The Case of the Vanishing Grandson
The course of the law takes unexpected twists and turns, not unlike the wriggling and wrangling of the great escape artist, Harry Houdini. In the case of one Tennessee family, the law caused a beloved grandson to disappear entirely before everyone’s eyes. Richard lived a long life. He and his wife had two children, whom we will call Debra and Randall. Richard loved his wife, his children, and his grandchildren. When Richard died at age 84, he had outlived his wife and Randall. As Richard’s surviving child, Debra filed a petition in probate court to administer her father’s estate. Unfortunately, Richard had never consulted an elder lawyer. He did no estate planning. He had no trust or last will to provide for the orderly administration of his estate and for the distribution of his assets.
When a person dies without estate planning, the law requires that his assets be distributed to his legal heirs. In Richard’s case, with no surviving spouse, his estate would be divided equally between his children. Since Debra was living, she would take one-half of his estate. Since Randall was not living, Randall’s children would receive equal portions of their father’s one-half share of Richard’s estate. Randall had two children named Bobby and Jeffrey. When Richard died, Bobby and Jeffrey expected to each receive one-half of the share that would have gone to Randall. In other words, Bobby and Jeffrey each expected to receive one-fourth of Richard’s estate.
When Debra filed the petition to open the estate, a gentleman named Tracy filed a petition before the court seeking recognition as the third son of Randall. At the time that the estate was opened, Tracy was incarcerated in the Tennessee prison system. Randall had died when Richard was in his 30’s. Just a year before Randall’s death, Tracy had been born out of wedlock. His birth certificate did not list his father’s name. Tracy carried his birth mother’s last name.
Richard was well aware of Tracy’s existence. He publicly referred to him as his grandson on numerous occasions and on various documents over the years. In fact, when Tracy’s mother married and her husband adopted Tracy as his own child, Richard acknowledged in the adoption proceeding that Tracy was his grandchild. Also, on occasions when Tracy was charged with criminal offenses, Richard acknowledged Tracy as his grandchild in relation to those proceedings. In fact, after Richard’s death, the family prepared and published his obituary, which identified Tracy as one of Richard’s grandchildren.
In considering Tracy’s court petition to be recognized as Richard’s grandson and, therefore, as an heir to Richard’s estate, the judge recognized the following facts: Richard understood that Tracy was his grandson and wished to treat Tracy as his grandson for all purposes. On some occasions, in legal proceedings, the facts collide head-on with the law. The matter of Tracy’s petition was no exception.
A general rule of law, once a person is adopted, that person is no longer considered to be a child of his or her natural parent for any legal purpose, including inheritance. It was undisputed that Tracy had been adopted by his stepfather when he was approximately 11 years old, some 10 years after the death of Randall. But, the statute which addresses the effect of adoption upon family relationships provides that an adopted child is permitted to inherit through his or her biological parent, if that parent died before the relationship of parent and child had been terminated by adoption of that child by another person. Stated otherwise, since no adoption had occurred during Randall’s lifetime, at the moment of Randall’s death, Tracy was still the child of his biological father.
Yet another Tennessee statute provides that since the birth certificate of Tracy did not identify his father and since no marriage ceremony occurred before or after Tracy’s birthday, which would legitimize Tracy’s parentage, at the time of Randall’s death, Randall had not been established in the eyes of the law as Tracy’s father. Likewise, at no time during Randall’s life did Tracy’s mother or any other person acting on Tracy’s behalf file a court petition to declare that Randall was Tracy’s father. The judge, in recognition of these legal authorities, ruled that, despite grandpa Richard’s lifelong declaration that Tracy was his grandson, Tracy would nonetheless be excluded from the family tree for purposes of distributing Richard’s estate, as if Tracy had never been born.
So what could Richard have done to avoid this result? If Richard had prepared a trust declaring that he wished Tracy to be recognized as his grandchild for purposes of distributing his estate, Tracy would have received one-third of the share that would have gone to Randall, had Randall been living at the time of death. In other words, Tracy, Bobby, and Jeffrey would have each taken one-sixth of Richard’s estate.
In blended family situations and situations like those in Richard’s family, we often advise our clients to simply prepare a trust to dispose of their estate. In a trust, our client can declare that a person shall be treated as their child or grandchild for distribution purposes, regardless of whether, under the law, they would qualify as such. Likewise, under trust, a child or a grandchild can be excluded from the distribution pattern for family members just as easily.
Above all other concerns, our objective in preparing estate planning documents is to carry out our client’s wishes. The documents we prepare are the only way to be certain of accomplishing that goal.
