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Elderlaw: 06/15/2015

Elderlaw Advocates



Dear Len & Rosie,

My recently deceased brother had a daughter 30 years ago. He and his wife divorced within his daughterís first year of life. Apparently, my brotherís daughter was adopted by her motherís second husband after she remarried. Would this daughter be legally entitled to any part of my brotherís estate or his trust? My brother had a living trust and didnít want to leave anything to her, but the trust didnít specifically name her and exclude her from an inheritance. Instead, the trust says, ďI have purposefully omitted any other relatives from any and all distributions.Ē Is this a problem?

Nancy

Dear Nancy,
When we meet an estate planning client, the first thing we do is to talk about the clientís family. How many children and grandchildren are there? Are there any deceased or disabled children? Are there children our client has adopted, or children whoíve been adopted away? Itís also a subtle way to quiz a clientís mental capacity. Itís a good sign when a client knows the names and ages of all seven of her grandchildren.

If our client wishes to disinherit a child, we like to include language such as ďThe settlor has intentionally and with full knowledge of the consequences made no provision for the settlorís daughter, Nancy, or her issue.Ē (Issue is a legal term that means ďdescendants.Ē) From what youíre telling us, it looks like your brotherís attorney may not have been that thorough.

Fortunately, the law is somewhat forgiving. Your niece will always be the biological daughter of your brother, but if she was adopted by her step-father, sheís no longer legally related to you or your brother. Sheís not entitled to notice of the existence of your brotherís trust, or notice of a probate. She also does not inherit anything from your brotherís trust or probate estate unless the trust or will names her as a beneficiary.

Unless you have proof of the adoption, the successor trustee of your brotherís trust should provide your niece (or ex-niece) notice of the existence of the trust under Probate Code section 16061.7. Play it safe.

If she was never adopted away from your brother, sheís still not entitled to inherit anything if your brotherís will and trust left everything to others. The only time a child is automatically cut into an estate plan is if the trust or will fails to dispose of everything, or if the child was born after the trust or will was created.

So why name children and specifically disinherit them when it strictly isnít necessary? It makes the clientís intentions clear. Itís harder to prove a man didnít know he was disinheriting a daughter when his initials are next to a paragraph saying so in clear, unambiguous language.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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