7 Important Facts for Leaving Someone Out of Your Will

dan • March 2, 2022

Are you considering leaving someone out of your will? Perhaps one of your children needs more than others. Or maybe you will that some family members are not deserving of inheritance. There are, however, restrictions on who you can leave out of your will. Here are 7 things you need to know before removing an inheritance.

1. the spousal elective share

Perhaps you want to disinherit your spouse, perhaps because your spouse has his or her own money, or perhaps you are separated but have never completed a divorce. But will the law permit it? You can leave your spouse out of your will, but Colorado law allows your spouse to waive your will and inherit a certain minimum amount.


The amount to which your spouse is entitled depends on the amount of time the two of you have been married. In Colorado, a disinherited spouse can elect to receive 5% of your augmented estate for each year you were married. For instance, if the marriage was more than one year but less than two, the spouse can elect to receive 5%. Your augmented estate includes whatever is left after funeral and administrative expenses, creditor claims, exempt property allowances, and other expenses are paid. The amount an excluded spouse can choose to receive is capped at 50%.


This restriction can be circumvented with a prenuptial agreement in which your spouse agreed to receive some limited amount of assets upon divorce or your death. Be aware, however, that your spouse could also challenge the prenuptial agreement if it failed to comply with certain requirements, such as a failure to fully disclose all assets, or if your spouse can prove you coerced him or her into signing it.


2. Disinheriting Children

There are also limitations on disinheriting your children. You can disinherit adult children, something that people often do for one of two reasons. One is because the disinherited child may be more financially secure than others. Another is because the parent and child are estranged or otherwise at odds. Whatever your reason, we strongly recommend that you disinherit children reluctantly. This will be your last interaction with your children and the last thing they remember about you. And because you will no longer be around for them to take their frustration out on, they may direct their ire towards their siblings with litigation. All your children may end up with bitter feelings about your decision.


You cannot, however, disinherit children younger than 18. Disinherited minor children can elect to receive whatever they would have received under state law if you didn’t have a will. Children left out of a will that was written after they were born can make the same election if the will didn’t have any provision for “after-born” children.

3. Challenges to a will

There are a number of well-known instances of disinherited adult children challenging a will’s validity. Some were given token shares while others were totally disinherited, with the bulk of the estate awarded to someone who only entered the testator’s life shortly before death, or who didn’t seem to have the type of relationship with the testator that would typically lead to a large inheritance.


One sensational will contest involved the principal share owner of the Johnson & Johnson corporation, widely thought to be the most expensive will challenge in American history. Six children of Seward Johnson challenged the validity of his will based on lack of mental capacity, among other allegations. Johnson had left more than $400 million to his last wife,  BASIA PIASECKA JOHNSON , a Polish immigrant originally hired as a cook by Johnson’s second wife. The story was a fascinating tale of incompetent legal maneuvering, conflicting medical accounts, and allegations of undue influence, all combined with public revelations of an extremely weird and dysfunctional family. After three years of litigation, Basia settled with the family paying them about $43 million but keeping $340 million for herself.


Adult children frequently challenge wills from which they have been excluded based on the following causes of action:


  • Undue influence
  • Lack of testamentary capacity
  • Invalidity based on improper execution

Don’t assume that your estate is too small for anyone to bother fighting over. You may not have hundreds of millions of dollars like the Johnsons, but the sting of being left out of even a much smaller estate can lead to feelings of resentment. 

4. Undue Influence

Undue influence occurs when a testator’s intent is subjugated to that of another person. Undue influence gets alleged when there appears to have been some kind of pressure exerted on the testator to leave assets to someone other than the natural heirs. Undue influence often is accomplished by threats to reveal some indiscretion by the testator or to impose physical harm.



You need not prove that the testator lacked mental capacity or was otherwise mentally impaired. The challenger only has to show that the testator would have made a different disposition of property than what was done, and that the pressure or influence inflicted directly led the testator to sign the will or trust. Medical or psychological records supported by testimony from witnesses is essential to prove undue influence as well as expert medical testimony regarding the testator’s state of mind.

5. Lack of Testamentary capacity

Lack of testamentary capacity at the time the will was drafted and signed is another common basis for challenging a will’s validity. This is not an easy thing to prove. Courts presume a testator was of sound mind when the will was signed, and it takes substantial evidence to overcome this presumption. It’s a high bar to clear, especially if the will was signed years ago, and typically requires medical records from the time the will was signed. Occasional instances of unreasonable or illogical behavior or testimony regarding peculiar idiosyncrasies are rarely sufficient, especially if the testator had moments of lucidity. If the will was signed in an attorney’s office, it may be more difficult to prove lack of capacity since attorneys are usually careful to note evidence of the testator’s state of mind.

