Although it is a painful decision, some parents feel like they have to disinherit a child. If that is the choice you make, know that there are good and bad ways to go about doing so.

Although it is always a painful decision, some parents feel like they have no other choice but to disinherit a child. If that is the choice you want to make, then know that there are good ways to go about doing so and there are bad ways to do it.

CONSIDER A "SKIP BEQUEST" TO GRANDCHILDREN. If your child has children of their own, you might leave his or her share directly to the grandchildren, perhaps in a Trust or custodianship arrangement managed by one of your other children. That might be more palatable to you than leaving that family out of your estate.

CONSIDER AN INCENTIVE TRUST. You might leave your child’s share to an "Incentive Trust." This is a trust designed to encourage behavioral changes as a condition to receiving Trust benefits. For example, if your goal is to encourage your child to be drug-free, you might specify that they must test free of drugs for a period of 24 months before they receive any benefit from the Trust. You could also require that the child maintain steady employment and provide proof of same to the Trustee.

DOCUMENT YOUR DECISION TO DISINHERIT YOUR CHILD. If you feel there is any possibility that your child might challenge your estate plan on the grounds that you lacked capacity, take steps now to help your other children defend against a challenge later. You might leave Letter of Instruction or record an audio or video interview wherein you discuss your reasons for disinheriting your child. Additionally, it might be wise to secure from each of your physicians a letter affirming your capacity to make estate planning decisions.

DON'T OVERLOOK NAMING YOUR CHILD IN YOUR WILL OR TRUST. If you stay with your decision to disinherit your child, it might be tempting to not even identify the child in your estate plan. That would be a mistake. Were you to omit the child’s name entirely, the law could presume that you just had a memory lapse, and a judge could insert the child's back into your plan to take his or her proportionate share as an "omitted heir." To protect against this, you should specifically identify the child in your plan documents, and only then recite that he or she is left nothing.

DON'T RELY EXCLUSIVELY ON A "NO CONTEST CLAUSE." While designed to discourage Will contests, the common "no contest clause" often included in Wills and Trusts, standing alone, may not work. The typical no contest clause merely says that anyone who unsuccessfully challenges a Will or Trust receives nothing. It is designed to discourage a beneficiary from trying to get a larger share of one’s estate. However, if you propose to leave nothing to your child at the outset, they would have nothing to lose – and potentially a lot to gain – by challenging your plan. For this reason, it would be better to leave them something, say, just enough to discourage a contest. The child would then have something at risk, and the no contest clause would have a greater chance of achieving its purpose.

Revocable Living Trusts do work better than Wills to avoid contests. If you use a Will, the probate is open to the public and your Personal Representative must notify the disinherited child. Further, judges usually assume you were competent when you implemented the Trust as you had to go through the process of transferring assets to the Trust. With a Will, you just sign the document.

If you have questions about disinheriting a child or other family member or other estate planning questions in general, give us a call at 253.858.5434 to set up an appointment today.