Disinheriting a child is a difficult choice. But sometimes, more is a problem, even bad for the child. Or perhaps the child doesn’t represent what you value. If disinheriting is the choice, there are do’s and don’ts to remember.
Are you thinking about disinheriting a child from your estate? Make sure you know what you are doing before tackling this sensitive subject.
Although it is always a painful decision, some parents feel like they have no other choice but to disinherit a child. There are good ways to go about doing so and there are bad ways to do it.
Recently, the Wills, Trusts & Estates Prof Blog, published by my friend Professor Gerry Beyer, a fellow Texan now teaching at Texas Tech Law School, provided an excellent list of considerations titled "Do's and Don'ts When Disinheriting."
Here is the list from that post:
- Do Consider a Skip Bequest - If the child you wish to disinherit has children, consider passing the inheritance for the child’s children (i.e., your grandchildren) directly. If the grandchildren are still minors, you can leave the inheritance in a trust.
- Do Consider an Incentive Trust - If the reason for wanting to disinherit a child is behavioral, you can use a trust that only gives money to the child for the appropriate behavior.
- Do Document Your Decision – Make a record of your decision and why. This will make it more difficult to challenge later on.
- Don't Neglect to Name the Child in Your Will - If you leave the child's name out of your will completely, the court might think you simply made a mistake and include the child anyway. This again goes to documenting the decision and clearly reflecting such decision in your will. Personally, I do not document the reasons in the Will, rather I do it separately, but I do clearly state that the decision to exclude has been made in the Will. I just leave the reasons out of the Will.
- Don't Rely on a “Toothless” No Contest Clause – With my pardon to Professor Beyer, I have added the “toothless” reference, to clarify the idea of this point. Since a no contest clause simply cuts off any gift to someone who contests the Will, leaving them $1.00 is not much of a loss or deterrent. Consider leaving enough to make the child think twice about loosing the gift they received. This is purely situational, and depends upon the circumstances. But, someone who does not stand to inherit under your will is not stopped by a no contest clause from challenging your will.
See an experienced estate planning attorney if you have questions about disinheriting a child. This is not a do-it-yourself project.
Reference: Wills, Trusts & Estates Prof Blog (November 9, 2014) "Do's and Don'ts of Disinheriting"