Status of a Will After Childbirth or Adoption

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Is a Will Changed or Considered Void After the Birth of a Child?

In some cases, yes.  Generally, if a will is written before a testator (i.e. the will's creator) has children, the subsequent birth of child may allow the court to change the terms of the will.  In most instances, the court will alter the will just enough to give the child their share of the testator's estate (i.e. the testator's property left over when they die).  Some state laws even provide that, once a child is born, the previous will is considered totally void.

Why Do Courts Do This?

Courts do not like the timely and costly process of probate, which occurs when a will must be carried out.  The birth of a child gives the testator an identifiable heir who can automatically gain possession of the testator's property when they die, avoiding probate altogether.  Therefore, changing or voiding a will upon childbirth allows a court to avoid the time and resources it would otherwise have to spend undergoing probate.

What if the Testator Adopts a Child after the Creation of a Will?

It depends, since half the states are split on this issue.  Some states and courts consider adopted children to have the same exact status as biological children.  In this case, if state law allows the birth of a child to void a will, then adopting a child would have the same effect.  However, other states will not give adopted children equal status to biological children.  These states usually require that separate laws be made that specifically allow adoption to void or alter a will.

How Can a Lawyer Help Me?

If you have drafted a will prior to conceiving or adopting a child, you should contact an estate planning lawyer.  An attorney can inform you about laws in your state, and whether the birth or adoption of a child affects your will.  If you are the biological or adoptive child of a deceased parent, who failed to include you in their prior will, a lawyer can also help you recover any claims you may have on your deceased parent's estate.

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Last Modified: 10-05-2011 11:13 AM PDT

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