Pretermitted Heirs In Estate Planning: Rights And Challenges Explained
In this article, you can discover:
- What a pretermitted heir is and what their rights are in estate distribution.
- Some of the potential reasons for unintentional omission of heirs in wills, and how to avoid this issue.
- How the law typically handles pretermitted heirs and their claims.
What Is A Pretermitted Heir?
A pretermitted heir refers to any child of a person creating a will (testator) who is not provided for in that will. It also includes the child(ren) of a deceased child of the testator. In such cases, these omitted heirs have the right to claim a share of the estate, often the same as they would have received if the testator had died without a will at all.
The outcome can be challenging to predict due to certain statutes governing the process and computation. In simpler terms, a pretermitted heir is a child or grandchild who would have inherited from the deceased if there was no last will and testament, but they were not mentioned in the will.
What Are The Potential Reasons For Unintentionally Omitting An Heir From Your Will Or Estate Planning?
The issue of pretermitted heirs only arises concerning the last will and testament and does not apply to powers of attorney or trust documents. Unintentional omission can occur for several reasons. Some people may have children born after they write their will, and thus, they were unable to make provision when making the will.
Additionally, there are cases where individuals have children they never knew about before drafting the will, even though the child was already born. Often, pretermitted heir cases arise because the testator did not wish to leave anything to the omitted heir and failed to seek competent legal advice, leading to the oversight.
How Does The Law Typically Handle Pretermitted Heir?
Typically, a pretermitted heir needs to file a claim in the probate case to request their rightful portion of the estate while it is still open. Although there isn’t a specific statute mandating this claim, failing to file it can result in the judge distributing the estate without any knowledge of the omitted heir, leaving them with no recourse to inherit their share.
Can A Pretermitted Heir Challenge A Will Or An Estate Plan?
A pretermitted heir can challenge a last will and testament in Oklahoma. Unfortunately, many pretermitted heirs may not receive proper notice when the will is filed, either due to the lack of knowledge on the part of the person filing the will or intentionally omitting them to avoid giving them their rightful portion of the estate. This can lead to complications for other beneficiaries and heirs.
Can A Pretermitted Heir’s Share Of The Estate Impact The Inheritance Of The Other Beneficiaries?
The share of other beneficiaries is likely to be reduced when a pretermitted heir comes forward to claim their portion of the estate.
When a pretermitted heir takes a share, it will necessarily reduce the share of the other beneficiaries. The Oklahoma statutes under Title 84 provide direction on how to identify the share of the omitted person, but resolving this matter may not be easy.
What Steps Can A Person Take To Prevent Unintentionally Omitting An Heir From Their Estate Plan?
The most crucial step is to hire competent legal counsel when engaging in estate planning. Many people who hire us after the testator’s death often share that the deceased person believed they couldn’t afford a competent attorney, so they used someone who was not an attorney or did not use an estate planning attorney. This can lead to mistakes due to a lack of knowledge in estate planning law, making it essential to hire a competent estate planning attorney.
Can An Heir Be Intentionally Excluded By A Testator?
An heir can certainly be excluded intentionally by a testator. A testator is not obligated to leave anything to any particular person (other than a surviving spouse) in their estate. They have the freedom to allocate their assets as they wish, whether it means leaving everything to a local cat shelter or any other beneficiary.
However, certain protections are in place for heirs at law, particularly children and grandchildren. By explicitly naming these heirs and stating the intention not to leave them anything, the testator can strengthen their will against potential challenges.
What Happens If A Pretermitted Heir Is Discovered After The Distribution Of The Estate?
This situation can be complicated. There is a very limited time frame within which to contest final orders of distribution in probate. However, there are cases that argue if an heir was not given notice of the probate, the court may lack jurisdiction to exclude them. Currently, I know of I know of no court case addressing both arguments and determining the outcome.
What Documentation Or Evidence Is Required To Prove Someone’s Status As A Pretermitted Heir?
A birth certificate is often a vital piece of documentation that can support a claim as a pretermitted heir. However, in cases where the natural parent is not named on the birth certificate, additional evidence may be necessary. Genetic testing is commonly used to establish relationships when there are no living close relatives. It can be challenging and costly to conduct the testing, due to the attorney fees, exhumation costs, and DNA laboratory fees.
Can Pretermitted Heirs Challenge The Validity Of A Will Or Estate Plan?
Pretermitted heirs generally have the same rights as any other heir to challenge the validity of a will on various grounds.
Call For Our Free Probate Book Or To Reserve
Your Seat At Our Free Estate Planning Workshop