As an adoptive parent, you are no different than any other parent. The law treats adopted children the same as biological children. However, there are special considerations for people who have adopted children. FastWill is here to help you make an estate plan that takes into account the factors that are most likely to impact all of your children.
Dying Intestate
When you die without a Will the law calls this “dying intestate.” Thankfully, the law puts adopted and biological children on the same legal level. That means if you die without a Will, all of your children have the same right to share your assets. However, since you are reading this article, you should start your estate plan with FastWill right away.
Dying Before Updating Your Will to Include Adopted Child
If you already have a Will and die before updating it with your newly adopted child, your adopted child will also have a right to inherit the same as your biological children. This is a relief, but since FastWill can help you update your Will in minutes, or write a brand-new one, you should go ahead and begin the process.
Severing Ties With Biological Parents
Once you’ve received your adoption decree, your child’s ties with his biological family are legally severed. This is not generally the case with step-children unless you adopted them. This generally means that once a child is adopted, he or she won’t be able to inherit from their birth parents’ estates. This also means the birth parents won’t have any rights to their child’s estate (which could include what the child inherited from you) when they reach adulthood.
What Adoptive Parents Should Put in a Will
A Legal Guardian: Presuming your new addition is under age 18, then you first need to think about who would be the guardian of the child if you died. The courts almost always make the child’s other parent the guardian, but what if your spouse has also passed away? You should strongly consider naming someone else as a backup guardian.
A Division of Property: If you have other children, you need to consider how each child will inherit. Do you intend for all children to be treated equally? Do any of your children have special needs? Remember that your younger children may have different needs than the older ones.
An Executor: An executor is the person who will file your estate plan with the probate court and ensure your wishes are honored, including paying your debts and distributing assets. You should pick someone you trust for this role and also name a backup person.
An Inheritance for Step-Children: While adoptive children are on the same legal footing as biological children, step-children are treated differently. Your step-children don’t have inheritance rights if you have not adopted them. If you want to leave something to your non-adopted step-children, you have to state it clearly in your Will. You could adopt your step-child, but that of course entails serious discussion with the child’s other parents. Usually you can’t adopt a step-child without severing the parent/child relationship. For example, if your wife has a son named Adam from her first marriage, you can’t adopt Adam unless the legal relationship between Adam and his father is severed. An adoption decree typically means that the adopted child can’t inherit from the biological family in the event that the biological parent dies without a Will. However, if Adam’s biological father has already passed away, that won’t sever the connection between him and his biological father’s family - which means he can inherit from them if they leave him a bequest.
The Phrase “All My Children”: An adopted child is automatically included in a Will clause that uses the words “all my children.” Adopted children are also included in the legal word “issue,” which means a person’s lineal descendants. For example, your grandchildren are also your issue.
Special Considerations for International Adoption: If you have adopted a child internationally, then you should consult with lawyers who know about the implications of international adoption on a child’s inheritance rights overseas.
Estate Planning Documents for Adoptive Parents
Last Will and Testament: If you already have a Will, that’s great. You just need to update it. If you’ve never had a Will, then we are ready to help. A Last Will and Testament is a legal document that gives instructions to a court about how your estate should be passed down to others. A Will is the document where you will state your preferences for your child’s legal guardian and alternative guardians. It is also where you will name your beneficiaries and identify your debts and assets.
Health Care Surrogate Forms: You might consider appointing someone as your health care surrogate who can make decisions for you if you are medically unable to make them for yourself. This document is often called an Advanced Directive or Living Will. This document stops arguments between family members over health care and gives clear instructions to your medical care teams. You may prefer to have your spouse or partner make these decisions for you, but the document will give them additional guidance on what to do.
Durable Power of Attorney: A Power of Attorney is a legal document that appoints someone to act on your behalf in financial matters. It is similar to a health care surrogate form, but it applies only to finances. This would be effective if you are unable to make financial decisions for ourself or if you prefer someone else to make those decisions.
Living Trust or Special Needs Trust: Few people really need a Revocable Living Trust. However, it can be appropriate if you have a child or other family member with special needs, or you have a large estate. A trust allows you to transfer assets into the trust. A trustee manages the trust. The benefits of a trust are that it allows you to avoid probate, which keeps your decisions private. You can also leave money to charities.
FastWill’s Top Tips for Adoptive Parents
The most important thing to do is designate a guardian in your Will. However, it is equally important to communicate your wishes to the person you want to be the guardian as well as the alternate guardian. Make sure that they are ready to assume the responsibility and let them know how you want your children to be raised. Communicate the unique needs of each of your children.
The second top tip is to regularly review and update your Will. When your family dynamics and financial circumstances change, you must review and update your Will. Major life changes like marriage, divorce, adoption, the birth of additional children, and moving to a new state may warrant modifications to your estate plan. By keeping your will up to date, you can ensure that your child's best interests are always accounted for.
