So, You Want to Treat Children Unequally In Your Estate Plan — How to do it Right

April 13th, 2015 by beasleyferber

In our experience, challenges to a properly drafted trust are extremely rare. However, sometimes they do come up. They are most likely to arise in a situation in which you do not leave everything in equal shares to your children. In a case like this, the child who is disinherited, or treated less favorably than the others, might be inclined to file a challenge to the estate plan after you die. Ironically, in almost all cases, this is the child who has almost never visited you or otherwise paid you the least attention. In most cases, this child will not challenge the trust, since doing so is difficult and expensive. Sometimes, however, the child has the financial resources to do so, or, even if not, is so angry that he or she just wants to make trouble.

How do you prevent this, or minimize the chances of it happening? There are two general grounds to challenge an estate plan, (1) lack of mental capacity or (2) exercise of undue influence. In order to head off these challenges, here are some steps to take:
(a) Write a personal letter, in your handwriting, and using your own language (as opposed to legal language) as to the reasons why you are not treating your children equally. This letter should be put in a sealed envelope and given to your attorney, with instructions that it only be opened in the case of a challenge. (Alternatively, you can make a tape recording or video, and put that in a sealed envelope.) There can be no better evidence of your intention than you speaking in your own works as to why you wanted an unequal distribuion.
(b) Be sure to meet with your attorney privately, without any of your children present, and make sure the attorney documents this meeting. This way, should there be a challenge after your death, the attorney can testify that he or she met with you alone, and was completely convinced you were acting of your own free will/
(c) See your physician and have him do a mini-mental status evaluation, and have this documented in your medical records. In this way, the records can be produced to show that you were in control of your faculties and are capable of making an informed decision.

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