Estate of Walsh

Opinion

COBEY, J.

Ruth E. Walsh and Vincent J. Walsh, as co-administrators with the will annexed of the estate of Mary I. Walsh, appeal from a minute order fixing the inheritance tax payable by the estate.

[897]

In the minute order the trial court overruled appellants’ two objections to the tax as proposed by the inheritance tax referee. The first of these was that in computing the tax, the referee, contrary to Revenue and Taxation Code, section

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did not give effect to certain disclaimers filed by four beneficiaries of the will of the decedent. The second of these was that the reduction in the deduction allowed for payment of administrator’s commissions was unwarranted. We disagree and will therefore affirm.

Discussion

The question posed by the first objection is whether, when distribution of interests in an estate of a decedent is made pursuant to a will contest settlement rather than pursuant to filed disclaimers, the disclaimers should be disregarded in computing the inheritance tax payable by the estate. We believe that they should be. The transfers of interests in the estate of this decedent that are subjected to taxation have not been made pursuant to the disclaimers. If they had been, such interests would have been distributed “as if the beneficiary disclaiming had predeceased the person creating the interest.” (Prob. Code, § 190.6.) That person in this case was the decedent.

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Accordingly, the aforementioned section 13409, giving full tax effect to the disclaimers, does not apply in this case. (See

Estate of Cooke,

57 Cal.App.3d 595, 599 [129 Cal.Rptr. 354].) Instead the state Controller’s regulation 13409, subdivision (b) (Cal. Admin. Code, tit. 18, p. 660.4), applies in pertinent part.

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This means that the settlement agreement is disregarded in computing the inheritance tax due from the estate. Stated otherwise, the tax is