There are reasons you might decide to disinherit a family member (not leave them any money or property), like an adult child. Perhaps you’ve already given them their inheritance distribution, they are presently very wealthy, or you’ve become estranged from them. So, how can you ensure that this family member doesn’t inherit anything from you?
A Will isn’t a Good Idea
A will is a public document that anyone could get a copy of by visiting the clerk’s office in the Probate and Family Court in the applicable county. Also, Massachusetts law requires that all heirs be notified of your death. If you die with assets that are only in your name, your estate must then go through probate—a legal process that establishes the validity of a will. This process opens the door for your adult child to appear in court and contest the terms of the will. Your adult child could try to invalidate the will by saying you were under duress when you made it or that you lacked mental capacity when you signed it. Once there is litigation, many times family members become estranged from each other. Therefore, it’s best to plan ahead to avoid litigation as best you can.
You can disinherit a family member by including a statement in your will saying your child (include the person’s name) was intentionally left out of your will. This wording would make it difficult for your child to challenge the will based on the concept that they were left out of it because they were simply forgotten. You can also leave a small amount of assets to the child in the will and add a no-contest clause. That clause would say that if anyone contests the will, they will lose the right to their inheritance. The obstacle with this tactic is that the child could still contest the will. If they claim undue influence or incapacity and the court finds their claim valid, your estate planning will be affected.
A Living Trust is a Better Option
A living trust is a better choice to disinherit a family member. Trusts are private documents that don’t go through probate and only trust beneficiaries get notice that the trust exists. Normally, you would be the trustee and would manage the assets in the trust while you have the capacity to do so. You would name a successor trustee in case you become incapacitated or pass away. You should include wording that you’re intentionally disinheriting your child. It’s harder to dispute the terms of a trust than a will and you can include a no-contest clause.
There are some relatives you can’t disinherit. For example, you can’t disinherit minor children (kids under the age of 18) as Massachusetts state law indicates that any assets you leave behind when you die should be used to pay for the care and maintenance of these children. You also can’t disinherit your spouse. Under Massachusetts law, a surviving spouse has a right to share in a decedent’s estate.
Disinheriting a child can be a difficult decision. As an experienced Massachusetts attorney, I can talk over this sensitive matter with you and make recommendations on the best estate planning tools to carry out your wishes. Contact us today to schedule a free, no-obligation consultation.