6. Improper execution

People who draft their own will frequently fail to follow all the requirements for proper execution. In  COLORADO , the testator must be at least 18 years of age and be of sound mind. He or she must sign the will in the presence of two disinterested witnesses (i.e., two people who have no financial interest in the will). If the person is physically incapable of signing, the testator may designate another person to sign for him or her, so long as that person is not one of the two required witnesses to the will’s signing. Each witness must sign in each other’s presence and observe the testator’s signing or be told by the testator that the signature is that of the testator.

7. You should not leave someone out of your will without professional assistance

If you have questions regarding disinheritance, please contact The McKenzie Law Firm. Our attorneys been advising, drafting and litigating issues regarding the validity of wills and trusts for years. Call our office today if you were disinherited from a will or if you need advice on disinheriting someone from your estate.

What Next?

If you think it might be time to think through your estate plan, you can:
  1. Give us a call at 303-578-2745 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
  2. Visit our estate planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
  3. Get a copy of our estate planning checklist to see where you currently stand.
  4. Learn more by eading our blog or watching our videos .

Differences Between a Trust and a Will in Colorado

April 14, 2025
Differences Between a Trust and a Will in Colorado

Who Can I Name as an Heir in Colorado?

March 13, 2025
Who Can I Name as an Heir in Colorado?

Consequences of Dying Without a Will in Colorado

February 12, 2025
Consequences of Dying Without a Will in Colorado

What Types of Assets Can Be Included in a Colorado Trust?

January 30, 2025
What Types of Assets Can Be Included in a Colorado Trust?

What is a Guardianship and When Do I Need One?

December 2, 2024
What is a Guardianship and When Do I Need One?

What Are the Required Documents to Create a Will in Colorado?

October 28, 2024
What Are the Required Documents to Create a Will in Colorado?

