ESTATE PLANNING: When a child is born after will is executed

2013-06-08T15:05:00Z ESTATE PLANNING: When a child is born after will is executedChristopher W. Yugo Times Business Columnist nwitimes.com
June 08, 2013 3:05 pm  • 

Q: What happens if a child is born after executing a will? Is the new child included?

A: Probably. It will, of course, depend on the will, but assuming that the will doesn't exclude after-born children, the child should be included and treated like a child living at the time the will was executed.

If this is a real concern, I would start by checking the will to see if it has a provision that addresses after born children specifically. If it doesn't, it might be a good time to sit down with your attorney to review the will. After all, the birth of another child is an important life event and a general estate plan review may be in order.

Q: Does the inclusion of a "right of survivorship" clause in a deed allow for the bypass of probate even if there isn't a will?

A: When you say "right of survivorship" clause, I assume what you mean is joint tenants with rights of survivorship. The simple answer is this: if two or more people hold title as joint tenants with rights of survivorship and one of them dies, the surviving joint tenant(s) owns the property as a matter of law.

It's important to understand the difference between probate and non-probate assets. If an asset is jointly owned, has a beneficiary designation or is in the name of a trust, it is a non-probate asset. If the assets is owned solely in the name of the decedent and does not have a beneficiary designation, it is a probate asset. Think of it this way: if the owner of the asset needs to be determined, i.e. there is no beneficiary or surviving joint owner, it is likely a probate asset.

In your example, since the real estate is jointly owned with rights of survivorship, ownership following a death is established as a matter of law and it avoids probate. Even if the decedent's will attempts to distribute the jointly owned property to someone other than the surviving joint owner, it doesn't control the distribution. The surviving joint owner owns the property the moment the other joint owner passes.

 

Christopher W. Yugo is an attorney in Crown Point. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Yugo’s information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

Copyright 2014 nwitimes.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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