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When drafting a will, the testator will carefully select the people they want to inherit their assets. When a name is not included in a testamentary document, the exclusion is usually thought to be intentional. This can be especially true if the omitted heir is a close relative, such as the testator’s child or sibling. However, people make mistakes and sometimes close loved ones are inadvertently left out of testamentary documents. In this situation, can an omitted heir still claim an inheritance in California?

How Can Heirs be Omitted?

A testator may disinherit a close relative for several reasons. For instance, the omitted heir could have been estranged from the family for years, had a significant falling out with the testator, or the testator may have wanted someone else to inherit their property instead of family. The testator also could have had a child that they were unaware of when they drafted their testamentary document.

Omitted Children

When children are born or adopted after a will or trust is executed, and they are omitted from the instrument, California Probate Code section 21620 provides that they will inherit what they would have inherited if the testator had died intestate (without a will). However, there are exceptions to this requirement, and if one applies, the omitted child could end up without an inheritance.

The child will not inherit if:

  1. The testamentary instrument shows that the child’s omission was intentional;
  2. The decedent left substantially all of the estate to the child’s other parent; or
  3. The decedent provided for the omitted child through other means in place of the testamentary transfer, and that express intent is shown in the instrument.

Recently, in Kimberly Rallo et al., v. Virginia O’Brian, a California appellate court considered the issue of unknown omitted children and a California trust. When the decedent, 1950’s Wyatt Earp actor Hugh O’Brian, passed away, his estate went into a trust which contained a general disinheritance provision appliable to anyone claiming to be his heir. The trust language specified that O’Brian did not have any children.

After his death, two adults claimed to be O’Brian’s natural-born children and omitted heirs, and therefore, entitled to inherit from his estate. The Los Angeles appellate court disagreed and found that the omitted heirs, in this case, were not left out of the trust solely because the decedent was unaware of their existence or a mistaken belief. Instead, the court found that the disinheritance provision language showed that O’Brien did not intend for omitted heirs to inherit from his estate. As this case demonstrates, it may not be enough for an omitted child to establish they were unknown and left out of a testamentary document.

Omitted Spouses and Children in California

California Probate Code section 21610 is applicable when a spouse is left out of a testamentary document. Like the provisions concerning omitted children, under the law, if it appears the decedent’s spouse was left out on purpose, and “that intention appears from the testamentary instruments.”; or the spouse was provided for outside of the estate, and it was clearly to be in place of the inheritance; the omission may be upheld. The other exception is if the spouse entered into a valid agreement waiving their right to their share of the decedent’s estate.

Other Close Relatives

When family members are omitted from testamentary documents, depending on the facts, there may or may not be an issue. For instance, if you are unmarried and have two siblings, and leave an inheritance to one of them and not the other, it may help to leave an explanation for the omission. However, if you are married with children, having an estate plan that leaves them your assets instead of other family members is not considered unusual. When you have a large or more complicated estate and intend to bequeath some assets to a charitable trust instead of certain relatives, there may be objections from heirs who feel they have been overlooked.

If you intend to omit an heir from your California will or trust, you should consult with a California estate planning attorney to discuss any potential issues. At the Law Offices of Alice A. Salvo, we are experienced California estate planning attorneys who can help you evaluate your situation and plan for the future. Please contact us online or by phone to set up a free consultation today. https://www.salvolaw.com/