Though a painful decision, parents can choose to leave a child out of the will. There is no law saying parents must leave assets to children—or divide their assets evenly among children. Estate planning experts provide suggestions on how best to avoid probate litigation when intentionally choosing to leave a child out of the will.
Every Family Is Different
There are plenty of good and important reasons why families may opt to leave a child out of a will—not all are sad or involve estrangement. For example, perhaps one child has already benefitted from assets in ways that are not obvious outside the family—but parents know and seek a path to fairness when creating a will. Perhaps allocation of limited resources requires attention to the special circumstances or needs of some adult children, while others are doing just fine. Whatever the reason for disinheriting a child, estate planning experts encourage plenty of transparent communication while there is time, even if the conversations are difficult and require courage. Though everyone may not agree with the decisions in a will, understanding the intentions can lead to honoring them when the time comes. Chambliss, Bahner & Stophel offer this advice for seeing difficult decisions about disinheritance through:
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.)
…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.
Securing expert legal guidance early on in the process of estate planning can help ensure sound decision making and clear documentation of wishes and intentions, which can be useful in curtailing conflict later. While advising on wills, attorneys can also provide guidance on selecting the executor who will administer it. Typically the executor is a family member or friend, but there are no rules requiring adherence to this tradition. Executing a will can be difficult and time consuming, so it is important to select someone who has the ability and diligence to carry out the duties, following the state’s probate process. If families anticipate conflict, an attorney may recommend selecting a neutral party as the executor or even securing a professional fiduciary.
Requiring an executor bond upon creation of a will and designation of the executor can be very helpful. Sometimes these bonds are specifically requested during the probate process. Essentially, an executor bond guarantees the faithful performance of the executor on behalf of the estate and beneficiaries and in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even before leaving the law office.
Consider A Trust
Sometimes parents are reluctant to leave an inheritance to a child in a will out of fear the gift will be mismanaged or used to fuel an addictive or destructive behavior. In these instances, Chambliss, Bahner & Stophel suggest: “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.” Learn more about trust strategies, such as “potted trusts” that may be helpful right here.
Across the country, lawyers find that partnering with Colonial Surety speeds up the process whenever courts require fiduciary or court bonds.
Colonial Surety’s direct, fully digital, user-friendly system reduces the time, hassle and expense typically associated with antiquated bonding processes. Our online bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, trustee and conservator. We also have: appeal, supersedeas, injunction, replevin and receiver bonds—and more.
For even more value added service, lawyers are invited to sign up for The Partnership Account® for Attorneys. Immediately upon signing up for this free service, you will have direct access to our complete online portfolio of court and fiduciary bonds–and your own private dashboard. Use it to quickly and efficiently obtain, track, manage and even e-file all the bonds needed to keep your clients and cases moving forward.
See for yourself today: The Partnership Account® for Attorneys.
Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.