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Deviating from the exact wishes of the testator

Pittsburg, TX |

I am executor of my Dad's will. In his will, he left what amounts to a penalty clause operating adversely against my brother as he and I are to divide the estate. Can I elect to disregard said penalty clause and divide equally nonetheless

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Attorney answers 3


Possibly. The will needs to be reviewed for certainty, but if the deviation affects only you and your brother, you two can agree to any deviation.

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If the only beneficiaries are you and your brother, this shouldnt be a problem. Depending on the size of the difference in amounts, however, you should have this reviewed to make sure there are no adverse consequences to you. The best would be essentially a settlement by you and your brother agreeing in a probate proceeding to a different distribution. Otherwise, you might have some gift issues. If your estate is well under 5.25M, this shouldnt be a problem, but nonetheless, you should have everything reviewed.

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An experienced probate attorney needs to review the Will and advise you of the legal and tax effects of deviating from its terms. For example, you make be making a taxable gift to your brother if you allow him to have more property than to which he is entitlled. If his share would go into trust and you distribute it to him outright, the remainder beneficaries of his trust would have a cause of action against you for breach of your fidcuciary duty.

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