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Things to consider before disinheriting a child

Let’s say that, for one reason or another, you are not as close to one of your children as the others. Perhaps your current relationship is strained, or you have no relationship at all. Things may have gotten to the point that you are thinking about leaving your adult son or daughter out of your estate plan.

As a testator in Massachusetts, you have the right to leave the assets of your estate to whomever you want. Of course, the law and your family dynamics are two different things. If not handled carefully, your choice to disinherit one of your children could cause a huge fight in your family, with members choosing sides and causing hard feelings that last for years. Also, the disinherited child could challenge your will in probate court.

Here are some tips for making disinheritance as gentle and smooth as possible:

Consider a living trust

Making a living trust the centerpiece of your estate planning instead of the will has several advantages, including when one of your children will be getting a smaller share of the estate or none at all. For one thing, it can be more difficult to prove that a living trust is invalid than when challenging a will. Most living trusts are created years before the creator’s death, with a track record of accounts in the trust’s name. That tends to show the creator was of sound mind and not under duress when they created the terms of the trust.

A trust is also a private document. A will goes into the public record, which can embarrass a disinherited child.

Include a ‘no contest’ clause

A No Contest clause, or In Terrorem, states that any heir who challenges the validity of the will automatically loses their inheritance. It may make sense to leave your child at least a token amount, to give them something to lose if they file a challenge.

Discuss your estate plan with your family

If possible, hold a family meeting to discuss your plans. Your family members may not like what you have to say, but at least they will not be surprised after you pass away.

Issues of disinheritance, or even leaving one child less than their siblings, must be handled properly to minimize the chances of a fraught legal battle in probate court later on. Discuss your desires with your estate planning attorney to make sure your plan is free from defects.

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