"Are my children entitled to my money?" "Do I have to include them in my Will?" The answer may surprise you! Let us say one of your children has not contacted you since COVID in 2019. She has been off the radar and never calls. You may not feel obligated to give them an inheritance. Nj.com’s recent article entitled “We want to cut one child out of our will. Can we?” says that adult children are not legally entitled to an inheritance. Unfortunately, will contests happen where a child who is left less, or disinherited, thinks that a sibling has wrongly influenced a parent to leave more to him or her. This is particularly problematic if the parent is elderly and/or in ill health and completely reliant on that child for assistance. A will contest is a probate proceeding where interested parties dispute the validity of a will. The most common legal grounds for disputing the validity of a will are undue influence, duress, mistake and the decedent’s lack of capacity when they signed the will. To properly avoid a future will contest, you should work with a qualified estate planning attorney who will document his or her file and prepare a will for you with the appropriate language. In these situations, we are experienced in preparing for any possible will challenge and we can report that, as of this writing, no will drafted by our office has ever been successfully challenged. (knock on wood)
Note that it is not necessary or advisable to explain why you are disinheriting a child. That is because if you give a reason, that reason may cause controversy.
If avoiding litigation is a priority, as an alternative to totally disinheriting a child, your attorney can also talk with you about the different forms of “no-contest” clauses that can be placed in a will. This clause, also called an `in terrorem’ clause, indicates that if a beneficiary raises a claim with respect to the will, he or she will lose his or her inheritance.
There is also typically a time limit to contesting a will. For a no-contest clause to be effective, a child must be a beneficiary of some amount in your will. The courts will uphold this clause, unless it finds there is probable cause for bringing a court action.
In these situations we take special care to ensure that any challenge won't be successful! Often, we may ask the client to undergo an evaluation with their physician so as to foreclose any suggestion that the decedent was “incapacitated.” We work hard to make sure your wishes are carried out! If you find yourself asking the question: "Are my children entitled to my money?", and don't know how best to proceed, we have the proper experience to help! If you or a loved one are concerned about issues with situations like this in estate planning and elder law concerns including Asset Protection/Medicaid Planning and questions regarding long-term care and the nursing home, reach out to us! Book a call with us on our website: www.VAElderLaw.com to get started. We have offices in Bassett, Danville and Lynchburg to serve you.
Reference: nj.com (Dec. 2, 2022) “We want to cut one child out of our will. Can we?”