With the recent death of Kobe Bryant, world renown sports star, the Byrant family and the world mourned a terrible loss. And in Kobe’s own family, after the shock of the death, funeral, and then review of his estate, it became very clear that Kobe had left his daughter Capri out of his trust.
Now trusts are for the most part private legal entities – this means that they are not filed with a court after one dies and depending on the state where the trust is established, the trust document may not be available for review except by a qualified remainder beneficiary, as is the case in Arizona. (see A.R.S. §14-10813). Of course, this type of privacy can be a strong motivating factor for why a person may wish to use a trust as a vehicle to pass on their estate during after death, in addition to the fact that a well-funded trust estate does not require a probate administration.
In Kobe’s case, a petition had to be filed with the Court requesting that his daughter Capri be included in the distribution of his trust estate.
Some Arizona Legal History
Generally, an heir who is left out of a Will is known as a “pretermitted heir”. In 1970, the Supreme Court of Arizona reviewed this issue in the case of DeCoste v. Superior Court (106 Ariz. 50). In this case, Mary Ann DeCoste was born after her mother Fedwa Gobins executed her Will in April 1930. The Court reviewed the then existing “pretermitted heir” statute (A.R.S. §14-131) which provided that,
The Court ruled that Mary Ann DeCoste was entitled to an intestate share of Fedwa Gobins’ Estate because she was omitted, and overturned the order of the trial Court.
Current Law in Arizona
Today, Arizona has enacted statutes that consider both after-born heirs (A.R.S. §14-2108) which treats a child in gestation as living if the child lives at least 120 hours after its birth, and omitted heirs (“pretermitted heirs”) under A.R.S. §14-2302.
Presently, Arizona law provides that unless it appears from a decedent’s Will that a child was intentionally omitted (i.e., disinherited), or the child was provided for outside of the Decedent’s Will (and the intent for the transfer was in lieu of a testamentary transfer by the testator’s statements or inference from the amount), then a child omitted from a Will is entitled to an intestate share of the Estate, or a portion of the specific devise that was directed to the testator’s children, or the portion the child would have received if the omitted child were included with the other children and given an equal share (see A.R.S. §14-2302).
Of course, this gives pause for concern for younger families still having children, or parents in a second marriage where children are born or adopted from the second.
What to do with my Will or Trust?
So, when taking steps to draft and execute estate planning documents, one should seriously consider working with an attorney who is familiar with these laws particularly in drafting a new will, or re-drafting an existing will or trust to include a child who was omitted from the last document.
Accordingly, in writing a will, if a child is to be intentionally omitted, then a disinheritance clause may need to be included, and potentially consideration should be given to whether the testator should give a portion of the estate to the disinherited child through a non-testamentary transfer (i.e., life insurance, annuity, bank account).
By contrast, provisions can be drafted into a trust to provide for the “Kobe Bryant Situation” described above, such that the language of the trust divides the remaining trust estate into equal shares for each of the trustors children now living, and to the trustor’s children born after the trustor signs the trust.
If you have not had your trust or will reviewed recently or need to write your will for the first time, then call and schedule an appointment with MCR’s Estate Planning Attorneys at (520) 624-8886 so your children do not find themselves in the situation like Kobe Bryant’s daughter.
IMPORTANT: Neither this blog article nor any information on this website shall be construed as the offering or rendering of any legal advice, and does not establish an attorney-client relationship between the reader and Mesch Clark Rothschild, (“MCR”) or any attorney at MCR. You should consult with an attorney if you have a specific question regarding your legal issues.
