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Preterition: The Legal Implications of Omitted Heirs in Wills
Definition & Meaning
Preterition refers to the act of a testator, or a person making a will, failing to mention one or more heirs in that will. This term signifies the omission or neglect to include certain legal heirs, which may lead to those omitted heirs having a claim to the estate if the will is contested. In cases where heirs feel wronged by this omission, they may bring the will to court. If it is determined that the omission was intentional, the will may still be upheld as valid.
Table of content
Legal Use & context
Preterition is primarily used in the context of estate planning and probate law. It arises when a testator does not name all heirs in their will, which can create disputes among family members after the testator's death. This term is relevant in civil law, particularly in cases involving wills and trusts. Users may need to manage forms related to wills, estate disputes, or inheritance claims, which can be facilitated through legal templates provided by US Legal Forms.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
(hypothetical example) A testator creates a will that names only one of their three children as the beneficiary, intentionally leaving out the other two. After the testator's death, the omitted children may contest the will, arguing that they were entitled to inherit as legal heirs.
(hypothetical example) A testator forgets to include a sibling in their will. If the sibling later discovers this omission, they may seek legal recourse to claim their share of the estate, especially if there is evidence that the omission was not intentional.
State-by-state differences
State
Consideration of Preterition
California
California courts may allow claims from omitted heirs unless the omission was intentional.
New York
In New York, preterition can lead to a statutory share for omitted children if they were not intentionally excluded.
Texas
Texas law provides that omitted heirs may have a right to inherit if not explicitly excluded.
This is not a complete list. State laws vary, and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Difference
Preterition
Omission of an heir in a will.
Focuses specifically on the failure to mention heirs.
Disinheritance
Deliberate exclusion of an heir from a will.
Involves intentional actions rather than accidental omissions.
Intestate
Not having a valid will at the time of death.
Involves no will at all, while preterition concerns existing wills.
Common misunderstandings
What to do if this term applies to you
If you believe you have been omitted from a will, consider taking the following steps:
Review the will to understand your standing as a legal heir.
Gather any evidence that suggests the omission was not intentional.
Consult with a legal professional to discuss your options for contesting the will.
Explore US Legal Forms for templates related to will contests and estate claims.
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