By Mary A. Akkerman
Partner, Lindquist & Vennum LLP
If someone dies intestate, we look at the statutes in the state where the decedent was domiciled; the statutes also govern distribution of the assets. That is usually straightforward and not subject to challenge. Where challenges come up in that arena are in beneficiary designations, transfer-on-death designations, and joint tenancies. Sometimes when there is not a probate estate to attack-maybe all of the estates go by intestacy or they go by what I call will substitutes-you see an attack on maybe a beneficiary designation or a form they filled out at the bank putting on Cousin Joe as a joint owner. We see some of that. Maybe the aunt was not in the nursing home and Cousin Joe took her down to the bank and told the teller put him on as a joint owner-just for convenience. Then he tells the aunt, “Well, I will make sure everybody gets everything as you wanted,” and, of course, she dies, and he gets everything by operation of law. It is not so much that we see any challenges to intestacy; it is that those non-probate transfers are sometimes subject to challenge. Probate will manage only those things that are covered by the will.
When the decedent has children, including those from a previous marriage, who have been disinherited, we have issues of undue influence. Every state has its own way of dealing with those. In this particular state, if the person does not have a will and has a blended family, the legislature has presumed he would want to have the children from the prior relationship get some of his estate, as well as the children from his surviving spouse. So, say, a decedent had three children from a prior relationship, did not do a will, and leaves everything to her spouse, presumably through intestate succession. Everyone just assumes the surviving spouse gets everything, but that is not necessarily true if there are children from a prior marriage. They assume that had she done a will, she would have wanted them to get a piece, too. So it carves it out a little under the intestacy laws and under uniform probate code that is consistent, and non-uniform probate code states have their own statutes. Even among uniform probate code states, it varies a bit from state to state.
If children are left out of a will, they do not have a right under any statutory scheme to claim part of the estate. From probate code and under my particular state’s probate code, which is the Uniform Probate Code modified slightly, there is no a remedy for children. Under our statutory scheme, the decedent does not have any obligation to leave anything to children. If they are minor children, they would have a claim for a family allowance so they are not left out in the cold. But if the child is an adult, the decedent has every right to disinherit her through a will. The only way she could challenge it is through the undue influence or lack of testamentary intent or maybe by mistake or fraud. If it is a contractual obligation, maybe she could challenge under contract theory.
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