Taxation & Estate Planning

Renunciation of a Will, Part 2: Procedures

By Joel A. Schoenmeyer

Yesterday I blogged about the basics of renunciation of a Will. A few procedural points:

1. Renunciation isn't automatic -- you have to petition the court for it, typically within 7 months after the spouse's Will was admitted to probate. The Probate Act says that "In order to renounce a will, the testator's surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation."

2. By renouncing the Will, the surviving spouse loses any benefit given under the Will. So, for instance, if the Will gives the surviving spouse the decedent's car (only), and the surviving spouse renounces the Will, she will get 1/3 or 1/2 of the probate estate but not necessarily the car.

3. What happens to the interests of the Will beneficiaries in the case of renunciation? The Probate Act addresses that:

If a surviving spouse of the testator renounces the will and the legacies to other persons are thereby diminished or increased in value, the court, upon settlement of the estate, shall abate from or add to the legacies in such a manner as to apportion the loss or advantage among the legatees in proportion to the amount and value of their legacies.

Full post as published by Death and Taxes Blog on December 03, 2008 (boomark / email).