What happens to a biological child's inheritance if they have been adopted by a stepparent?

Dear Len & Rosie,

My recently deceased brother had a daughter thirty years ago. He and his wife divorced within her first year of her life. Apparently, my brother’s daughter was adopted by her mother’s second husband after she remarried.  Would this daughter be legally entitled to any part of my brother’s estate or his trust? My brother had a living trust and didn’t want to leave anything to her, but the trust didn’t specifically name her and exclude her from an inheritance. Instead, the trust says, “I have purposefully omitted any other relatives from any and all distributions.” Is this a problem?

Nancy

Dear Nancy,

When we meet an estate planning client, the first thing we do is to talk about the client’s family. How many children and grandchildren are there? Are there any deceased or disabled children? Are there children our client has adopted, or children who’ve been adopted away? It’s also a subtle way to quiz a client’s mental capacity. It’s a good sign when a client knows the names and ages of all seven of her grandchildren.

If our client wishes to disinherit a child, we like to include language such as “The settlor has intentionally and with full knowledge of the consequences made no provision for the settlor’s daughter, Nancy, or her issue.” (Issue is a legal term that means “descendents.”) From what you’re telling us, it looks like your brother’s attorney may not have been that thorough.

Fortunately, the law is somewhat forgiving. Your niece will always be the biological daughter of your brother, but if she was adopted by her step-father, she’s no longer legally related to you or your brother. She’s not entitled to notice of the existence of your brother’s trust, or notice of a probate. She also does not inherit anything from your brother’s trust or probate estate unless the trust or will names her as a beneficiary.

Unless you have proof of the adoption, the successor trustee of your brother’s trust should provide your niece (or ex-niece) notice of the existence of the trust under Probate Code section 16061.7. Play it safe.

If she was never adopted away from your brother, she’s still not entitled to inherit anything if your brother’s will and trust left everything to others. The only time a child is automatically cut into an estate plan is if the trust or will fails to dispose of everything, or if the child was born after the trust or will was created.

So why name children and specifically disinherit them when it strictly isn’t necessary? It makes the client’s intentions clear. It’s harder to prove a man didn’t know he was disinheriting a daughter when his initials are next to a paragraph saying so in clear unambiguous language.

Len & Rosie

My mother has a degenerative brain disorder that has caused early dementia, how can we can get her the help she needs either in her own home full time or in a retirement home?

Dear Len & Rosie,

My mother is very young, only 60 years old, but she has a degenerative brain disorder that has caused early dementia. She lives in southern California, so from long distance, we have tried to get her to agree to having help in her home. She is resistant to this idea. She no longer sees her neurologist because nothing can be done for her. Right now, she doesn’t even have a doctor. My sister does have an advance health care directive our mother signed a few years ago.  How can we can get her the help she needs either in her own home full time or in a retirement home?

Karen

Dear Karen,

There’s not a lot that you can for your mother against her will. Even if her advance health care directive gives your sister immediate authority over medical decisions, your mother has the right to make her own choices, even bad choices, concerning her medical treatment. Your sister can take over if and when your mother’s mental condition deteriorates to the point where she can no longer care for herself. But until that happens, your mother remains in control of her own life and she has the right to make unwise decisions.

Many people suffering from early dementia or Alzheimer’s disease confront their condition only reluctantly, when it becomes obvious to all concerned that they need day-to-day help. Since your mother legally still has mental capacity, you cannot just barge in and take over. You need to calmly persuade her that she needs help, and that she will have more independence in her life if she accepts help now, rather than stubbornly living alone until injury or self-neglect forces her to leave her home.

If your mother is willing to help you help herself, she should update her estate planning documents by giving you or your sister a durable general power of attorney in addition to her advance health care directive. If she has a revocable trust, it is probably a good idea for her to resign as trustee and let her children manage it. If she does not have a trust, she ought to create one now.

Your mother should also consider Medi-Cal planning. If her condition is progressive, there may come a time when your mother is physically and mentally incapable of living in her own home, or even in an assisted living facility. It is a difficult issue to confront, but your mother may eventually need nursing home care. By acting now, she can help shelter her assets from expensive nursing home bills. Remember that the goal here is not for you to take over your mother’s finances and ship her off to a nursing home for her own good. But you do need the tools to provide care for your mother to the extent that she needs it.

If she refuses assistance, then you may have to wait until she is clearly incapacitated. At that time, you can act on her behalf if you have a durable power of attorney. If you don’t, you may have to file for a conservatorship over your mother, which will get the court involved making things more complicated to deal with than if your mother has an estate plan.

Len & Rosie