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When Is a Child Accidentally Omitted from a Parent’s Will?

It’s important to update your estate plan after a major life event, such as the birth of a child. An accidental omission may be correctable under California law, but it adds to the burden of your estate’s executor and the courts. A recent California Court of Appeals decision demonstrates how a not-so-accidental omission of a child can still lead to costly litigation.

Peltner v. Herterich

This case is discussed here for informational purposes only and should not be treated as a complete statement of California law on this subject. The deceased in this case is Hans Herbert Bartsch, who died in 2008. Bartsch signed a last will and testament in 2007, leaving his estate to various friends and family, most of whom resided in Germany. Bartsch’s will declared that he was unmarried and had no children.

After Bartsch’s death, Norman Bartsch Herterich came forward and claimed to be Bartsch’s son. Herterich was born in 1961, and he said a court ruling in 1963 established Bartsch’s paternity. Herterich claimed Bartsch either forgot or did not believe that he was his child, leading to his omission from the will.

Under California law, if a parent omits a child from a will because he believes the child is dead-or was unaware of the child’s birth to begin with-a probate court may order the estate to pay the child the share of the estate he would have received if the parent had died without leaving a will at all. Herterich claimed this applied to his situation. Arndt Peltner, the executor of Bartsch’s estate, disagreed.

After lengthy court proceedings, requiring two trips to the Court of Appeals, the executor prevailed. The appeals court explained in its second opinion that “with respect to a child born before the making of the will, the burden of proving that the decedent did not intend to omit the child-because the decedent thought the child was dead, or was unaware of the child’s birth-is on the child.” (Emphasis in original) This means Herterich had to prove that Bartsch was unaware he had a child at the time he made his will. But Herterich’s own arguments undermined that position, as he introduced evidence of the 1963 paternity cases-which resulted in a legal finding that Bartsch was his father, and subsequently ordered the payment of child support. Furthermore, Bartsch paid said child support for nearly 20 years.

Given all this, the court found it hard to believe that Bartsch accidentally excluded Herterich from his will. Bartsch may have disputed the 1963 court’s finding on paternity-prompting him to state he had no children in his will-but his compliance with its orders clearly suggests he was aware of an alleged child. The court concluded Bartsch simply decided not to provide for Herterich in his will, as was his right.

Keeping Your Will Up to Date

California’s law regarding omitted heirs is supposed to provide for genuine cases in which a person fails to include a child that he or she was unaware of-or who wasn’t born at the time the will was made. When a new child does enter your life, it’s essential that you update your estate planning to make your intentions towards that child plain. A California estate planning attorney can advise you on the best way to update your will and other important documents. Contact the Law Office of Scott C. Soady in San Diego if you have any questions.

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