What to do if I want to disinherit one child and leave the other my entire estate and not have to worry about a Will contest?

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What to do if I want to disinherit one child and leave the other my entire estate and not have to worry about a Will contest?

I want to disinherit one child and leave the other my entire estate. My chosen beneficiary is competent and fair; my other child is a spendthrift and will burn through the assets quickly. I want to arrange my Will this way for the benefit of both children (my youngest will manage the assets for the benefit of both). I don’t have the resources to hire a lawyer to create a “spendthrift trust”. I want to write a simple contract with the disinherited child in which, for consideration, he agrees not to contest the Will. Can that work to make a Will challenge by my unstable child impossible?

Asked on September 20, 2011 under Estate Planning, New York

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You are best served by having an attorney at least review what you put together. You need to consider the tax implications (gift and inheritance taxes) for only having a will or only having a trust. If you wish to disinherit your one child and not the other, there are provisions you can place in the documents to specifically indicate you are disinheriting him or her. However, you cannot then create a document (trust or will) and have the other child serve as trustee to the other child to ensure proper spending is taking place; you either disinherit or you create a spendthrift trust. If you create a will and specifically disinherit the child you can also embed a provision that states the child cannot contest the will. Between those provisions, you should be okay.


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