I went ahead and executed a will where I left a child out. Now I am worried that this will is invalid. Is it?
Elder Law Attorney
You can absolutely disinherit a child. You should, however, acknowledge the child's existence (ie, mentioning him or her by name and stating that you are specifically leaving him or her nothing). Bear in mind though that your child has a right to challenge your will.
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Elder Law Attorney
You can most certainly disinherit a child in a will. However, as Mr. Rubinov correctly pointed out, it is better to do so explicitly, and tactfully, in the will. In some cases, it may even be better to leave something for the child and include an in terrorem clause which then strips him of his share if he unsuccessfully challenges the will. It is vital that the will is properly executed in the presence of an attorney. Many attorneys, including myself, offer a free consultation and I urge you to contact an attorney.
Roman Aminov, Esq.
Law Offices of Roman Aminov
Estate Planning - Elder Law - Probate
147-17 Union Turnpike | Flushing, New York 11367
P: 347.766.2685 | F: 347.474.7344
Roman@AminovLaw.com | www.AminovLaw.com
This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.
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Estate Planning Attorney
In addition to the points already made, a Revocable Trust (also often known as a Living Trust) may be useful where a Will Contest is expected by a disinherited family member. Such a trust may be more difficult to attack than a Will. This is an option to discuss with an estate planning attorney.
Nothing stated in this answer, or on any pages linked to this answer, shall be construed as legal advice, nor shall anything in this answer by itself operate to create an attorney/client relationship.
Real Estate Attorney
The Will is not "invalid" per se. You can disinherit your child if you so chose. However, keep in mind that your child will have standing to challenge the validity of your Will when it is offered for probate. It would be wise then to make some statement in your Will to the minimum effect that you intentionally make no provision for your child. If you are worried about a challenge, you might consider adding an "in terrorem clause" to the Will. This accompanies a "nominal bequest" to a certain beneficiary with added language that should the beneficiary challenge the legality of the Will, he/she would forfeit the bequest.
You should make sure that the attorney who drafted the Will fully understands and has documented your reasons for not including your child. If the Will is challenged, your child will have an opportunity to conduct a deposition of the attorney draftsman and he/she would then be able to articulate the reasons you had for leaving the child out.
This communication does not create an attorney/client relationship.
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