By Elliott Topkins, Esquire
10/6/11
When I interview people who have asked me to assist them with their estate plans, I have a stock answer concerning how to treat their children in terms of division of their assets. I tell each such client, without fail, to treat each child equally, even if one or more of the children have been neglectful or even abusive. My reasoning goes something like this. You will not be around to be the referee, and there will be some miserable disputes that ensue if each child does not receive an equal percentage share.

There are times, however, when this advice may not be productive. I guess I would say that these times center on extreme conditions which exist regarding your children. In situation number one, your child is a financial marvel, having achieved a level of financial stability which far outweighs anything which you might add on. In that situation, there may be some basis for not including that person in your estate. There is also another similar type of circumstance, which may need to be addressed. You may be divorced, remarried and have new children with your new spouse. The same situation may obtain with your former spouse. Your kids with the ex-spouse may be well provided for, while your kids with the current spouse need more help. In that situation, you may want to pass over the original kids or give them a diminished share, because they are taking from your original spouse.

The situations set forth above relate to positive accomplishments by your children. The question is often asked what a person does when one or more of their children is an alcoholic or has a drug dependency. Does money you leave to that child get used up too quickly to support their condition? Are you better off leaving funds for the alcohol or drug dependent child with a responsible sibling to dispense on a rational basis? In extreme cases, you might want to establish what is called a “Special Needs Trust,” which makes provision for a child with problems, but does not put assets in that child’s hands. Such a trust is often used for children who have serious mental health or congenital physical health problems that will probably not be solved.

Having stated all of the circumstances that may give rise to omitting from your will one or more of your children, I must inform you that doing so requires careful draftsmanship. If a child is omitted (or pre-termitted, in legal terms), there is an assumption that you forgot to include this child, and had you remembered, you would have given the child an equal share. That is the reason you really need to state, with some specificity, that you have not omitted to include the child because you forgot, but because there are circumstances surrounding that child which have cause not to make provision for that child, or those children, in your will.

If you have situations like the ones I have described above, do not hesitate to contact me, and we can develop a plan that works. The initial consultation is always free, and you will pay nothing until we agree on a plan and financial budget.

(Mr. Topkins is an attorney with Topkins & Bevans, Braintree Executive Park, 150 Grossman Dr., Braintree, MA 02184. His blog can be found at http://realtorsresourceblog.com. His telephone number is 617/596-3184 and his e-mail address in etopkins@topbev.com.)