For many people, one of the primary reasons for creating an estate plan is to provide for loved ones, specifically children, in the event of their death. If you are one of those people, you have probably gone to great lengths to create a Last Will and Testament or trust agreement that is very clear with regard to who your children are and what you wish them to receive from your estate. What happens, however, if you have another child after you execute your Will? What happens if a child of yours is born after your death? Or the biggest question of all…what happens if a child is both conceived and born after your death? The Waukegan estate planning attorneys at Hedeker Law, Ltd. discuss the increasingly complex subject of after-born and posthumously conceived heirs.
The Easy Question: What Happens to Children Born after You Execute Your Will or Trust?
Estate planning is unlike many other areas of the law in that an estate plan is never really “resolved” or “concluded.” Instead, estate planning –when done properly – is a lifelong process. It is unlikely that the estate plan you create in your early 20s will still be relevant and sufficient by the time you are in your 30s, much less your 40s or beyond. The reason for this is simple – life is not static. Instead, life is ever-changing. As you grow, so will your estate and your family. Consequently, your estate plan should grow as well. When your first child is born, you should take the time to review and update your current estate plan to include that child. What happens, however, if you subsequently die before having the chance to add the second child that was born a few months prior to your untimely death? If your estate plan was drafted properly, the fact that you did not include your second (or subsequent) child by name in your Will or anywhere else in your estate plan is not a fatal flaw. An experienced estate planning attorney will know how to include future children within your estate plan. For example, you may provide a clause that defines the term “children” to include the children alive at the time you execute the document and any future born children of yours. Gifts you make in your Will and then be made to “my children equally” for instance. This is a good time to stress the need to work with an estate planning attorney and to stay away from the DIY route.
The More Complicated Question: What Happens to a Child Born after Your Death?
Sometimes, a child is conceived prior to the death of a Testator, but is not born until after the Testator’s death. Although this can be a bit more confusing, the legalities are essentially the same as for a child born after you execute your Will be before your death. As long as you addressed children in your estate plan, and the child’s legal relationship to you is established, the child will typically inherit right along with your other children just as if he/she had been specifically named in your Will. The one scenario in which this can be more complicated is if paternity of the child must be established because it is not clear that the child is yours and/or someone is questioning the paternity of the child. Thanks to the advent of DNA testing, however, this can be resolved easily enough in time.
The Difficult Question: What Happens to Posthumously Conceived Children?
Advances in science and technology now make it possible for a child to be both conceived and born after the death of a Testator. At any given moment, there are thousands of frozen embryos in the U.S. just waiting to be implanted. If you die, and your partner/spouse decides to move forward with implantation, can that child inherit from your estate? Courts across the U.S. are wrestling with that question. Many states have passed legislation dealing directly with the issue of “posthumously conceived” children. Many of those statutes require both parties to have executed a document prior to death acknowledging their acquiescence to a posthumously conceived child. Illinois, however, enacted legislation that blocks a posthumously conceived child from inheriting. It appears, therefore, that the key to inheriting as a posthumously conceived child is to have been conceived in a state that acknowledges your right to inherit!
Contact Waukegan Estate Planning Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding after-born children, contact the experienced trust lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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