Can I leave my child out of my Will?

Can I leave my child out of my Will?

When I have my initial meeting with parents for whom I will be preparing a Will or a Trust, I always ask if they want to have their children share equally in the inheritance.  Or do they want certain children to receive a larger share than other children.

Often the reaction is surprise that an unequal division is permitted.

To state the principle clearly, a person making a Will or a Trust has absolute discretion to decide who will inherit his or her property.  The estate can be left to a surviving spouse, to children (either all of them or just certain ones), to other family members, to friends, to business partners, or to a church or other preferred charity.  Once the person has spoken through the Will or Trust, that is where the property will go.  Period.

Objections or Will contests by disappointed spouses, children, or other family members will be to no avail unless there is strong evidence of mental incompetence or coercion at the time the Will or Trust was signed.

That being said, there are certain precautions that should be taken if a person decides to leave one or more children “out” of the Will.  There are certain steps that should be taken by his attorney or lawyer in the Boise, Meridian, and Eagle area in order to effectively do so.

First, it is important for your attorney to include the child’s name in the Will to show that you didn’t simply forget about the child.  By including the child’s name in a list of one’s children, that potential argument is defeated.  A child who has been “forgotten” by a parent may legally be able to claim a share in the property left when that parent dies.  Including the child’s name in the list of one’s children in the Will in Idaho shows that the child was not forgotten.  After the child has been included in the list of one’s children, the failure to leave anything to that child will be presumed to be intentional.  That decision will be upheld by Idaho probate courts.

Second, your lawyer should include a short statement in the Will to the effect that, “If I left you out of my Will, I did so on purpose.”

Third, an additional provision that states that “Any person who contests this Will is to receive no part of my estate” will also be helpful if included by your attorney.

Finally, an elderly client who suspects that disappointed children might try to pursue a will contest based on an allegation of mental incompetence should consider a visit with a physician shortly after the Will or Trust is signed.  At that visit, ask the physician to write a short letter expressing his or her opinion that the patient is mentally competent to make decisions regarding who will inherit the patient’s estate at death.  That letter can then be stored with the original Will and a copy can be placed in the attorney’s file for use in the event of a Will contest.

It is also a common misconception that a person must leave at least one dollar to any child who is being excluded from the Will.  That is not true.  Simply naming the child without leaving any gift to that child is sufficient in Idaho.

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Whether you live in Boise, Meridian, Eagle, Star, Nampa, or other nearby communities – in fact, anywhere in Ada County or Canyon County – for additional easy-to-understand information on Idaho Wills, Trusts, probate, and estate taxes, visit the user-friendly website at BarryPeters-Law.com.  Then call attorney Barry Peters’ offices at (208) 939-2600 for an expedited appointment to begin the process of setting up your own Living Trust.  Or, if you have questions, please call Barry for a free telephone consultation or visit his Q & A pages at BarryPeters-Law.com/common-questions.  As always, your total satisfaction is guaranteed by Barry Peters, Attorney at Law, where all clients receive individual attention to the details of their unique circumstances.



One Response to “Can I leave my child out of my Will?”

  1. Sharon says:

    What about in Texas? Can a child be mentioned and still left out?

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