Should I Disinherit an Heir?

We typically think of estate planning in the affirmative, as in who are we going to give our assets to upon our deaths.  However, sometimes one of the most difficult estate planning decisions couples make is who not to give assets to, particularly when the person is your child.  Deciding to disinherit someone is never a quiet, private act.  If the person would have inherited from you if you did not have an estate plan, he or she is entitled to a copy of the will or trust that calls for their disinheritance.  If you are planning to “write someone out” of your estate plan, there are some important issues you must deal with in order to make sure it is handled as well as it can be.

First, carefully consider why you are disinheriting the person.  Doing so may help determine whether there are alternatives available or what problems are likely to arise.  For example, if you have a child battling an addiction whom you simply do not wish to enable, perhaps you can retain any inheritance in trust and require certain contingencies to be met.  Similarly, you might set aside a certain sum to be paid only to a rehabilitation facility.  Other situations may call for other modes of distribution outside of full disinheritance.

If you are certain that you wish to completely disinherit an heir in your will or trust, the act often leaves the heir confused and, sometimes, hostile.  In order to protect your intended beneficiaries, it is important to be on the defensive about possible challenges to your estate plan.  Primarily, challenges come in a few flavors: lack of capacity, undue influence, and duress.  By anticipating a challenge, you may ensure that all of the circumstances regarding creating, formulating, and executing your plan are carefully and appropriately documented.

When speaking with your attorney, make your concerns about a contest known in advance.  Make sure that your appointments are private and, more particularly, that your preferred beneficiaries are not present at all, if possible.  You might also consider writing a letter stating your feelings and the reasons you are disinheriting a particular person, although you should do so with extreme caution.  While a letter may resolve some of the hostility with the disinherited heir, depending on its contents, it may bolster the disinherited heir’s contest.  Additionally, careful wording of the letter is important because it is the last statement the heir will ever receive from you.  Finally, acknowledging the disinheritance in the will or trust is helpful so that it is clear the potential beneficiary was not simply overlooked.

Although you should make sure that a strongly worded “No Contest” clause is included in your documents, it is important to recognize that its impact will be minimal if an heir is completely disinherited already.  The primary threat of a no contest clause is complete disinheritance if a beneficiary contests the will or trust.  In order to give your no contest clause some teeth, however, it is possible to leave a relatively small amount to the person whom you wish to disinherit (but enough that person would consider significant) so that there is something to lose after an unsuccessful challenge!

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8/22/2013