What Happens if My Parents Haven't Updated Their Will Since I was Born?
Estate plans, like so many things in life, need proper maintenance in order to stay current and relevant. An estate plan is usually better than no estate plan, but an outdated one can pose some issues for the probate process of carrying out a will.
Children that were born or adopted after their parent’s will was executed are referred to as “pretermitted” children in estate law. If their parent passes away before writing the new child into their will, there are some certain rules that apply for the child’s ability to inherit from the parent. Some parents incorrectly assume that a will they wrote before they became parents will automatically adjust to read children they have afterwards into their inheritance, but this is not the case in North Carolina.
Of course, as a current or to-be parent, there is a simple solution to ensuring that your family does not have to deal with the legal hurdles described below—update your will (or write one) to include the impending or current additions to your family. An estate law attorney will be able to help you ensure that the will or amendment is properly executed and legally binding. However, in the event that the issue was not addressed in time and you are a child born or adopted after your now-deceased parent created their will, keep reading.
A pretermitted child is entitled to take their share according to North Carolina’s intestacy laws IF one of the following does not apply:
Omitting the child from the will appears to have been intentional;
The will provides for the child in some way, even if nominally;
When the deceased parent was still alive and made their will, they had other children whom they also did not provide for in the will;
The deceased parent left his or her entire estate to their surviving spouse in the will. If the decedent showed a clear intent to prefer their spouse over the children in matters of inheritance, the law will assume this intent transfers to the pretermitted child or children.
The deceased parent made another provision outside the will that transferred something to the child upon the parent’s death (such as life insurance).
If none of the above apply, the child can make a claim for their share of the parent’s estate as according to the intestacy laws in this state, which govern the default distribution of a person’s estate in the event that they did not have a will. For example:
If the decedent has a surviving spouse and there is only one surviving child, North Carolina’s intestate laws dictate that the child would inherit half of the decedent’s real property and half of the balance in their personal property, minus the first $60,000 worth of property, which would go to the surviving spouse.
If the decedent has a surviving spouse and there is more than one surviving child, then each would be entitled to receive one-third of the decedent’s real and personal property, minus the first $60,000 that would go to the spouse.
Inheritance by intestacy does not apply to life insurance proceeds, property that the decedent held in trust, or property involving rights of survivorship. Intestacy laws and the probate process can be complicated and drawn out, so if you are attempting to inherit via intestacy it is important to speak with an estate law attorney to guide you through the process.
Stepchildren in North Carolina are permitted to inherit in proportions equal to those of the couple’s full children. Meanwhile, children that are legally adopted are unable to inherit via intestacy laws from their biological parents, as the adoption process legally severs that relationship.
In the event that the deceased parent made an amendment to their will after the child was born or adopted, but still failed to make any provisions for the child in the will or amendment, that child will usually not be able to inherit from the deceased parent’s estate.
If you are having an estate law issue, such as those involving a will, intestate inheritance or probate, it is important to speak with a skilled estate law attorney. Arnold & Smith is an aggressive civil litigation and criminal defense firm in Charlotte, North Carolina. Our civil attorneys practice in both family and estate law and understand the sensitive nature these types of cases can involve. Please contact our office for a consultation with one of our estate law attorneys today.