A will maker, known as the testator, may have a child who has fallen out of favor with him and, as such, he may specifically disinherit that child under the terms of his will. In fairness to his grandchildren, he can provide for his named grandchildren to inherit that disfavored child’s portion. After the will is drafted, however, the disfavored child may give birth to another child who is not mentioned in the will. If during probate, it becomes clear that an heir was omitted from a will as a result of a mistake, inadvertence or lack of information, the court will ordinarily provide for that heir to inherit the share to which he would have been entitled had there been no will or, in some states, as if he had been written into the will.
If a testator has many children, he may specifically name all of them in his will and split his assets among them, assuming they will all be alive at the time of his death. If the term “per stirpes” is referenced in the will as the method by which the children inherit and one of his children predeceases him, her share of the estate goes to her direct heirs or descendants. If she has children, even though they were born after the will was written, her share passes to them, the decedent’s grandchildren, even though they were not specifically named in the will.
A testamentary trust is a trust established in a will that may provide for assets to pass to future generations. The will often provides for a surviving spouse to inherit only that amount that will bypass estate or inheritance taxes during her lifetime or as otherwise specified; the remainder can pass to an irrevocable trust that will be funded by the remaining assets in the estate. Even though only initial descendants may be named specifically as beneficiaries under the trust, the provisions of the trust may provide for assets to travel to future or after-born heirs.
Should an executor or personal representative fail to mention in his petition to probate an after-born grandchild when the will specifically left assets to other grandchildren, the unnamed grandchild or her guardian, as applicable, may contest the probate of the will as being against the wishes of the deceased. If state law backs up the claims by the after-born grandchild, the court may award that grandchild the portion of the estate to which she would have been entitled had the decedent died without a will or modify the will to include her.