Excluding an estranged child from a will

[Andy Pandos]

Jurisdiction

California

I have a complicated family structure where I have two biological children conceived out of wedlock when I was single. Neither child has my name appearing on their birth certificate.

I also have an estranged child from a brief marriage who I wish to disinherit. The estranged child does have my name on his birth certificate. Not sure if this matters but he recently submitted DNA and he is not even my biological child and he is not related to me or to my two biological children at all. All three children are adults with families of their own now.

I want to provide for my two biological children and exclude the estranged child. I believe I have my will written up correctly to say "for reasons known to me" (no specifics so as to not open the door to contest the reasons) I make no provisions for that child. But I worry about what if the will is lost (for example destroyed in a fire or something) and the estranged child is the only child with my name on his birth certificate? The other two children have nothing on record as being my children.

I have spelled out clearly on my retirement accounts (401K etc.) the two children as sharing equally. But what about my real estate and possessions?

What other steps, in addition to writing a will, can I take to ensure that my estate is divided between my two biological children and cannot be claimed by the estranged child? Should I take steps to modify their birth certificates? Or is there some service where a copy of my will is held securely? Or should I give notarized copies of my will to my two bio-children to hold and keep safe?

Thanks in advance for any suggestions.

 

[army judge]

I suggest you discuss your concerns with a lawyer licensed in your state of residence about your wishes and desires upon your death.

You have some unique and special circumstances plaguing you.

If you proceed without a lawyer drafting your will, the things you desire might not come to pass.

 

[adjusterjack]

Or should I give notarized copies of my will to my two bio-children to hold and keep safe?

A "copy" of a will might not be acceptable to a probate court without expensive litigation.

I would not hand out multiple wills to heirs. Make sure your nominated executor knows where it is and how to get to it.

The testator's signature doesn't have to be notarized because of the requirement for witnesses. It's the witnesses signatures that should be notarized with a "self-proving" affidavit (google it).

 

[Tax Counsel]

But I worry about what if the will is lost (for example destroyed in a fire or something) and the estranged child is the only child with my name on his birth certificate?

Make sure the original will is located someplace where your nominated executor can find it and that is safe from most mishaps. Of course your nominated executor needs to know he/she was nominated for that and has agree to do it. Your executor could store it in his/her safe deposit box or you could store it in a fire proof safe and provide the executor with the combination to it, or whatever. Some law firms will store your will safely (for a fee of course) and there are other document storage firms, too. I would not put it in YOUR safe deposit box because the restrictions to access of your box after you die will complicate the executor reaching it. The key thing is that your executor and those who would benefit from having the will probated know where it is so that you can be sure they'll get it and probate it, thus making sure that your wishes are carried out.

The other two children have nothing on record as being my children.

There are at least two possible ways that might be fixed. The children may be able to bring an action to determine paternity so that you are their legal father. That will depend on the applicable state law and the particular facts involved. Or you might adopt them (which can be done even though they are your biological children). That would also make them legally your children, too.

But what about my real estate and possessions?

You have several options for the real estate. You can do a transfer on death deed in a number of states, including California. See California transfer on deed deed for more information if the property is in that state. You can put the real estate into a revocable living trust. Or you can transfer it via your will.

As for the other possessions, it depends a bit on exactly what those are, but generally you can put them into a revocable living trust or transfer them by will.

You probably ought to consult an estate planning attorney for advice to get a plan in place that best meets your needs and addresses your concerns.

By the way, a kid's last name really has no bearing on his/her right to inherit anything.

 

[zddoodah]

I have a complicated family structure where I have two biological children conceived out of wedlock when I was single. Neither child has my name appearing on their birth certificate.

I also have an estranged child from a brief marriage who I wish to disinherit. The estranged child does have my name on his birth certificate.

When you refer to "my name" are you talking about your last name (i.e., your name is John Smith and the child's name is Jane Smith)? Or are you talking about the birth certificate identifying you as the child's father?

What's going to be important here is whether your paternity of your two illegitimate children was ever established. Was it? If so, how was it established? Sounds like it was not.

Also, was each of these children born in California?

Not sure if this matters but he recently submitted DNA and he is not even my biological child and he is not related to me or to my two biological children at all. All three children are adults

Submitted DNA to whom?

Regardless, it is apparent that the child was presumed to be a product of your marriage and that it is well beyond the time to challenge that presumption. In the eyes of the law, that child is, always has been, and always will be your child (unless he and some other man go through the adult adoption process).

But I worry about what if the will is lost (for example destroyed in a fire or something) and the estranged child is the only child with my name on his birth certificate? The other two children have nothing on record as being my children.

First of all, there are very simple ways to ensure your will doesn't get lost or destroyed, including keeping it in a fireproof safe and distributing multiple copies, including copies to your illegitimate children.

As far as the illegitimate children "hav[ing] nothing on record as being [your] children." It would take relatively little effort and expense to go through the process of obtaining court orders to establish your paternity.

What other steps, in addition to writing a will, can I take to ensure that my estate is divided between my two biological children and cannot be claimed by the estranged child?

Consult with and retain the services of an estate planning attorney.

Should I take steps to modify their birth certificates?

As noted above, you can seek to have your paternity established by court order.

Or is there some service where a copy of my will is held securely?

Is held? We have no way of knowing if any copies of your will exist and, if so, where they are located. If your intent was to ask whether services of this sort exist, I have no idea, but it wouldn't surprise me. You can google to find out.