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Leaving a child out of the will (disinheriting)

Does MA law allow me to leave one child out but leave property to the other? If so, is there some special procedure I should follow? Thanks in advance.

 
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Editor's Response

Yes, nothing in MA law prevents you from leaving one or all of your children out of your will.  You (or, preferably, your attorney) should use specific language to identify the child you wish to disinherit.  This general rule is subject to one limitation discussed in the follow-up post, below.  Good luck, and please tell your friends about The Forum.  For more information or to post a question, visit our MA Estate Planning Discussion Forum.

 

Is that still valid under the forthcoming Mass 109B changes?

Gosh I sure hope so! My attorney warns me that my middle-aged and perfectly-healthy estranged son has to be included for entitlements to my estate, thus I am ready to vomit upon our useless Mass legislators.

Disinheriting children under new MA probate code

Unfortunately, your attorney is correct.  There is one little wrinkle under the new probate code that can, in cases where there is no surviving spouse, create difficulties for those who wish to disinherit children, something that falls generally into the long list of reasons you should talk to an attorney before attempting estate planning on your own.  Massachusetts General Laws Chapter 190B, Section 2-403 creates an issue for those who wish to completely disinherit children:

The decedent's surviving spouse is entitled from the estate to a value at date of death, not exceeding $10,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $10,000, or if there is not $10,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $10,000 value.

As you can see, in cases where there is no surviving spouse (and ONLY in those cases), a testator's attempt to disinherit children may be thwarted by this section.  I'm not sure how this new law will play out, but it appears to require those who wish to disinherit one or more children to be creative in their efforts to avoid probate.  For example, the testator can make all efforts to avoid leaving any probate assets.   The testator could, for example have only joint bank accounts with rights or survivorship and even convey all of his personal belongings to a different, trusted child, before death.  That would leave little for the disinherited child to go after.

I'm not sure why the legislators adopted this particular section.  Perhaps to ease the pain of those children who are "unfairly" disinherited, allowing them an opportunity to get a few personal belongings from their deceased parent.  I don't know.  Again, we will have to see how it plays out, but the new law will likely create additional burdens for those who wish to disinherit and for those who administer their estates.

Would this be the best strategy, at least for the short term?

Thank you for such insightful reply. Having reviewed the other postings I would appreciate commentary on my interpretation of best strategy, a midst the uncertainty of imminent changes in the law.

1 Preclude funds and property from reaching the Will. E.g. setting other beneficiaries in financial portfolios, bank accounts, prescribing distribution of all property (including real estate) in a revocable trust, etc. Also a notarized memorandum to my trust executor conveying all my personal property.

2 Incorporating unequivocal wording in the Will to describe purposeful intent to exclude the child (in my case an estranged, perfectly healthy middle aged son).

Is that my best path for now?

My conundrum is about a condominium that (per my revocable Trust) my executor has the right to live in and upon her leaving or death would be sold and distributed to other beneficiaries.

My highest quest is to preclude this property (or anything else) from becoming a foothold for my wayward son’s litigation. What vulnerabilities might I have?
Thank you!

Leaving child out of will

Patotas, your general plan (making sure you have no probate assets) makes sense.  But, honestly, this law is new and I do not do probate law.  You need to talk to a MA probate attorney who has spent the last year going to seminars in preparation for the roll-out of the new probate code in MA.  Find someone you are comfortable and then let him or her come up with a plan for you.  I'm confident it can be done, but it will require some expertise that I do not have.  Good luck.

Thank you!

Your insightful comments are much appreciated.

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