“How do I disinherit someone?” This question comes up a lot more frequently than some people might imagine. Disinheriting a child, or anyone, from your estate plan, will, trust, or other assets is possible. However, take care to make sure you do so properly and we highly recommend professional assistance. Before making the decision to disinherit a child, consider the following:
Why are you disinheriting a child?
There are great reasons to disinherit a child; there are also some bad ones. The most common reasons we see for disinheritance are: estrangement, addiction or other poor life choices, or where the child is already financially secure and the parent wishes to help others. Keep in mind, if the intent is to control some type of behavior, there may be better tools than disinheritance.
Never make threats.
If you have decided disinheritance is the best option, do not use it as a threat to manipulate behavior. This rarely encourages an adult child to make the changes you seek. Rather, it often creates greater divides in the relationship and may create opportunities for the child to contest your Will or Trust.
Make your intentions clear.
Many well-meaning parents, and lawyers, have caused contestable clauses in Wills and Trusts due of poor wording. Do not assume leaving a child’s name out of your Will or Trust will accomplish your disinheritance goal. Also, you would not typically want to include the reasons for disinheriting someone. Professional assistance is always encouraged.
If your goal is to help a child conform or stop some type of behavior, there may be better options. Using Revocable Living Trusts with special provisions that give the trustee the power to withhold funds from an adult child may be more effective. You can regulate some behavior, while satisfying your gifting goals. We like to think of Trusts as a way for our clients to exert control from the grave. If disinheriting your adult child is the best course of action today, you may want to give someone you trust a “Power of Appointment” to “undo” the disinheritance if the child gets their act together.
A token gift.
If you ultimately decide to disinherit someone from your Will or Trust, you may want to give a token gift in conjunction with an in terrorem clause (aka “no contest clause”). This clause tells the court if someone challenges your Will or Trust, then that person is to be completely disinherited. The court may not enforce this provision if the challenging party makes a good faith challenge based on undue influence, lack of testamentary capacity, or improper execution.
Disinheriting someone from your Will or Trust is possible and accomplished with some frequency. Keep in mind, not all disinheritances are allowed by law. Typically the law will protect spouses and minor children from disinheritance (or at least full disinheritance). We encourage you to seek professional assistance prior to making this decision and to draft any such documents. Contact us today if you have questions about your estate plan or disinheritance. (636) 352-1222