Who’s in, and not in, a will – Daily News

on Oct14
by | Comments Off on Who’s in, and not in, a will – Daily News |

These past few weeks we’ve been discussing “omissions” (you can decide whether these are errors or sins). As an estate planning attorney, I instantly think of “omitted heirs.” And you may think, “huh?”

An omitted heir is a person who would have inherited by law but was not mentioned in a will or trust. A related concept is “pretermitted heir”– someone who was born to, adopted by, or married to the deceased after the date of the will. Both situations have legal consequences, which may or may not have been intended.

Occasionally, I meet with a client who intends to disinherit a child. We always state that clearly and upfront in the will with a statement such as “I have intentionally not provided for my child Badly Behaving Bob and for all purposes hereunder he is to be treated as having predeceased me,” and sometimes we add “leaving no issue” if the client also wishes to disinherit any of Bob’s children (and let’s face it, if the behavior was bad enough those grandchildren could be sprinkled across the globe). This can make clients uncomfortable. But there is a reason for it.

California law

California provides that in the case of an omitted or pretermitted heir the heir will inherit an intestate share (what they would have received had there been no will at all) except in some specific circumstances. In other words, the law assumes you mean to provide for your children, with only a few exceptions, which are:

  • The decedent’s failure to provide for the child was intentional and that intention appears from the testamentary instruments.
  • The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child.
  • The decedent provided for the child by transfer outside of the estate, and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or by other evidence.

California law also provides that if at the time the decedent executed the estate plan they failed to provide for a child solely because they were unaware of the child or believed the child was deceased, the child will be entitled to take a share of the decedent’s estate.

Thus, documenting your wishes and intentions becomes important in these situations. And disclosing to your attorney any children, stepchildren, adopted children, or possible children you may have is also extremely important.

Celebrity omissions

Remember when actor Heath Ledger died, leaving behind 2-year-old Matilda, his daughter with Michelle Williams? Ledger’s will pre-dated Matilda’s birth by several years and left everything to his sisters and parents.

His will was signed when his assets were estimated at just above $100,000. When he died,  his net worth was said to be more than $16 million. Luckily for Matilda, Ledger’s family agreed to give it all to her and no court battle ensued. Ledger was an Australian citizen; in California, the pretermitted heir law would have given the estate to Matilda anyway, but with a greedier family, a long court battle would have likely ensued.

The family of Michael Crichton, creator of Jurassic Park and ER, was not so lucky. At the time of his death in 2008, he was 66 years old and left behind four ex-wives, a 20-year-old daughter, and a new wife who was six months pregnant.

Crichton executed a will and trust in 2007 and specifically stated, “I have intentionally made no provision in this will for any of my heirs or relatives who are not herein mentioned or designated, and I hereby generally and specifically disinherit every person claiming to be or who may be determined to be my heir-at-law, except as otherwise mentioned in this will.”

If  Crichton had updated his estate plan when he learned his wife was expecting, a protracted battle between his daughter (who thought that provision should apply to disinherit her half-brother) and the mother of his son (who had a prenup but fought on behalf of her son) could have been avoided. The court eventually ruled that Crichton’s son was entitled to one-third of his estate as a pretermitted heir since his son was not conceived or known of at the time the will was executed.

Crichton’s $100 million art collection soon went to auction at Christie’s to begin making distributions (and paying legal fees, no doubt).

When is a child not a child?

It is equally important to name those who may not be considered “children” by law. It’s not uncommon for a child to take the last name of a stepfather so that mom, stepdad and child all had the same name and to the world at large they were a family. This is particularly true if biological dad is not part of the child’s life.

But if stepdad did not legally adopt the child, the child will not be a legal heir. The stepdad would need to specifically state that he intended to treat the child as his own.

You forgot you were married?

The laws are similar for omitted spouses. When a testamentary document is executed before a marriage and does not mention the spouse, the surviving spouse will be considered a pretermitted heir entitled to all the community property and a share of separate property.

No contest

If you do intend to disinherit a child or a spouse, you will need to carefully state as much in clear language in your will or trust.

In some circumstances, however, you may want to consider a gift to that person instead. I know that sounds nuts, but hear me out. Most folks are aware of the “no-contest” provisions in testamentary documents — that’s the clause that says “if anyone contests this document, they inherit nothing.”

If you’ve completely disinherited someone, they have nothing to lose by contesting your plan. Instead, if you’ve given them a gift at least they have the loss of that gift to consider.

Let me not omit the best advice of all — implement and regularly review your estate plan.

Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I).” You can reach her at Teresa@trlawgroup.net.

Previous postOne Killed in Crash on 101 Freeway in Encino Next postAww, It's a Guinea Pig Rescue Fall Festival

Los Angeles Financial times

Copyright © 2022 Los Angeles Financial times

Updates via RSS
or Email