Children: The Blind Spot In Your Estate Plan

Posted on 12-06-2017 by
Tags: estate , heirs , estate planning , beneficiaries , will

A cautionary tale on planning for the birth of future children.


Our sweet, little children. We love ‘em, but in the world of estate planning, they can tear down the house so to speak. Without proper foresight, children can bring big trouble to even the best-crafted estate plans.

You’ve surely encountered the adult child who, for whatever reason, fights tooth and nail to grab a bigger slice of the “estate pie”—or to exclude a sibling or family member. Young children, even those not yet born, can be an even greater challenge for estate planners and administrators.

Add in the variability of state laws, and any estate plan can get messy when children are involved. In fact, this messiness, in some instances, can lead to a will’s revocation.

 Future Children: Good Estate Planning Demands Tomorrow Thinking

Many states’ laws require a will’s automatic revocation if a decedent’s family circumstances change after the will’s creation.  That makes it imperative to anticipate all possibilities during drafting.

In a recent Georgia case, the decedent’s will made no provision for future children. In the time between drafting the will and his death, the decedent had three children out of wedlock. The probate court invalidated the will, citing state law, and the original beneficiaries appealed. Ultimately, the Georgia Supreme Court agreed that the will should be revoked and that the children were the decedent’s heirs.

Posthumously-Conceived: Devastating to Estate Planning

The Georgia case is a cautionary tale on planning for the birth of future children. But when it comes to children, the cautionary tale doesn’t end there. As mentioned, it’s critical for estate planners to think of children who might be “born.” But it’s also critical to think of children who might be “conceived.”

Technological advances require estate planners to think beyond future-born children and to include posthumously-conceived children. As Neil Maddox notes in his recent article Inheritance and the Posthumously Conceived Child:

Modern advances in technology now create a new possibility and a child may be both conceived and born after the death of its father. This creates many legal complexities and uncertainties, one of which relates to the posthumously conceived child’s capacity to inherit from the deceased father’s estate.

The U.S. Supreme Court has held that the laws on this phenomenon are individual states’ turf. So again, knowing your state’s laws and taking them into consideration when drafting a will is key. It can be tough to keep up with constant changes in your state’s estate laws, and you need to be aware of proposed changes in other states that might eventually influence your legislators.

Air-Tight Estate Planning: It Pays To Be In The Know

Even if children aren’t involved, an estate planner can easily trip up if he or she doesn’t stay current. A lack of knowledge leads to flimsy drafting which can force families into litigation. Whether or not that litigation succeeds, time and money will be wasted.

So what tools are critical to creating a rock-solid estate plan?

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  • State-specific and federal codes
  • State and federal case law, including U.S. Tax Court
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  • Federal estate tax planning analysis
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Plus, you need estate planning guidance, treatises, time-saving forms and checklists ... critical tools to help you avoid critical mistakes.

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