(ElderLawAnswers) - Unfortunately, not all families get along. If you are having problems with one of your children, you may not want them to benefit from your estate. There are several strategies for dealing with an estranged child in your estate plan.
Depending on the level of estrangement and the reasons for the estrangement, the following are the main approaches for treating a child differently in your estate plan:
Outright disinheritance. If you really do not want your child to receive anything from you, you can fully disinherit the child. To be safe, even if you are leaving a child nothing, you should specifically mention the child in the will and state that you are disinheriting him or her; failing to do so could make it easier for him or her to challenge the will. (You also need to specify whether you are disinheriting that child’s children, too.)
Disinheriting a child comes with a risk: He or she may contest the will in court, which can cost your estate time and money. There are steps you can take to try preventing a will contest, including making sure your will is properly executed, writing a letter to the estranged child to explain your reasoning, and removing any appearance of undue influence. Keep in mind, however, that nothing is foolproof.
Smaller inheritance. If you don’t want to disinherit your child entirely or wish to make it less likely the estranged child will contest the will, you may want to leave them an inheritance that is smaller than the amount you leave to other beneficiaries. Leaving a child a reduced inheritance may prevent him or her from contesting the will, especially if you include a no-contest clause (also called an “in terrorem clause”) in the will. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
Put the inheritance in a trust. If the reason you do not want to leave your child an inheritance is because you are worried about how they will use the money, you can leave the child’s inheritance in a testamentary trust. You can provide instructions to the trustee on when and how the trustee should disburse the funds in the trust. For example, you can instruct the trustee to disburse the money in small increments or only if the child meets certain conditions, like staying drug- or alcohol-free or working a full-time job.
Figuring out how to treat an estranged child in your estate plan is complicated and emotional. As Leo Tolstoy wrote in Anna Karenina, "Happy families are all alike; every unhappy family is unhappy in its own way." Talk to your attorney to determine the best strategy for you.