People disinherit their children for a number of reasons. Maybe there are tax reasons, maybe to avoid making the child ineligible for government benefits or perhaps because of estrangement. If you are looking to disinherit a child and would like to avoid potential hurt feelings or probate court problems, there are certain ways to go about accomplishing these goals.
There are no laws specifically prohibiting you from disinheriting your child. However, if the child is a minor, you do have to leave something to the child’s guardian, or support the child in some other way (e.g. a trust). If you do not do this, the court will step in and use some or all of the assets in your estate to provide for your child’s support. In the case where you have one or more children after you create your will, and the will does not mention that child or children, the law considers them pretermitted, i.e. unknown at the time the will was made. The law treats pretermitted children either in the same way as your will treats your other children, or gives them the share they would have gotten if there was no will. These rules are in place to prevent parents from accidentally omitting their children.
Outside of these circumstances, you can disinherit a child simply by not listing them in your will. I do not recommend this however. If you want to disinherit a child, I recommend that you use specific language in your will that says you disinherit them. Another recommendation is that if you plan on disinheriting your child, you should write a letter of last instruction that gives your reasons why you are disinheriting the child. You should attach this letter to the will. You should not give the specific reasons why you are disinheriting the child in the actual will itself. If you give a reason in the will, it will open the door for the disinherited person to contest the will by offering evidence that the reason for the disinheritance was untrue.
When you specifically mention that the child is disinherited in the will, or when you write the reasons why in an attached letter, it is often very important to be careful of the words used. Even if you are disinheriting for a non-angry reason, your words can be misinterpreted, and you will not be there to clear things up. Harsh words will hit hard, and last a long time. It is also possible that you will reconcile with the child and not get a chance to update your will or letter of instruction afterwards.
If you are disinheriting for financial reasons, such as: disinheriting a financially successful child to give more to a child that needs more help or to keep money out of the hands of a child who is not financially responsible or who is a drug addict, there are other ways to handle this besides disinheritance. One main way is to use a trust. For the situation with a financially successful child, you can create a trust for both children, and have the trustee determine distributions by need. This helps the currently financially successful child if they were to get ill or have a financial setback, while still providing assistance to the child who currently needs it more. For the child that is bad with money or has an addiction, you can create a trust that only provides funds for specific items. An additional benefit of a trust is that, if drafted properly, the child’s creditors cannot reach the funds in the trust. By using these types of trusts, you can make sure that the funds go where you want then to, while still providing for your child.
As with everything having to do with your estate plan, it is always a good idea to discuss your wishes with your loved ones. Having a potentially difficult conversation now while you can still explain your thinking, can avoid misunderstandings and hurt feelings later.
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