Can the executor of a will make changes to make things fair for everyone?

A fellow caregiver asked...

Wondering if the executor of a will has to follow the will or can they change things to make it fair all around? Four Grandchildren left in this case. One has 70% left to them & the other three were only given 10%. If the one who has the 70% wants, can they change this to keep family peace IF THEY WANT TO? This has been a very damaging & emotional nightmare for the family for many many years dating back to their parents. One child was not given the same treatment as the other & now this has been handed down to the Grandchildren. Property has also been given to the former & not the latter making it all the worse.

Expert Answer

An executor has no power or authority to change the terms of a will "to make it fair all around," or for any reason. The executor must carry out what the will provides.

However, the beneficiaries of the will may be able to "make it fair all around." First, it may be possible to do this by use of what is called a "disclaimer." A disclaimer is simple a legal document refusing to accept all or any part of an inheritance. No beneficiary is required to accept all (or any) of an inheritance. The beneficiary can decline to accept all or any portion of the gift by disclaiming it. The disclaimed portion of a gift then goes to those who are next in line to receive it.

To know if a disclaimer would work in this situation, you need to know, under the law of the state where the will was written, how disclaimers work in that state. So you'd need to consult an attorney in that state.

Another possibility is for the beneficiary who receives the 70% to give each of the other three beneficiaries portion of his/her inheritance, so that every grandchild gets 25%.

A gift of over $13,000 per year to any one person is technically subject to federal gift tax. However, under current federal estate/gift tax law, no tax must actually be paid unless the giver has given (over his/her lifetime) more than a total of $5 million in taxable gift.

If gifts will be made by the 70% beneficiary, he/she should consult a tax account to handle the technicalities of the federal gift tax.