Experienced Will and Estate Planning Attorneys Discussing Will’s Impact on Children
It is not at all uncommon for a Texas Last Will and Testament to be appropriately signed and then tucked away in a lockbox or dresser drawer for years before the death of the testator (the person signing the Will). During the time period between the signing and the death, all sorts of things can happen, of course. The testator can acquire or transfer away property. He or she can get married or divorced. In some instances, a child can be born.
With regard to a child or children born after the signing of the Will, what rights do they have to a share of the testator’s estate? It depends primarily upon the wording of the Will.
“Pretermitted” Child: Fancy Word, Ancient Concept
Texas, like virtually every state, uses a fancy term to describe a child born after the execution of a parent’s Will. He or she is said to be “pretermitted.” The adjective is an ancient one, reaching back to English Common Law. Sometimes, pretermitted is thought to be a synonym for “forgotten,” but this actually isn’t the case at all. One cannot, after all, “forget” someone who has not yet been born. The law presumes that a father or mother desires to care for his or her child, of course, and based upon that presumption – which can be overcome – Texas law provides some relief for the child born after the Will.
Pretermitted Child May Be Entitled to Intestate Share
Generally speaking, Texas law [Texas Estates Code § 255.01 et seq.] provides that when a child is born after the execution of the testator’s Will, he or she is entitled to an intestate share of the parent’s estate unless the child is:
- Mentioned in the testator’s Will;
- Provided for in the testator’s Will; or
- Otherwise provided for by the testator.
By “intestate share,” the law refers to that portion of the decedent’s estate to which the child would have been entitled, had there been no Will at all.
How Does One “Mention” or “Provide For” a Person Who Has Not Yet Been Born?
At first blush, it appears impossible to mention or provide for a person who has not yet been born. Yet, a carefully drafted Will can do just that. For example, the Will might speak of the testator’s children and it might define “children” not only to mean those who have been born at the time of the Will, but any others born or adopted after the Will. Likewise, one can provide for a child born after the Will by including that child as an heir in an insurance policy. There are actually a host of methods to handle the pretermitted child issue. All require specialized language in a Will, a Trust, or other estate planning document.
Failure to Handle Pretermitted Child Issue Can Throw a Wrench into Your Estate Plan
The pretermitted child issue need not be something that causes problems. It is an issue that is often missed or inappropriately handled, however, in a homemade Will. Most Texans find that a periodic review of their entire estate plan, including the language contained in their Wills, is an important matter. It is always better to handle any issues prior to death than it is to saddle one’s loved ones with the problem later.
Romano & Sumner – Experienced Attorneys in Estate Planning
The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all sorts of estate and trust matters. We know the “ins and outs” of the Texas Estates Code and we have assisted many clients in the handling of both routine and complex matters.
At Romano & Sumner, we pride ourselves not only on our professionalism, but also upon our client service. We know that each situation is unique. We return phone calls within one business day. We keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.