Can You Bypass an Heir in a Will?

By Lee Carroll

Although nearly any interested party can attempt to contest a will, a probate judge is unlikely to invalidate it without clear evidence that the will is flawed. A valid will has few requirements. It must be made by a person of legal age with a sound mind who is acting of his own accord; it must be in a format that the state accepts and it may require signatures of witnesses. A will can bypass many family members, but there are exceptions and precautions to consider.

Although nearly any interested party can attempt to contest a will, a probate judge is unlikely to invalidate it without clear evidence that the will is flawed. A valid will has few requirements. It must be made by a person of legal age with a sound mind who is acting of his own accord; it must be in a format that the state accepts and it may require signatures of witnesses. A will can bypass many family members, but there are exceptions and precautions to consider.

Heirs and Beneficiaries

People or organizations named in a will to receive gifts are called beneficiaries. An heir is a family member who is allowed to inherit from a deceased person’s estate if there is no valid will or if a valid will fails to fully distribute the estate’s assets. Spouses and children are given some protection against being bypassed, but most other potential heirs, such as siblings, cousins and parents, usually cannot successfully claim a portion of a family member’s estate if a will omits them in favor of other beneficiaries. If a will specifically bypasses an heir, any excess estate that the will may not cover goes to other heirs as if the bypassed heir had renounced her claim to the estate.

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Spousal Rights

In most cases, a deliberately or accidentally bypassed surviving spouse has the right to take a portion of the estate of her deceased spouse. The Uniform Probate Code, and most state probate codes -- the federal and state acts that govern inheritance and probate issues -- discuss provisions for a surviving spouse. This right is known as a spousal forced or elective share. The spousal share varies based on many factors, including the laws of the state, the length of the marriage and whether there are natural or adopted minor children from the marriage. If a bypassed spouse claims her portion, gifts bequeathed to beneficiaries in the will may be reduced to fund the spousal share. Including the spouse and adjusting other gifts accordingly may help avoid confusion and resentment when gifts are distributed. Divorced or ex-spouses often have no claim against the estate except under special circumstances that differ by state.

Children

While natural or adopted children of the deceased may be bypassed, there are numerous valid reasons for an omitted child, or her agent or guardian, to contest the will. If the court decides that the omission of a child is clearly intentional, a bypassed child may have no recourse. This is especially true if the child is a legal adult. However, if the will was created before the child was born or adopted, the court may decide that the omission was an oversight, allowing the child to inherit a portion of the estate. Some states, like Louisiana, may not allow an adopted child to be disinherited.

Other Relatives

If the deceased person left no surviving spouse or children, there are fewer arguable reasons for a family member to contest a valid will. When no will exists, the probate court divides the estate among a deceased person’s closest relatives; however, the Uniform Probate Code does not require a will to name those relatives or heirs as beneficiaries. Aside from the complicated and evolving matters surrounding the rights of spouses and children, a will can usually include or bypass any would-be heir.

Considerations

Vague language in a will may cause a judge to consider alternative interpretations that could lead to bypassed heirs inheriting property against the deceased person’s wishes. An experienced attorney can draft a clear, concise will that is less likely to be challenged. There are also resources online that offer convenient will packages for less complicated estates.

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What If a Will Is Written Before a Grandchild Is Born?

References

Related articles

Last Will & Testament Laws in South Carolina

In South Carolina, wills must be in a printed format and signed by the testator, the person making the will, who must also be over 18 years of age and have the mental capacity to know what he is doing. Those younger than 18 may also make a will if they are married or otherwise emancipated from their parents by an order from family court.

Does the Child Inherit the Parent's Property?

Whether a child inherits her parent’s property depends on several factors including whether the decedent was truly the child’s legal parent and if there is or isn’t a will involved. The laws regarding the distribution of a decedent’s property vary by state. It is always a good idea to consult a local attorney when investigating inheritance rights.

Types of Heirs

In general, an heir is a person who is entitled to inherit all or part of a deceased person’s estate. However, in legal terms, heir has a narrower meaning. The term "heir” specifically refers to a person who inherits assets from the estate of a person who died without a will. There are two major types of heirs.

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