Are My Children Entitled to an Inheritance?

Adult children may anticipate, but are not legally entitled to, an inheritance.

Let’s say that one of your children has not had contact with you since COVID in 2019. He or she has been off the radar and never calls. You may not feel obligated to give them an inheritance. The obvious point is that adult children are not legally entitled to an inheritance.

However, leaving one or more children out is one of the primary drivers of will contests and probate litigation. A will contest is a probate proceeding where interested parties dispute the validity of a will. The most common legal grounds for disputing the validity of a will are undue influence, duress, mistake and the decedent’s lack of capacity when they signed the will.

When one or more children receive less or are disinherited, they may claim that the sibling who received more coerced their parent to do so. This is an especially tricky situation if the parent is in poor health and completely reliant on that child. In fairness, situations like these do lend themselves to improper influence being placed on seniors who may be fragile or sick.

How to Properly Avoid a Will Contest

To properly avoid a will contest, you should work with a qualified estate planning attorney who will document his or her file and prepare a will for you with appropriate language.

Note that it is not necessary or advisable to provide an explanation as to why you are disinheriting a child. That is because if you give a reason, that reason may cause controversy.

The No-Contest Clause

If avoiding litigation is a priority, as an alternative to totally disinheriting a child, your attorney can also talk with you about the different forms of “no-contest” clauses that can be placed in a will.

This clause, also called an “in terrorem” clause, indicates that if a beneficiary raises a claim with respect to the will, he or she will lose his or her inheritance.

For a no-contest clause to be effective, a child must be a beneficiary of some amount in your will. Courts do typically uphold these clauses, unless there is probable cause to substantiate the claim of coercion or undue influence.

If you or a loved one needs assistance with elder law, probate or estate planning issues, do not hesitate to contact us. We are here to help.