What’s the Big Deal about Pretermitted Heirs?

By Attorney Christine S. Anderson

June 2019

If you got past the title of this article and decided to read on, the first question you are likely to ask is: exactly what is a pretermitted heir? (It would rhyme with pre-permitted, if that were a word.) A pretermitted heir is a child or descendant of a person creating a Will who is not mentioned in the Will. The heir need only to be left out in order to become a pretermitted heir. The law in New Hampshire protects a decedent’s children and descendants from being inadvertently overlooked or forgotten.

The pretermitted heir statute provides that if a child or surviving descendants of a deceased child are not mentioned in a Will, then they are entitled to receive the share of the estate that they would receive under the intestacy statute. The intestacy statute is the law that governs how a person’s estate is to be distributed if the person dies without a Will (intestate.)

At Ansell & Anderson, we are careful not to trip on the pretermitted heir law. We name each child and the surviving descendants of a deceased child in the introductory paragraph in a Will. Many clients ask about a provision in our Wills that pour over into a Trust. The provision reads as follows:

Provisions Relating to Children and Issue. I am mindful of my children and their issue and, except as otherwise expressly provided by this Will, I intentionally make no provision for the benefit of any child or the issue of any child, whether now alive, now deceased, or hereafter born or deceased.

This provision avoids the application of the pretermitted heir law when a Will names a Trust as beneficiary by indicating that the testator intentionally did not include children as beneficiaries under the Will. (The children may be beneficiaries of the Trust, but they are not beneficiaries under the Will.) If you had questions when you initially read this provision in your pour over Will, does it make more sense now?

Before coming in for an initial conference, we ask clients to complete and bring with them our confidential client data form. Included on the confidential client data form is a request that the client list the client’s children from the current marriage, previous marriages as well as any deceased children. This request for information might seem invasive, at first blush. Many individuals block out painful or difficult situations from their past which could include children born out of wedlock when they were young or estranged children from marriages that dissolved decades ago. The reason behind these questions on the client data form is so that we can be certain not to run afoul of the pretermitted heir statute.

The hullabaloo about pretermitted heirs in 2018, which we covered in our annual letter, involved a case, In re Teresa Craig Living Trust, 2017-0532, which addressed the question of whether the New Hampshire pretermitted heir statute applies to trusts. The argument presented was that the pretermitted heir statute applies to trusts through a section of the New Hampshire Trust Code that states that the statutory rules of construction that apply to wills also apply to trusts. Teresa E. Craig (“Teresa”) died on July 10, 2016. She had two children, Michael and Sebastian. Michael predeceased Teresa in 2007, leaving two children (Teresa’s grandchildren). Following Michael’s death, Teresa amended her revocable trust leaving everything to Sebastian and his descendants. She also executed a new pour-over will leaving everything to her revocable trust. Neither the will nor the trust named Michael or his children. While the will included standard language indicating that Teresa intentionally made no provision for any child or the issue of any child in her will, the trust did not include similar language. Michael’s two children brought the case seeking a determination that they were pretermitted heirs under the trust, arguing that the pretermitted heir statute applies to trusts as a rule of construction, under the New Hampshire Trust Code. The New Hampshire Supreme Court held that the pretermitted heir statute was a rule of law not a rule of construction and therefore, it did not apply to trusts. In addition, while the case was pending before the Supreme Court, the New Hampshire Trust Code was amended to provide specifically that the pretermitted heir statute is not a rule of construction and does not apply to trusts. The significance of this decision and new law is that they preserve what most practitioners believed was the law in New Hampshire and prevent unintended consequences for trusts not prepared with the pretermitted heir statute in mind.

At Ansell & Anderson, we work hard to ensure that your estate planning wishes are carried out as you intend, including avoiding inadvertently triggering the pretermitted heir statute.