Cutting someone out of your estate plan is a difficult but sometimes necessary decision. Not every family is happy, and not every child deserves an inheritance. Once you realize you need to disinherit your kid, the next thing to consider is: how to make it stick so they don’t sue your estate and cost your chosen beneficiaries hundreds of thousands of dollars in legal fees?
Unfortunately, you can’t stop them from suing entirely, but you can make it harder for them to win. Here are some tips to discourage them from trying:
- Make it clear they are disinherited
If you plan to cut them out completely, explicitly say so in the document. If you don’t say anything, they can argue that they were excluded by mistake. Instead, state who they are and that you have chosen to give them nothing. Extra bonus points will be awarded if you state why you decided to disinherit them – it proves the decision was not arbitrary, and the courts will give your intentions even more weight.
- Use a no-contest clause
The no-contest clause says that if a beneficiary contests your trust (i.e., they claim that it’s invalid), they will be disinherited and will get nothing. Of course, if you’ve already disinherited them, then they have nothing to lose. But if you want to give them a relatively small amount of money, the no-contest clause will make them hesitate to go to court.
- Make it clear that you are of sound mind
When a beneficiary contests a trust, the most common arguments are that 1) you were not of sound mind, or 2) you were unduly influenced, i.e., someone pressured you to disinherit them. There are a few ways you can preemptively counter these arguments.
First, you can have an attorney draft the document disinheriting the child. The attorney can testify as to your soundness of mind, and their testimony is given a lot of weight.
Second, you can get a Certificate of Independent Review, which is a document written by a second attorney confirming your soundness of mind. (If it’s not obvious, the second attorney must interview you before signing the Certificate.)
Third, you can have a specialist test you for cognitive impairment. This test is usually administered by doctors specializing in this area of medicine.
While these tips won’t guarantee a lawsuit-free estate administration when making the difficult decision to disinherit your kid, they will make your estate plan much more difficult to challenge. If you want to discuss your estate plan options, you can reach me at kaway@kawaylaw.com.
