Although most parents do not want to disinherit a child, sometimes they become estranged for reasons ranging from disrespect by the child to the child doing some sort of criminal act. As a result, sometimes disinheritance becomes logical and needed.

The following are a few ways to increase chances that the disinheritance will be successful (the disinherited child could always bring suit).

1.No Contest Clause– In almost every Will or Trust we prepare there is a no contest clause – meaning if a beneficiary contests, then they run the risk of getting nothing.

However, if the disinherited child was not named as a beneficiary or only receives a nominal amount, then he or she may have nothing to lose by bringing suit. As a result, sometimes the parent leaves the child some sort of bequest that the child might think twice about losing before contesting as the child would run the risk of not getting anything.

2. Be Vague as to the Reason for Disinheritance– If you give a specific reason as to the disinheritance and your reason was not totally accurate, the disinherited child might challenge the Will stating the reason for disinheritance was a product of fraud (perhaps undue influence of another child who stood to gain by giving the parent false information or perhaps there is more of a question as to the parent’s mental capacity). Normally, we have a provision such as “I have provided for (name of child) to the extent desired during my life” or “for reasons personal to me”.

3. Name the Child Being Disinherited–If you don’t specifically name the child being disinherited, then the disinherited child may argue it was simply an error or mistake.

4. Consider a Trust– Although a trust can always be contested, it is easier to contest a Will since a court order is required before a Will is determined valid. This leaves the Will being subject to the risk of human error in the preparation and/or signing, witnessing and notarization of the Will, the risk of misplacing the original Will (the court presumes the Will is destroyed), and meeting all of the requirements of the Texas Estates Code including the time period required before a Will can even be probated. A trust reduces those risks since a trust never dies or becomes disabled.

5. Hire Legal Counsel– Although holographic (all in writing) Wills and Wills bought online can be valid, the risk of error as to your goals is generally substantially increased – especially when attempting to disinherit a child. Generally, holographic Wills and internet forms increase cost of legal fees after the death of the person who signed the Wil.

If interested in learning more, consider attending our next free “Estate Planning Essentials” Workshop on either Saturday, March 16, 2019 at 10:00 a.m. or on Thursday, April 4, 2019 at 1:00 p.m. by calling us at (214) 720-0102 or signing up online at www.dallaselderlawyer.comor by clicking here.

You can also listen to Michael’s podcast on this subject by clicking here.

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