UNEQUAL DISTRIBUTIONS TO CHILDREN? Are you sure this is the correct choice?
By: Mina N. Sirkin and Evan R. Sirkin, Attorneys at Law

There is probably nothing that causes more controversy in a family than when parents leave an unequal distribution to their children in a will or trust. The obvious effect is to create or increase tension or conflict between the children. The attorney drafting the documents is in a difficult position when clients request such a distribution. The attorney must explain the ramifications and allow the clients to make an educated decision as to the distribution of their estate.

For example, a "no contest clause" is often used in the document to discourage beneficiaries of an estate from bringing legal action. Such a clause states that if anyone should contest the distribution of the estate, that individual who brings such an action risks losing their entire interest in the estate. The "No contest clause" is a useful tool but it is not guaranteed to work. Such clauses have been known to be overturned in court when a natural heir to the estate can show evidence that the testator, (the person whose will is in dispute), was influenced in the making of the will in a wrongful manner. Courts have thrown out no contest clauses for other reasons as well.

In addition, the "no contest clause" does not prevent arguments between the children. It may merely discourage "legal action." Legal action does not include personal disputes unless they proceed to court. So what are parents to do?

The answer lies in the reason for the unequal distribution. A common reason for making such a decision is that one child has been given more during the parents' lifetime and therefore the parents wish to increase the share of other children. In this situation the parents should put their reasoning in writing, and if possible, have a statement drafted for that child who is to receive less of the estate to sign showing that they have already accepted part of their share of the estate by receiving lifetime gifts.

Another reason for an unequal distribution is that the parents believe that one child needs the money more than another. In this case the parents should discuss and explain their decision with the children who are to receive less. An understanding among the family can help to decrease tension. Again, if possible, a written agreement with the children may help to prevent later disputes. The decision to discuss these issues is dependent on the existing relationships between family members. Bringing up the subject may even touch off disputes. There is no set formula as all families have different problems and issues of difficulty.

The important point in these situations is to keep an open mind, be willing to discuss the issues with the attorney. Allow the attorney to offer options so that you can make an educated decision about the distribution of your estate.

Mina N. Sirkin and Evan R. Sirkin are partners at the Law Offices of Sirkin and Sirkin. Sirkin and Sirkin has seven office locations available throughout Los Angeles and Orange counties. Their practice is limited to estate planning (Wills, Trusts and Probate). To reach them by telephone, please call 818. 340. 4479.

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