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When it is Mandatory to Update your Trust or Will

Posted by Darin Wilmert | Dec 20, 2013 | 0 Comments

We have all heard the fascinating cases on the news when people are engaged in furious battles over the estates of celebrities. What is important to realize is that these fights don't just happen because there is a lot of money at stake; there is usually a very real legal reason why the estate or the trust ends up in court.

In California, there are times when the law will simply ignore some or all of your estate plan. The most common reason this happens is because of a legal concept called the “pretermitted spouse” or “pretermitted child.”

Simply put, when you have certain family changes, like getting married, getting remarried, having a child, or adopting a child, the law steps in to automatically alter your Will or your Trust to include the new spouse or the new child, unless you take certain steps to prevent it.

Imagine a situation where a person has grown children, and is remarrying later in life. The new spouse also has grown children and each spouse has his or her own separate property. The couple agrees that they will basically keep their assets separate, and that they will each leave their own property to their own children if either of them dies. Unless the couple takes affirmative steps to update their respective estate plans AFTER they get married, this is probably NOT what will happen when the first spouse dies. The survivor will take a predetermined share of the deceased spouse's estate, leaving less for the children of that spouse.

There are ways to prevent this from happening, and your estate plan can always be drafted to carry out your true wishes, but you must keep the plan up to date. The best way to do this is to have your plan reviewed regularly by an Estate Planning Attorney, especially when significant family events or changes occur.

About the Author

Darin Wilmert

Darin has practiced before federal and state trial and appellate courts in several southern California counties including San Diego, Riverside, and San Bernardino. He most often appears on Trust and Estate matters, but lends his expertise with research, writ, and motion drafting to all of the fir...

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