Probate in Colorado: A Guide for Families and Executors

October 1, 2024
Dealing with the death of a loved one is never easy, and navigating the legal process that follows can add stress during an already difficult time. In Colorado, probate is the legal process by which a deceased person’s estate is administered, their debts are paid, and their assets are distributed to beneficiaries. Whether you’re an executor, beneficiary, or family member, understanding how probate works in Colorado can help you anticipate the steps involved and your potential responsibilities. This blog post will provide an overview of the probate process in Colorado, outline when probate is necessary, and offer guidance on how to navigate the system effectively.  What is Probate? Probate is the legal process that occurs after someone dies to ensure their assets are distributed according to their will or, if there is no will, according to state law. The probate process includes validating the will, inventorying the deceased’s assets, paying off debts and taxes, and distributing the remaining assets to the rightful heirs. While probate is often associated with lengthy court proceedings, not all estates require formal probate. Colorado offers several options depending on the size and complexity of the estate, which can help simplify the process in many cases. When is Probate Necessary in Colorado? Probate is not always required in Colorado. Whether an estate must go through probate depends on the types and value of the deceased’s assets. Generally, probate is necessary if: The deceased owned real estate solely in their name. The deceased’s assets, such as bank accounts or investments, were not held in joint tenancy or designated to transfer on death. The deceased had personal property valued at over $74,000 (as of 2023). If an estate falls below this threshold and does not include real estate, the beneficiaries can often use a Small Estate Affidavit to claim the assets without going through probate. Types of Probate in Colorado Colorado has three main types of probate procedures: small estate procedures, informal probate, and formal probate. The type of probate required depends on the estate’s value and whether there are disputes among heirs or creditors. Small Estate Procedure (Collection by Affidavit) The small estate procedure can be used if the value of the deceased’s assets is less than $74,000 and does not include real estate. This process involves filling out a Small Estate Affidavit, which allows the heirs to collect and distribute the assets without opening a probate case in court. It is the simplest and fastest way to handle a small estate. Informal Probate Informal probate is used when there is a valid will and no disputes among heirs or creditors. The process is overseen by a court-appointed Personal Representative (executor), but there is minimal court supervision. Most of the process, such as distributing assets and paying debts, is handled by the Personal Representative, with only basic filings required with the court. Informal probate is less time-consuming and costly than formal probate. Formal Probate Formal probate is required when there are disputes regarding the will’s validity, disagreements among heirs, or if the estate is complex and needs court intervention. The process is supervised by the court, and all major decisions, such as approving the distribution of assets, must be approved by a judge. Formal probate can take much longer and involve more legal fees than informal probate. Steps in the Colorado Probate Process While the specific steps in probate can vary depending on the type of probate and the complexity of the estate, the general process in Colorado typically includes the following: Filing the Probate Petition The process begins with filing a Petition for Probate with the appropriate Colorado probate court. The petition is usually filed by the executor named in the will or an interested party if no will exists. Appointment of the Personal Representative The court will appoint a Personal Representative (executor) to manage the estate. If there is a valid will, the person named as executor is typically appointed. If no will exists, the court will appoint someone, usually a family member, to serve as the Personal Representative. Notice to Heirs and Creditors The Personal Representative must notify all potential heirs and creditors of the probate proceeding. This step is essential for providing an opportunity for interested parties to come forward and make claims against the estate. Inventory and Appraisal of Assets The Personal Representative must create an inventory of all the deceased’s assets and have them appraised if necessary. This inventory will include real estate, personal property, financial accounts, investments, and any other assets owned by the deceased. Paying Debts and Taxes Before distributing assets, the Personal Representative must pay off the deceased’s debts and any taxes owed. If the estate does not have enough assets to cover all debts, Colorado law dictates the order in which creditors are paid. Distribution of Assets Once all debts and taxes have been paid, the Personal Representative can distribute the remaining assets to the beneficiaries according to the will or, if no will exists, according to Colorado’s intestacy laws. Closing the Estate After all assets have been distributed and all required filings have been made with the court, the Personal Representative can file a Petition for Final Settlement to close the estate. Once approved, the Personal Representative’s responsibilities are complete. Challenges and Disputes in Colorado Probate Unfortunately, probate can sometimes become contentious, especially in cases involving high-value estates or when family members disagree on how assets should be distributed. Some common challenges in Colorado probate include: Will Contests Heirs or beneficiaries may challenge the validity of a will, claiming it was signed under duress, there was undue influence, or the deceased lacked the capacity to create the will. Will contests can significantly delay the probate process and require formal probate to resolve. Executor Misconduct If an executor is not fulfilling their duties or is mishandling estate assets, beneficiaries can file a complaint with the court and request the executor’s removal. Disputes Among Beneficiaries Disputes can arise over specific bequests, how assets are divided, or even the valuation of estate property. Mediation or formal court intervention may be necessary to resolve these disputes. How a Colorado Probate Attorney Can Help Navigating the probate process can be overwhelming, particularly when dealing with the emotional aftermath of losing a loved one. An experienced probate attorney can help in several ways: Guiding You Through the Process An attorney can explain the probate process, help you understand your rights and responsibilities, and ensure all legal requirements are met. Managing Court Filings and Deadlines Probate involves numerous legal documents and deadlines. An attorney can handle these tasks, ensuring that everything is filed correctly and on time. Resolving Disputes If disputes arise, an attorney can provide representation in negotiations, mediation, or court hearings to protect your interests and work toward a fair resolution. Minimizing Costs and Delays With the guidance of a skilled attorney, you can often minimize the time and expense associated with probate, helping ensure the process goes as smoothly as possible. How The McKenzie Law Firm, LLC Can Help At The McKenzie Law Firm, LLC, we understand the complexities of the probate process and are committed to helping families navigate it with compassion and expertise. Whether you’re an executor needing assistance with your duties or a family member looking to understand your rights, our experienced probate attorneys can provide the support you need. If you have questions about probate in Colorado or need legal assistance, contact us today to schedule a consultation. We are here to guide you through the process and ensure your loved one’s wishes are honored.

Understanding the Notice to Creditor Form in Colorado Probate: Pros and Cons

By Dan McKenzie • September 10, 2024
Explore the pros and cons of mailing Notice to Creditor forms in Colorado probate. Learn how this decision impacts estate administration and creditor claim periods.

Understanding Special Needs Trusts in Colorado

August 30, 2024
Understanding Special Needs Trusts in Colorado

Protecting Your Legacy: Beneficiary Deeds vs. Life Estates in Colorado

By Dan McKenzie • July 17, 2024
Explore the differences between beneficiary deeds and life estates in Colorado estate planning. Learn the pros and cons of each method for transferring property and avoiding probate, and discover when to use each option for your unique situation.
More Posts
Share by: