Have you decided to disinherit a child, leaving him/her nothing in your will? Perhaps you’re estranged and there’s been no contact for years…or your child is well-off and you prefer to leave your money to charity.
Problem: If you simply don’t mention the child in your will, the courts could regard that as a pretermitted heir, meaning that you omitted him unintentionally. So…if your child contests the will and the court rules that he is a pretermitted heir, the court will award him a share of your estate…which leaves less for your named will beneficiaries to inherit.
To ensure that your assets are distributed according to your wishes, take these steps if you decide not to leave one of your children an inheritance…
Mention the child by name in your will, and state that you don’t wish him to inherit. This is especially critical if your other children will receive bequests. Suggested language: “I intentionally and with full knowledge omit my son [name] as a beneficiary and do not make any gift or bequest from my estate for this child.”
Don’t provide an explanation in your will for why you are disinheriting a child. Reason: Your child could challenge your decision to disinherit him in court by claiming that your decision was based on a factual mistake. Example: You state in your will, “My son is reckless with money and went through bankruptcy.” But if your son never actually filed for bankruptcy, the court could decide that you would have made a different choice if you knew the real facts.
Include a letter from your physician near the time you sign your will. One of the most common challenges to a will or living trust is lack of testamentary capacity. In other words, the testator (the person making the will or living trust) did not understand the implications of what he was signing. To counter that claim, ask your physician to write a letter on his/her letterhead that states you are capable of understanding and making decisions regarding your medical and financial affairs.
Videotape the signing of your will or living trust with witnesses present. Another common challenge to a will or living trust is undue influence—meaning that someone in a position of trust or authority exercised improper coercion when you signed the document. A video of your “signing ceremony” can serve as evidence that you were not under such coercion when you signed your documents and that procedural requirements for a valid will or living trust were satisfied.
Consider leaving your child a more-than modest bequest—contingent on him not challenging the will or living trust. Leaving your child something may make him think twice before challenging your will or living trust. If he chooses to file a lawsuit challenging the validity of your document to get a bigger share and loses, he forfeits his share entirely. This can serve as a deterrent and save your estate the hassle and legal fees to uphold the validity of your will.
Add an in terrorem or no-contest clause…but don’t rely on it. Every will and living trust should have a provision that says any beneficiary who opposes the inheritance instructions gets nothing. But in some states such as California, courts rarely enforce no-contest clauses if your child has “probable cause” (good reason based on credible facts) upon which to base the challenge.
