04 Aug 2015

How to Cut The Lousy Kid out of Your Will

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You haven’t heard from him in 10 years, since he stole the money in your bank account. Or for many other reasons, he or she is a bad seed and you don’t want him or her to inherit your estate? It is possible to disinherit a child from your Will or Estate in most states in the U.S. The key to successfully writing a child out of your will or estate is to make it clear that this is a deliberate decision and to take careful steps to have all your estate planning documents in order.

Make your decisions
Disinheriting a child shouldn’t be done in a fit of pique. I always advise my clients to take time and deliberate carefully over the issue. I encourage them to take every step possible to heal the breach including things like mediation or family therapy. I ask my client to think carefully if they want their last legacy to their child to be a final word of disapproval. There is no forgiveness after death. But okay….

Of course, there are circumstances where a child may have done nothing wrong, but you still need to cut them out of the estate plan. You may decide that you need to devote your entire estate to the care of a child with disabilities, especially if your other children are successful and don’t need as much assistance. If you do make this kind of decision, talk it over with your other children so they understand your thoughts and won’t be shocked when your Will is read. If you do not provide an explanation either before or after you die, there is going to be resentment. Your perception of your action is not that of your children. But okay….

Get your paperwork in order
Once you’ve made the decision to cut a child out of your estate plan, the next step is to carefully detail your assets and the person or person you wish to inherit each asset. Decide on an executor, who will be responsible for administering your estate and making sure the transfer of assets goes smoothly and ends up with the correct parties. Then ask your estate planning attorney to help you prepare all necessary documents to back up your decisions.

Clarify
It is not a bad idea to draft a provision mentioning each child you wish to cut out of the Will. Name and identify each one and specify that they are to receive nothing, although some states require you to leave each child a token amount, such as $1. It is a very bad idea to fail to mention the child you wish to disinherit. Do try to avoid derogatory language and clearly state your position and concerns. Be cautious though. If your explanation is not well written it could be used as a means to challenge the will. A good estate planning attorney will know the rules of your estate and can help you create the proper documents.

No Contest Clause
No contest clauses in estate planning disinherit an individual if they contest or object to a Trust or Will or any of its provisions, restrictions or conditions. Such a clause should be included in a Will and/or Trust to protect the estate plan no matter what. When you are going to disinherit a child, it is a must.
People using to think leaving a $1 will work as an effective disinheritance. That is not such a good idea. It is probably better to leave a higher value to discourage any contest.

Avoid inadvertent disinheritance
Without a proper estate plan or Will, you can inadvertently disinherit children. For instance, you’ve married a second time and die intestate (without a Will or estate plan). It is possible that the community property laws in your state may take over and your second wife inherits everything, when you actually wanted the children of your first marriage to inherit.

Gregory C. Poulos
Poulos Law Firm, PLLC
11120 N. Tatum Blvd, Suite 101
Phoenix, Arizona 85028
Phone: (623) 252-0292
www.pouloslawfirm.com

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