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Say a relative passes and leaves all of his money to two of his three children.

His original will split the estate evenly among his three kids but before he passed he had several strokes, and in a fit of spite made a change and wrote a child out.

If I'm the executor and one of the two kids that got an inheritance, can I disclaim 1/3 of my inheritance it and give it to the other child that didn't get anything?

My second question is: Are there tax consequences with this approach? I imagine it would be the same as if the 3rd child inherited based on the will, but want to confirm.

Thank you in advance.

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  • Thank you for specifying, I am in the USA and am asking based on US law. Oct 28, 2023 at 18:38
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    In the UK, disinheriting a child entirely would almost certainly result in the will being contested under the Inheritance Act for failing to make financial provision for a "child of the deceased (whether an adult or a minor)". - The fact that he had a bunch of strokes and acted uncharacteristically would also open up a challenge on the grounds that they "lack[ed] testamentary capacity".
    – Valorum
    Oct 29, 2023 at 10:34
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    In the UK, so long as all the beneficiaries affected agree, (ie, both children who inherit) which at least looks to be the case, they can just arbitrarily rewrite the will, which likely be easier than contesting it. (gov.uk/alter-a-will-after-a-death) Oct 30, 2023 at 10:40
  • @Valorum - UK law is different in Scotland (where a deceased's child is automatically entitled to a share of the estate) from the rest (England, Wales, and Northern Ireland) where a parent can leave their estate to anyone they like. In a case where someone does not include someone who might have expected something, a solicitor can help draft a letter of explanation which would make the will more robust against post-death claims, which are usually discouraged because costs can rapidly eat up an estate. Nov 2, 2023 at 10:44

2 Answers 2

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If I'm the executor and one of the two kids that got an inheritance, can I disclaim 1/3 of my inheritance it and give it to the other child that didn't get anything?

As executor you are required to follow the rules of the will. IF the sums of money are large enough, the sibling that didn't get any money could challenge the last minute changes to the will. Short of a a court decision there is no obligation of the other child who received money to agree to the change.

If you were not the executor, then volunteering to give up part or all of your inheritance would not mean the sibling omitted would get the money; it would just mean a larger sum of money for the rest of the people who did receive money from the will.

Are there tax consequences with this approach? I imagine it would be the same as if the 3rd child inherited based on the will, but want to confirm.

It would not get the same tax benefits that a inheritance gets. The IRS would see it as you receiving 3X dollars as an inheritance, and giving X dollars away. The 3X would not be taxable to you, but the X dollars would be handled under the gift tax rules. If the amount is below the annual maximum there would be no impact. If it was larger than that there can be ways to divide the gift that by spouse and calendar year. If it is huge, then you will have to include it as part of your estate which would reduce the amount you can give away tax free in the future.

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You can gift your share to whoever you want, and will be liable for gift tax on the gift.

Otherwise, you should probably talk to an estate attorney about invalidating the superseding will.

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