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A child left out of a will: Can it affect probate?

On Behalf of | Apr 16, 2024 | Probate

Many people create wills to protect their families and ensure they provide financial security and support to their loved ones even after they pass away. Parents usually include comprehensive terms to ensure their children receive their share of the assets during distribution.

Nonetheless, there are instances when a child is not a part of their deceased parent’s will and only knowing about it during probate. Will this circumstance affect the probate process?

Looking into the testator’s intention

Whether a child’s omission from a will affects probate depends on the testator’s intention to leave them out of the document. If a child was purposefully left out of a will that clearly states this intention, then the omission will not affect probate, and the process will proceed without including that child in the distribution of the estate.

However, if it shows that a child was unintentionally left out of the will, the court may consider them an omitted child who may have a right to a share of the estate under California probate laws. This usually happens when a child is born or adopted after the testator creates their will and fails to update the document to include the child.

Examining the will’s validity

It is important to note that the court will consider a deceased’s intention to disinherit their child only if the will is valid to begin with. If there is a question about a will’s execution and validity, it could affect the entire probate process, including the interests of the omitted child.

No matter how much we prepare for probate, there may be things that are out of our hands and couldn’t have prepared ourselves for, such as the complex matter of omitted children in wills. Nonetheless, anticipating the potential issues in probate can help set our expectations and develop strategies to address them proactively. This is possible through proper research and the guidance of an experienced probate attorney.