Think your Will has everyone covered? Across the country state laws protect heirs and descendants who were not included in a Will, whether they were unknown at the time or simply left out by mistake. These “pretermitted” or “omitted” heirs can, in some cases, claim a share of your estate even when your Will says otherwise.
In New Jersey, a child born or adopted after you sign it can still claim a share — and North Carolina may handle it differently.
What the Law Says in North Carolina
North Carolina’s estate laws include several provisions that deal with unknown or omitted heirs and how they are treated after someone’s death.
Two key examples:
- N.C. Gen. Stat. § 28A-22-3 – Distribution to known heirs.
This section allows personal representatives to distribute an estate to known heirs and devisees, but it also recognizes that unknown heirs may later appear. If a later-discovered heir presents a valid claim, the court can adjust distributions to ensure fairness. - N.C. Gen. Stat. § 28A-22-9 – Liability to unknown heirs or devisees.
This statute limits liability for executors or administrators who act in good faith — but still provides a remedy for heirs who were overlooked or whose rights were not known at the time of distribution.
Together, these provisions illustrate that state laws often anticipate the possibility of unknown or omitted heirs and establish a framework for addressing their potential claims.
3 Reasons Why This Matters:
- Fairness.
The law’s goal is to prevent accidental disinheritance. If it seems likely you simply forgot to include a descendant, the statute may give them a share.
- Actual consequences.
Executors may need to reopen an estate, adjust distributions, or even recover funds that were already paid out to other heirs.
- State to state differences.
Every state has its own approach to pretermitted or omitted heirs. For example, Maryland, New York, and South Carolina all have their own versions of “omitted-child” statutes — each with unique rules about timing, intent, and inheritance rights.
One Concept, Many Versions
While North Carolina’ slaws outline how unknown heirs and good-faith distributions are handled, other states go further — defining who counts as a “pretermitted” heir, what share they receive, and when an omission is considered intentional.
For example, in New Jersey “forgotten” children may get a slice of an inheritance. Specificality, N.J. Stat. § 3B:5-16 protects children born or adopted after the Will was signed, giving them a share of the estate unless the Will clearly shows the omission was intentional. NJ also accounts for situations like a testator mistakenly believing a child is dead. In other words, if you adopt a child after signing your Will in New Jersey, the law gives that child an express legal right to inherit — even if your Will did not mention them — unless you made it crystal clear you intended otherwise.
This patchwork of laws means a Will validly excluding someone in one state could be interpreted differently elsewhere. That’s why multistate families — or anyone who has moved since signing a Will — should have it reviewed in their current state of residence.
The Pretermitted Child: A Common Example
A “pretermitted child” is one who was born or adopted after the Will was signed and not mentioned in it. In many states, including NC, courts may assume the omission was unintentional unless the Will clearly says otherwise.
So, if you wrote your Will in 2015 naming your two children and later adopted another child in 2020 — but never updated the Will — that third child could have a legal right to part of your estate.
Without clear language showing that the omission was intentional, North Carolina’s protective laws could step in and override your stated wishes.
Even the most carefully drafted Will can encounter surprises. Sometimes, a previously unknown or omitted heir may come forward after a person passes away. In practice, this usually begins with the heir filing a petition with the probate court to claim their portion of the estate. The court then reviews whether the heir qualifies under state law as a pretermitted or omitted heir, for example, a child born or adopted after the Will was executed, or someone who was unintentionally left out.
Filing a petition does not automatically guarantee the heir a share; it can trigger a contested probate proceeding. This means the estate may temporarily be put on hold while the court evaluates the claims. Other beneficiaries or the executor may dispute the petition, arguing that the omission was intentional or that the heir has already been adequately provided for outside the Will, such as through a trust, life insurance, or other gifts. The judge considers evidence, including the language of the Will, the timing of life events, and any statements or actions by the testator, to determine whether the omitted heir is entitled to a portion of the estate and, if so, how much.
These situations highlight why it is crucial to update your Will regularly and include clear language about intent, because even a single oversight can lead to legal proceedings, delays, and potential redistribution of assets.
Say What You Mean
Your Will is not just a list of beneficiaries — it is your final word on how your estate should be handled. But even the most carefully drafted Will can run into trouble if it leaves room for doubt. The law steps in to protect heirs who might have been unintentionally forgotten, including children born or adopted after your Will was signed.
That is why it is crucial to make your intentions absolutely clear. A simple, explicit statement such as:
"I intentionally make no provision for any child or descendant not specifically named."
This small statement can go a long way in preventing disputes and ensuring your estate is distributed exactly as you intend. Updating your Will after major life events — like births, adoptions, marriages, or divorces — is equally important. Even a small oversight or ambiguous language can give a pretermitted heir a legal claim, potentially altering the distribution you carefully planned.
The bottom line: estate planning is not just about who gets what — it is about clarity, certainty, and peace of mind. Say what you mean, and make sure your Will means exactly what you say.
If you are in need of assistance, the attorneys at Collins Family & Elder Law Group can help.
