what happens to the pretermitted heir

Natashya

2 min read

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23-12-2024

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What Happens to a Pretermitted Heir? Understanding Inheritance Laws

When someone dies without a will (intestate), their assets are distributed according to the laws of their state. These laws often include provisions for what happens if a child is unintentionally left out of the will – a so-called pretermitted heir. This situation can be complex and varies significantly by jurisdiction. Understanding preterition and its consequences is crucial for both estate planning and resolving inheritance disputes.

What is a Pretermitted Heir?

A pretermitted heir is a child (or sometimes other close relatives, depending on state law) who is unintentionally omitted from a parent's will. It's important to note that this is different from intentional exclusion. Preterition implies an oversight, not a deliberate decision to disinherit. The key is that the testator (the person making the will) did not know about the child's existence at the time the will was written.

State Laws Governing Pretermitted Heirs

Most states have laws designed to protect pretermitted heirs. These laws typically provide the omitted child with a share of the estate, even if there's a valid will in place. The exact share varies depending on state law and the composition of the estate. Some common scenarios include:

• Receiving a share of the estate: Many states grant the pretermitted heir a share equal to what they would have received under the laws of intestacy (if there had been no will). This can be a significant portion of the estate.

• Receiving a specific bequest: In some states, if the will leaves some assets to other children, the pretermitted heir might only receive an equal share of those assets.

• Exceptions to preterition laws: Certain circumstances might negate the protection offered to a pretermitted heir. For example, the will might specifically name the child and disinherit them. Alternatively, the will may clearly state that the testator had no other children. Providing evidence of the testator's knowledge of the child's existence is crucial in these cases.

How to Avoid Pretermitted Heir Issues

The best way to prevent disputes over pretermitted heirs is careful estate planning. This includes:

• Creating or updating a will: Regularly reviewing and updating your will ensures it reflects your current family situation and wishes. This is particularly important after any significant life changes such as marriage, divorce, or the birth of a child.

• Naming all beneficiaries: Clearly list all your children and other beneficiaries in the will, even if you plan to leave them smaller portions or nothing at all. This demonstrates intent and prevents potential claims of preterition.

• Consulting with an estate attorney: An experienced attorney can help you draft a comprehensive and legally sound will, mitigating the risk of future disputes. They can address the complexities of state law regarding pretermitted heirs and ensure your wishes are carried out effectively.

Resolving Disputes

If a dispute arises concerning a pretermitted heir, it's essential to seek legal counsel immediately. Estate litigation can be complex and protracted. An attorney can help navigate the legal process, gather necessary evidence, and represent your interests in court. Evidence such as birth certificates, medical records, and witness testimony might be required to establish the circumstances surrounding the omission.

Conclusion

Understanding the concept of a pretermitted heir and the relevant state laws is vital for responsible estate planning. By taking proactive steps to create a comprehensive and accurate will, you can protect your family and avoid potential disputes after your passing. Ignoring this aspect can lead to costly and emotionally draining litigation, jeopardizing the smooth distribution of your assets. Remember to consult with an estate attorney to ensure your will accurately reflects your wishes and complies with your state’s laws regarding pretermitted heirs.