Most parents want to leave their children an inheritance if they can afford to do so, but that isn’t universally true. There are plenty of parents who decide not to give anything to one or more of their kids or leave them money in unequal shares. While it’s legal to do that, it can be problematic. If you don’t take certain precautions, disinheriting your children without ending up in court may be difficult. We recommend the following techniques to help avoid a will contest and minimize the hurt and family conflicts that often arise in these situations.
Explain the reason in the will
If you decide to disinherit or provide unequal inheritances to your children or other family members, it is a good idea to explain the reason in the will itself. The explanation should be specific and truthful and not a vague statement that the individual should know the reason why they were disinherited.
Inform the family member in advance
Many lawsuits arise because a family member is hurt and surprised to be left out of the will. Ideally, talk with your child. Explain what you did and the reasons for it either verbally or in writing.
Consider an equalization provision if some family members received lifetime gifts or loans
If your reason for disinheriting a child is because you gave more to that child during your lifetime, then an equalization provision in the will may be a better solution. Such a provision can account for unpaid loans or unequal gifts. Those amounts would be deducted from your child’s share of the inheritance.
Use an in terrorem or no contest clause
This provides that if an individual unsuccessfully contests the will, they will lose their inheritance. In order for this to work, the individual must have been given something valuable in the will that they will lose if they contest the will. If you are completely disinheriting your children, there is no disincentive to suing.
Use testamentary substitutes
To avoid a will contest, assets can be distributed outside the will by using gifts or putting them into a revocable trust during your lifetime. This way it doesn’t go through the probate process. Your child may still try to challenge a gift as a loan or seek to set aside the trust so it is still important to take some of the other protective measures mentioned in this post.
Limit the involvement of family members
In most cases, you and your attorney should meet to discuss your estate plan and execute your will without the presence of family members. This gives you the freedom to speak freely about your wishes and helps ensure that a family member is not exerting undue influence on you. It protects you and removes one possible ground for challenging your will.
Execute the will under the supervision of an attorney
In some states this establishes a rebuttable presumption that the execution was proper and makes it more difficult for someone to contest it. The execution ceremony should meet all statutory formalities, including having disinterested witnesses. If a will contest seems likely, it is a good idea for all the witnesses to be attorneys.
Create and execute similar successive wills
Every year, you can execute a new will which is substantially the same with only minor differences that do not relate to disinheriting your child. In this way, your family member must succeed in contesting every one of these wills in order to inherit.
Crafting your will carefully can help ensure it is not challenged. We assist clients with developing an estate plan tailored to their needs and goals that also minimizes the risk of litigation. Contact us for help today.
