Our TX and AR Estate Planning Attorneys Help Protect You From Unequal Inheritance Risks
Every estate plan differs in its details, but most are configured to ensure that inheritances are distributed with minimal complication. However, inheritances—even between children, and other members of the same family—aren’t always equal in worth. Although many adult heirs understand that estate-related decisions are determined by both logic and love, a disgruntled or disinherited child’s rage at supposedly unfair treatment could expose even the best-laid plan to unreasonable risk.
Ross & Shoalmire Elder Law Attorneys, P.L.L.C., has spent years helping families in Texas and Arkansas protect their legacies from uncertainty. Our experienced team of Estate Planning Attorneys can help you draft a will, establish a trust, and make other arrangements to ensure that your heirs enjoy the fruits of your labor—without leaving their inheritances to chance. Please send us a message online or call us today to schedule your initial consultation.
Estate Planning, Probate, and Unequal Inheritances
Even the strongest wills only serve their intended purpose when they anticipate and mitigate problems in probate, the court-supervised process of administering an estate. During probate, the deceased person’s executor typically:
- Submits a copy of the will to the court.
- Serves notice of probate proceedings to the decedent’s heirs and creditors.
- Locates and manages the estate’s assets, which could include everything from bank accounts and real property to household furniture.
- Reviews creditor claims and pays outstanding debts.
- Distributes inheritances to heirs in accordance with the terms of a will or Texas rules for intestate succession.
Probate can be time-consuming, often taking six months or more to complete. Delays are common, and often triggered by events as mundane as a paperwork error or as intense as a serious disagreement among heirs—disagreements that, if not resolved amicably, sometimes end with a lawsuit and lead to protracted litigation. Since executors have a legal duty to defend an estate from challenges, even bad-faith contests could force the sale of assets and potentially deprive other beneficiaries of their full inheritance.
Although individuals can’t always predict how their heirs might react to the terms of a will, some provisions are much more likely to cause trouble than others—few of which are more capable of generating intense emotions and intrafamilial feuds than unequal inheritance distribution.
Reasons to Leave an Unequal Inheritance
Adult heirs—even those with their own families and careers—can’t always understand why a parent or other potential benefactor might exclude them from a will or leave them with fewer assets than a sibling or another heir. Of course, most people have compelling reasons to leave unequal inheritances. Here are some reasons why.
Lifetime Gifts and Other Early Inheritances
As a parent, you may be inclined to leave a child a smaller gift if they already received what could be termed an early inheritance. This might include an investment in their college education, help to fund a business, or assistance buying a home.
Acknowledging Different Needs of Different Heirs
In some cases, parents grant a greater share of their inheritance to children who need more assistance in establishing stability—especially if other potential heirs have comparatively stable careers or were fortunate enough to have purchased a home earlier in life.
Rewarding a Caregiver’s Compassion
One of the most common explanations for leaving an unequal inheritance is providing a well-deserved reward for a child who made sacrifices to ensure a parent’s well-being by caring for them in retirement, during certain health issues, and other factors.
Having Reservations About Financial Responsibility or Personal Habits
Some people face struggles that are a consequence of ill-considered decisions or unfortunate circumstances. For example, if someone has problems with drug or alcohol addiction—and has rebuffed every opportunity to make a constructive change—leaving them a large cash gift could risk an inheritance being put to poor use.
Similarly, heirs who have repeatedly shown that they cannot manage money may not benefit from an inheritance to the same extent as a beneficiary who has demonstrated prudence and an ability to prioritize long-term stability over shorter-term rewards. In these cases, a spendthrift trust might be a better option than a cash portion of a larger estate.
Estrangement
Family relationships frequently experience differences in belief, opinion, and attitude. If these issues pose a fundamental risk to the parent-child relationship, for example, and cannot be resolved, individuals always reserve the right to either disinherit their child or leave them a smaller share in an estate.
However, though Texas law has allowed the disinheritance of children since 1991, cutting them out of a will is a decision that should never be taken without an attorney’s input. Even if you’re adamant in your position, your testament must contain an explicit and unambiguous disinheritance clause—a clause that explains your decision, and which could prevent a child from claiming that you made an “accident” in drafting your estate plan.
Protecting Your Estate Plan From Uncertainty
In Texas, every adult of sound mind has a legal right to make informed decisions about how their estate should be distributed after their death. However, once probate proceedings are set in motion, the ease of settling succession is largely contingent on the willingness of heirs to put aside their differences in acceptance of the decedent’s last wishes.
Although no one can anticipate what might happen after they pass, you can take the following steps to minimize the chances of unexpected contests and uncertain outcomes.
Explain Your Reasons for Leaving an Unequal Inheritance
During probation, a decedent’s surviving children are almost always considered “interested parties” with respect to succession. Even if a child was excluded from a will, they may still have grounds to initiate a contest.
If you’re drafting a will or amending an existing estate plan to reflect a new family dynamic you should be honest about your intent and your reasons for leaving an unequal inheritance. An explanation goes a long way—both in terms of helping your heirs understand your decision and ensuring that courts honor your intent if a beneficiary initiates a claim against the estate.
Ask Your Attorney to Draft a No-Contest Clause
Ross & Shoalmire’s experienced team of Elder Law and Estate Planning Attorneys have spent years helping families in Texas and Arkansas protect their legacy from the unexpected. In cases where the terms of an inheritance seem susceptible to challenge, we’ll often recommend the inclusion of a no-contest clause. A no-contest clause—sometimes termed a terrorem clause—specifies that, if an heir files a claim against the estate and loses, they lose all rights to inheritance.
However, no-contest clauses are typically effective only when an heir’s potential loss outweighs whatever they might gain from a successful challenge.
Establish a Revocable Living Trust
Every Texan needs a will to avert the risk of an intestate succession, but there are critical limitations. Although wills prevent intestacy, they all but ensure that estate assets must pass through probate administration before being distributed among heirs. Since the rules of probate are set by the state, contests and challenges must be adjudicated in accordance with Texas statutes and judicial precedent.
In contrast, a revocable living trust is a distinct type of legal entity that can outlive its founder. Since a trust cannot die, any assets retitled to it aren’t subject to probate. Furthermore, the terms of a trust can be heavily conditioned, ensuring that even financially irresponsible heirs can only receive funds for pre-approved purposes.
Invest in Family Relationships
In many cases, the best way to ease tensions about an unequal inheritance is to have a frank conversation with your heirs about what to expect from your estate. Even if you already made your decision, offering an explanation could help potential beneficiaries understand that your last wishes are a reflection of each person’s varied needs—not unequal love or a preference for one heir over another.
