The Trouble with Children – Problems Defining Offspring for Inheritance
It’s very natural for parents to pass on all their worldly goods to their children, and for those who die without a will the probate rules will ensure that they are the first in line (along with any spouse) for the assets from your estate. But although the definition of your child sounds simple, probate law draws some fine distinctions when it comes to determining who your children are.
- Adopted children – formally adopting a child means that it can legitimately inherit a share of its adopted parent’s estate. However, adoption means that it will not have any claim on the estate of its birth parents.
- Step children- unless adopted, step children cannot claim part of their non biological parent’s estate. However, step children can make a claim after the parent’s death for a share of the inheritance if they have been treated as a ‘child of the family’ or where they are financially dependent on the deceased step parent.
- Illegitimate and Legitimate children – Children born to parents who are unmarried, or not in a civil partnership, are considered to be exactly the same as children of married parents, and so are entitled to their parental legacy. Unmarried parents marrying changes nothing regarding their children’s inheritance.
- Unborn children – a child that is conceived, but unborn, will be eligible to receive an inheritance from your estate. A trust will normally be set up, to hold the assets inherited, until the child reaches a suitable age.
- Children Conceived By Artificial Insemination or In Vitro Fertilisation – the Human Fertilisation and Embryology Act 2008 is a complex piece of legislation that determines the recognised legal parents of a child, even though neither may be the biological parents. As with adopted children above, a child has a right to a legacy from its recognised legal parents, but cannot claim a legacy from its biological parents.
It is always preferable to name children in a will, to ensure that they are very clearly distinguishable from other relatives (or anyone else). However, some wills are drafted to include a phrase similar to ‘all of my children’ that is designed to cover the eventuality of any future births, after the will is signed.
It’s this catch all class of ‘children’ that makes the above definitions so vitally important in determining who will be considered your child, and who will not.