Estate Planning BasicsWhat The Surviving Child Requirement is Necessary

It struck me after I posted the post about Whitney Houston's Estate Plan, that I might need to further explain the concept of the surviving child as it is used in Estate Planning. A surviving child, perhaps obviously, is a child that is alive at the time the Testator (or the person with the will) dies. The child can survive the testator by merely a few seconds (although some states do have minimum requirements, such as 24 hours), or for years. Regardless, if the will devises the estate to a surviving child, the child must be alive in order to inherit their share under the document.

Regarding the rules of intestacy when a person dies intestate, that is without a will, the relevant state probate code, or whatever other statutory scheme the state has chosen, takes over, and details how a person's estate will be devised.

When a will is written, however, it is the person or people who are named in the will, that determines the course of an inheritance. It may thus seem unnecessary to have to state that all of your assets and estate will be divided amongst your "surviving children," if it is these same children you are simply listing by name. Here is why the "surviving children" language is superior.

  • What if you have more children after your will is written? Rather than having to re-execute a new will or trust after every subsequent child is born (although it is always advisable to revisit your estate planning documents after any major life event), using the "surviving children" clause will ensure that all of your children are accounted for. Some states do have provisions to address the problem of the "omitted" or "pretermitted child(ren)," but I would rather err on the side of caution.
  • What if your child dies before you? It is a truly morbid thought, and one we hope will never come to fruition. Assuming, however, that by some tragic circumstance, your child is not living when you die. If you have your child's name in your will, rather than the "surviving child" term, then your child's share of the state will be devised either according to your child's estate plan, or the rules of intestacy. Your child's heirs or assigns will step up into their role to collect their share of the estate.

Tomorrow I will go more into detail about the laws of intestacy. Until that time, I leave you with the thought about how the use of legal terminology can achieve your estate planning goals when unforeseen circumstances can thwart your intent at the initial time of signing.

Estate Planning is an incredibly intricate area of the law. In fact, as one of the 15 subjects tested on the California Bar Examination, the prepared outline I used to study (supplied company I subscribed to), was close to 100 pages long and that was the short version! It is for this reason that I always recommend speaking with an experienced Estate Planning Attorney in order to ensure that your Estate Planning goals will be  properly carried out. In Wills & Trusts, legalese is key.

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