Inheritance laws can be complex, especially when an individual is unintentionally omitted from a will. This is where the concept of a pretermitted heir comes into play. A pretermitted heir is typically a child or descendant who has been left out of a will, either accidentally or due to circumstances beyond their control. Laws regarding pretermitted heirs vary by jurisdiction, but in many cases, these heirs are entitled to a share of the deceased’s estate. This article will explore what happens to pretermitted heirs, their rights, and the legal remedies available to them.
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Understanding The Concept Of A Pretermitted Heir
Who is a Pretermitted Heir?
A pretermitted heir is a person, usually a child or descendant, who is omitted from a will. The omission may be unintentional, and most inheritance laws assume that the deceased would have provided for the child had they remembered or had circumstances been different.
Pretermitted heirs generally fall into the following categories:
- Children born after the execution of a will
- Children adopted after the execution of a will
- Children mistakenly believed to be deceased
- Children or descendants unintentionally omitted due to oversight
Pretermitted Heirs vs. Disinherited Heirs
A disinherited heir is deliberately excluded from a will, whereas a pretermitted heir is omitted due to oversight or circumstances beyond the testator’s (the person making the will) control. Courts make a distinction between the two, as the latter may have legal grounds to claim a portion of the estate.
Legal Rights Of A Pretermitted Heir
How Inheritance Laws Protect Pretermitted Heirs
In many jurisdictions, laws exist to protect pretermitted heirs and ensure they receive a fair share of an estate. These laws vary but often provide for a default inheritance if:
The omission appears unintentional.
The testator did not provide for the child through other means (e.g., trusts or gifts).
The pretermitted heir is a biological or legally adopted child.
Statutory Provisions for Pretermitted Heirs
Most states and countries have specific provisions to ensure pretermitted heirs receive a portion of the estate. Some common approaches include:
- A set percentage of the estate (e.g., one-third or one-half)
- Equal share to other heirs if the testator had other children
- A share similar to intestate succession laws, meaning they inherit as if no will existed
However, if evidence suggests that the testator intentionally excluded the heir, the court will uphold the omission.
What Happens When A Pretermitted Heir Is Discovered?
Filing a Legal Claim
A pretermitted heir or their legal representative must file a claim in probate court to assert their right to a share of the estate. The court will evaluate the following factors:
- Whether the omission was intentional
- The testator’s intent as expressed in the will or external documents
- The legal framework of the jurisdiction governing the estate
Possible Legal Outcomes
Depending on the circumstances, courts may:
- Grant the pretermitted heir a portion of the estate
- Uphold the will if evidence suggests intentional disinheritance
- Adjust the estate distribution to reflect intestate laws (laws that apply when there is no will)
Impact on Other Heirs
If a court grants an inheritance to a pretermitted heir, other heirs may receive a reduced share of the estate. This often leads to legal disputes, especially if substantial assets are involved.
Avoiding Legal Disputes Over Pretermitted Heirs
Updating the Will Regularly
To prevent disputes, testators should update their will after major life events, such as the birth or adoption of a child.
Including Explicit Language in the Will
To avoid ambiguity, a will should clearly state:
- Whether a child is intentionally omitted
- Whether alternative provisions (e.g., trusts, gifts) have been made
Creating a Trust for Minors or Future Descendants
A trust can ensure financial support for heirs without modifying the will each time a new child is born or adopted.
Conclusion
Pretermitted heirs are often entitled to inheritance rights, but their claims depend on the laws of the jurisdiction, the testator’s intent, and the specifics of the will. If you suspect you are a pretermitted heir, it’s crucial to seek legal guidance to understand your rights and options. Likewise, testators should regularly update their estate plans to prevent disputes and ensure their wishes are honored.
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FAQs
What is a pretermitted heir?
A pretermitted heir is a child or descendant who has been unintentionally omitted from a will, often because they were born or adopted after the will was created.
Can a pretermitted heir contest a will?
Yes, a pretermitted heir can contest a will by filing a claim in probate court. If the court determines the omission was unintentional, the heir may receive a portion of the estate.
Does a pretermitted heir always receive an inheritance?
Not necessarily. If the testator explicitly disinherited the heir or provided for them outside of the will, the court may uphold the omission.
How do states differ in handling pretermitted heirs?
Laws vary by state and country. Some jurisdictions grant a pretermitted heir a share of the estate, while others only do so if no other provisions were made for them.
Can stepchildren or grandchildren be considered pretermitted heirs?
Generally, pretermitted heir laws apply to biological and legally adopted children. However, in some cases, stepchildren or grandchildren may qualify if they were financially dependent on the deceased.
