Disinheriting Children in Massachusetts
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Massachusetts law allows you to disinherit any family member except for your spouse. You need to make sure this is done right, however. Otherwise the child who was disinherited or received less could contest your will in the probate process. This decision could also have unintended consequences that you should understand before finalizing your plan.
Reasons a Child Might Be DisinheritedThere are many reasons a parent might consider this. You may have an adult child who is already wealthy and taken care of and another with a greater need. If your primary asset is a family business, you may have children who are capable of and interested in taking over that business and others who are not.
You may also have a child from another marriage who is taken care of differently in your estate plan. We helped a man who had a child in a different country from a first marriage who was receiving all of his property in that country. Even though in the end all of his children were taken care of equally, he had to specify that this child was omitted from his U.S. will so that his children here could receive all that he intended for them. |
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Alternatives to Disinheritance
Depending on what you want to accomplish, there may be different ways to go about it than writing a child out of your will.
If you are contemplating this because you don't want a child with special needs to lose government benefits, you can do this with a special needs trust.
If your concern is that you have an adult child who is not good at managing money, or has creditors, you can leave assets for that child in a trust. The trust can be written so that the trustee can oversee the child's management of money. It can also be drafted to protect the assets from creditors, or sometimes ex-spouses.
It is important to be clear with your estate planning attorney about what your goals are, because there may be ways to accomplish them that you had not considered.
If you are contemplating this because you don't want a child with special needs to lose government benefits, you can do this with a special needs trust.
If your concern is that you have an adult child who is not good at managing money, or has creditors, you can leave assets for that child in a trust. The trust can be written so that the trustee can oversee the child's management of money. It can also be drafted to protect the assets from creditors, or sometimes ex-spouses.
It is important to be clear with your estate planning attorney about what your goals are, because there may be ways to accomplish them that you had not considered.
Disinheritance: A Cautionary Note
Even though it is perfectly legal, leaving a child out of your will or estate plan can create complications for your family. Understand first that this will create conflict between your surviving children.
Second, especially if you have substantial assets, the child who is left out is more prone to contesting the will in probate court. They could claim that someone exercised undue influence and therefore the will is invalid. If you are older when you make your will, it is more likely that they will challenge your mental capacity to make or change your will.
Finally, whatever decision you make about your child you are also making to some extent for their children, born or unborn. Whatever your reasons for disinheriting the child may not apply to future grandchildren.
For all of these reasons, it is important to explore all of your options with your estate planning attorney so that in the end your plan truly does what you want it to for your family.
Second, especially if you have substantial assets, the child who is left out is more prone to contesting the will in probate court. They could claim that someone exercised undue influence and therefore the will is invalid. If you are older when you make your will, it is more likely that they will challenge your mental capacity to make or change your will.
Finally, whatever decision you make about your child you are also making to some extent for their children, born or unborn. Whatever your reasons for disinheriting the child may not apply to future grandchildren.
For all of these reasons, it is important to explore all of your options with your estate planning attorney so that in the end your plan truly does what you want it to for your family.
How to Disinherit a Child
Massachusetts law allows you to leave a child out of your estate plan, but you have to be specific. Your will should contain language that directly states your intention to omit that child or children from your estate plan.
You also should bring your spouse into the conversation and into the estate planning process. If your surviving spouse is the primary beneficiary of your will and does not have an estate plan of his or her own, all of his or her assets will pass to all of your children eventually, including the one you intended to omit.
You can also talk to your lawyer about the use of trusts to ensure that your goals are accomplished after you are gone. For example, you can use a trust to provide for your spouse during his or her lifetime with the assets ultimately going to the child or children you intended to benefit.
Finally, it is important not to forget the things outside of your formal estate plan. If you have life insurance you should check to make sure the designated beneficiaries are still who you intend. Many people when their children are young name their spouse as the first beneficiary and their children equally if the spouse is no longer living. If this is no longer what you want, you should contact your life insurance company to change this.
The same is true of investment accounts, retirement accounts, and sometimes other bank accounts. Anything that has a designated beneficiary should be checked to make sure those beneficiaries are correct.
You also should bring your spouse into the conversation and into the estate planning process. If your surviving spouse is the primary beneficiary of your will and does not have an estate plan of his or her own, all of his or her assets will pass to all of your children eventually, including the one you intended to omit.
You can also talk to your lawyer about the use of trusts to ensure that your goals are accomplished after you are gone. For example, you can use a trust to provide for your spouse during his or her lifetime with the assets ultimately going to the child or children you intended to benefit.
Finally, it is important not to forget the things outside of your formal estate plan. If you have life insurance you should check to make sure the designated beneficiaries are still who you intend. Many people when their children are young name their spouse as the first beneficiary and their children equally if the spouse is no longer living. If this is no longer what you want, you should contact your life insurance company to change this.
The same is true of investment accounts, retirement accounts, and sometimes other bank accounts. Anything that has a designated beneficiary should be checked to make sure those beneficiaries are correct.
How Our Estate Planning Lawyers Can Help
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We are ready to help. We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
