So your kid is a brat, never calls, always treats you poorly, and you want to disinherit him or her? Well there is a right way, and a wrong way, to go about doing that.
Typically when a child is disinherited, a lawsuit is soon to follow. In California, you have the right to disinherit a child, the law does not require you to leave anything to adult children. But that does not mean the child will be happy with your decision. And if you benefit a different child, or neighbor, or friend instead, there is going to be a fight.
I have heard many different ideas from many different attorneys as to how you can lay out your thoughts and intent to disinherit a child in a Trust document. And explaining your intent is always a good idea, but that explanation will not prevent a lawsuit. In my opinion there is only one thing that will prevent a lawsuit: RISK.
By risk, I mean giving the child enough of a gift that the thought of losing it under a no-contest clause would prevent that child from wanting to sue. For example, if you have a $1 million estate, and you have two children, giving one child nothing provides no risk of loss to that child. The child can contest the Trust or Will all day long and never worry about a no-contest clause because they are getting nothing in any event. If, however, you were to give that child $250,000, then the risk of loss becomes far more real. From a practical perspective, once a child has some significant money to lose, the threat of a no-contest clause becomes much greater.
Maybe the gift can be smaller than $250,000, it all depends on the circumstances of your estate and the circumstances of each child. The point here is to provide not just a legal barrier to suing, but more importantly, a financial incentive. By giving a child a real risk of financial loss, you are preventing a lawsuit from taking place. And that’s really what you want anyway.
So the next time you decide to cut a brat from your estate, be sure to consider how to build in some risk of loss for that person. The more they have to lose, the more likely you are to prevent a lawsuit.