Can You Omit A Child From Your Will Or Estate Documents?
There are certain times and certain situations, where, when you are making your estate plan, you may want to omit one of your biological children from that estate plan, or else, leave to them an inheritance that is significantly less than that of your other children.
This can happen for a number of reasons. Perhaps a child is well off financially anyway, and you feel your other children are more in need of the money. Other times, a child may be estranged or simply not on good terms with the family.
Legal to Omit
In California, it is perfectly legal to omit a child from an inheritance in your estate plan. Unlike spouses, children have no legal claim on property that overrides the express terms of a will or trust. However, just because you can legally omit a child, doesn’t mean that doing so comes without its challenges.
Challenges to Your Estate Plan
You can expect that the omitted child will likely contest your will or trust. They can do this by claiming incapacity, lack of mental capacity or undue influence. Successful or not, this can tie up your estate, leave beneficiaries fighting in probate court, and prevent beneficiaries from inheriting what they are supposed to inherit in a timely manner.
That means that if you are going to omit a child, you should make sure that your estate documents are completed at a time when you are healthy, and when your capacity or ability to be influenced, cannot be challenged.
Your estate documents should be clear as to the intention to omit, in order to avoid a claim of mistake—that is, someone saying they were left out of your will “by accident.” All children should be mentioned in the will, even if they are just mentioned for the purpose of saying they will inherit nothing.
After Born Children
Note that omitting a child that you currently have, is much different than a child being omitted because he or she was born after the will or other state document was executed. In that case, the omitted child will get whatever he or she would have gotten had there been no will (that is, if the deceased had passed away intestate).
This also applies to children who the deceased wasn’t even aware existed (or perhaps, believed the child to have been deceased) at the time the will or trust was created. It also applies to children adopted after the will or trust was created.
Another strategy to omit a child from your inheritance is leaving a significant amount of your assets to the omitted child’s parent. California law will assume that the parent will use that money or those assets, to care for, and share with, the omitted child.
A good estate plan now can avoid probate challenges later on. Call the Torrance will and estate attorneys at Samuel Ford Law today.