What Happens to Children Born After a Will is Executed?

Posted in Probate, Wills & Estates. Tuesday, Feb 16th, 2016

The recommendation to create a will is a fairly common one. It is important to plan for the future and to ensure that family members and close friends are taken care of after one’s death. However, wills are only reflections of the circumstances in which they were created. Life doesn’t stop after a will is executed.Families change, experiencing births, deaths, marriages, and divorces. For wills that are created while a testator is still in his or her reproductive years, families can change drastically after the execution of a will.

If a will is executed before the testator, the individual who is executing the will to dispose of his or her property, does not have children, it is unlikely that the will would address children at all. A testator without children might dispose of his or her property to a spouse, siblings, parents, other close relatives, friends, or charities. However, after that same testator has a child, it is likely that – even if he or she did not change his or her will – he or she would want that child to receive something from his or her estate following his or her death. What happens when a will does not reflect the testator’s family changes?

Pretermitted Heirs

Children or other heirs that are born after the execution of a will by someone of whom they are an heir are recognized in the law as “pretermitted heirs.” Pretermitted heirs are heirs that received no provision in a will that was executed either prior to their birth or prior to the testator’s knowledge that they existed. For example, a man may execute a will and learn later that a former significant other is raising a child that is biologically his. Though that child was born before the execution of the will, the child would qualify as a pretermitted heir.

Impact on the Will

In order to determine the impact of a pretermitted heir on a will, Ohio law considers the intention of the testator. If the testator intended to avoid leaving bequests to his or her heirs when the will was executed, the existence of pretermitted heirs have no impact on the will. An example of this might be a testator who had a child when his or her will was executed but then had a second child afterward. If that testator leaves all of his or her estate to charity, it would appear that the testator did not intend to provide for his or her children and that, therefore, the pretermitted heir should have no impact on the will.

If it does not appear as though the testator intentionally disinherited the pretermitted heir, all bequests in the will other than those to the testator’s spouse will be reduced in order to provide a bequest to the heir. Ohio law provides that the heir receive an amount equal to the amount that he or she would have received had the testator died without a will; the child or heir will not be left in a worse position because his or her parent executed a will and failed to update it regularly.

Columbus, Ohio Probate Attorneys

Understanding your loved one’s last intentions and wishes and protecting your rights in a probate dispute can be challenging. If you have questions about a will that is in dispute and your rights as an heir, contact a Columbus probate litigation attorney at the Law Office of Mike Gertner today.