In most cases, wills are quite straightforward. You leave and divide your property, monetary wealth, and assets to your heirs. Unfortunately, there can be some strange events after your passing that you did not plan for. When that happens, your pre-appointed executor has to work something out. Here is what happens when you have passed away and there are suddenly some long lost heirs or illegitimate children appearing to attest the will and how you might prepare for this in advance of your passing.
Long Lost Heirs
These are heirs you knew you had, but you thought were dead or lost in some other manner. Yes, it is the stuff of comic books and TV dramas, but it can still happen, especially if you are male. (Clearly, most women would know if they had long lost heirs or illegitimate children, having born them into the world.) If you have left some property or wealth to a lost heir, you can choose to leave it as is, or you can write this heir out of the will.
Now, if you leave this heir in your will, your present heirs may contest the will at length until the assets are released and divided among themselves. If that happens, and the missing heir suddenly shows up, then the missing heir contests the will and sues the other heirs. It ends up being a long, drawn-out battle with solutions that you personally would have probably never selected.
If you remove the missing heir, your remaining heirs receive these assets accordingly. However, the missing heir can still show up and contest the will, which could make this adjustment to your will null and void. It certainly complicates things, but that is why probate law and probate lawyers exist.
Illegitimate Heirs
Illegitimate heirs refers to the illegitimate children of the male testator (owner of a will). The laws vary by state. For example, these children, adult or child, are still considered legitimate heirs in Florida, but up until 1991, illegitimate children could not legally inherit property or money in Texas. Further complications arise if the child is given up for adoption, since many states consider the adoptive parents the ones from which the child will inherit something.
If you suspect that you have some illegitimate children roaming around out there, you should look into the wills and probate laws of your state. If your state says that illegitimate children have a right to inherit something from you because the mother of the child never remarried and/or the child was never adopted, then that adult child can contest your will for a share of the wealth. Conversely, if your state says that an illegitimate child has no claim, you do not have to worry about it.
Yet, if you wanted to be particularly thoughtful and careful about any children you may have wandering around out there in the world, you could add an addendum to your will that places some money or property in a trust. In the event that an illegitimate child comes forward to claim what is held in trust, the battle for his/her share is limited to the trust amount or items. Additionally, you can stipulate that any illegitimate children staking a claim have to first pass a DNA test that confirms that you are his/her parent. That would eliminate all false claimants.
Finally, if, after a certain number of years, no illegitimate children come forward, you can place a clause in the will that grants the trust amounts to other heirs. Discuss with your probate lawyer regarding any current laws governing time restrictions for claiming trust amounts and items. Then carefully word this clause to provide instructions to the executor of your will. Talk to someone with estate planning experience for more direction.
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