dollar might have a certain grim appeal to an aggrieved parent; one last rebuke from beyond the grave, if you will. While it is true that Texas, like most other states, does permit a testator to completely exclude a child from their will, doing so via the so-called one-dollar method may have significant unintended consequences for the testator’s loved ones and is generally discouraged.

A number of requirements must be met before a will can be admitted to probate in Texas, and those requirements sometimes include the consent or participation of the named beneficiaries of the will – no matter the size of their gift. For example, if the original will is lost and a copy must be used, Texas Estates Code § 258.002 requires that the clerk of the probate court generate a special notice called a citation for each beneficiary. The citation must then be served in person by a licensed process server upon each beneficiary who is a resident of Texas and whose address is known, or by publication in a newspaper otherwise. The expense for having the clerk issue the citation and then arranging for it to be served or published falls upon the person trying to probate the will, and those fees can amount to hundreds of dollars depending on how much the county charges for issuance of citation and how difficult the recipient is to track down and serve. Thus, by leaving an estranged child $1 instead of nothing at all, you may inadvertently add to the financial burden and inconvenience that your loved ones have to contend with as they probate your will.

The one-dollar method can produce an even worse result when all of the executors named in the will are unavailable to serve. In that scenario, a person not named in the will to serve as executor can apply for the position and the court may appoint them if they are otherwise qualified. However, for a non-named executor to serve on an independent basis – that is, without having to keep a detailed financial accounting and have their attorney go back to court over and over again to get their actions pre-approved by the judge – Texas Estates Code 401.003 requires all of the named beneficiaries to give their written consent. If even one beneficiary refuses to consent, then administration by a non-named executor can only be done on a dependent basis with mandatory court oversight, potentially dragging the case out for years and adding thousands to the associated legal fees. Again, the requirement to get a beneficiary’s consent to independent administration does not take into account the size of the beneficiary’s gift. A $1 beneficiary has just as much power to obstruct administration of an estate as any other.

To summarize: Successfully admitting a will to probate in Texas sometimes requires that the named beneficiaries of the will be actively involved in the process, even if their gift is just one dollar. By leaving an estranged child an insultingly small gift as a way to make a statement, a parent may accidentally add to the cost of probating their estate or even hand the disinherited child leverage to prevent the administration from proceeding.

What should I do, then?

An attorney wishing to help their client disinherit a child in their will should ensure that the will identifies all of the client’s children by name, including the one that the client wants to disinherit. The drafting attorney should then ensure that no gift is left to the disinherited child at all in the section describing the disposition of the testator’s estate and include a statement that the choice to omit any gift to that child was deliberate. Doing these two things should deter challenges to the will’s validity in the same way the one-dollar method does without triggering the notice and consent requirements of the Texas Estates Code.

A well-versed estate planning attorney like the ones at the Silberman Law Firm can help you sort myth from reality when it comes to drafting your will and avoid imposing burdens on your loved ones that you never intended.

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