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Can children of deceased parent "sign" over their estate inheritance to surviving parent.?

Dunlo, PA |

Couple separate. Husband remakes will to leave children as beneficiaries to put into trusts if he dies. Couple rekindle friendship and talk about dropping petition (his lawyer and children know this), but husband dies before done. To avoid trust taxes and wife having to "take against will" - can children sign off on will to leave estate to their mother? (children ages 26-22-19-17)

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Attorney answers 2


I am not licensed in PA, but as a general principle there is only one way someone can "sign off" on a will to leave an estate to someone else. The first is to "disclaim" the right to receive the property in writing. If I disclaim my right to the property, then the next person named in the will inherits it in my place (so, for example, if the will says "I leave all of my property to Child A, but if Child A predeceases me, I leave my property to Child A's issue", then the property would be distributed to Child A's "issue" (children and children of deceased children).

If the will says that the property goes to Mom if all of the children predecease Dad, then a disclaimer would work. But in many states, the property automatically goes to the deceased child's children if the child predeceases. So if any of the 4 children have kids, those kids would probably get the property, not Mom.

If the children all sign a document that says "give the property to Mom instead of to me", that's not a disclaimer - that's a gift from the kids to their mother.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.


The prior attorney offers good advice. Under your facts, you need to look at the trust instrument to see who gets you and your siblings inheritances if you disclaim. Usually, your children would take you bequest; so a disclaimer may not help. But you need to look at the document closely, there may be a way with a series of disclaimers to make it work.
Failing that, the children could make gifts to the parent but if they make gifts of more than $13,000 per year, then they must use up part of their lifetime exemption.
You need to sit down with an experienced estate planning attorney to set up the best strategy here.

Hope this helps.
Mr. Fromm is licensed to practice law in PA with offices in Philadelphia and Montgomery County. He can be reached at 215-735-2336. He was recently featured as a 5Star Wealth Manager in the Philadelphia Magazine, November 2009 issue on page 123.

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