Can I Leave My Estate to Only My Biological Children in a Will?
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A mother can leave property in a will to only a portion of her children, whether they are biological children or stepchildren. It is best to update one's will to name all children, even if some are not heirs. By naming the children individually, it may avoid a later claim of being left out accidentally. Sometimes a child is left a nominal sum, or the will maker may say that he chooses not to leave anything to the child for reasons known to them.
A Last Will and Testament Form with All Property to Trust (Pour Over Will) assumes that a living trust has already been established. This will is one made in conjunction with a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a safety measure designed to protect any assets which somehow were not included in the trust and make them assets of the trust upon the party's death. A pour over will often provides that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.
To prevent the creation of an intestate estate, a pour-over will is created to save any property which had been left out of the trust at the time of trustor's death. By the terms of the pour-over will, the property that it catches is distributed to the existing trust. A pour over will is a necessary addition to a trust, in order to protect the property which was not held by the trust, not held in joint tenancy, or subject to other contractual arrangements at the time of the rustor's death.
A pourover trust is a revocable trust that is structured to receive and dispose of assets at the settlor’s death. The revocable living trust can be a "shell" during the grantor's lifetime. That is, the trust can be inactive during life. If the trust did not terminate at the grantor's death, the trust may receive assets passing under the will (after probate) and from life insurance policies. Assets may be directed to the trust by the settlor’s will, which is called a pourover will, or by beneficiary designation for non-probate assets.
This type of trust is similar to a testamentary trust in that it is designed to dispose of the assets at the settlor’s death. However; a pourover trust is a separate document. A pourover trust can be advantageous since it is administered by a trustee without court supervision. In addition, it is a private instrument, unlike a testamentary trust, which is part of public record.
A living trust, by definition, is not part of a last will and testament. Any trust created in a will is called a testamentatry trust as it does not begin until the death of the trustor.
The answer will depend on the terms of the trust, such as whether it is revocable and who the beneficiaries are. The amount initially used to fund a trust is “principal.” Interest, dividends and rents earned on the principal are “income,” but the realized or unrealized increase in value of the principal retains its character as principal. Trust principal is not marital property, as the beneficiary has no property right in the principal of the trust, unless the beneficiary has the right to withdraw the trust assets. If a beneficiary may withdraw trust assets, the principal will still be non-marital property as property acquired by gift or bequest (or property acquired prior to marriage). However, a spouse could argue that the appreciation on the principal is marital property if the spouse was a trustee or in some other way contributed to the appreciation.
The courts in California will divide the community property of the parties equally after setting aside to each spouse that spouse's separate property. Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. This presumption may be rebutted by a clear statement in the title by which property is acquired that the property is separate and not community property or by proof that the parties have a written agreement that the property is separate property. In cases where the asset is claimed to be converted to marital property by commingling, in order to prove the separate nature of the property, the other spouse may attempt to trace the funds used to separate property, such as when funds from a spouse's separate property home owned before marriage are used to purchase a joint home after marriage. In such cases, having documentation regarding the source of funding is used to trace the separate funds used to purchase the marital asset.
Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
The Court makes a distinction between marital assets and separate assets. Marital assets are assets acquired during the marriage. Separate assets are asset which one party acquired prior to a marriage and maintained as separate property, property inherited during the marriage and property received as a gift by one party during the marriage. A party can turn a separate asset into marital asset by commingling the asset. Examples include: adding a new spouse's name to a bank account, car title, or deed to the home as joint tenants with right of survivorship.
A prenuptial agreement is most often filed along with financial disclosures, if such disclosures aren't knowingly waived. A prenuptial agreement form is typically filed in the state you are currently living in. It should be filed with your county's clerk office so that it's on public record before the wedding. A prenuptial agreement is normally used in situations where one or both parties: has significant wealth or expects to receive a large inheritance, has a personal business, wish to keep all assets and debts separate, were previously married, and/or have children from a previous relationship. It is recommended that both parties consult with an attorney to ensure it is entered into fairly and knowlingly and minimize the possiblility that it may be challenged at a later date.
It can be used to accomplish many legal and financial objectives, but in general couples use it to protect separate property (a family business, for instance), support an estate plan, define what is marital or community property, reduce conflicts and save money in the event of divorce, and establish procedures for deciding future events.
In the enforcement of premarital agreements, there are three main issues that are typically addressed by a court if the agreement is challenged:
a. Was the agreement entered into voluntarily;
b. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
c. Was there full disclosure of all assets, liabilities and income?
If these three items can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at the time of enforcement, which shall be determined by the court as a matter of law.
A prenuptial agreement may be declared invalid under the following circumstances:
a. Unconscionability. A premarital agreement must be fair and reasonable. A premarital agreement can't cause financial hardship to the other party. Unconscionable contracts are often found to be invalid in the courts.
b. Both parties didn't have independent counsel. Each party must have his or her own lawyer. Many people mistakenly believe that they can have one lawyer represent both of them. However, each party must have his or her own legal counsel. A lawyer must make it clear to the unrepresented party that he or she does not represent him/her, and further advise them to obtain their own lawyer.
If a party needs to have the document translated due to language barriers and is prevented from doing so, this may lead to a challenge based on a lack of understanding and/or duress that prevented a fairly and knowlingly made agreement.
c. The agreement has incomplete information. There must be full disclosure when negotiating a premarital agreement. Quite often a person will try to hide some assets when he or she negotiates. If a person does not make full disclosure during the negotiation of a premarital agreement, there can eventually be strong grounds to void the agreement.
d. The agreement has false information. A premarital agreement can't be based on false and misleading financial information. A person must make full disclosure during the negotiations.
e. Invalid provisions. A premarital agreement can't limit child support or any other child support-related areas. If a premarital agreement contains clauses that try to limit child support or child support-related areas, then that specific clause will be invalidated. In most cases, the court will only strike the illegal clause, and enforce the remainder of the premarital agreement, provided that it is fair and equitable.
f. Reasonable time for consideration. The prospective spouse who is entering into a premarital agreement must have a reasonable amount of time to adequately review it. It would not be wise to give a prenup to your prospective bride or groom the day before the wedding. These agreements must be thoroughly reviewed and considered.
g. Undue pressure. Premarital agreements are often challenged once the parties get divorced. One of the most popular challenges to a premarital agreement is an allegation that a person was pressured by his or her spouse, the lawyer, or the in-laws to sign the prenup.; Some attorneys suggest that the signing of a prenup be videotaped.
h. No written agreement. All premarital agreements must be in writing. An oral premarital agreement is not enforceable.
The following are the essential requirements that must be satisfied in order for a premarital agreement to be upheld:
a. There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be attached to the agreement that sets forth the parties' earnings, property, and financial obligations. A CIS should also be attached to the agreement.
b. Both parties should be represented by attorneys. A premarital agreement will likely not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
c. The agreement must not be unconscionable. An unconscionable premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it.These situations are as follows:
(i) When a spouse is rendered without a means of reasonable support.
(ii) When a spouse becomes a public charge.
(iii) When a spouse is provided a standard of living far below that which was enjoyed before the marriage.
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. While six to eight weeks is ideal, this does not mean to suggest that an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it may be stated in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in any way affect their ability to freely and voluntarily enter into the agreement or cause them to do so under any coercion, duress, or undue pressure.
