Legal Insights

LEGAL TEAM SPEAKS – OCTOBER 2010

Robert R. Smith, Esq., and Gilda O. Karpouzian, Esq., are practicing lawyers in Maryland with over 30 years of experience.  Their answers below are based on assumptions that Maryland law applies.  Mr. Smith can be contacted at 410 268-5600 or info@fjbslaw.com and Ms. Karpouzian can be contacted at 410 280-8864

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Dear Legal Team:

            We love our kids but are finding that our grandkids are lots more fun. They give us lots of attention and respect. We want to pass over our children and leave what we have to our grandkids who have not reached the age of their majority. If we do this, can the courts overturn it if our kids decide to go after it?

Grandmom

Dear Grandmom:

            The question you raise is whether you can disinherit your children and leave your assets to your beloved grandchildren. Evidently your children no longer fall within the “beloved” category. 

            As long as an individual adult is legally competent he or she can decide how their assets should be divided and who should be receiving from their estate.  The last will and testament that one executes disinheriting children should clearly have language listing the children that are being disinherited and language providing some information as to the reason for not allowing for such children.  You can also have language included in the last will and testament that allows zero to be provided to any child if such a child contests your will by filing caveat proceedings.  

            As to the grandchildren not being adults, you can leave assets in trust for the benefit of the minor grandchildren and designate a trustworthy individual or entities to act as trustee for the benefit of the children.  Your last will and testament would have to include language about the creation of the trust.  Through language in the will, you will have to provide the age at which each grandchild is to receive their inheritance free of the trust.  The trust that will be created by your direction in your will authorizes creation of the trust upon your death and appointment of a trustee or trustees as you direct in your last will and testament.  The trustee appointed by you in your last will and testament will have the authority to pay to the grandchildren income from the trust and other additional funds as directed by you in your will.  

            If you do not want to create a trust via your will, and you want the grandchildren to receive their inheritance at age 21 and not older, then your will can leave the assets in trust for the children by the use of a statute entitled Uniform Trust to Minor Act (UTMA), which provides for the powers and authority of the trustee to act on behalf of the grandchildren who have not yet reached the age of 21 at your death and for the assets to be distributed to the grandchildren as each reaches the age of 21. 

            You should consult a lawyer in drafting such a will to leave assets to grandchildren and disinherit your children to make sure that your wishes are followed through after your death. 

Dear Legal Team:

            My neighbor’s perfectly healthy tree roots encroach on my property, causing plumbing and foundation problems to my house. I would like to dig up the roots that are on my side of the property. Can I do that? Can I hold my neighbor responsible for the damage his tree roots have caused?

Frustrated neighbor 

Dear Frustrated Neighbor:

            First, as a general matter, courts have uniformly held that you as a landowner do have a self-help remedy to clean up and care for your own property. Thus you have a right to cut encroaching branches, vines and roots back to your property line. You are limited, however, to cutting back growth to your side only. You may not enter the adjoining landowner’s property to chop down a tree or cut back growth without your neighbor’s consent. Courts will not, however, generally impose liability against your neighbor for damages resulting from the natural growth of trees, such as clogging your sewer line. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself rather than subject the other to the annoyance and burden of lawsuits which would likely be innumerable and in many instances purely vexatious. Maryland courts, for example, decline to impose liability upon an adjoining landowner for the “natural processes and cycle” of trees, plants, roots and vines.” In such cases you must assume responsibility for the care and preservation of your own property. As one Maryland court stated, “Along with the benefits derived from property ownership come certain obligations. Property maintenance of one’s own property is one of those obligations.” So we wish you happy digging. 

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This site provides information about the law. Legal information, however, is not the same as legal advice about your specific circumstances. We try to be accurate and useful.  We strongly recommend that you consult a lawyer to find out what is appropriate to your particular situation. We are not giving specific legal advice to you.  These answers do not create an attorney-client relationship.

 

 

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