Parents usually want to leave their children equal shares of their estate, but equal isn’t always fair. If you plan to provide more (or less) for one child in your estate plan, preparation is important.
It is natural for parents to want to treat their children equally in their estate plan, but there are some circumstances in which a parent might want to leave children unequal shares. If one child is providing all the caregiving, the parent might want to reward that child. If one child is substantially better off than another child, then the parent might want to provide more for the child who has a greater need for the funds.
Other factors that can influence how much to give each child is if one child has special needs or if there is a family business that only one child wants to run. It’s also possible that the parents have already provided more for one child during their lifetime, maybe by paying for graduate school or helping them buy a house.
Whatever the reason for leaving your children unequal shares, the important thing is to discuss your reasoning with the children. Sit down with them and explain your decision-making process. If you feel like the conversation could be difficult and contentious, you could hire a mediator to help facilitate the discussion.
Your children may be understanding of your decision, but if you are worried about one child challenging your will after you die, you may want to take additional steps:
- Draft your will and estate plan with the assistance of an attorney and make sure it is properly executed. To avoid accusations of undue influence, do not involve any of your children in the process.
- Explain in detail your reasoning in your estate planning document and make it clear that it is your decision and not the influence of the child who is receiving more.
- Include a no-contest clause (also called an “in terrorem clause”) in your will. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
- If you are uncomfortable with having a direct discussion, write a memo, keep it in a folder with your Will and other estate planning documents, and clearly state what your reasoning was and why you did what you did.
Unequal shares can lead to disappointment and sometimes legal challenges to your Will. To minimize disputes, the best thing is to discuss this with your children in advance so they know what your reasons were and hopefully, even if they might be a little disappointed, will understand that these are your wishes for your estate. And, ask each of them to respect your wishes.
Finally, if during this discussion, you sense your wishes may not be respected, use a Trust rather than a Will which is much less likely to be challenged. Or, make transfers during your lifetime.
- Should I put my house in a trust?
- When Should I Make A Will
- 10 Things To Know About Writing A Will in New Jersey
- How to Choose a Trustee For Your Family Trust
- How to Choose a Financial Adviser
Todd Murphy
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- Should I put my house in a trust? - July 26, 2023