Am I Required To Treat My Children Equally in My Estate Distribution Plan?

No. The manner in which you wish to distribute your assets upon your death is very personal in nature. You may choose to have your assets distributed equally among your children or in whatever proportions you may deem appropriate. If you do not take your estate planning into your own hands, the state in which you live will normally have its own distribution scheme, which seldom represents a decedent’s wishes. Since every person’s situation is different, your estate planning attorney will draft your estate planning documents to comply with your wishes while, at the same time, directing you toward realistic and tax-effective goals.

You may want to disinherit a child for several reasons. Your child may have sufficient resources of his or her own; your child may be undeserving of an inheritance; your other children may have greater or special needs; or you may not want to compound a child’s own estate tax liability. Most state laws permit you to totally disinherit a child, regardless of reason. However, care must be taken in order to effectively disinherit a child.

First, it is important that you have a will or a trust. If you die intestate (without an estate plan), state laws provide that your children are entitled to a share of your estate. Therefore, if you die intestate, the child you wanted to disinherit will share in your estate against your wishes. If it is your intention to disinherit your child, it is imperative to specifically reference that child by name in your will and/or trust and acknowledge that you are intentionally not providing for that child. Failure to do so could allow that disgruntled child to claim that he or she was unintentionally "omitted" from your estate plan and force a share of your estate, thus thwarting your wishes.

Using a trust may provide additional benefits over a will when intentionally disinheriting a child. Because trusts are not automatically subject to the jurisdiction of the probate court, the notification requirements of the probate court do not apply. The trustee of your trust is under no obligation to provide the disinherited child with the details of your estate plan since he or she is not a beneficiary. Additionally, should your disgruntled, disinherited child choose to challenge the validity of your trust, he or she confronts a number of obstacles not present in the probate process.

Disinheritance is a personal issue. One who wishes to disinherit a child may find that there are other effective options, such as putting assets in a separate trust for that child, with a trustee of your choice making the decisions of what the money can, and can not, be used for. It may be wise to consult an estate planning attorney to become informed of all your options before making decisions that affect the distribution of your estate, and possibly the harmony of your family, once you are gone.

Jeffery J. McKenna is a local attorney licensed in three states and serving clients in Utah, Nevada, and Arizona. He is a partner at the law firm of Barney, McKenna and Olmstead, with offices in St. George and Mesquite. He is a founding member of the Southern Utah Estate Planning Council. If you have questions or topics that you would like addressed in these Wednesday articles please email him at jmckenna@www.barney-mckenna.com or call 628-1711.