By Linda M. Toga, Esq.
The Facts: My mother recently died. In her Will she left her entire estate to me. If I had died before my mother, her estate would have passed to my children in equal shares. I would like my inheritance from my mother to pass to my children.
The Question: Is there a way I can accomplish that? If so, what is involved?
The Answer: You can certainly arrange for your inheritance under your mother’s Will to pass directly to your children by renouncing or disclaiming your interest in your mother’s estate. To do so you must use a qualified disclaimer.
How it Works: A qualified disclaimer is a writing in which you identify the assets you do not wish to receive. In this case, you would indicate that you are renouncing your interest in all assets passing under your mother’s Will. The disclaimer does not have any effect on assets such as jointly held property in which your mother may have had an interest or assets that pass according to a beneficiary designation form such as IRAs and life insurance.
The disclaimer must be delivered to the executor of the estate and filed with the surrogate’s court that issued letters testamentary to the executor.
Since your mother’s Will names your children as the contingent beneficiaries in the event you predeceased her, disclaiming your interest in her estate will result in her entire probate estate passing directly to your children. However, if other contingent beneficiaries had been named, your share of the estate would pass to the individuals named in the Will and not your children. That is because a beneficiary who renounces their interest in an estate cannot choose who will receive the disclaimed probate assets. This is true not only when there is a Will, but also when a person who is in line to inherit from an estate where the decedent died without a Will wishes to renounce that inheritance. Where there is no Will, the intestacy statute which dictates which family members are entitled to a share of an estate will govern how assets in the estate are distributed if someone renounces.
Beyond disclaiming your inheritance, there are other strategies that may be used to accomplish your stated goal of having your children receive the assets in your mother’s estate. As with all estate issues, it is important to consult with an attorney with experience in estate administration before filing a disclaimer to make sure the filing will not result in any unintended consequences.
Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.