What’s a pretermitted heir?

I came across an interesting case lately that I thought I would share. Though the information will be a public record, in Court, I have modified the names, dates and particulars for privacy purposes.  Here are the facts:

– Harold wrote a standard will (some call it a “simple will” or a “last will and testament”) in 1995 giving everything to Wendy.

– Harold and Wendy got married in 1996.

– Debbie was born to Harold and Wendy in 2001 and is thus a minor (i.e. under 18).

– Harold inherited property from his dad in 2010.

– Harold has personal debt, in his name alone, of approximately $50,000.

– Harold and Wendy lived in the inherited property.

– Harold died in 2012.

For simplicity let’s just say the home that Harold inherited from his dad is the only asset we are dealing with. Let’s assume that Harold and Wendy had no other assets of significance.

At first blush I was going to advise that Wendy file a spousal property petition. That would be a little less of a target for Harold’s creditors than a full probate but would clear title to the house. That is, Harold’s will says Wendy gets 100% of the assets.

Aha!  Ahahhh!  Debbie, the daughter, is a pretermitted heir or omitted child. That is, when Harold prepared his will he gave everything to Wendy. However, the law assumes that if Debbie had been alive he would have wanted to give something to her.

In fact, the law presumes that with separate property (in this case it’s inherited so it’s separate and not “community”) the law assumes Harold would have wanted to give his one child 50% and his wife 50%.

The fact that Harold has a will doesn’t matter. It’s as if the will is invalid as to the distribution paragraph. The law re-writes that to make it 50/50.

Thus, the inherited property is in Harold’s name and Wendy is forced to file a full probate. In that probate she only gets 50% and Debbie gets the other 50% which will be held until she is 18.

A full guardianship may be required by the Court to protect Debbie’s interests.

Harold’s creditors will now have an easy target to go after as a full probate creates an easy pool of assets for creditors to attack.

A probate is much more expensive than a spousal property petition.

If only Harold had written a new will after Debbie was born!

Situations like this are real and they happen every day! Get your estate plan made while you are healthy as you never know what will happen. If it’s too late, and you are cleaning up an estate after death, contact me to walk through all the options. Sometimes there are hidden answers that are not obvious on the surface.


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