Downs Law Firm, P.C.

Disinherit a child

When Is the Best Time to Disinherit a Child?

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I have a sister, who I have not seen or heard from in 40 years, when she said she hated all of us and never wanted anything to do with us again. She even gave up her 5-year-old son for strangers to adopt and would not let my parents adopt him.

Disinheriting a child may sound like something out of a Dickens novel, but sadly, it is real life for some people. A woman is mourning the loss of her mother. She is the trustee and only beneficiary of her mother’s trust, as explained in the article “It’s never too early to disinherit children,” appearing in the Santa Cruz Sentinel. After disappearing for decades, her sister visited with the mother a few times a year toward the end of the mother’s life. Now, the sister has retained an attorney to challenge the trust, accusing the woman of elder abuse and stating that the mother was insane.

What can this sister expect?

The goal of the formerly absent sister is to get the trust thrown out so that the estate will pass equally between the two sisters. She can accomplish this if she is able to invalidate the trust and invalidate any prior wills the mother may have signed disinheriting one sister and leaving everything to the other sister.

She may not have a case with a lot of merits, but it is going to cost a large sum to defend the estate plan. The frivolous disinherited claimant often wants to force a quick payoff.

Whether the case is successful may depend upon the circumstances surrounding the creation of the trust. In the best case, the mother would have gone to see the attorney by herself and created the trust with zero involvement of the sister who is the trustee. Even better would be if the trustee sister didn’t know a thing about the trust or the estate plan, until after it was completed.

Here’s the concern: if the mother created the trust only after she became dependent on the more involved sister, and if that sister selected the attorney, made the appointment, and had a conversation with the attorney about how awful the other sister was, then it will be hard to prove that the trust was set up purely on the mother’s wishes.

It’s an odd lesson, but in truth, it’s never too early to take steps to disinherit children. If someone knows that they are going to create an estate plan that is going to make one or more people very unhappy, the sooner they document these wishes, the better. It should be done while the person is still living independently and does not require a lot of help from any family member.

Keeping the people who will benefit from the disinheritance out of the creation of the estate plan is best because it further removes them from involvement and is better when they are accused of being manipulative.

The best tactic is to create an estate plan with the help of an experienced estate planning attorney who can serve as a neutral and unbiased witness and can testify to the fact that the person knew what they were doing when the estate plan was created.

One error to avoid is leaving someone $1.00. It gives them rights to see accounting and reports they would not otherwise receive. Also, verify that the disinherited child is not a beneficiary on a life insurance plan or IRA, as the will or trust won’t override the beneficiary form.

If someone has long been disinherited, and the new plan continues that, it can really help to keep the old plan as evidence of a longstanding estrangement.

Reference: Santa Cruz Sentinel (June 2, 2019) “It’s never too early to disinherit children”