Descendants

In estate planning and will drafting, the role of descendants is a critical and intricate facet. 

Descendants are often at the center of a testator’s considerations when crafting their last will. 

This article delves into the legal nuances surrounding descendants in wills.

Defining Descendants In A Will

In legal terms, descendants encompass individuals directly related to the testator.

This is through birth or adoption, forming a generational lineage. 

While this primarily involves children, the term may extend to grandchildren and great-grandchildren.

This depends on the testator’s preferences and the jurisdiction’s laws.

Rights Of Descendants

Descendants enjoy several rights when mentioned in a will:

Inheritance Rights: 

Descendants are legally entitled to inherit a portion of the testator’s estate.

This is unless expressly disinherited or omitted from the will. 

Many jurisdictions have laws that protect a child’s right to inherit even if the will does not specifically mention them.

Representation: 

Descendants may represent the interests of their deceased parent or grandparent if the latter was intended to inherit but predeceased the testator

This principle of representation ensures that the inheritance continues down the family line.

Obligations Of The Testator

When considering descendants in a will, the testator has a range of legal obligations and options:

Support Obligation: 

The testator often has a moral and legal obligation to provide for their descendants’ financial well-being. 

This obligation may manifest through specific bequests, trust provisions, or other financial support outlined in the will.

Disinheritance

A testator may disinherit a descendant, but this must be done explicitly and in compliance with local laws. 

Courts may scrutinize disinheritance clauses to ensure they are not motivated by undue influence, coercion, or discrimination.

Perils And Challenges

While careful planning can help avoid disputes, wills involving descendants can still face challenges:

Contesting The Will: 

Disgruntled descendants may contest a will if they believe it was created under duress, undue influence, or the testator lacked capacity. 

A well-documented estate plan and clear communication with heirs can mitigate these risks.

Intestate Succession: 

Failing to include descendants in a will may result in the application of intestate succession laws.

It is where the state dictates how assets are distributed. 

This can lead to unintended consequences.

Example 1: John’s Will

Background Scenario:

John Smith is a wealthy individual who has accumulated significant assets throughout his lifetime.

He is married to Sarah Smith, and they have two children, Emily and Michael.

John wants to create a will to ensure that his assets are distributed per his wishes in the event of his passing.

Descendants In The Will:

Sarah Smith (Spouse):

John designates his spouse, Sarah Smith, as the primary beneficiary of his estate. He specifies that she will inherit all of their joint assets, including their family home and bank accounts, upon his passing.

Emily And Michael Smith (Children):

John also wants to provide for his children, Emily and Michael. In his will, he names them as contingent beneficiaries. He states that if both he and Sarah were to pass away simultaneously or if Sarah predeceases him, all of his remaining assets, including investments and personal property, should be equally divided between Emily and Michael.

Example 2: Maria’s Will

Background Scenario:

Maria Rodriguez is a retired schoolteacher with a modest estate.

She is a widow and has two grandchildren, Sofia and Mateo.

Maria wants to create a will to ensure that her possessions are distributed as she wishes after her passing.

Descendants In The Will:

Sofia And Mateo (Grandchildren):

Maria’s primary beneficiaries are her two beloved grandchildren, Sofia and Mateo. She specifies in her will that they will inherit her home, which is her most valuable asset. Additionally, she designates a portion of her savings account for their education, ensuring they have the financial means to pursue their dreams.

Maria’s Favorite Charity:

Maria is passionate about supporting a local animal shelter and wants to continue her charitable contributions even after her passing. In her will, she allocates a percentage of her remaining assets to be donated to her favorite charity. She specifies the amount and ensures that her estate’s executor carries out this wish.

In these examples, “descendants” typically refers to family members who inherit assets through a will.