You must be extra attentive when disinheriting a family member.
You know how you want your estate distributed when you die.
You also have chosen to “disinherit” certain family members.
Your decision will make some people angry.
According to a recent Times Herald-Record article titled “Dealing with disinheritance, spouses,” estate planning can feel especially complicated when it involves an estranged child or problem with a son-in-law or daughter-in-law.
If you leave an inheritance directly to your child in your last will and testament, the inheritance could be lost to their spouse in the event of a divorce.
Even if your child and son-in-law or daughter-in-law remain married, the spouse could squander the funds.
Using a last will to disinherit a child can also cause problems.
A last will is used to direct your asset distribution through probate.
Because probate is public record, the law requires the court to notify all children of your death and impending probate proceedings.
This means the court will also notify any children you disinherited.
See where I am going with this?
If the disinherited child objects to the disinheritance provisions, then he or she can contest the last will.
Litigation over a last will can drain the value of your estate.
A “will contest” can destroy familial relationships, sometimes for generations.
What options do you have when disinheriting a child?
You could leave the child a small sum and add a “no-contest” clause to the last will.
With a no-contest clause, anyone who contests the last will loses the ability to inherit.
Even with a no-contest clause, the child may claim the last will was made under undue influence or improperly executed.
If these claims are recognized as valid, then your estate plan will be powerless.
When disinheriting your child, a revocable living trust is a safer choice.
With such a trust, you avoid probate on the assets titled to it or distributed to it upon your death by some form of beneficiary designations.
A trust created during your lifetime is regarded as more difficult to challenge by a disgruntled, disinherited heir.
With an inheritance trust created under your revocable living trust, you can leave money to your child and name a trustee to manage the trust on behalf of the child.
Only the child will be the beneficiary of the trust, keeping it out of the hands of a spouse.
If you child dies, you can choose what happens to the assets within the trust.
Taking this step can protect your assets if your children get into trouble with creditors or go through a divorce.
With divorce rates at 50 percent, it is better to be safe.
Discuss your situation with an experienced estate planning attorney if you want to disinherit a family member.
Reference: Times Herald-Record (June 6, 2020) “Dealing with disinheritance, spouses”