Your Children and Your Will

When people write a will, there are a lot of questions they will have to answer about inheritances, spouses, children, and a number of other issues. If you ask most people who write a will, they’ll probably say that they do so in order to ensure that their children receive a good inheritance. But what are the rules with inheritances and your children? Do you have to leave something? What if you have a child after you write your will?

Your estate planning lawyer will be able to answer these questions in greater detail, but for now, let’s take a look at some common questions about wills and your children.

Will my children receive an inheritance if I don’t have a will?

Probably. California has, as do all other states, laws that take effect should you die without leaving behind a last will and testament. These laws, called intestacy laws, give your children an inheritance automatically when you die without a will. Depending on the circumstances, your children might divide your property between themselves, or between themselves and your spouse.

What if I make a will? Do I have to leave inheritances to my children?

No. Many people are surprised to learn that making a will does not require you to leave your children an inheritance. While your spouse has a right to receive a portion of your estate, your children are not automatically entitled to a portion. This means that if you make a will you cannot disinherit your spouse, but you can effectively disinherit your children.

If this is something you wish to do, it’s probably best to include a specific clause in your will that states you do not leave anything to those children. Failing to mention your children in a will could cause problems. This could possibly lead to a court determining that your children were pretermitted, or overlooked, when you made your will.

What’s this about pretermitted children?

A pretermitted child is a child that you failed to mention in your last will and testament. Pretermitted children typically arise when people who make a will before they get married or have children. These people can easily forget to change or update the document later on.

Let’s say you make a will, get married, have two children, but never get around to creating a new will to reflect your new circumstances. In this situation your children are considered pretermitted. Under California law, any pretermitted child is entitled to receive a portion of your will equal to that he or she would have received had you died intestate.

Are there exceptions to the pretermitted child rule?

Yes. California’s probate laws that apply to pretermitted children allow for several exceptions. These rules can be somewhat complicated, so if you have any questions about pretermitted children and how they might affect your estate plan, you need to schedule an appointment with an experienced and qualified estate planning attorney as soon as possible.

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Timothy P. Murphy

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.

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