As simple as it may have sounded to the will-maker, bequeathing property to their children can be a complicated matter if they did not specify these beneficiaries by name. Did they mean stepchildren too? A child whom they gave up for adoption? If someone does not clarify whom they consider their children, this could open up the will to all sorts of challenges and a lengthy probate. In these situations, one has to study the will's wording to determine what the will-maker meant. Of course, if names are listed, then that is all the clarification that is needed. This article refers to situations when you end up with a will that only says "my children", and it is left to the readers to figure out whom is meant by that phrase.
Usually speaking, if a child was officially adopted by the will-maker, then the adopted child will automatically be included in that phrase if there is no specific wording in the will against this interpretation. Now if a will-maker had stepchildren, then anything gifted to "my children" will not automatically go to them. The will would have to have language that indicates that stepchildren are included. What kind of language qualifies for this inclusion will depend on a state's laws.
What if a child was given up for adoption? It is even possible for a family to be unaware of such a relative, but the child could still have a part in the will—sometimes. If a child is adopted by adults who are not relatives, then not only is the biological parent giving up rights and duties, but the child forfeits rights to inheriting from their biological parents. This child would not be included in the group "my children". If the child is adopted by a near relatives, however, that child might sometimes be included in "my children". It will depend on state laws.
What about children born out of wedlock? Again, the answer will rest with ever-changing state laws. There are states where a child born out of marriage would not be included in the words "my children" unless the will clearly says otherwise. Then there are states where such a child would automatically be considered a part of that group, again, unless the will explicitly stated otherwise. Some states only hold to the latter rule in the case of parents; if another relative wants to gift property to someone else's children (for example, "my grandchildren"), then a child born out of wedlock would usually not be counted in that group.
So why did the will-maker not just simply name the people he or she wanted to leave property to? That is because if the will-maker says "my children", this would include children who were born or adopted after the will was drawn up. This would not be true of children born or adopted after the will-maker died, unless very special provisions were made. If the will had to apply to every child who was born into or adopted into the family after a will-maker died, then divvying up the will could be suspended for who knows how long. The only time when a will would extend to a child born after the will-maker's death is if there were "posthumous" children, a child who was conceived but not born before the will-maker's death. These children would be part of the group "my children".
Clearly, nothing is simple about probate, even trying to leave an inheritance for all of one's children. With this high level of complexity, and with so much at stake, you need to work with a legal expert when you are drawing up your will, and when you are acting as trustee over someone else's estate. You need a probate lawyer who is familiar with a state's laws. Call one today!