What is a Probate Disclaimer?

The other day I had a potential client call me up with some very sad news.

His grandmother had recently passed away and he needed help probating her estate… but there was a twist.

The grandmother had raised the grandson from birth and later in life the grandson had returned the favor by taking care of his grandmother.

But she died without a will, so under the law the grandson didn’t stand to receive much of an inheritance, even though the family knew the grandmother had intended to give everything to the grandson.

Fortunately, the other family members were willing to help the grandson see through the wishes of the grandmother and get a full inheritance to the grandson.

The way they accomplished this was with a probate disclaimer.

A probate disclaimer is a document that is signed by someone entitled to receive an inheritance disclaiming (giving up) that inheritance.

When this is done the person who disclaims is treated as having predeceased (i.e. died before) the person who has just died and whose estate is being probated.

There are a couple of important rules to remember when it comes to disclaimers:

1. It must be irrevocable and unqualified (i.e. there can be no conditions set on the disclaimer);

2. It must be in writing;

3. The writing must be delivered to delivered to the Personal Representative within 9 months of the later of: (1) the date on which the transfer creating the interest in the disclaimant is made (i.e. date of death); or (2) the day on which the disclaimant turns 21 years of age.

4. The disclaimant must not have accepted the interest disclaimed or any of its benefits; and

5. The interest disclaimed must pass either to the spouse of the decedent or to a person other than the disclaimant without any direction on the part of the person making the disclaimer.

There is ONE important thing to remember before you disclaim any assets. Make sure you know who is next in line for the assets if you disclaim.

You don’t get to choose where the assets go, so it’s important to know all of the consequences of disclaiming before you do so.

If you have any more questions or think you might want some help, click the link below to schedule a phone or in person strategy session. Looking forward to it!

https://pain-free-probate.com/contact

Cheers,

Christopher Small