Effect of Birth or Adoption on a Will

How Birth of a New Child Affects the Will

The birth of a new child does not necessarily imply that you need to change your will. Whether you include them in the will or not, the child does stand to inherit part of your estate.

  • Where the child is not included in the will, they will inherit your estate according to the intestate laws in Georgia. The remaining estate will then be distributed according to your will. This is a gross over-simplification. They would have to file documents in court to set aside the will and/or receive support before assets are distributed pursuant to the terms of the original will. Most will are written in general terms to avoid this (Assets A, B, C to my then-living children in equal shares).
  • Where the child is included in the will, they stand to inherit part of your estate as per the distribution set forth in your will.

How Adopting a Child Affects the Will

When you adopt a child in Georgia, the law treats them as your natural child. An adopted child has the following inheritance rights (unless the Will provides otherwise):

  • To inherit part of the adoptive parent(s)’ estate according to the intestacy laws in the event the parties die without a Will. The adopted child has this right only in connection to the adoptive parents – not with the birth parents.
  • The same rule applies where the adoptive child is not included in the will (by mistake) or the parent did not have ample time to update their will following the adoption. Intestacy laws only apply where there is no will. If there is a will then you can move to have it set aside but you have to challenge the will before intestacy laws apply. The intestacy laws decide how much property does the adopted child stand to inherit (just like the natural child).
  • The adoptive child is also rightfully included in all references made to “all my children” by the testator in his will. A majority of times documents for estate planning use a collective reference to the children of the testator. Since the law creates a parent-child relationship between adoptive parents and the adopted child – it gives the adopted child inheritance rights equal to a natural child.

The effect of birth or adoption on a will may differ from one state to another as intestacy and probate laws vary from one state to another.

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